Los Angeles Unified School District (PERB 2647E)

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.STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS LOS ANGELES,
Charging Party, 	Case No. LA-CE-5847-E
v. 	PERB Decision No. 2647
LOS ANGELES UNIFIED SCHOOL DISTRICT, 	June 12, 2019
Respondent.
Appearances: Dannis Woliver Kelley, by Ellen Wu, Attorney, for Los Angeles Unified School
District; Bush Gottlieb, by Dana Martinez, Attorney, for United Teachers Los Angeles.
Before Banks, Krantz, and Paulson, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by United Teachers Los Angeles (UTLA) and cross-exceptions
filed by the Los Angeles Unified School District (District) to the proposed decision (attached)
of a PERB administrative law judge (ALJ). At issue in this case is the District’s decision, as
part of converting Crenshaw High School (Crenshaw) into three magnet programs at the end of
the 2012-2013 school year, to displace multiple teachers who had been active within UTLA.
The District’s right to implement the conversion is not in dispute. Rather, the unfair practice
complaint alleged that the District violated the Educational Employment Relations Act
(EERA)1 by declining to select 12 teachers to teach at the magnet programs because of their
protected activity during the public debate surrounding the conversion. Ultimately, except as
1 EERA is codified at Government Code section 3540 et seq. All statutory references
herein are to the Government Code, unless otherwise specified.

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to one of the teachers, Alex Caputo-Pearl (Caputo-Pearl), the current President of UTLA, the
ALJ concluded UTLA failed to demonstrate that the District’s decision was retaliatory. The
ALJ therefore dismissed the complaint allegations concerning the other 11 teachers.
In its exceptions, UTLA contends that the ALJ failed to apply the correct legal
standards and to properly weigh the evidence of retaliation with respect to eight teachers:
Cathy Garcia (Garcia), Meredith Smith (Smith), Cathy Creasia (Creasia), Tracy McKinney
(McKinney), Linh Cao (Cao), Margot Tiff (Tiff), Christina Lewis (Lewis), and Chandra
Roberts (Roberts) (collectively referred to as “displaced teachers”).2 For its part, the District
takes exception to the ALJ’s finding that the decision not to select certain teachers to teach at
the new magnet programs constituted an adverse action. The District contends that the
decision to displace the teachers did not constitute an adverse action because none of them lost
pay or the opportunity to teach in a District school other than Crenshaw. Both parties except to
certain aspects of the ALJ’s legal analysis.
The Board has reviewed the proposed decision, the exceptions and cross-exceptions,
and the responses in light of the record and the relevant law. The ALJ’s factual findings are
supported by the record, and we therefore adopt them as the findings of the Board itself.
Additionally, the Board adopts the ALJ’s conclusions of law insofar as they are consistent with
this decision. Specifically, we agree with the proposed decision’s conclusion that the District
discriminated against Caputo-Pearl because of his protected activity. We also agree that
2 UTLA does not except to the ALJ’s dismissal of the complaint allegations related to
Kenneth Maxey, Lynn Turner, or Sandra Luna. Because those portions of the proposed
decision are not before us, they are final and binding on the parties but otherwise non-
precedential. (PERB Regulation 32300, subd. (c); County of Santa Clara (2018) PERB
Decision No. 2613-M, p 7 [PERB Regulations are codified at California Code of Regulations,
title 8, section 31001 et seq.].)
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UTLA failed to establish that the District released the other teachers for the discriminatory
reasons set forth in the complaint. However, we find it necessary to alter the ALJ’s analysis in
several respects, as more fully set forth below.
PROCEDURAL HISTORY
UTLA filed the operative first amended charge on October 9, 2013, and PERB’s Office
of the General Counsel issued the complaint on December 26, 2013. On January 15, 2014, the
District filed its answer. After attempts at settlement failed, the ALJ opened the record on
September 9, 2014, and then conducted 15 days of non-consecutive hearings, which concluded
on December 10, 2014. After receiving post-hearing briefs from the parties, the ALJ closed
the record on April 3, 2015. The proposed decision, dismissing all allegations of the complaint
except those dealing with Caputo-Pearl, issued on November 10, 2016.
UTLA filed its exceptions on January 10, 2017. The District filed its response and
cross-exceptions on March 6, 2017, and UTLA filed its response on March 27, 2017. The
Board’s Appeals Assistant then sent notice to the parties that the filings were complete and the
case was placed on the Board’s docket. Subsequently, on April 13, 2017, the District filed a
motion to strike UTLA’s response to the cross-exceptions.3
FACTUAL BACKGROUND
Since we adopt the proposed decision’s factual findings, it is necessary to give only a
summary of the relevant facts surrounding this case. By the start of the 2012 school year, the
District believed Crenshaw was failing its students. The school’s lackluster performance was
3 In its motion, the District claimed that UTLA’s response constituted an impermissible
reply because it went beyond the scope of the District’s cross-exceptions. We disagree and
deny the motion for the reasons stated in City of Milpitas (2015) PERB Decision No. 2443-M,
pp. 13-14.
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reflected in its poor academic metrics, low graduation rates, declining enrollment, and
persistent turnover in staff and administration. Thus, after the District concluded that
Crenshaw had not benefited sufficiently from prior extraordinary efforts to improve its
academic performance—including additional funding and training for staff—it determined that
a major transformation was necessary.
After some public deliberation, the District decided to convert the high school into a
magnet school with three theme-based campuses. The parties do not dispute the District’s
authority to take this action. Indeed, over 40 years ago, the District began utilizing magnet
schools to satisfy a court order to combat entrenched racial segregation: “‘Magnet schools’ are
schools which are designated by the district to provide some special classes or programs
generally unavailable at some other schools within the district; the technique attempts to
restructure the curriculum at certain segregated schools so as to attract the voluntary transfers
of students which will promote integration.” (Crawford v. Board of Education (1976)
17 Cal.3d 280, 305, fn. 17.) Under its longstanding policies for magnet conversions, all
current Crenshaw staff—classified, credentialed teachers, and administrators, including the
newly hired principal, L. Remon Corley (Corley)—were ultimately required to reapply for
their jobs.
UTLA Opposition to Magnetization
The District first informed UTLA that it intended to magnetize Crenshaw at a fall 2012
meeting held at the offices of District School Board Member Marguerite LaMotte. Attendees
included District Superintendent John Deasy (Deasy), Corley, Caputo-Pearl, then a member of
UTLA’s Executive Board, and his fellow teacher and former co-chairperson of the Crenshaw
UTLA chapter, Maynard Brown (M. Brown). District and UTLA officials disagreed about the
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necessity and advisability of the planned conversion from the beginning. In particular, Caputo-
Pearl was outspoken in his criticism of the plan at this meeting and at every subsequent
discussion of the subject. For his part, Deasy was equally adamant about the need to take
decisive action to transform Crenshaw’s academic performance.
At roughly the same time as it disclosed its intention to magnetize Crenshaw, the
District also announced its decision to terminate its Memorandum of Understanding (MOU)
with the Greater Crenshaw Educational Partnership (GCEP), a group of civic foundations and
community leaders that had contributed substantial financial and governance assistance to the
school since 2008. The District claimed it decided to terminate its MOU with GCEP because
the MOU had not produced the desired improvements in educational achievement and several
leaders within GCEP were transitioning to new positions in other organizations. Believing that
GCEP deserved at least another year to produce results, many Crenshaw teachers, including
some of the displaced teachers, voiced their opposition to the District’s decision. These UTLA
members, and in particular Caputo-Pearl, believed the District had decided to terminate the
MOU with GCEP as a precursor to “reconstituting” Crenshaw in order to displace faculty,
specifically outspoken members of the union.
The teachers’ opposition intensified when the District confirmed at a faculty meeting in
December 2012 that it was committed to converting Crenshaw into magnet campuses focused
on (1) Science, Technology, Engineering, Mathematics, and Medicine, (2) Visual and
Performing Arts, and (3) Business, Entrepreneurship, and Technology (“BET”). With that
announcement came the realization that all staff would, in fact, be required to reapply for their
jobs. There were several tense moments during that meeting, as teachers and parents raised
questions about the conversion and voiced their concerns. One of the most notable occurred
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during a heated exchange between Caputo-Pearl and Deasy, during which Caputo-Pearl
insistently questioned the rationale for the magnet conversion and also confronted Deasy about
negative remarks concerning UTLA he allegedly made in July 2012.
Subsequently, UTLA members organized numerous public actions in opposition to the
planned magnetizing of Crenshaw. These included wearing red UTLA shirts on Tuesdays,
when faculty meetings were held, leafleting outside the school and at Board meetings where
the magnetization process was discussed, attending Board meetings, holding press conferences,
and a variety of other activities designed to bring attention to their concerns. All of the
displaced teachers and numerous other teachers participated in these activities, to varying
degrees, as more fully discussed in the proposed decision. The District did not contest its
knowledge of these protected activities or of the displaced teachers’ participation.
In response to these actions, Corley engaged in several acts that, while not alleged in
the complaint as discrete violations, were offered as evidence of his animus to UTLA’s
opposition campaign. For instance, teachers testified that Corley used his cellphone to video
record teachers at meetings who asked questions about the magnetization process. He also
made uninvited appearances at some afterschool meetings organized for parents and teachers
and took notes while listening to the discussions. UTLA argued that this unusual conduct
amounted to unlawful surveillance for the purpose of discouraging teachers from engaging in
protected activities. Finally, in the fall of 2012 as the opposition campaign gained steam,
Corley forbade UTLA from using the campus public address system during school hours to
notify teachers about union meetings. UTLA argued that this conduct also evidenced Corley’s
animus to the teachers’ protected activities.
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The Selection Process
As noted, all staff had to apply for a position at one of the new magnet campuses within
Crenshaw. The process was initially supervised and coordinated by various members of
District administration, led by the District’s Director of Intensive Support and Intervention,
George Bartleson (Bartleson), who shepherded several other schools through the magnetization
process that year and in past school years. All current teachers and staff who wished to obtain
a position at the new magnet campuses had to submit an application to Bartleson’s team.
Corley also had to apply to remain principal, and he was the first to be interviewed and offered
a job. All other staff were interviewed by a panel of community members, students, and other
stakeholders beginning in April 2013.
Corley had the ultimate responsibility to select staff; he testified without contradiction
that the decision was his alone to make. According to him, he based those decisions on his
personal experience with each candidate, opinions that other administrators shared with him,
the results of the interview panels,4 and materials in personnel files. Of central importance to
his decision were his personal observations and his determination about how best to achieve
the high standards the District expected to set at the new magnet programs.
The District announced the teacher selections in the final weeks of April 2013. While
none of the displaced teachers were selected, several other UTLA activists were, including
M. Brown, who attended the aforementioned October 2012 meeting with Caputo-Pearl when
the District first notified UTLA that it had decided to magnetize Crenshaw. The District also
4 UTLA criticizes Corley’s asserted reliance on the interview results because the parties
stipulated to the inadmissibility of the ratings, notes, and other impressions documented by the
panel members. But the stipulation did not prohibit Corley from testifying that he reviewed
the results of those interviews or that they factored into his decisions.
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selected James Altuner (Altuner), the other co-chairperson of UTLA’s Crenshaw chapter, a
member of its steering committee, and one of the most active teachers in opposition to the
magnetization process.
The Displaced Teachers
The basic facts surrounding the displaced teachers are as follows:
Cathy Garcia
Garcia taught math at Crenshaw from 2006 until being displaced. For a total of five
years during that time, she served in an elected leadership position for UTLA’s local chapter.
Garcia was chapter chairperson during the 2012-2013 school year, and she also served on the
steering committee. In that capacity, Garcia played a prominent role in opposing the District’s
magnetization process: she asked pointed questions of Corley and other administrators during
faculty meetings, hosted UTLA membership meetings in her classroom after school, posted
materials to the union’s bulletin board, attended Board meetings, acted as UTLA’s Spanish
translator at meetings and during press conferences, and wore red clothing on Tuesdays.
Garcia submitted an application and interviewed for a position at one of the new
magnet campuses, but was not selected. Corley testified that his decision resulted from the fact
that Garcia had been absent for nearly half the school year, including almost all of November.5
Since math was a core academic subject, Corley was concerned that Garcia’s prolonged
absences would negatively affect student learning. Adaina Brown (A. Brown), an Instructional
Specialist and administrator at Crenshaw, corroborated Corley’s concerns. Additionally,
Corley complained that Garcia used works of literature in the classroom, which he felt were
5 At some point in 2013, Garcia applied for and received approved medical leave for
some of her absences during the spring semester.
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unrelated to the approved math curriculum. Corley never documented his concerns about
Garcia’s performance, and Garcia had received satisfactory evaluations in the years prior to her
non-selection. Nevertheless, Corley believed Garcia would not provide the kind of instruction
he was hoping to offer students in the new magnet programs.
Meredith Smith
Smith worked as a math teacher at Crenshaw from 1991 until she was displaced.
During the 2012-2013 school year, she taught math to students in Crenshaw’s gifted program.
Throughout the magnetization process, Smith wore red on Tuesdays and leafleted outside the
school to inform parents about UTLA’s opposition. Smith also attended UTLA meetings
during her lunch hour and publicly expressed her opposition to the magnetization process
during press conferences.
Smith applied and was interviewed for a position at the new magnet campuses. Corley
testified that he did not select Smith because she had previously exercised poor judgment and
was relieved of her duties as Athletic Director when she permitted a coach to return to campus
after he had been banned for engaging in inappropriate conduct with female students.
Additionally, Corley testified that he was concerned that Smith’s recent experience teaching in
Crenshaw’s gifted program would not serve her well since that program was being
discontinued. Corley believed that Smith’s lesson plans and teaching style did not differentiate
between varying student abilities. Crenshaw’s former principal, Sylvia Rousseau, corroborated
these concerns. Finally, Corley testified that Smith’s classroom décor violated District safety
standards, for which he claimed the school received a citation during an unspecified inspection.
As with all the other displaced teachers, Corley never documented his concerns with Smith in
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an evaluation or written warning and never referred her to the District’s Peer Assistance and
Review program.
Cathy Creasia
Creasia taught special education at Crenshaw from 2003 until she was displaced.
Creasia taught in a special day classroom and served as a resource specialist. As such, she
taught students in her own classroom for part of the day and also traveled to other classrooms
to support students who needed special education services. For a time she served as the
chairperson of the special education department. Creasia was a co-chairperson of UTLA’s
local chapter during the 2012-2013 school year. In that capacity she represented teachers in
their dealings with the administration, including disciplinary conferences with Corley. Creasia
also hosted lunchtime UTLA meetings in her classroom and wore red on Tuesdays. She
passed out leaflets and posted materials related to the magnetization process on the union’s
bulletin board. Additionally, Creasia raised concerns to Corley about the future of special
education after magnetization. Caputo-Pearl testified that she was one of the most outspoken
UTLA activists at Crenshaw.
Creasia applied for a position at the new magnet campuses, but her busy evening
schedule did not allow her time to participate in an interview. Corley testified that he did not
select Creasia because she did not complete Individual Education Plans (IEPs) on time and
missed several IEP meetings. These concerns were corroborated by Danielle Frierson
(Frierson), a Bridge Coordinator and experienced special education administrator, who wrote a
couple of contemporaneous e-mails documenting deficiencies with Creasia’s IEPs and meeting
attendance. From Corley’s perspective, the special education department was a primary
concern, since roughly a third of the approximately 120 IEPs were out of compliance at any
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given time. While Corley did not document his concerns with Creasia’s performance, she did
not deny that some of her IEPs were late or otherwise out of compliance. According to
Creasia, however, these failures were due to missing forms or the failure of parents to sign off
on essential documents.
Corley also complained that Creasia did not perform her resource specialist duties and
was often seen sitting in her classroom alone as opposed to providing instructional support to
students in other classrooms as expected. This concern was corroborated by A. Brown, who
testified that she did not see Creasia with students. One of Crenshaw’s Assistant Principals,
Douglas Meza (Meza), also testified that he had found Creasia alone in the Learning Center
when her schedule indicated she was supposed to be in a classroom providing targeted support
to her students. A. Brown and Meza claimed they found Creasia in her classroom working on
her doctoral dissertation instead of providing instruction.
Tracy McKinney
McKinney also taught special education at Crenshaw, where she’d worked since 2007.
Her protected activities included wearing red, attending meetings and rallies, and leafleting
outside school. Additionally, McKinney complained to Corley about class-sizes and the lack
of instructional support.
McKinney applied for a position at the new magnet campuses and interviewed. Corley
testified that he did not select her because he believed she did not set high expectations for her
students or devote enough time to lesson planning. According to Corley, McKinney did not
use grade-appropriate reading texts or otherwise demand very much from her students. He
also cited the fact that she had left students alone in the classroom while she used the restroom.
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Although none was documented, these observations were corroborated by Frierson’s
testimony.
Linh Cao
Cao taught math at Crenshaw from 2008 until she was displaced. During the public
debate about the magnet conversion, she went to UTLA meetings during lunchtime, wore red,
attended a press conference, and leafleted outside the school.
Cao applied for a position and interviewed. Corley testified that he did not select her
because she had poor classroom management skills. Specifically, students felt free to leave
Cao’s classroom and administrators often had to intervene to impose basic discipline.
Although these concerns were not documented in an evaluation, A. Brown testified that she
personally observed these problems and intervened to help control the classroom environment.
Margot Tiff
Tiff taught physical education (PE) at Crenshaw from 1993 until she was displaced.
During the 2012-2013 school year, Tiff wore red, attended UTLA’s meetings, and encouraged
other teachers to do the same. She also attended a Board meeting on the subject of the
magnetization process and asked difficult questions of Deasy and other administrators at a
faculty meeting on the subject.
Corley testified that he did not select Tiff for a PE teaching position because she
excessively failed students and did not build constructive relationships with them. According
to him, students often complained about Tiff’s harsh demeanor. He observed her locking the
gymnasium gates as the tardy bell rung, even as students were rushing to get to her class.
A. Brown also corroborated these observations and stated that she believed Tiff did not
develop positive relationships with the students.
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Christina Lewis
Lewis taught math in Crenshaw’s special education program from 2004 until she was
displaced. Lewis was on the union’s local steering committee and played a vocal role during
the magnetization process. She wore red on Tuesdays, spoke at a Board meeting, and gave a
statement during a press conference. Additionally, Lewis directly confronted Deasy about the
magnetization plan at the December 2012 staff meeting, and raised questions about the
District’s plan to pursue a full inclusion model for students in special education she believed
required a special day class.
Corley testified that he did not select Lewis because she taught at a low level, did not
consistently seek to present grade-level material to her students, and did not support the full
inclusion model that the District had chosen for its special education teaching. Frierson
corroborated these accounts, testifying that Lewis presented basic skills at a third or fourth
grade level.
Chandra Roberts
Roberts taught special education at Crenshaw from 2000 until she was displaced. She
was a member of UTLA’s local chapter steering committee and participated in a number of
actions designed to bring publicity to the union’s opposition to the magnet conversion. Among
these activities, Roberts wore red, attended a press conference, and spoke with a journalist
about the magnetization. Additionally, Roberts expressed concerns to Corley about the impact
of the conversion on the special education department and pressed him to provide more
information about the transition to a full inclusion environment.
Corley testified that he did not select Roberts because she did not support the full
inclusion model that the District had chosen for its special education teaching, she provided
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comparatively poor academic instruction, she failed to adequately supervise students, and she
exhibited poor attendance and tardiness. Many of the observations were corroborated by
Frierson, who stated that Roberts engaged in very little direct instruction and showed a lot of
videos during class time. A. Brown also observed Roberts making jewelry during instructional
time and stated that she informally counseled Roberts for being tardy to school. Roberts
denied these allegations.
According to the District, about 50 percent of the certificated applicants were selected
for a position in one of the new magnet programs. Apart from this statistic, neither party
offered any significant evidence about the applicants or those selected for positions.
Therefore, it is not possible to draw any comparisons between these groups or to compare the
displaced teachers against those who were offered positions.
DISCUSSION
Novato is the correct test for evaluating the District’s actions
It is first necessary to clarify the appropriate legal standard to apply in this case. We
agree with the parties that the evidence should be evaluated under the traditional test for
discrimination set out in Novato Unified School District (1982) PERB Decision No. 210
(Novato) and elaborating decisions. Under that standard, in order to demonstrate that the
District violated EERA section 3543.5, subdivision (a), UTLA must show that: (1) the
displaced teachers exercised rights under the EERA; (2) the District had knowledge of the
exercise of those rights; (3) the District took adverse action against the displaced teachers; and
(4) the District took the action because of the exercise of those rights. (Novato, supra, PERB
Decision No. 210, pp. 6-8.)
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In view of the peculiarity of the magnetization process and its requirement that all staff
reapply for their positions, the ALJ approached this case as if it were a discriminatory refusal
to hire case. Invoking a decision of the National Labor Relations Board (NLRB), FES (A
Division of Thermo Power) (2000) 331 NLRB 9, enf’d (3d Cir. 2002) 301 F.3d 83 (FES), the
proposed decision then analyzed the evidence to answer the following questions: (1) Was the
District seeking to hire teachers at Crenshaw? (2) Were the displaced teachers qualified for the
available jobs? (3) Did anti-union animus contribute to the District’s reasons for not hiring
them?
No one disputes that the District was seeking teachers for its newly formed Crenshaw
magnet campuses or that the displaced teachers were qualified teachers. Rather, the only
question to be decided is whether the District made its hiring decisions for unlawfully
discriminatory reasons. Because a Novato analysis is squarely focused on that question, we
find no practical difference, at least in this case, between the Novato framework and the
framework the ALJ applied. Indeed, the ALJ properly focused her attention on the District’s
motivations for its decision not to hire the displaced teachers. Since the essence of the Novato
test is to determine whether the employer acted for a discriminatory reason (Regents of the
University of California (2012) PERB Decision No. 2302-H, p. 3), this inquiry into the
District’s motivations was appropriate and, as we will explain, the ALJ correctly determined
that UTLA failed to establish those motivations were unlawful except as to Caputo-Pearl. But
before resolving the exceptions relating to motivation, it is first necessary to address the
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District’s exception to the proposed decision’s implied finding that non-selection for a position
at the magnet campuses constituted an adverse action.6
Non-Selection for a Position Amounts to an Adverse Action
The District contends that UTLA cannot state a prima facie case of discrimination
under Novato because the displaced teachers did not suffer an adverse action when they were
not selected for positions at the magnet campuses. 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 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.) In contesting this element of the prima facie case, the District’s logic
rests on the idea that no reasonable employee would consider non-selection to be adverse
because the teachers were only displaced from their former positions but remained salaried
employees.
However, the District’s logic ignores the context: the displaced teachers lost their
positions at Crenshaw by virtue of the magnet conversion, were made to reapply for those
positions, were not selected for new positions, and were thus involuntarily displaced. In other
words, on these facts, we have no trouble concluding that a reasonable employee in these
6 As neither party excepted to the ALJ’s conclusion that the displaced teachers engaged
in protected activities or that the District was well aware of these activities, we accept these
conclusions and will discuss them only as necessary to a full consideration of the exceptions.
(PERB Regulation 32300, subd. (c).)
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circumstances would believe non-selection to be an adverse action. Under Board law, a
performance-based decision to release a professional from his or her longtime position is
almost always in the nature of an adverse action. (San Diego Unified School District (2019)
PERB Decision No. 2634, p. 14). Indeed, the District recognized the adverse nature of its
decision when it “regrettably” informed the displaced teachers of their non-selection in a form
letter; there would be no need to communicate such sentiments were the consequences of this
decision anything but adverse to the interests of the displaced teachers. On this basis, we reject
the District’s exception and conclude that the non-selection constituted an adverse action for
purposes of establishing a prima facie case of discrimination under Novato.
UTLA Proffered Insufficient Evidence of Unlawful Motivation to Outweigh the District’s
Evidence of Non-Discriminatory Reasons for Most of Its Selection Decisions
The majority of UTLA’s exceptions focus on the ALJ’s conclusion that there was
insufficient evidence of specific unlawful motivation to support the complaint allegations,
except with respect to Caputo-Pearl. In short, UTLA contends that the evidence of general
anti-union animus was sufficient to overcome the District’s proffered reasons for its decision
not to select the displaced teachers for positions in the new magnet campuses. In support of
this contention, UTLA urges us to find that the decision to magnetize Crenshaw arose from the
District’s animosity to teachers’ protected activities, and that this animus (along with evidence
of his own antagonism towards UTLA members) influenced Corley to target the displaced
teachers for non-selection. Responding to the District’s evidence of non-discriminatory
justifications, UTLA argues that Corley’s reasons should not be credited because he never
documented his concerns about their performance. Thus, according to UTLA, the evidence
supporting general animus outweighs the evidence supporting the District’s non-discriminatory
motivations.
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We disagree. The proposed decision correctly concluded that UTLA failed to proffer
sufficiently persuasive evidence to establish that Corley’s disputed decisions were motivated
by anti-union animus. To be sure, the parties were locked in a heated disagreement over the
future of Crenshaw and the virtues of the magnetization process. But we must weigh evidence
of anti-union evidence against the significant counter-evidence, including the fact that Corley
chose to hire a number of UTLA-activists, several of whom engaged in protected activities at
least as prominent as the displaced teachers. When all these facts are placed on the scales, we
cannot conclude that most of Corley’s disputed decisions were unlawfully motivated. That is,
UTLA’s exceptions are not supported by a preponderance of the evidence and must be
dismissed. (PERB Regulation 32178; Novato, supra, PERB Decision No. 210, p. 14.)
UTLA’s Evidence of Animus
As recounted in the proposed decision, the displaced teachers engaged in a variety of
protected activities for the purpose of opposing the District’s planned magnetization of
Crenshaw. Although the type and quality of these activities was different in the case of each
teacher, generally all of them participated in public rallies, press conferences, the wearing and
display of union regalia, leafleting, and confrontations with District management over the
magnetization process. Additionally, Garcia was UTLA’s local chapter chairperson and
Creasia was its co-chairperson during the 2012-2013 school year, meaning they, along with
Caputo-Pearl, played an even more prominent role in the union’s opposition campaign.
In response to these increased activities, Corley appears to have begun monitoring
UTLA-members’ activities more closely and took notes of his observations of union
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activities.7 Additionally, Corley took other steps to constrain the union’s activities: in the fall
of 2012, he forbade UTLA from using the public address system, and ended his practice of
meeting regularly with Caputo-Pearl to discuss teachers’ concerns. And the District was
committed to completing the magnetization conversion and thus was antagonistic to UTLA’s
goal of halting that process. But the displaced teachers participated in the same protected
activities as numerous other teachers, many of whom were selected for positions at the new
magnet campuses. Thus, it is not possible to distinguish them or to explain on the basis of
their protected activities alone what role, if any, the District’s animus might have played in
their non-selection.
Of particular note is M. Brown, who had once served as co-chairperson of the
Crenshaw chapter of UTLA. M. Brown attended UTLA’s anti-magnetization rallies and spoke
to journalists at a press conference. He also leafleted and otherwise identified himself with the
opposition to the conversion of Crenshaw. None of these activities prevented Corley from
selecting M. Brown to serve as a teacher at the BET campus. Corley selected several other
standout UTLA activists, including Altuner, another co-chairperson of the local UTLA chapter
during the 2012-2013 school year, and whom Caputo-Pearl identified as one of the most
outspoken opponents of the magnet conversion. While it is true that the manner in which “the
District treats other employees engaged in union activities does not dispose of how it treated
7 We do not adopt the proposed decision’s discussion of surveillance, at pages 67-68.
Because the complaint does not allege unlawful surveillance, it is unnecessary to determine
whether such surveillance amounted to a separate violation of EERA. However, we believe
the facts adduced about Corley’s increased monitoring of UTLA’s activities surrounding the
magnetization—his note taking and video recording during parent and faculty meetings—
should be treated as evidence of animus and have given those facts their appropriate weight in
this analysis. (See County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 19-23
[unlawful surveillance when employer photographs or videotapes employees or openly
engages in recordkeeping of employees participating in union activities].)
19

these [displaced teachers]” (Livingston Union School District (1992) PERB Decision No. 965,
p. 36), UTLA chose to advance a theory that the District intended to rid itself of union activists
at Crenshaw. But the selection of such prominent union activists militates against a finding
that the District in fact made selection decisions based upon anti-union animus. Indeed, the
only difference between the displaced teachers and the activists selected for a position was
Corley’s evaluation of their potential to serve successfully in the new magnet programs.
By contrast, the record contains far more evidence of anti-union animus directed
specifically at Caputo-Pearl. Both Deasy and Corley engaged in public heated exchanges with
Caputo-Pearl at various times during the roughly six-month magnetization process. There is
also evidence that the District specifically singled out Caputo-Pearl as a “troublemaker”
because of his role as a UTLA leader and activist. Finally, as detailed in the proposed
decision, Corley’s reasons for not selecting Caputo-Pearl were not only flimsy, they were
based on untrue rumors of misconduct that Corley never bothered to investigate. That is,
Corley stated that the most significant reason for his decision rested on the unfounded
allegation that Caputo-Pearl gave extra-credit to students who completed surveys related to the
magnet conversion and/or Corley’s practice of robocalling parents on Sundays with
prerecorded messages. Corley made no attempt to verify any of those allegations and simply
accepted them. At the same time, Corley went out of his way to minimize the substantial
contributions Caputo-Pearl made to Crenshaw, including his work with major benefactors like
the Ford Foundation. Given this pattern of both aggrandizing unsubstantiated negatives and
minimizing true positives, all within an atmosphere of anti-union animus, the ALJ rightly
concluded that the District’s non-discriminatory reasons for not selecting Caputo-Pearl were
mere pretexts designed to conceal Corley’s true unlawful motivation.
20

Caputo-Pearl’s case provides a useful comparison in our analysis of the other displaced
teachers. In those instances, UTLA was unable to establish by a preponderance of the
evidence that Corley gave pretextual reasons for his decisions. We turn to those reasons now.
The District’s Non-Discriminatory Reasons for Its Non-Selection of the Displaced Teachers
UTLA contends that the District’s purported non-discriminatory reasons for not
selecting the displaced teachers was insufficient to overcome the evidence of the District’s
animus. When it appears that the employer’s adverse action was motivated by both lawful and
unlawful reasons, “the question becomes whether the [adverse action] would not have occurred
‘but for’ the protected activity.” (Martori Brothers Distributors v. Agricultural Labor
Relations Bd. (1981) 29 Cal.3d 721, 729-730.) The “but for” test is “an affirmative defense
which the employer must establish by a preponderance of the evidence.” (McPherson v.
Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.) In this regard, the
employer must establish both that a legitimate, non-discriminatory reason existed for taking the
adverse action, and that the reason proffered was, in fact, the but-for reason for taking the
adverse action. (Palo Verde Unified School District (2013) PERB Decision No. 2337,
pp. 12-13) (Palo Verde).) Success requires “the employer [to] meet or exceed a charging
party’s prima facie case with equally or more persuasive [evidence in support of its]
affirmative defense.” (Id. at p. 33.) With these principles in mind, we concur with the ALJ’s
conclusion that the District made out its affirmative defense and will address UTLA’s counter-
arguments below.
Before proceeding to those arguments, however, it is important to emphasize that while
non-selection for a new position at the magnet campuses was certainly an adverse action under
Board law, it was not disciplinary in nature. Rather, the magnetization process itself was a
21

unique and extraordinary effort by the District to transform the educational dynamic for the
benefit of Crenshaw’s students. We are not called upon to address the wisdom of this
transformation—that is a matter for the community. But it is evident that the District’s
decision not to choose a particular teacher to participate in that transformation cannot be
interpreted as discipline.
The degree to which evidence constitutes persuasive support for an employer’s
affirmative defense necessarily changes with the nature of the adverse action itself. Thus,
depending on the quality of the prima facie case, uncorroborated testimony from a single
witness is unlikely to be persuasive in the context of a termination premised on a pattern of
misconduct. On the other hand, such testimony could well suffice to justify a written warning.
Since this case arises from a unique, non-disciplinary displacement of numerous employees, it
is necessary to contextualize these decisions before evaluating the persuasiveness of the
District’s evidence in support of its non-discriminatory motivations.
Here, the District’s decision maker, Corley, was faced with the rather daunting task of
supervising the magnetization process (including extensive community engagement),
reapplying for his own job (which he’d held for less than a year), and selecting an entire staff
for three new educational programs—all while performing his usual administrative duties. As
the ALJ correctly acknowledged, it stands to reason that Corley would not have the time to
document every observation on which he subsequently based his staff selections. Moreover,
since non-selection was not a form of discipline, Corley would have no reason either to give a
written explanation for his decisions or ensure that there was an independent documentary
basis for those decisions. This fact—that historically no staff member ever received a reason
for his or her non-selection—is undisputed in the record. In this unique context, then, Corley
22

________________________
was tasked with selecting a new staff and preparing that staff to carry out the magnet
conversion. We must therefore evaluate the persuasiveness of his testimony and other
evidence supporting his decisions in this context.
On this score, we agree with the ALJ that Corley credibly and persuasively testified
regarding his reasons for not selecting most of the displaced teachers. Indeed, as to seven of
the eight teachers—Garcia, Cao, Tiff, Creasia, McKinney, Lewis, and Roberts—Corley’s
reasons were corroborated either by other credible witness or documentary evidence.8 (See
proposed decision at pp. 69-74.) And in Smith’s case, Corley based his decision in part on the
fact that he had to relieve her of her Athletic Director duties because she permitted a volunteer
coach who had been banned for inappropriate conduct with female students to enter campus—a
fact not in dispute. Based on our review of the record, the ALJ was correct to credit Corley’s
explanations and we therefore agree that the District made out its affirmative defense under the
Novato test.9
UTLA attempts to undermine Corley’s reasons with references to various cases that it
asserts require performance-based adverse actions to have been fully investigated and
8 UTLA argues that Berkeley Unified School District (2015) PERB Decision No. 2411
(Berkeley) prohibited Corley from taking into account Creasia, Lewis, and Roberts’ publicly
stated concerns over the use of a full inclusion special education model. While UTLA is
correct, we do not find a violation, as this allegation is not included in the complaint and
UTLA has neither argued nor shown that the unalleged violation doctrine applies. Notably, we
adopt neither the proposed decision’s discussion of Berkeley nor its discussion of Bellevue
Union Elementary School (2003) PERB Decision No. 1561 and Trustees of the California State
University (2008) PERB Decision No. 1970-H.
9 Though the Board is the ultimate fact finder, to the extent that an ALJ assesses
credibility based upon observing a witness in the act of testifying, we defer to such
assessments unless the record warrants overturning them. (Los Angeles Unified School District
(2014) PERB Decision No. 2390, p. 12.) We accord no particular deference to those aspects of
an ALJ’s credibility determination not based on the ALJ’s firsthand observations. (State of
California (Department of Corrections & Rehabilitation) (2012) PERB Decision No. 2285-S,
pp. 10-11.)
23

________________________
documented through verbal coachings, formal discipline, or written performance evaluations.
(See, e.g., Baker Valley Unified School District (2008) PERB Decision No. 1993, pp. 20-21
[rejecting employer’s affirmative defense where it non-renewed a teacher due to problems with
student engagement in his classroom because the district had never before discussed this matter
with him, it was not documented in his performance evaluations, he had no discipline in his
file, and he had no reason to be aware of it]; Chula Vista Elementary School District (2011)
PERB Decision No. 2221, pp. 21-23 [finding no evidence to support employer’s claim that
adverse action was taken because of employee’s poor interpersonal skills].) We take no issue
with those decisions and agree that in the context of disciplinary adverse actions, the
employer’s burden to furnish persuasive evidence in support of its affirmative defense cannot
normally be satisfied without such documentary proof. However, as already noted, this is an
exceptional case, and in this unique context we are persuaded that Corley’s reasons were
genuine.10
The Preponderance of the Evidence Does Not Support a Finding of Discrimination
Returning to the essence of the Novato test, i.e., the determination of the District’s
motivations for not selecting the displaced teachers, we must weigh all the evidence supporting
the District’s justification for its selection decisions against the evidence of its unlawful
motive. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 19;
Rocklin Unified School District (2014) PERB Decision No. 2376, p. 14; Palo Verde, supra,
PERB Decision No. 2337, p. 33.) Here, only the complaint allegations pertaining to Caputo-
10 It should also be recalled that UTLA stipulated to the inadmissibility of the results of
the displaced teachers’ interviews with the stakeholder panels. In the absence of such
evidence, it necessarily became more difficult for UTLA to establish that any of Corley’s
proffered reasons were pretextual.
24

Pearl are supported by a preponderance of the evidence. Unlike in the case of Caputo-Pearl,
there was simply insufficient evidence to prove that the District would have selected the other
displaced teachers for new positions absent the protected activities alleged in the complaint.
Consequently, we uphold the conclusions of the proposed decision except as noted above.
CONCLUSION
For the foregoing reasons, we affirm the proposed decision’s conclusion that the
District violated subdivision (a) of section 3543.5 of the EERA by discriminatorily displacing
Alex Caputo-Pearl from his teaching position at Crenshaw High School. All other allegations
of the complaint are dismissed.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it is found that the Los Angeles Unified School District (District) violated the
Educational Employment Relations Act (EERA or Act), Government Code section 3543.5,
subdivisions (a) and (b). The District violated EERA when it refused to hire Alex Caputo-
Pearl as a teacher at Crenshaw Magnet High School for a discriminatory reason.
Pursuant to Government Code section 3541.5, subdivision (c), it is hereby ORDERED
that the District, its governing board, and its representative shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against certificated employees because of their union
activities.
2. 	Failing to select Alex Caputo-Pearl for a teaching position at Crenshaw
Magnet High School.
25

3. 	Interfering with the right of certificated employees to be represented by
United Teachers Los Angeles (UTLA).
4. 	Interfering with the right of UTLA to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Within ten (10) workdays after this decision is no longer subject to
appeal, offer Alex Caputo-Pearl the teaching position for which he applied at Crenshaw
Magnet High School, or if such a position no longer exists, then a substantially similar
position. If requested by UTLA, the effective start date of the offered position shall coincide
with the end of Caputo-Pearl’s term as UTLA president.
2. 	Within ten (10) workdays after this decision is no longer subject to
appeal, make whole Alex Caputo-Pearl for losses which he suffered as a result of the District’s
refusal to hire him at Crenshaw Magnet High School, including paying him back-pay
augmented at an interest rate of 7 percent per annum, from the beginning of the 2013-2014
school year until the date of the offer of the new position, subject to any mitigation.
3. 	Within ten (10) workdays of a final decision in this matter, post at all
work location where notices to certificated employees are customarily posted, copies of the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
the District, indicating that the District will comply with the terms of this Order. In addition to
physical posting of paper notices, the Notice shall be posted by electronic message, intranet,
internet site, and other electronic means customarily used by the District to communicate with
its certificated employees. Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that this Notice is not
reduced in size, altered, defaced or covered with any other material.
26

4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or to the General Counsel’s designee. The District shall provide reports, in writing, as directed
by the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on UTLA.
Members Krantz and Paulson joined in this Decision.
27

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-5847-E, in which all parties had the
right to participate, it has been found that the Los Angeles Unified School District (District)
violated the Educational Employment Relations Act (EERA), Government Code section 3540
et seq.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against certificated employees because of their union
activities.
2. 	Failing to select Alex Caputo-Pearl for a teaching position at Crenshaw
Magnet High School.
3. 	Interfering with the right of certificated employees to be represented by
United Teachers Los Angeles (UTLA).
4. 	Interfering with the right of UTLA to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Within ten (10) workdays after this decision is no longer subject to
appeal, offer Alex Caputo-Pearl the teaching position for which he applied at Crenshaw
Magnet High School, or if such a position no longer exists, then a substantially similar
position. If requested by UTLA, the effective start date of the offered position shall coincide
with the end of Caputo-Pearl's term as UTLA president.
2. 	Within ten (10) workdays after this decision is no longer subject to
appeal, make whole Alex Caputo-Pearl for losses which he suffered as a result of the District’s
refusal to hire him at Crenshaw Magnet High School, including paying him back-pay
augmented at an interest rate of 7 percent per annum, from the beginning of the 2013-2014
school year until the date of the offer of the new position, subject to any mitigation.
Dated: _____________________ 	Los Angeles Unified School District
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS LOS ANGELES,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5847-E
PROPOSED DECISION
(November 10, 2016)
Appearances: Holguin, Garfield, Martinez & Quiñonez1 by Dana Martinez and Michael
Wertheim, Attorneys, for United Teachers Los Angeles; Office of the General Counsel by
Aram Kouyoumdjian, Attorney, for Los Angeles Unified School District.
Before Valerie Pike Racho, Administrative Law Judge.
INTRODUCTION
A teachers’ union alleges in this case that several teachers, who had to apply to
continue to teach at their school site upon the site’s conversion to Magnet schools, were not
selected for positions in the Magnet schools because of their union activism. The school
district employer counters that, in each instance, the candidates’ non-selection occurred for a
variety of legitimate business reasons and was therefore not motivated by union animus.
PROCEDURAL HISTORY
On September 5, 2013, United Teachers Los Angeles (UTLA or Union) filed the above-
referenced unfair practice charge (charge) with the Public Employment Relations Board
(PERB or Board) alleging that the Los Angeles Unified School District (District) discriminated
1 After the time of the hearing in this matter, the law firm changed its name to Holguin,
Garfield, Martinez, Goldberg, APLC.

________________________
against multiple unit employees in violation of the Educational Employment Relations Act
(EERA) section 3543.5, subdivisions (a) and (b).2
On October 7, 2013, the District responded to the charge allegations through a position
statement.
On October 9, 2013, UTLA filed a first amended charge alleging that additional unit
employees suffered the District’s reprisal in response to EERA-protected conduct. The District
did not file a position statement in response to the new allegations.
On December 26, 2013, the PERB Office of the General Counsel issued a 62-paragraph
complaint against the District alleging that it retaliated against 12 teachers because of their
union activities.
On January 15, 2014, the District filed its answer to the complaint, denying all
substantive violations of EERA and raising affirmative defenses.
On March 12, 2014, the parties participated in an informal settlement conference, but
the case was not resolved and the matter was then set for formal hearing.
The hearing was held on 15 non-consecutive days between September 9, 2014 and
December 10, 2014.
On April 3, 2015, the parties filed simultaneous closing briefs. At that point, the case
was considered submitted for decision.
FINDINGS OF FACT
Jurisdiction
The District admits and I find that it is a public school employer within the meaning of
EERA section 3540.1, subdivision (k), and under the jurisdiction of PERB. UTLA is an
2 EERA is codified at Government Code section 3540 et seq.
2

exclusive representative of a unit of certificated employees of the District within the meaning
of EERA section 3540.1, subdivision (e).
Background for the Decision to Convert Crenshaw High School to a Full Magnet Program
A. 	Magnet Programs
The backdrop of events that ultimately led to the filing of the charge in this matter
involve the District’s decision to convert Crenshaw High School into three Magnet programs,
which collectively came to be known as Crenshaw Magnet High School (Magnet schools).
The hallmark of a Magnet school is theme-based instruction, where the curriculum is designed
around a particular subject area or around a cluster of related subjects. Magnet programs had
their origin in the 1970’s, deriving from a court-ordered integration plan that was meant to
address inequities in racially isolated schools, including: low academic achievement, low self-
esteem, lack of access to post-secondary opportunities, interracial hostility and intolerance, and
overcrowded conditions.
The key part of the Magnet conversion process that led to the present controversy
stemmed from the requirement that all existing staff at Crenshaw High School, including
administrators, certificated employees, and classified employees, had to apply to work in what
the District considered to be a newly formed school. UTLA witnesses characterized the
situation as a “reconstitution” because all staff had to apply to continue working at their former
school site. District witnesses stated that a reconstitution is a legal process where no more than
50 percent of former staff can be re-hired. Magnet conversion, in contrast, does not mandate a
percentage of former staff that can be hired after the conversion process. There was no such
mandated percentage in this case and, therefore, the District maintains it was not a
reconstitution. No contrary evidence was presented.
3

________________________
According to the District’s “Magnet Resource Program Handbook,” Magnet guidelines
were designed by the courts, and therefore strict adherence to those guidelines is required for
compliance. The Handbook states under the heading, “Planning Guidelines”: “Teachers who
are interested in teaching in Magnet programs must apply. They are selected by the school
Principal and members of the Magnet selection committee.” Under the section of Handbook
entitled, “Guidelines for Teachers/Staff Participating in the Magnet Program,” it states:
“Teachers must be selected per Magnet Program Guidelines (Ed. Code 58503: Teachers
employed in alternative schools of choice shall be selected entirely from volunteers. Teachers
must be interviewed and selected for the position by the Magnet School Team. Must-place
assignments are not allowed.” (All emphases in original.) This requirement that all staff,
including teachers, must apply to continue working at a school site that is being converted to a
Magnet has been consistently applied by the District for schools undergoing a full conversion
since the inception of the Magnet program according to Deborah Ignagni, the District’s Interim
Deputy Chief Human Resources Officer.3 No contrary evidence was introduced.
B. 	Governance of Crenshaw High School Before the Conversion
Since 2008, Crenshaw High School had been managed through a unique relationship
between the District and the Greater Crenshaw Educational Partnership (GCEP). GCEP was
composed of community representatives from the University of Southern California, the Urban
League, and the Tom and Ethel Bradley Foundation. GCEP was formed in order to generate
funds for Crenshaw High School with the aim of improving student academic performance.
3 In addition to Crenshaw High School, four other District schools underwent Magnet
conversions during the 2012-2013 school year. All existing staff at those other schools were
required to apply if they desired a position in the new Magnet school, with the exception of
some teachers at King Middle School. There, an existing Magnet program was slated to
continue and the teachers employed in that program had already undergone the Magnet
selection process.
4

________________________
The relationship between the District and GCEP was governed by a memorandum of
understanding (MOU) that was set to expire on June 30, 2013. Under the terms of the MOU,
GCEP played a significant role in the governance of Crenshaw High School.
In the years leading up to the conversion, Crenshaw High School had a high turn-over
rate of administrators. The school had as many as 33 different administrators during a seven
year period. A new principal was required for the 2012-2013 school year. L. Remon Corley
was ultimately selected for the position after he was first interviewed by a large panel that
included members of GCEP, current teachers, parents and community representatives. A
second interview was then held by two GCEP members after the field of candidates had
narrowed to two. The final step was a meeting with and approval by then-Superintendent John
Deasy.4 Before the 2012-2013 school year, Corley did not have any personal familiarity with
the teachers working at Crenshaw High School.
In 2012, in advance of the MOU expiration, the District began to review Crenshaw
High School data from the previous four years to assess whether the MOU would be extended
for another five-year term. The school had persistently low academic performance. Only
2.4 percent of students were proficient in math. The Academic Performance Index (API) score
for the 2011-2012 school year was 550 out of 1000, which was far below the state target score
of 800.5 The pass rate for the California High School Exit Exam (CAHSEE) was 42 percent,
the second lowest in the District. The overall graduation rate was described as “low.”
4 After the hearing in this case, Superintendent Deasy left the employment of the
District. He did not testify.
5 A somewhat brighter spot was the performance of the Special Education department
during the 2011-2012 school year. The department was informed that its API score had
improved by around 90 points from the previous year to 383. Later, that gain was offset by the
discovery that some special education students had been given the wrong assessment. An API
of 383 was still also below the District’s average API of 573 for Special Education.
5

________________________
Crenshaw High School was the recipient of various additional funds from government
and private sources because it was a struggling school. As a result of its poor API rating,
however, Crenshaw High School lost some additional funding in 2012 that had been paid
through the Quality Education Investment Act because it did not meet academic performance
targets. Crenshaw High School was also the recipient of additional funding through a federal
School Improvement Grant (SIG) that remained in effect after 2012. SIG funds provided
additional stipends for teachers through professional development activities and because the
instructional day was extended by 20 minutes. The Ford Foundation also provided additional
sources of funding for the school and professional development stipends for teachers during
some relevant time periods. As discussed further below, Alex Caputo-Pearl, a long-time
Crenshaw High School History teacher and member of UTLA’s executive board, was
instrumental in securing the Ford Foundation funding.6 It appears from the record that some or
all of the programs funded by the Ford Foundation may not have been in full effect during the
2012-2013 school year. However, during that year, Caputo-Pearl was actively trying to renew
the school’s relationship with that entity. Corley testified to attending meetings with Caputo-
Pearl and representatives from the Ford Foundation to discuss educational programs and
funding.
George Bartleson, Director of the District’s division of Intensive Support and
Intervention (ISI),7 was asked by Superintendent Deasy to compile a report of Crenshaw High
School teachers’ base salary plus additional stipends from various sources of additional
6 Caputo-Pearl also was involved in writing the school’s SIG application.
7 Bartleson’s division is responsible for working with schools going through a
“transition,” and/or schools whose governance is shared in partnership with the District and
another entity, such as the case between GCEP and the District running Crenshaw High
School.
6

funding to assess whether the additional training and professional development was yielding
results in terms of student success outcomes. The District concluded that teachers’ additional
compensation through various professional development activities at Crenshaw High School
did not correlate with higher standardized test scores or improved CAHSEE pass rates. On
cross-examination, District witnesses conceded that factors other than teacher performance
including the low socio-economic status of the surrounding neighborhood, attendant high
crime rates and gang activity, and the high turn-over rate of administrators, among other issues,
also likely contributed to poor student performance.
In July 2012, Superintendent Deasy was invited to speak at a GCEP board meeting that
had been widely advertised in the community because of concerns that the District was going
to eliminate some programs at Crenshaw High School. Caputo-Pearl was in attendance at the
meeting and testified about the Superintendent’s remarks. During the meeting, Superintendent
Deasy said that GCEP’s role as a partner in the school was “under review,” that it would be
given another year to continue its existing academic programs, and then the District would
assess what to do with the school and with GCEP. Superintendent Deasy also commented that
some teachers at Crenshaw High School were “too political,” but did not elaborate on his
meaning.
C. 	Programs in Place at Crenshaw High School Before the Conversion
Before the conversion to a “full” Magnet program at the conclusion of the 2012-2013
school year, there were at least two existing Magnet programs at Crenshaw High School that
had been previously in place for some years: the Teacher Training Magnet (which, as its name
implies, was focused on training future educators) and a Gifted Magnet for high-performing
7

________________________
students.8 At some point in time that is not clear in the record, these two Magnet programs
may have been combined into a single one. Another unique educational program in place at
Crenshaw High School in the 2012-2013 and preceding school years was the Social Justice and
Law Academy. According to Caputo-Pearl, who was the Lead Teacher and co-founder of this
Academy, it operated very similarly to a Magnet program in that the curriculum was theme-
based. It was in effect from 2008 to 2013 with enrollment of between 250 and 300 students
per year. A small group of 10 to 15 teachers taught in the Social Justice and Law Academy.
The students in that program received their instruction from that same group of teachers for
their whole four years of high school. Caputo-Pearl also briefly described another Academy in
place at Crenshaw High School during this time period, Business and Entrepreneurship, that
may have operated in a similar fashion to the Social Justice and Law Academy but there was
no detailed information in the record in that regard or about that program in general.
Caputo-Pearl also initiated the Extended Learning Cultural Model—an inter-
disciplinary curriculum that emphasized learning through internship experiences that students
connected to their classroom instruction. After discussing the concept with GCEP board
members Sylvia Rousseau9 and Lewis King, Caputo-Pearl reached out to educational
financiers such as the Ford Foundation and the Annenberg Institute seeking funding and
support. The Ford Foundation ultimately funded the proposal, and the Extended Learning
Cultural Model was implemented in both the Social Justice, and Law and Business and
8 Although the testimonial record is not entirely explicit on this point, it can be fairly
surmised that a “full” Magnet school is one in which all students in the school are enrolled in a
Magnet program, whereas, as was the situation at Crenshaw High School pre-conversion,
Magnet programs can exist in a school that also offers curriculum to students who are not
enrolled in a Magnet program.
9 Rousseau also served as an interim principal at Crenshaw High School during the
2011-2012 school year.
8

________________________
Entrepreneurship Academies. As a result, approximately 30 teachers teaching in both
programs received additional professional development opportunities and stipends. Caputo-
Pearl and Corley had meetings with Ford Foundation representatives during the 2012-2013
school year.
D. 	Community and Union Activism at Crenshaw High School
UTLA had a robust chapter at Crenshaw High School that frequently partnered with a
parent-led group called the Crenshaw Cougar Coalition, apparently so-named for Crenshaw
High School’s mascot. The group had its origins over concerns that parents’ voices were not
being considered during reforms to the school in the mid-2000’s that were connected to the
passage of the federal No Child Left Behind Act a few years earlier. The group remained
active from that time on.
During the 2012-2013 school year, Cathy Garcia was the UTLA Chapter Chair at
Crenshaw High School. As noted before, Caputo-Pearl was then a member of UTLA’s
executive board.10 Union lunch meetings were held weekly, typically on Thursdays, during the
2012-2013 school year in either Garcia’s or Caputo-Pearl’s classrooms. One or two meetings
were also held in Special Education Teacher Cathy Creasia’s classroom. These meetings were
regularly attended by between 20-40 teachers. Several Union witnesses testified that they
frequently saw administrators as they went to weekly UTLA meetings. Crenshaw High School
also held faculty meetings at least once per month on Tuesdays during this time period and
professional development on other Tuesdays during the month. Union supporters wore the
color red on Tuesdays to show solidarity with the Union. Corley testified to his understanding
that teachers wearing red on the same day were doing so to support UTLA.
10 In 2014, after the events at issue, Caputo-Pearl was elected as the UTLA president.
9

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The Crenshaw Cougar Coalition also met weekly during this time period on campus.
There is some debate, as discussed further below, of whether they were authorized to use the
school site for their meetings. Several teachers met regularly with this group, including,
according to Caputo-Pearl (who acted as a teacher liaison), James Derrick, Cathy Garcia,
Chandra Roberts, Christina Lewis, Maynard Brown (Mr. Brown), Meredith Smith, and Margot
Tiff. One parent-member of the group, Eunice Grimsby, was also a member of the GCEP
board.
The District’s Communications in Public and Private Meetings Regarding Magnet Conversion,
the End of the Partnership with GCEP, and “Trouble-Makers”
A. 	Superintendent Deasy’s Phone Call to Lewis King
Around the summer of 2012, one of GCEP’s founding board members, King, assumed
the role of GCEP chairperson. Two other GCEP board members, including the chair, had
recently retired around that time. Superintendent Deasy initiated a phone call to King
sometime during that summer.11 King testified that Superintendent Deasy told King that the
District would not be continuing the GCEP MOU because there were “too many problems with
the Union and its activism at Crenshaw.” King said this concerned him, because it raised the
possibility that the District may end the MOU early. King requested that Superintendent
Deasy meet with the GCEP board to inform them of this news. In June 2012, Superintendent
Deasy had issued a letter to King and other GCEP board members suggesting that the District-
GCEP relationship should be “put on hold” while other avenues of managing Crenshaw High
School were explored. King recalled receiving the letter, but his testimony of when he
received it was imprecise. King also denied that he wrote or was consulted over a letter
11 King testified that from the way Superintendent Deasy began their conversation, the
Superintendent may have intended to call someone else.
10

written around that same time from GCEP board members to Superintendent Deasy, which
included King’s name, that acknowledged that GCEP believed other governance models for
Crenshaw High School should be examined. According to the District, the decision not to
renew the GCEP MOU and for the District to take over full control of Crenshaw High School’s
affairs was a mutual decision between GCEP and the District.
B. 	Meeting in District Board Member Marguerite LaMotte’s Office
On or around October 22, 2012, Caputo-Pearl and fellow teacher Mr. Brown were
summoned to a meeting at District board member Marguerite LaMotte’s office with
Superintendent Deasy, Corley, and Bartleson, from the ISI division. Superintendent Deasy
explained that the District had determined to convert Crenshaw High School to three Magnet
schools and, in the course of that process, all staff would have to apply to work in the new
Magnet programs. Superintendent Deasy also stated that teachers who were a good fit with the
new programs would be selected and discussed possible themes for the new Magnet schools.
Caputo-Pearl inquired whether existing programs would be discontinued and Superintendent
Deasy responded, “Let’s not have a war at this school.” According to Caputo-Pearl,
Superintendent Deasy “reacted negatively” when Caputo-Pearl characterized the action as a
reconstitution. Caputo-Pearl questioned the fairness of forcing teachers who had devoted
many years to the success of the school to reapply for their jobs. Caputo-Pearl also questioned
why the decision had been made at that time, when a few months earlier Superintendent Deasy
had said Crenshaw High School would be reassessed at the end of the 2012-2013 school year
to determine whether existing programs had yielded success. Superintendent Deasy responded
that the school was failing and that the Magnet conversion would go forward.
11

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C. 	First Meeting With the Faculty to Announce the Conversion
Approximately the day following the meeting in LaMotte’s office described above, on
October 23, 2012, the District publicly announced the plan for Magnet conversion in an all-
faculty meeting on the Crenshaw campus. Tommy Chang, the superintendent of the District’s
Intensive Support and Innovation Center (ISIC),12 and Donna Muncey, the chief of the ISI
division (and Bartleson’s supervisor), made the announcement.13 Before this meeting, Chang
and Muncey asked Corley to record the meeting so that the District could prepare written
responses to any questions that were asked. Corley testified without contradiction that a
written response was so prepared. Chang and Muncey also had a private “pre-meeting” with
Caputo-Pearl and teacher/UTLA Chapter Chair Garcia where they explained that they would
announce the planned conversion and tell the staff that they would have to apply to work in the
new Magnet schools. Caputo-Pearl stated to Chang and Muncey that the process was a
reconstitution. He said Chang and Muncey denied that the conversion was a reconstitution and
they “reacted negatively” to that word.
The primary focus of the District’s presentation to teachers in the general faculty
meeting was that the GCEP partnership was coming to an end and that the school’s academic
progress was consistently low. The teachers were informed of the Magnet conversion plan and
told that they would have to apply if they wanted to work in the Magnet schools. Corley used
his cell phone to record the question and answer period of the faculty meeting. Several
teachers asked questions during this meeting. One of them, Regional Occupational Program
(ROP) teacher Sandra Luna, testified that she felt uncomfortable because the meeting was
12 The ISIC division of the District works with schools that have consistently low
student performance levels.
13 Neither Chang nor Muncey testified.
12

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being recorded and because teachers were also asked to state their names when they spoke.
Luna raised a concern during the meeting about Special Education students being affected by
the Magnet conversion. Caputo-Pearl expressed concerns about teachers’ voices being heard
in the conversion process. Garcia criticized the conversion plan for lacking detail about
curriculum, class assignments, and access to instructional materials. Special Education teacher
Chandra Roberts asked whether there would be changes made to that department.
D. 	December 2012 Faculty Meeting With Superintendent Deasy
Superintendent Deasy and District board member LaMotte attended a Crenshaw High
School faculty meeting in December 2012 to further discuss the Magnet conversion plan.
Corley and Bartleson were also in attendance at the meeting. Teachers handed out a UTLA
fact sheet before the meeting that questioned the efficacy of reconstitution in urban schools as
related to improved student performance. Superintendent Deasy’s presentation focused on the
school’s declining enrollment with the loss of students to nearby charter schools and other
Magnet programs, and also students’ persistently low academic performance as reasons for the
District’s decision.14 He described it as a “moral imperative” to convert the school to Magnet
programs. Special Education teacher Christina Lewis asked Superintendent Deasy what
teachers were to do when students were coming to them with second and third grade reading
and math proficiency levels, to which LaMotte interjected, “I’m tired of you teachers thinking
these babies can’t learn.”15 Caputo-Pearl criticized Superintendent Deasy’s expression of there
being a “moral imperative,” by stating to Superintendent Deasy during the meeting:
14 Crenshaw High School had the capacity to accommodate 2,500 students, but its
enrollment during this timeframe was down to 1,300 students.
15 LaMotte did not testify.
13

[W]hy it had taken so long to get around to that moral imperative
when the School District had placed so many administrators at
the school, when some of John Deasy’s allies in the charter
school community had been allowed to pop up charter schools
around the school and drain out the higher performing students,
like where was the moral imperative before. Why now and why
does the moral imperative involve blaming teachers and
reconstituting the school?
Caputo-Pearl and Superintendent Deasy had another exchange during this meeting over
which multiple witnesses from both sides testified. Caputo-Pearl said that he was concerned
that Union leaders and/or advocates would be targeted for exclusion in the Magnet selection
process since Superintendent Deasy had stated at the July 2012 GCEP board meeting that
teachers at Crenshaw High School were “too political,” and he had heard from another reliable
source that Superintendent Deasy had said disparaging things about UTLA activists at the
school. According to Caputo-Pearl, Superintendent Deasy got flustered and angry and denied
making such statements. Teacher Meredith Smith testified regarding this exchange that
Superintendent Deasy accused Caputo-Pearl of “being inappropriate, that he was just trying to
rile people up and get them upset about this whole process.” Teacher Creasia described
Superintendent Deasy as being “spit-hissing mad” in response to Caputo-Pearl’s comments.
Teachers Luna, Roberts, and Lewis all described Superintendent Deasy as being red in the face
and/or loud and angry as a result of the exchange. Corley testified that Superintendent Deasy
reacted by saying to Caputo-Pearl, “you weren’t present at this meeting, and why are you
putting out things that you don’t know if those are true or not.” Corley described the demeanor
of the two men as “just sharing their standpoints,” but not being “mad” at each other.
Bartleson denied that Superintendent Deasy raised his voice during the conversation. Adaina
Brown (Ms. Brown), who held the title of “Instructional Specialist” at Crenshaw High School,
a position that was described as being similar to an assistant principal and as being a part of
14

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Corley’s administrative team, testified as follows regarding Caputo-Pearl’s and Superintendent
Deasy’s discussion during the meeting:
That exchange was, I would say very tense. Dr. Deasy talked
about the data. He talked about his decision to transform the
school because of the data. He said something had to happen.
Alex Caputo-Pearl kind of bantered with him back and forth.
And at one point, Dr. Deasy just said -- No, Alex Caputo-Pearl
said that, why weren’t we asked about it before you made this
decision. And he said, well, Mr. Caputo-Pearl, he said, do you
inform your parents before you make a decision about what’s
going to happen in your classroom, and Caputo-Pearl didn’t
answer. And Dr. Deasy said, and I don’t have to inform you of
what I’m going to do when it comes to the best interest of my
students, and the room fell silent. And I think probably at that
point, everybody could cut the tension with a knife.
E. 	Superintendent Deasy’s Meeting With GCEP Board Members in February 2013
King and Grimsby both testified about attending a meeting at the District’s offices in or
around February 2013 to discuss GCEP’s role in the school given the Magnet conversion.
Neither King nor Grimsby indicated that Corley attended this meeting and there is no other
information in the record to place him there. Donna Muncey was present but it appears that
Bartleson was not. Grimsby was asked directly whether Superintendent Deasy made any
statements about UTLA, and she responded “No.” Grimsby said that Superintendent Deasy
specifically called Caputo-Pearl a “trouble-maker” at the school. She took this to mean that
Superintendent Deasy disapproved of the Social Justice Academy as being “more of a political
thing” that the Superintendent “just didn’t like.” Grimsby also testified that Superintendent
Deasy connected Caputo-Pearl to telephone calls made to Sacramento to complain about the
Magnet conversion plan or Superintendent Deasy in particular.16 Grimsby was upset by
16 Bartleson testified that he was informed of complaints made to the State Department
of Education (DOE), but that the DOE did not identify the complainant. Caputo-Pearl
15

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Superintendent Deasy’s comments about Caputo-Pearl. She had known Caputo-Pearl for
several years through her roles in GCEP and the Crenshaw Cougar Coalition, and as a parent
of students in his classes. When she left the meeting, Grimsby felt it important to warn
Caputo-Pearl that Superintendent Deasy was out to get him. Grimsby and Caputo-Pearl had a
telephone conversation later that same day about the Superintendent’s comments during the
meeting. King testified that during the meeting Superintendent Deasy specifically said
Caputo-Pearl and unidentified “others” in the Union were impediments to moving forward or a
roadblock to progress at Crenshaw High School.
F. 	Faculty Meeting in Spring 2013
At a faculty meeting held during the spring semester in 2013, Caputo-Pearl raised
several issues with Corley regarding teachers’ concerns over access to instructional materials
and poor communication from administration over scheduling matters, as well as issues related
to teachers’ concerns over the Magnet conversion process. Caputo-Pearl said that Corley got
upset, became defensive and said to him, “You’re trying to set me up.” Several other teachers
who were present at this meeting testified about it. According to Special Education teacher
Tracy McKinney, Corley raised his voice in response to Caputo-Pearl, walked toward him and
avoided answering his question by saying, “We’re not going to talk about this.” Teachers Tiff
and Lewis also testified that Corley seemed upset and “cut off” Caputo-Pearl from talking.
Ms. Brown testified that she had never observed any “exchanges” between Caputo-Pearl and
Corley, and that it was “not [Corley’s] personality” to raise his voice, but she was not
questioned about whether she was actually present at the faculty meeting at issue. Corley
generally denied ever raising his voice to Caputo-Pearl during meetings and said they had a
admitted to calling the DOE because he was concerned that Magnet conversion could
jeopardize the school’s SIG funding.
16

very cordial relationship. He was not questioned regarding their interactions at any particular
meeting.
UTLA-Sponsored Activities in Response to the District’s Magnet Conversion Plan
Teachers were understandably concerned about having to apply to continue working at
the Crenshaw High School site after the Magnet conversion. They were worried about losing
jobs that many of them had held for years, building strong community ties. Several teachers,
including Garcia and Caputo-Pearl, had moved near Crenshaw High School specifically to
become more involved in the local area. As described below, UTLA sponsored a number of
events to publicize awareness of the District’s plan within the community and to spur parent
action in response.
A. 	Leafleting
Teachers periodically gathered in front of Crenshaw High School before school started
during the spring of 2013 to hand out leaflets regarding the Magnet conversion process to
parents as they were dropping off students at school. Sometimes the leaflets described
meetings that were scheduled to discuss teachers’ concerns over the process. Teacher
McKinney described the teachers’ purpose in doing so as “to bring community awareness to
the magnetization process.” Teachers testified to regularly seeing administrators outside,
including Corley, while they were leafleting in front of the school.
B. 	Press Conferences
Caputo-Pearl helped organize two press conferences to discuss concerns about the
Magnet conversion. Several teachers attended the press conferences and, as discussed further
below, some of them spoke during the event or were interviewed by the press afterward. Both
conferences were held in front of the Crenshaw High School in late December 2012 or early
17

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January 2013 and were attended by print and television media outlets. Corley and other
administrators, including Bartleson, were present and took notes during the press conferences.
C. 	Attendance at District Board Meetings
Teachers attended District Board of Education (BOE) meetings during November 2012
and January 2013 as a group, many wearing blue t-shirts that signified opposition to what the
teachers believed to be reconstitution of the school. The BOE took action at the January 2013
meeting to formally approve the Magnet conversion plan for Crenshaw High School and two
other schools submitted for conversion that year. A few Crenshaw High School teachers, as
will be discussed below, publicly addressed the BOE. Corley attended these BOE meetings.
D. 	Attendance at Meetings of the Crenshaw Cougar Coalition
As previously noted, the Crenshaw Cougar Coalition was meeting regularly on the
Crenshaw High School campus during the 2012-2013 school year and several teachers
participated in the meetings on a consistent basis. According to Caputo-Pearl, the group met in
what was called the Parent Center. In previous years they had met in the library. Caputo-Pearl
believed that the District allowed the group to meet on campus. Corley, however, testified
about seeing teachers and community members meeting on campus several times in the
relevant time period but he had not authorized them to do so.17 Ordinarily, he would need to
approve a request for any meeting held on school property, but he had not received any such
requests in these instances. Corley observed the following teachers as being at these meetings:
Caputo-Pearl, Mr. Brown, James Altuner, Creasia, Roberts, Tiff, and Courtney Stanton-
Gomez. Corley said that he made no attempt to disband these meetings because he “wanted to
respect the teachers’ right to assemble.” Corley described going into one of these meetings for
17 Corley did not identify that these were meetings of the Crenshaw Cougar Coalition,
but it is clear from the testimony of other witnesses that they were.
18

a few moments because he noticed people entering a campus building after school and he
wanted to see what was going on. He said that it appeared the purpose of the meeting was to
encourage community members to be against the Magnet conversion. He reported staying for
five or ten minutes and then leaving. Caputo-Pearl similarly testified that Corley entered a
meeting of the Crenshaw Cougar Coalition, took notes, and stayed for only around five
minutes. Self-described “parent activist” Kahllid Al-Alim also testified that Corley entered a
meeting that he attended in the Parent Center, took a few notes, and then left after a few
minutes.
Al-Alim described being granted a meeting in Superintendent Deasy’s office with some
other community leaders at some point during the conversion process to discuss his worries
that teachers might lose their jobs at Crenshaw High School in the conversion and requested a
method for parents to petition for teachers to keep teaching there. Al-Alim expressed to
Superintendent Deasy that the Parent Center at Crenshaw High School was under-developed
and needed full-time staff. The Superintendent responded, “well yeah, that’s because it’s
being used for a political purpose.” Al-Alim responded to Superintendent Deasy that while
parents and students often held meetings there, it was not true that these meetings were
somehow political. Al-Alim testified that Superintendent Deasy expressed that the parents and
teachers utilizing the center were plotting to get rid of Corley and to disrupt the Magnet
conversion. Superintendent Deasy did not name any particular teachers that he thought were
plotting in this manner during the meeting with Al-Alim.
19

The Selection of Magnet Themes
Bartleson was the District administrator tasked with primarily overseeing the
conversion process. He had a team of about 30 people assisting him in various ways. The year
before, he had done the same thing at another District site, Westchester High School.
Bartleson explained that his experiences in that process informed his approach at Crenshaw
High School. The existing staff at Westchester High School had to apply and be selected to
work in that school after the Magnet conversion.
The District wanted input from parents and students regarding the academic focus of
the new Magnet schools at Crenshaw. Students were surveyed twice during the school year
regarding their academic interests to start to focus in on potential Magnet themes. In order to
solicit input from parents and interested community members, Corley held twice-monthly
meetings beginning in January 2013 and continuing through the spring called “Coffee With the
Principal.” Bartleson also attended these meetings. Parents were also surveyed over what
kinds of academic themes they would like to see in the new Magnet schools. As a result of the
feedback received from students and parents, a comprehensive “Crenshaw High School Plan”
document was created and three Magnet themes were finally selected: Visual and Performing
Arts (VAPA), Science, Technology Engineering, Math and Medicine (STEMM), and Business
Entrepreneurship and Technology (BET). Bartleson testified that while there was some
support for Social Justice and Law, it was not among the most three popular choices and
therefore was not selected as a Magnet theme. UTLA supporters and officials, including then-
President Warren Fletcher, and members of the Crenshaw Cougar Coalition attended some of
these meetings and expressed opposition to what they termed the reconstitution of the school.
20

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District witnesses testified to their belief that UTLA and its supporters were generally opposed
to the Magnet conversion.
“Coffee With the Principal” meetings also yielded criteria that the community was
looking for in teaching staff for the Magnet schools. According to Bartleson:
They wanted those teachers to teach culturally relevant materials,
they wanted the teachers to submit weekly lesson plans, they
wanted teachers to follow the curriculum that was established that
the principal and the administrators had established, participate in
professional development, do extra[-]curricular activities. Those
are the things that come to mind.
The Application, Interview, and Selection Process for Employees Seeking a Position in the
Magnet Schools
A. 	Administrators
Despite having been recently hired as the Crenshaw High School principal, Corley had
to apply to be the principal of the new Magnet schools, like all other staff desiring a position
within them. There were 10 other applicants for that job. In February 2013, Corley was
interviewed by a large panel of stakeholders that included teachers, parents, community
members, and alumni, as well as Bartleson, who served as the Superintendent’s designee. The
same panel interviewed all 10 applicants. Corley was the panel’s choice and Superintendent
Deasy then approved his selection. The Superintendent always has the final say over the
selection of principals.
After the selection of principal was made, applicants for assistant principal were
interviewed by a panel having similar composition in terms of the representation of stakeholder
groups that were involved in the interviews for principal.18 Corley made the final hiring
18 It is not clear whether Bartleson participated in the interviews of assistant principal
candidates.
21

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decisions for assistant principals. Only one of the assistant principals who was employed at
Crenshaw High School applied for a position in the Magnet schools. That person was selected.
B. 	Teachers and Classified Staff
a. 	Teacher Applications
It was announced in February 2013 that the interview process for teachers desiring a
position in one of the Magnet schools would occur in April 2013. Bartleson asked the
District’s Human Resources staff to provide instruction to teachers explaining the application
process. Teachers were told that if they applied for but were not selected for a position in the
Magnet schools they would become “displaced” from Crenshaw High School, but would
remain employed by the District and retain their base salary, benefits, and seniority levels.
Human Resources staff also held workshops for teachers on résumé writing and interviewing
techniques, including holding mock interviews. Teachers were told that if they were interested
in submitting an application, to prepare a résumé and cover letter indicating their interest in the
specific Magnet programs offered and to which Magnet school they were applying, and to
submit those to Corley and/or Bartleson.
b. 	Teacher Interviews
Bartleson arranged and coordinated all of the interviews for existing Crenshaw High
School staff that were applying for positions in the Magnet schools.19 Interviews were
conducted by a panel. Neither Bartleson nor Corley participated in the interviews as panelists.
Human Resources staff conducted training sessions for the community members, parents,
19 Bartleson’s involvement with the interview process itself only extended to Crenshaw
High School employees who were applying to work in the Magnet schools. As further
discussed below, after the internal staff selections were made by Corley, external candidates
were permitted to apply for positions in the schools. Bartleson and his team had no
involvement with external candidates.
22

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students, alumni, UTLA representatives, and administrators who did serve as panel
interviewers. Panelists were informed that interviews should last approximately 30 minutes.
The questions to be asked during the interviews were shared with the panelists during their
interviewer training and had been derived from the criteria developed during the “Coffee With
the Principal” meetings. Bartleson was present at Crenshaw High School on all of the days
that interviews were held to manage the process and escort candidates to their interview rooms.
Interviews took place after school during the first three weeks of April 2013. Bartleson
testified that a community group within Crenshaw, the Black Education Coalition, approached
him and Chang during the conversion process to suggest that after the interviewers marked
their rating sheets, they should place them in a sealed envelope that would then be given to the
principal. Bartleson explained that this suggestion stemmed from that group’s desire to “avoid
politics in the decisions.” Bartleson agreed with the suggestion and presented it during
“Coffee With the Principal” meetings without opposition. That method was adopted. Thus,
panelists did not discuss their impressions of candidates with each other during the interview
20
process.
c. 	Teacher Selection
Corley had the final say over the selection of all staff, including teachers, who were
chosen to work in the Magnet schools. Bartleson testified that he provided no input regarding
staff selection. Human Resources Interim Deputy Chief Ignagni testified that principals are
vested with the authority to make staffing selections for their schools. Corley testified that he
did not have any input from or conversations with Superintendent Deasy over whom should be
20 The parties stipulated during hearing that they would not seek to introduce
testimonial or documentary evidence about the scores or ratings of candidates that were
generated by the interview panels.
23

selected to work in the Magnet schools. No contrary evidence was presented, despite the
testimony of several teachers who said they did not know who made the final decision or
simply did not believe that it was Corley’s ultimate responsibility. UTLA witness Al-Alim,
who served as a panel interviewer, confirmed that Bartleson told panelists during their training
that Corley would have the final say over staff selections. Final staff selection decisions were
made for internal candidates before external candidates were considered.
Corley testified that in addition to his own observations of and interactions with
Crenshaw High School teachers who were applying for positions in the Magnet schools, he
also considered feedback he received from his administrative team (assistant principals and
instructional specialists) regarding their own experiences with the internal applicants during
the 2012-2013 school year. Corley testified in general that he personally observed teachers
during the 2012-2013 school year around four times. He said that he visited everyone around
the beginning of the year in September and again in or around November. As a part of the
Magnet conversion process, all teachers were observed by a group of District administrators,
including Corley, in February or March. Bartleson was also present for those observations.
Finally, Corley testified to visiting all classrooms again in April or May. Corley’s testimony in
this regard is disputed by all of the teachers who testified. At most, the teachers recall his
visiting them twice during the year and some could not remember him observing them at all.
Corley and the other Crenshaw High School administrators met weekly during this time
period. He testified as follows about the criteria he considered during the teacher selection
process:
We looked at the quality of teacher, the instructional practice.
We were -- We were moving towards a more rigorous program
and so we wanted them to be willing to participate in additional
professional development so that they would be prepared to
24

provide rigorous instruction. We looked at their willingness to
follow Crenshaw High School and District policies. And then
finally, I reviewed specifically the Stakeholder feedback that was
given during the interview panels.
Other than that final statement above, the District did not introduce any evidence showing that
the feedback given from interview panels played any particular role in Corley’s decision not to
select the teachers that are at issue in this case.
Regarding the degree to which a teacher’s overall employment record was taken into
account during his decision-making process, Corley testified that it only played “some” role
and clarified:
A. 	. . . But I made my evaluations strictly off of my
experience with individuals. If they had some egregious things in
there from the past that were -- they weighed more heavily, but
my final decision was based on my experience. I think that’s the
fairest way to evaluate someone.
Q 	Okay. And when you say, my experience, do you mean
from your personal observations?
A 	No, I mean from the time that I have worked with them
and observed them, not just personal, but also feedback that I
received from other administrators, any comments or issues that
arise with parents. My whole experience with them at the school
site.
Notably, all of the teachers at issue here had a consistent history of receiving a rating of
“Meets Standards” on their performance evaluations, which is considered a positive assessment
of performance. Approximately 51 percent of Crenshaw High School teachers who applied to
work in the Magnet schools were selected for positions therein.
d. 	Information Provided to Teachers That Were Not Selected for Positions
in the Magnet Schools
Teachers who were not selected for a position in the Magnet schools were informed of
such by letter in mid-April from Corley. The letter did not provide any specific reasons that
25

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the teacher was not selected. Many teachers testified to sending e-mails to Corley and/or
Bartleson asking for specific reasons that they were not selected and never receiving a
response to their inquiries. GCEP board member Grimsby testified that she asked Corley
during a community meeting held after the selections had been made for the reasons or criteria
that some teachers had not been given positions in the new schools. Corley responded that the
reasons were private and could not be disclosed. 	Only one teacher, McKinney, testified that
Corley said in a faculty meeting in April 2013 that teachers wanting individual results of the
selection process could receive them by e-mail. Then, she testified that a week later he
changed his mind and said no reasons could be provided. No other teacher was questioned
regarding this particular faculty meeting and no others testified about Corley making such
statements. As McKinney’s account on this point is different than all of the other witnesses
who testified, I do not credit her statements on this issue.21
The District’s Human Resources staff held informational meetings for teachers who did
not receive positions in the Magnet schools. It was explained that if teachers did not apply for
and receive positions in other District schools that had openings, they would be considered
displaced and assigned to the District’s contract pool without the loss of their base salary,
benefits, or seniority. The contract pool is not viewed by teachers as an advantageous
assignment. Teachers in the contract pool receive teaching assignments early in the morning
through an automated telephone system, in a way that is similar, if not identical, to the manner
in which substitute teachers receive their daily assignments. Thus, there is a daily level of
unpredictability regarding where a contract pool teacher may have to report to work and what
kind of teaching assignment may be required. Teachers in the contract pool are regularly
21 I do not find that McKinney was testifying untruthfully. Rather, it seems most likely
that she misunderstood the communication she testified about.
26

forced to teach outside of their areas of expertise and grade level. If a teacher in the contract
pool does not receive a teaching assignment through the automated system, they report to a
base school where they could be assigned any number of tasks. One teacher described working
as a hall monitor. Several teachers testified to feeling a level of disrespect by school staff
when they were assigned to the contract pool, as if they had done something wrong or were no
longer considered to be good teachers.
e. 	Classified Staff Selections
Classified employees working at Crenshaw High School had to apply and be
interviewed for a position in the Magnet schools, similar to the above-discussed process for
teachers. Human Resources staff did not provide the same workshops for classified employees
as they did for certificated employees. Corley made the final classified staff selection
decisions. Approximately 50-55 percent of former Crenshaw High School classified staff were
selected for positions in the Magnet schools.
Employees at Issue in the Charge
1. 	Cathy Garcia
Garcia was a Math teacher at Crenshaw High School from 2003-2013. As discussed
previously, she served as the UTLA chapter chair during the 2012-2013 school year and, for
this reason, weekly UTLA lunch meetings were sometimes held in Garcia’s classroom. Before
that, she had served as a UTLA chapter co-chair since 2008. Garcia voiced her criticism of the
Magnet conversion plan during public and private meetings with District officials stating, for
instance, that the timeline for the conversion was unrealistic, questioning whether the District
was violating a recent side-letter agreement with UTLA promising no new reconstitutions, and
other critical comments previously discussed. Garcia also attended one of the two UTLA press
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conferences regarding the Magnet conversion. She did not speak during the press conference
itself, but afterward was interviewed by a Spanish language television station, where she
translated in Spanish some of the remarks made by Caputo-Pearl in English during the
conference. Garcia regularly wore red to support UTLA and posted materials on the UTLA
bulletin board that was located adjacent to Corley’s office. Garcia also made announcements
regarding UTLA matters over the public address system until Corley halted that practice in the
fall of 2012.22 Corley was present for much of these activities, including the press conference
and meetings with faculty and GCEP.23
Garcia was absent for a significant portion of the 2012-2013 school year for medical
reasons. Her absences began sporadically in the fall of 2012. Sometimes she took off a few
consecutive days during that period, another time a consecutive week. By January 2013,
Garcia requested and was approved for an extended medical leave that lasted until around
April 7, 2013.
Garcia applied for a position in the Magnet schools by submitting a résumé and letter of
intent to Corley. Garcia then participated in an interview, but ultimately was not selected as a
teacher for the Magnet schools. As noted previously, teachers that were not selected for a
position were informed of such by a letter from Corley that did not provide any rationale for
the decision. Garcia received this letter.24
22 The issue of the public address system will be discussed in more detail in a later
section of the proposed decision.
23 Because there is no dispute that Corley was present during the UTLA press
conferences, it is presumed that he was aware when a teacher discussed herein attended them.
24 Unless otherwise noted, all of the teachers at issue received the same generic
rejection letter.
28

Corley testified about the reasons he did not select Garcia to be a teacher in the Magnet
schools. First, Corley noted that during one of his observations of a Math class, the students
were reading a book that did not appear to be directly Math-related, but he could not
specifically recall the name of that book. He did not take notes during his observation. Corley
also said he had other reports of students in Garcia’s class reading books or novels that were
not part of the Math curriculum. Since the Math proficiency rate was so low at Crenshaw High
School, teaching from books that were not specific to Math content concerned Corley. He
never raised the issue with Garcia. Corley testified generally that he did not raise every
teacher performance issue or concern that he or his administrative staff observed at Crenshaw
High School during the 2012-2013 school year because of the overwhelming volume of more
serious and pressing issues facing the struggling school during that year, on top of the time
consuming Magnet conversion. He said simply that there was not enough time to document
and follow-up on every performance concern.
Garcia testified during UTLA’s rebuttal case that she assigned a book called
“Flatlands” in her Geometry class that was written by a mathematician during the 1800’s from
the perspective of geometric shapes. She introduced the text as cross-curricular material under
the new state common core teaching standards.
Second, Corley testified to his concern of what he described as Garcia’s excessive
absences before she had requested an extended medical leave. Corley stated that a long-term
substitute could not be secured during that period because administration did not know how
long Garcia would be absent for any given time as she was calling in day-by-day. As a result,
a changing rotation of substitutes had to be secured to cover her classes, which negatively
29

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impacted student learning and was especially damaging in the low performing area of Math.
Garcia was never reprimanded for poor attendance.
Garcia applied for and received a temporary contract Math teaching position at the
District’s Maywood Academy High School for the 2013-2014 school year. She taught Math
there during the summer to increase her chances of receiving a permanent offer. Traveling to
Maywood Academy High School added about 10 miles to Garcia’s daily commute.
2. 	Meredith Smith
Smith was a Math teacher at Crenshaw High School from 1991-2013. During the 2012-
2013 school year she taught in the Gifted Magnet program. Thus, her students were advanced
in Math. She also served as Athletic Director from August 2012-March 2013. Smith regularly
attended UTLA lunch meetings and wore red on Tuesdays.25 Smith also identified herself as a
member of the Crenshaw Cougar Coalition, but it is not clear whether Corley observed her at
those meetings as Smith was not one of the teachers Corley identified as having attended after-
school meetings with parents. Smith was not asked about whether she ever saw Corley during
a meeting of the Crenshaw Cougar Coalition. Smith spoke during the UTLA press conference
in January 2013 over her concerns about teacher retention during the Magnet conversion
process. She leafleted before school in the spring of 2013. Corley was often seen at the
student drop off area during teachers’ leafleting activities.26
25 Smith served as UTLA chapter co-chair in 2004 and a few years after that. There is
no information in the record that Corley was aware of such remote Union activity on Smith’s
part.
26 Because there is no real dispute that Corley was regularly outside during the student
drop off period, it is presumed that he was aware of the teachers discussed herein who
participated in leafleting.
30

Smith applied for a position in the Magnet schools and participated in the interview
process. She was not selected. Smith asked Corley if she could see the results of the interview
panel but never received a response to her e-mail inquiry in that regard.
Corley testified to several reasons for not selecting Smith for a position in the Magnet
schools. First, he highlighted his misgivings over her performance as Athletic Director. He
removed her from that position in March 2013 due to performance issues. In short, it was
alleged that Smith allowed a parent to coach, did not adequately supervise student athletes,
failed to set up a sound system, and allowed a volunteer coach to enter campus after she had
been informed that the volunteer was banned from doing so because of concerns regarding his
conduct with female students. Smith generally denied the allegations during her testimony.
She responded in writing to Corley at the time. She was not issued any written reprimand.
Next, Corley discussed an issue of the décor in Smith’s classroom. According to
Corley, safety code violations due to Smith’s classroom decorations resulted in Crenshaw High
School receiving a citation. The citation was not produced for the record. Corley also said
that Smith refused to remove items from her classroom. Smith admitted that she was informed
about a violation due to some hanging items. Smith said she removed those items. Smith
denied ever being told about any lighting or electrical violations and stated that she was not
asked to fix anything in that regard.
Finally, Corley said upon observing Smith’s teaching, he noticed that she failed to
differentiate her lesson plans based on student need. Smith would make statements to students
like, “you guys should already know this, right?” Then she would move on with her
instruction without waiting for any response from the students. Corley said this concerned him
because after the Magnet conversion there would not necessarily be gifted students in Smith’s
31

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classroom. Particularly, because the Magnet schools were moving to a full inclusion model for
Special Education, there would be students with widely varying levels of performance in the
same classroom and teachers would need to modify lesson plans to ensure that all students
were able to perform satisfactorily. Corley did not take notes during his observations. Smith
was never informed of any teaching performance issue.
For the 2013-2014 school year, Smith secured a long-term substitute assignment at the
District’s Emerson Middle School. After that, Smith went into the contract pool.
3. 	Linh Cao
Cao was a Math teacher at Crenshaw High School from 2008-2013. She frequently
wore red in support of UTLA. She leafleted and attended a UTLA press conference in January
2013. Cao also went to a BOE meeting during the Magnet conversion time period. Corley
acknowledged Cao at the BOE meeting by nodding at her.
Cao applied for a position in the Magnet schools and was interviewed. She was not
selected.
Corley testified regarding why he did not select Cao for a position in the Magnet
schools. Corley said that Cao did not demonstrate good classroom management skills. Corley
testified to a “lack of routine” for students upon entering Cao’s classroom and that they would
simply socialize for a few minutes without direction. Ms. Brown testified that around once per
week she had to respond to a radio call asking for assistance with student discipline issues in
Cao’s classroom.27 Students would wander in and out of Cao’s classroom. Ms. Brown
testified that compared to other teachers, assistance had to be frequently provided to Cao over
student discipline matters. Cao was never reprimanded for classroom management issues.
27 Ms. Brown also testified generally that she shared with Corley all of the performance
issues that she testified about regarding the teachers at issue during the relevant time period.
32

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Cao had a brief assignment in the contract pool until she accepted a contract position at
the District’s Carson High School in September 2013. She voluntarily resigned from that
position a few weeks later for personal reasons. Around a month later, Cao took a teaching
position outside of the District.
4. 	Kenneth Maxey
Maxey was a Physical Education (PE) teacher at Crenshaw High School from 1984-
2013. He also taught Health. From 2006-2008, Maxey held the administrative position of
Dean of Students, which has oversight over student disciplinary matters. Maxey holds an
administrative credential in addition to his teaching credential. In approximately 2010, Maxey
served as an assistant principal for three months. In every year that Maxey worked at
Crenshaw High School, he held some sort of coaching position. Coaching positions are not
permanent assignments, but are assigned on a year-to-year basis. An additional stipend is paid.
The principal of the school has the final approval over coaching positions. In the 2012-2013
school year, Maxey was the assistant varsity football coach.
Maxey leafleted before school during the spring of 2013.28 He said that he wore red
every Tuesday during that time period and regularly attended UTLA lunch meetings. Maxey
attended, but did not speak during, one of the UTLA press conferences at Crenshaw High
School in January 2013.
Before Maxey applied for a PE teaching position in the Magnet schools, Corley
approached Maxey and discussed with him his desire to create a position in the new Magnet
schools that would oversee “in-house” student suspensions. Corley also told Maxey that the
28 Maxey himself was a little unsure of exact dates at times, but other witnesses placed
him at commonly attended events and there is no dispute of his participation in various
protected activities.
33

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PE department in the Magnet schools would be facing a budget cut. Corley asked Maxey to
get back to him “asap” if he was interested in taking the in-house suspension position. Maxey
testified that drawing upon his prior experience as Dean of Students, he knew that the in-house
suspension position would be challenging, and he concluded that he did not want responsibility
over students who had been a problem for other teachers. Maxey informed Corley that he was
not interested in the new position. Maxey then applied for a PE position in the Magnet schools
and was interviewed. Maxey was not selected as a PE teacher in the Magnet schools.
Corley testified to several reasons that Maxey was not selected for a teaching position
in the Magnet schools. First, as he had also explained to Maxey, the PE department budget
was being cut from four positions to three in the new Magnet schools.29 At least one of those
positions had to be filled by a female teacher in order to supervise the female students’ locker
room. As to the other two positions, Corley said that he felt the other two PE applicants had
stronger, more structured PE programs than did Maxey, based on his own observations.
Corley described that Maxey’s PE classes often involved students being able to choose their
own activities or “free play,” which he did not think provided the most rigorous program.
Corley testified to speaking about that particular issue with Maxey during the 2012-2013
school year. Maxey was not questioned about that during his rebuttal testimony.
Corley also gave unrefuted testimony about a conversation he had with Maxey during
the relevant time period where Maxey told him that he was looking for a calmer experience in
his remaining three to four years before he retired and that he was thinking of returning to
coaching college-level basketball. Corley said that Maxey told him he was “on his way out.”
29 The budget cut was due to both declining enrollment and the ability of students in a
Marines ROTC program to get credit for PE through that program.
34

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Corley said that discussion also influenced his decision because he was looking to hire people
for the Magnet schools that would be there long-term.
After being notified that he did not receive a teaching position in the Magnet schools,
Maxey applied for and received a PE teaching position at the District’s Foshay Middle School.
Maxey also was awarded a position by Corley as assistant varsity football coach at the Magnet
schools in the 2013-2014 school year and that position was continuing at the time of the
hearing.
5. 	Margot Tiff
Tiff was a PE teacher at Crenshaw High School from 1993-2013. She was also the
coach for the boys’ and girls’ tennis teams. Tiff actively participated in Union activities during
the 2012-2013 school year. Tiff attended UTLA lunch meetings and regularly wore red. She
attended at least one of the UTLA press conferences over the Magnet conversion. Tiff also
attended with other teachers a BOE meeting over the Magnet conversion. Corley identified
Tiff as being one of the teachers he recognized at a meeting with teachers and parents speaking
out against the Magnet conversion after school (most likely, a meeting of the Crenshaw Cougar
Coalition).
Tiff applied for a PE teaching position in the Magnet schools. She also applied for
tennis coaching positions. She participated in an interview for the teaching position. She was
not selected for a teaching or coaching position in the Magnet schools.
Corley testified about the reasons he did not select Tiff for a teaching position in the
Magnet schools.30 He noted that she had a high student failure rate, which was often for
vague reasons, such as the student was not wearing white socks. Corley said that there were
30 Corley was not questioned about Tiff’s having applied for coaching positions.
35

________________________
numerous student complaints regarding Tiff’s harsh treatment of them, and that he had never
observed Tiff trying to develop a positive relationship with students.31 Corley described a
situation where he observed students rushing to get to the PE area before the bell rang and Tiff
locking the gates and walking away as soon as the bell rang so that the late students would not
be able to participate in class. Ms. Brown also testified to a high volume of student complaints
against Tiff and a high student failure rate. Ms. Brown noted that Tiff often sent students to
the office for discipline for relatively minor issues that Ms. Brown felt Tiff should have been
able to handle herself. Ms. Brown said that Tiff’s “[i]ntolerance to deal with students was a
concern.” Ms. Brown described that in her own personal interactions with Tiff, Tiff never had
a pleasant demeanor. Tiff was never reprimanded for her interactions with students. Tiff
testified that the practice of locking gates at the bell is known as a tardy sweep and is a widely
accepted procedure to encourage timeliness.
Tiff was placed in the contract pool for the 2013-2014 school year. The following year,
she began a long-term substitute assignment at the District’s Virgil Middle School.
6. 	Cathy Creasia
Creasia was a Special Education teacher at Crenshaw High School from 2003-2013 and
served as the department chair during the 2012-2013 school year. She taught Special Day
classes in Algebra and Geometry. Special Day courses are for Special Education students who
have not been “mainstreamed” for a particular subject, that is, assigned to classes with General
Education students. The most common Special Day courses are Math and English.
Creasia was a UTLA chapter co-chair for the 2012-2013 school year. Creasia filled in
for Garcia as chair while Garcia was on leave. In that capacity, Creasia represented teachers
31 No written complaints were produced for the record and no students testified.
36

over disciplinary issues in meetings with Corley. Creasia leafleted with other teachers before
school after the Magnet conversion was announced. Creasia personally raised concerns about
teachers’ working conditions with Corley during the 2012-2013 school year via e-mail and in-
person conversations. One issue raised in that vein was regarding gates being locked that
hindered teachers’ ability to leave campus. Creasia leafleted and regularly wore red. She also
attended UTLA lunch meetings and hosted at least two of those in her classroom in the 2012-
2013 school year. Corley identified Creasia as one of the teachers he observed as being
present at meetings with parents (likely, these were meetings of the Crenshaw Cougar
Coalition).
Creasia communicated with Corley about her concerns for the Special Education
department after the Magnet conversion. Corley announced in a meeting with Special
Education teachers that the Magnet schools would be implementing a “full inclusion” model
for Special Education, meaning that Special Education students would be entirely
mainstreamed with General Education students. Since Creasia was a Special Day teacher, she
was worried about whether there would be a position for her. Corley responded that
administration was still trying figure out the structure of the Special Education department in
the new Magnet schools.
Creasia applied for a position in one of the Magnet schools, but she did not participate
in the interview process. She gave as her reason for not interviewing that she had child care
responsibilities during the interview times and because she was not sure, given the information
about the structure of the Special Education department, whether a position would even exist
for her. She was not selected for a position in the Magnet schools.
37

________________________
Corley testified to several reasons why Creasia was not selected for a position in the
Magnet schools.32 First, Corley noted that Creasia had several late Individualized Education
Plans (IEPs), which forced meetings with parents over those students’ IEPs to have to be
rescheduled and caused the district to be out of compliance with legal requirements. Late IEPs
can result in a teacher being disciplined, but Creasia was not.
Danielle Frierson, the “bridge coordinator” for the Special Education department during
the 2012-2013 school year, testified about general conditions within the department that year
and also about concerns over specific Special Education teachers at issue in this case.33 In the
course of Frierson’s duties, she had occasion to observe the teaching of all such teachers.
Frierson discussed the issues she testified about with Corley during the relevant time period.
In general, Frierson said the department itself was chaotic, in terms of being out of compliance
with timely information in students’ IEPs. Regarding Frierson being required to monitor the
status of Creasia’s IEPs, Frierson testified:
She did not complete her IEPs. She didn’t write them and it was
kind of -- It was a battle to get her to write them. Not a physical
battle, but it was -- I had to beg to get the IEPs done. I just
reassigned her IEPs to other teachers because she refused to do
them, or she did not do them.
Frierson had several occasions to e-mail both Creasia and Corley during the spring of 2013
regarding Creasia’s IEP compliance issues. According to Frierson, Creasia missed all but one
32 Absent from those reasons was that Creasia failed to participate in the interview
process. Thus, it is presumed that a lack of interview was not a contributing factor in Creasia’s
failure to be hired.
33 A bridge coordinator’s duties include overseeing compliance issues regarding IEPs
and curriculum within the Special Education department and being present in IEP meetings
with the Special Education teacher and parents. It is a position included within UTLA’s
bargaining unit, and has no supervisory authority. Nonetheless, the position seems to have a
quasi-administrator quality because of the level of reporting to the principal about teachers’
performance.
38

IEP meeting that school year and Frierson and Corley also corresponded via e-mail regarding
that issue. Creasia was never disciplined for missing IEP meetings.
Another reason given by Corley for not selecting Creasia for a Magnet position was that
she was observed alone in her classroom at times when she should have been supporting
Special Education students in general education classes. Ms. Brown testified that one time she
observed Creasia alone in her classroom with what appeared to be academic journal articles
spread out on her desk. Ms. Brown surmised that Creasia was working on her dissertation
since Creasia was at that time in graduate school pursuing a doctorate.
Creasia was placed in the contract pool during the 2013-2014 school year. In October
2014, she obtained a Special Education teaching position at the District’s Obama Middle
School.
7. 	Tracy McKinney
McKinney taught Special Education at Crenshaw High School from 2007-2013. She
leafleted during the spring of 2013, frequently wore red in support of UTLA, and attended one
of the UTLA press conferences criticizing the Magnet conversion. McKinney raised concerns
with Corley over class sizes during the 2012-2013 school year and also complained about her
teaching aide having been approved for extracurricular activities that kept the aide out of her
classroom for extended periods of time.
McKinney applied for a Special Education teaching position in the Magnet schools and
participated in the interview process. She was not selected to teach in the Magnet schools.
McKinney asked Corley and Bartleson to provide her with the reason for her non-selection but
she never received a response from them.
39

________________________
Corley testified about the reasons that he did not select McKinney for a position in the
Magnet schools. First, he cited an incident during the 2012-2013 school year that was also
confirmed by both Frierson and Ms. Brown. Corley, Ms. Brown, and Frierson were visiting
classrooms one day with a group of District Special Education administrators. As the group
approached McKinney’s classroom, they observed her outside of it. Frierson asked if it was
McKinney’s conference period and McKinney said “oh no,” and began to walk away. Frierson
explained that they were there to observe McKinney’s classroom, and McKinney said she
would be right back. Frierson said to McKinney, “shouldn’t you be in your classroom?”
Then, McKinney turned around to come back to her room. Frierson used her own key to
access the room.34 Upon entering, Frierson observed a teacher’s aide eating sunflower seeds
while the students socialized. McKinney entered and said, “okay kids, change of plans,” then
started a lesson. According to Ms. Brown, she wrote a memo over the incident and had a
discussion with McKinney about it. The memo was not produced for the record, and
McKinney denied that she received any verbal or written counseling over leaving her students
unattended. Corley said he had been advised of more than one incident of McKinney leaving
her classroom while students were present. McKinney generally denied ever doing so
inappropriately.
Corley and Frierson also described that McKinney appeared to be using instructional
materials that were not appropriate for high school grade levels, but appeared more geared
toward the seventh or eighth grade levels. Corley also observed that students did too many
independent work sheets without instruction from McKinney. McKinney was never informed
of any deficiencies regarding her instructional levels.
34 Frierson had keys for all of the Special Education classrooms.
40

For the 2013-2014 school year, McKinney applied for and received a permanent
position at another Magnet high school in the District, the Academy of Medical Arts in the
Carson Complex. Ms. Brown wrote McKinney a letter of recommendation after McKinney
was not selected for the Magnet schools.
8. 	Christina Lewis
Lewis was a Special Education Math teacher at Crenshaw High School from 2004-
2013. Lewis was active in the Union during the 2012-2013 school year by regularly attending
UTLA lunch meetings, wearing red, and leafleting. As previously discussed, Lewis was the
teacher to whom BOE member LaMotte replied a sharp retort to Lewis’s comment during a
faculty meeting regarding students’ coming to Crenshaw High School with grade school level
proficiencies. Lewis also spoke during a UTLA press conference and was interviewed by the
press after a BOE meeting. Her comments were regarding the Magnet conversion having a
negative impact on the Extended Learning Cultural Model and that the process itself was a
disservice to teachers. Lewis saw Corley during and after the BOE meeting.
Lewis applied for a Special Education teaching position in the Magnet schools and
participated in the interview process. She was not selected. Lewis twice asked Bartleson for
an explanation over her non-selection but never received a response.
Corley testified about the reasons he did not select Lewis to teach in the Magnet
schools. First, Corley did not think Lewis’s instruction had a high level of rigor. He believed
that her lessons were not grade-level appropriate curriculum, but were geared toward
elementary students. Frierson also shared that impression, but that was Frierson’s only
criticism of Lewis’s teaching.
41

Second, Corley heard Lewis publicly express her opposition to the full inclusion model
of Special Education that was to be implemented in the new Magnet schools. During the time
period leading up the conversion, the District’s Special Education division visited Crenshaw
High School to hold an informational meeting for parents. Special Education teachers and
Corley also attended this meeting. According to Corley, Lewis was one of three Special
Education teachers who stated during the meeting that Crenshaw’s Special Day students would
not be able to handle full inclusion and that the model would not work. Lewis admitted that
she was opposed to full inclusion and that she articulated her opposition. Corley testified as
follows regarding how teachers’ opposition to full inclusion influenced his selection decision:
I wanted to make sure that teachers who were being a part of
whoever [sic] were going, wanted to do what we were doing.
And if they had no interest in what we were doing, then it wasn’t
an appropriate fit for where we were going as a school.
Lewis applied for several Special Education teaching positions within the District soon
after she was informed that she had been selected to teach in the Magnet schools. She was
provided a letter of recommendation from Ms. Brown. Lewis was offered and accepted a
position teaching Science for Special Education students at Los Angeles High School
beginning in the 2013-2014 school year. Lewis had to undergo 50 hours of unpaid training to
move from teaching Math to teaching Science. The new location added many hours to her
weekly commute.
9. 	Chandra Roberts
Roberts was a Special Day class teacher during the 2012-2013 school year. She taught
at Crenshaw High School from 2000-2013. During the relevant time period, Roberts was
active in the Union by frequently wearing red, leafleting, and attending UTLA lunch meetings.
Roberts is also one of the teachers Corley mentioned observing at meetings with parents (i.e.,
42

________________________
the Crenshaw Cougar Coalition). Roberts attended a UTLA press conference in the spring of
2013 and spoke afterwards to a journalist. As previously discussed, Roberts raised a concern
to Corley about the Special Education department after the Magnet conversion during a faculty
meeting to discuss the District’s plan for the school. Roberts testified that she visited Corley’s
office between five and seven times after the conversion plan was announced to inquire about
the District’s plan for training for teachers in the full inclusion model of instruction.
Roberts applied for a Special Education teaching position in the Magnet schools and
participated in an interview. She was not selected to teach in the Magnet schools. Roberts
asked Corley for an explanation over why she was not successful, but she never received a
response.
At hearing, Corley explained why he did not select Roberts. First, Corley noted that he
had several times observed Roberts showing videos during class time and he believed it was
excessive. Although Roberts was never formally reprimanded over the issue, Corley testified
to having a discussion with Roberts about it. According to Corley, Roberts explained that she
wanted the students to view a video before doing projects and activities related to what they
were viewing. But Corley did not think that was a strong strategy since the students were not
taking notes while watching. Roberts testified during UTLA’s rebuttal case. When she was
questioned whether “anyone” ever spoke to her about the use of videos in her instruction she
said, “no.”
Next, Corley identified Roberts as the second of the three teachers in the Special
Education department’s meeting with parents who expressed opposition to the full inclusion
model.35 Corley said that Roberts, “stood up at the meeting and stated to the parents that this
35 The third teacher was Cathy Creasia.
43

is a mistake, it’s not going to work. The students in our Special Day classes will not be able to
make it.” Corley said this bothered him because he wanted to select teachers for the Magnet
schools who had high expectations for student achievement, and the “discussions around that
comment were that Special Education students cannot, students with disabilities cannot.”
Corley said his priority was to “make sure we filled the school with people who truly believed
that students could learn.” Roberts denied that she told parents the full inclusion model would
not work. Rather, she said that she told them it would take “a lot of training” and because the
District would not describe what training was going to be used or available that “it’s going to
be very difficult.”
Corley also noted that Roberts had often been late to school. Ms. Brown confirmed that
Roberts was late on average once per week during the 2012-2013 school year. According to
Ms. Brown, she and Roberts had a conversation about tardiness at the sign-in counter one day
when Roberts was late, where Roberts asked if it was a new policy of Superintendent Deasy’s
for teachers to sign-in when late and Ms. Brown replied that it was in the UTLA contract for
teachers to be on time to work. Roberts was never disciplined for tardiness. Ms. Brown also
observed Roberts making necklaces in her classroom during instructional time while students
were present and working independently. Roberts was making the necklaces while chatting
with another teacher that Ms. Brown believed may have been on her conference period.
Ms. Brown said she knew the necklaces were for Roberts’s personal use because Roberts told
Ms. Brown she was making the necklaces to sell. During rebuttal, Roberts admitted to making
jewelry but denied doing it during instructional time. I credit Ms. Brown’s testimony over
Robert’s because it was more detailed and therefore more believable. Roberts was never
disciplined over the necklace issue.
44

Finally, Corley noted that he had received reports from campus staff that Roberts had
been releasing students early. Corley testified that he had a conversation with her about it and
she said she would make sure that did not happen again. She did not receive any written
counseling. Roberts denied the conversation occurred but admitted that campus staff
frequently had to return students to her room who would leave without permission.
Roberts was placed in the contract pool during the 2013-2014 school year. She testified
that she was scheduled for an interview at the District’s Adams High School for that year, but
when they saw that her résumé said she had worked at Crenshaw High School, they did not
even want to conduct it saying that she would not be a good fit at their school. Roberts insisted
on completing the interview, but did not receive an offer from Adams. The following school
year, Roberts obtained a Special Education teaching position at Obama Middle School.
10. 	Lynn Turner
Turner was not available to testify in the hearing. Thus, there is no information in the
record regarding her employment history with the District. Caputo-Pearl testified that Turner,
who was also known by the last name Burns, was among the “most active” Union members at
Crenshaw High School. Garcia testified that Turner attended one of the UTLA press
conferences over the Magnet conversion.
It can be fairly presumed that Turner applied to work in the Magnet schools, but was
not selected, because Corley testified to the reasons that she was not chosen. He also testified
to reviewing her application materials, although these were not introduced. It is similarly not
clear whether she was interviewed. Corley testified that Turner was often absent from required
faculty meetings and after school events, such as parent conferences and back-to-school night.
Since one of the criterion for selection in the Magnet schools was teachers’ willingness to
45

participate in additional professional development, Turner’s absence from these required
events concerned him. He expressed his disapproval over her absences to her verbally during
the year in question, but he never issued her any written reprimand. Corley also testified to his
observations of Turner’s teaching. He said he was concerned with a lack of rigor in her
instruction and the fact that she also did not have a good relationship with several students.
Some students had to be removed from Turner’s class due to complaints of students not being
able to work effectively with her. There is no evidence of any discipline against Turner in this
regard. There is also no evidence of Turner’s employment after she was not selected for a
position in the Magnet schools.
11. 	Sandra Luna
Luna was a Landscaping teacher at Crenshaw High School from 2010-2013. Unlike the
other teachers at issue, Luna was employed by the Adult Education division of the District
under an annual renewable contract. Her position was part of the ROP curriculum. ROP
classes are offered depending on the funds available and at the school’s discretion, according
to Luna. Luna holds Career Technical Education (CTE) credentials in the areas of Natural
Resources and Agriculture, Business and Finance, and Information Technology.
Luna participated in UTLA activities during the 2012-2013 school year. She leafleted,
attended UTLA lunch meetings, and wore red every Tuesday. In September, October, and
November 2012, Luna e-mailed Corley about needed supplies for her Landscaping class. She
did not receive a response. If she saw him and verbally reminded him about the issue, Corley
would say something like, “I’ll get to it Ms. Luna.” Luna also spoke regarding her concern
over Special Education students during the October 2012 faculty meeting held to announce the
Magnet conversion.
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Luna applied for a Landscaping teaching position in any of three new Magnet schools,
but noted that the STEMM Magnet was her first choice.36 She participated in the interview
process. Luna was not offered a position in the Magnet schools. Luna e-mailed Corley asking
for an explanation but she did not receive a response.
Corley explained at hearing why Luna was not selected to teach in the Magnet schools.
Corley testified that Landscaping was no longer offered as a class in the new Magnet schools.
He said that there was not going to be an ROP position in the new schools for which Luna was
qualified. Corley explained that there were only to be 2.5 ROP positions to be offered in the
new Magnet schools: a Sports Therapist for the STEMM Magnet, a Graphic Designer for the
VAPA Magnet, and a someone who could teach both Computer Information Systems and
Accounting for the BET Magnet. He did not believe that Luna’s credentials qualified her to
teach any of those classes. Corley said he never had a discussion with her about whether her
CTE credentials would have qualified her to teach Computer Information Systems and
Accounting because she was asking to teach something else. At any rate, even if she had been
qualified to teach the Computer Information Systems part of the course, he did not believe she
was qualified to also teach Accounting and it was a joint class that could not be separated for
budget reasons. Corley selected Mr. Brown to teach that course because of Mr. Brown’s
extensive contacts in the business community that could provide internship opportunities for
students.
Luna’s employment with the District effectively ended when she did not receive a
position in the Magnet schools because her contract expired at the end of the 2012-2013 school
year. As she was not a permanent teacher, she was not displaced and assigned to the contract
36 Luna emphasized in her letter of interest that her Landscaping class was applicable to
any and all of the three Magnet schools.
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pool as were other teachers at issue who were unable to secure a new permanent position at a
District school. Luna looked for other Landscaping ROP positions within the District but there
were none. She was also not able to find any other kind of District ROP position. Luna said
she contacted the District’s Human Resources department many times for assistance but did
not receive any. She ultimately secured employment outside of the District in May 2014.
12. 	Alex Caputo-Pearl
Caputo-Pearl has been a teacher at the District since 1997. He was employed at
Crenshaw High School from 2001-2013 within the Social Studies department. He taught a
variety of classes, including: Government, Economics, United States History, World History,
and CAHSEE preparation.
Caputo-Pearl’s Union positions and activities during the timeframe at issue, as well as
his leadership and programmatic contributions to Crenshaw High School, have been
thoroughly discussed in preceding sections of the proposed decision. In addition to what has
already been described, Caputo-Pearl also met with Corley in a representative capacity on a
regular basis in October and November 2012 to raise teachers’ concerns over employment
conditions. Caputo-Pearl discussed with Corley in these meetings topics such as teachers’ lack
of access to instructional materials, technology issues, issues surrounding the school calendar
and teachers’ attendance at school events, and committee functions. Corley abruptly ended the
practice of meeting with Caputo-Pearl in late-November 2012 without explanation. In
December 2012, Corley again, without explanation, ended a years-long practice of UTLA
representatives being able to use the school’s public address system to announce lunch
meetings and other events. At hearing, Corley explained that he restricted use of the public
address system during school hours “consistent with District policy,” but that it was available
48

for use before and after school. Corley also mentioned that, if he received a text message from
Caputo-Pearl stating that they needed to announce a meeting, Corley would make the
announcement for UTLA. Caputo-Pearl also attended BOE meetings about the Magnet
conversion with his fellow teachers and wore Union t-shirts and insignia during the 2012-2013
school year.
Caputo-Pearl applied for a position in the Magnet schools and participated in the
interview process. He was not selected. 	Caputo-Pearl sent e-mail messages to both Corley
and Bartleson asking for an explanation regarding his failure to receive a teaching position in
the new Magnet schools. Caputo-Pearl did not receive a response from either of them.
Corley testified about several reasons why he did not pick Caputo-Pearl to teach in the
Magnet schools. First, Corley believed that Caputo-Pearl was showing too many videos.
Corley noted a lack of student engagement during the video watching. Corley noticed on one
visit to Caputo-Pearl’s classroom that students did not appear to have text books with them.
When Corley asked a student about that, the student replied that they did not bring the book to
class. Corley never communicated with Caputo-Pearl about the videos or text book issues.
Corley also thought that the posted student work in Caputo-Pearl’s classroom was stale, being
up to four months old. Corley had a school-wide policy that posted work should be current.
Caputo-Pearl admitted that Corley discussed that issue with him one time.
Finally, Corley testified that the “significant” factor in his decision not to hire Caputo-
Pearl to teach in the new Magnet schools was a rumor that Caputo-Pearl had awarded extra-
credit to his students for their completion of surveys over either the Magnet conversion, or
about Corley’s practice of calling parents with a recorded message on Sunday evenings.
Corley said that a student named “J” had made such a statement about the survey credit in
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January 2013.37 Corley never talked to Caputo-Pearl about this allegation nor did any
investigation. Corley admitted that he did not actually know whether Caputo-Pearl had given
credit of any kind to his students for their completing surveys. Corley said that he was in the
process of writing up Caputo-Pearl, but was not able to complete that process due to a personal
medical issue in Corley’s family. Corley’s testimony on this point was not entirely clear on
whether he intended to issue a written reprimand to Caputo-Pearl on the survey issue, or if it
was over something else. Ms. Brown testified to her awareness of the survey credit issue. Ms.
Brown said that she thought the issue was resolved based on her belief that either Corley, or an
assistant principal, Douglas Meza, had talked with Caputo-Pearl about it. Meza testified, but
was not questioned about whether he ever discussed with Caputo-Pearl his giving extra credit
for surveys.
During cross-examination, Corley was asked about his earlier testimony over
Mr. Brown’s community connections and to explain why he thought those connections could
provide opportunity for students. Corley’s response to that question (the first response in the
excerpt below) led to questioning over his comparative familiarity with community
connections cultivated by Caputo-Pearl:
A 	Mr. Brown had developed an extensive list of partnerships
and relationships in regard to internship opportunities, job
shadowing, corporate visits that exposed our students to activities
that are specifically aligned to the goals of the BET Magnet
Program.
Q 	Okay. Now, are you familiar with similar programs that
Mr. Caputo-Pearl presented or helped bring into the school?
A 	Not to the extent that I’m familiar with those.
Q 	You’re not familiar with any of them?
37 The student’s name is redacted from the record for privacy.
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A 	Not like -- Not like I know these, no.
Q 	Are you familiar -- I’m not asking you about comparing
them with Mr. Brown. Are you familiar with any of them?
A 	I knew there were some groups that came in to do some
work, but I never -- I didn’t know specifically all what they were
doing, no.
Q 	And what groups are you talking about?
A 	I heard about the Sierra Club, and I had one conversation
with one of the groups, I forget the name, the name of the group,
but it was community action -- I forget the exact title of the
group, but one of them I did have a conversation with.
Q 	Are you familiar with the Ford Foundation as it relates to
Crenshaw?
A 	Yes.
At that point, Corley described that he had actually met with Caputo-Pearl and Ford
Foundation representatives and had several conversations with those people during the 2012-
2013 school year to discuss the Extended Learning Cultural Model and other educational
programs.
Caputo-Pearl applied for and received a teaching position in the District’s Frida Kahlo
High School for the 2013-2014 school year. At Frida Kahlo, Caputo-Pearl taught most of the
History/Government classes he taught at Crenshaw, and several others that he had never taught
before, such as, Expository Composition, World Literature, and PE. There was no lead teacher
position available for him at Frida Kahlo as there had been at Crenshaw. Frida Kahlo was not
a recipient of SIG funds. During the 2014-2015 school year, Caputo-Pearl began full release
time for his duties as UTLA president.
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Other Crenshaw High School Employees Not Directly at Issue in the Charge
Witnesses for both parties were questioned over the level of Union activism of other
former Crenshaw High School employees who were not at issue in the charge and who were
selected by Corley to teach in the Magnet schools. Of those employees, Altuner and
Mr. Brown were discussed most frequently. Neither of them testified. Corley testified to
observing both Altuner and Mr. Brown at after school meetings with parents that, in context,
were likely meetings of the Crenshaw Cougar Coalition. Altuner was a UTLA chapter co-chair
or vice chair during 2012-2013. Garcia testified that Altuner attended one of the UTLA press
conferences. Several UTLA witnesses, including Smith and Cao testified that Mr. Brown
frequently leafleted with teachers before school. Cao remembered Mr. Brown speaking up at a
faculty meeting over the conversion. Lewis recalled Mr. Brown attending a BOE meeting
regarding the Magnet conversion. Roberts remembered Mr. Brown speaking at one of the
UTLA press conferences. After he was hired as a teacher in the Magnet schools, Altuner
served as the UTLA chapter chair. Mr. Brown was selected as a lead teacher in the BET
Magnet.
ISSUE
Did the District retaliate against twelve UTLA activists because of their Union
activities by failing to select them for positions in the new Magnet schools?
CONCLUSIONS OF LAW
The complaint in this case alleges that the District failed to select the twelve employees
at issue for positions in the Magnet schools because of their Union activities and affiliation. It
is unlawful for a public school employer to:
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[i]mpose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees
because of their exercise of rights guaranteed by this chapter.
For purposes of this subdivision, “employee” includes an
applicant for employment or re-employment.
(Cal. Gov. Code, § 3543.5, subd. (a), emphasis added.)
The traditional test for determining whether prima facie evidence exists that an
employer has violated the above subdivision of EERA is set forth in Novato Unified School
District (1982) PERB Decision No. 210 (Novato) as follows: 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. (Id. at pp. 6-8.) The charging
party bears the initial evidentiary burdens of production and persuasion. (City of Oakland
2014) PERB Decision No. 2387-M, pp. 16-17.)38 Only if a prima facie case is established does
the burden shift to the respondent to prove by a preponderance of evidence that it had an
alternative non-discriminatory reason for the challenged action. This burden includes proving
that the respondent, in fact, acted because of an alternative non-discriminatory reason and not
because of the employee’s protected activity. (Palo Verde Unified School District (2013)
PERB Decision No. 2337, p. 31 (Palo Verde).)
38 That case was decided under the Meyers-Milias-Brown Act. (Cal. Gov. Code, §
3500 et seq.) When interpreting EERA, it is appropriate for PERB to derive guidance from
court and administrative decisions interpreting the National Labor Relations Act (NLRA) (29
U.S.C. § 151 et seq.) and parallel provisions of California labor relations statutes. (San Diego
Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 12-13; see also Fire Fighters Union v.
City of Vallejo (1974) 12 Cal.3d 608 (Fire Fighters). Precedent interpreting the NLRA is
persuasive, not controlling, authority. (Los Angeles Unified School District (1976) EERB
Decision No. 5 [before January 1978, PERB was known as the Educational Employment
Relations Board or EERB].)
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During hearing and in its brief, UTLA repeatedly emphasized that it was not
challenging the District’s decision to convert Crenshaw High School into Magnet schools, but
only the allegedly discriminatory manner that employees were selected for positions in the new
Magnet schools. As the evidence shows, the decision of the District to convert to a full
Magnet program necessarily required that all employees, from top administration down, apply
for positions in the new schools. The uncontroverted evidence demonstrated that the District
has, for decades, in all situations such as the one at issue, consistently applied a competitive
application and selection policy. While PERB has recognized as a viable theory of
discrimination that an employer who harbors animus toward a smaller subset of union activists
within a larger group could demonstrate that animus by laying off the entire group (see, e.g.,
Cupertino Union Elementary School District (1986) PERB Decision No. 572, p. 5), the
evidence does not bear out such a theory here. Although Superintendent Deasy made several
remarks showing his disdain for Union activism at Crenshaw High School, particularly that of
Caputo-Pearl, the District put forth ample evidence of the reasons that the conversion decision
was made at the time that it was.39 Especially as the relationship with GCEP was concurrently
under review, coupled with evidence of consistently low student performance, the decision
itself and the timing thereof is not suspect under the circumstances. Given the amount of
District resources required to effectuate the conversion and the fact that the vast majority of
teachers not selected for Magnet positions would remain employed by the District, it is highly
improbable that the District would have expended such effort simply to lessen the
concentration of UTLA activists at one school.
39 The testimony over Superintendent Deasy’s statements made outside of the hearing
fall within the party admission exception to the hearsay rule. (Cal. Evid. Code, § 1220;
Bellflower Unified School District (2014) PERB Decision No. 2385, p. 11.) I therefore will
consider those statements herein for their truth.
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However, the wording of the complaint can be interpreted as challenging the decision to
convert Crenshaw High School to a full Magnet program because it alleges as adverse actions
the fact that the former positions of the employees at issue were eliminated. Because UTLA
did not present its case as challenging the Magnet conversion decision itself, something that
necessarily required a competitive application process after all employment positions in the
former school were eliminated, I deem that allegation to have been withdrawn from the
complaint. Furthermore, because there was a competitive hiring process underway for the
Magnet schools, the employees at issue were treated as applicants for employment, and it is the
non-selection or failure to hire these twelve employees in the Magnet schools that is the actual
action alleged to be unlawful, an analysis under a test for discriminatory refusal to hire is
warranted. As further discussed below, although the test for discriminatory refusal to hire as
adopted and applied by the National Labor Relations Board (NLRB) has been acknowledged
and discussed by PERB in previous cases, it does not appear to ever have been formally
adopted by PERB.
Discriminatory Refusal to Hire
PERB has confronted the issue of a retaliatory refusal to hire in only a handful of cases.
In the first of those cases, Santa Clara Unified School District (1979) PERB Decision No. 104
(Santa Clara USD), the Board reversed a Hearing Officer and found that the district had
discriminatorily refused to hire a long-term substitute teacher in a permanent teaching position.
There, the substitute teacher had sought out the permanent position, taken additional course
work in the subject matter to ensure she had the proper credential, began teaching the courses
on a substitute basis, and was told by the school principal that she was a “shoo-in” for the
permanent position. When the school principal announced that the position would only be a
55

60 percent position instead of full-time, the substitute teacher consulted the union for advice
and the union representative approached the assistant superintendent on the teacher’s behalf.
The assistant superintendent then advertised the position and initiated competitive selection
procedures to fill the position. The principal spoke with the substitute teacher and instructed
her that in the future, she should come to him with workplace concerns first, rather than going
to the union. Ultimately, another teacher was hired to fill the position sought by the substitute,
though she continued to work in the district as a substitute teacher.
In holding that the employer had violated the statute by refusing to hire the substitute
teacher because of her union-related activity, the Board found that the employer’s refusal to
hire her was inextricably bound to her decision to seek assistance from the union. The
employer urged the Board to consider the actions of the school principal and the
superintendent separately—the principal claimed that he urged the teacher to consult with him
before the union in order to “avoid commotion” caused by the union’s involvement, while the
superintendent’s decision to advertise the position was ostensibly made in order to “select a
more qualified candidate.” The Board rejected this argument, stating,
Both administrators are agents of the District, and therefore their
conduct necessarily inheres to the District. Contrary to the
hearing officer’s analysis, the Board does not view [the
principal’s] and [the Assistant Superintendent’s] refusal to hire
[the teacher] as severable actions when considered for purposes
of determining the unlawful nature of the District’s activity.
Rather, the Board will consider facts and incidents compositely
and draw inferences reasonably justified therefrom.
Therefore, after review of the totality of evidence presented the
Board finds that the District’s conduct, subsequent to the
[union’s] involvement on [the teacher’s] behalf, compels the
conclusion that the District’s consideration of such protected
activity improperly infected its decision concerning the filling of
the vacancy.
(Santa Clara USD, supra, PERB Decision No. 104, p. 14.)
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Santa Clara USD, supra, PERB Decision No. 104 was decided before PERB
established the analytical framework for discrimination cases in Novato, supra, PERB
Decision No. 210 and before the NLRB’s burden shifting test in Wright Line, A Div. of Wright
Line, Inc. (1980) 251 NLRB 1083, affd. (1st Cir. 1981) 662 F.2d 899, cert. denied (1982) 455
U.S. 989 (Wright Line) was adopted by the federal courts. Thus, the Board’s analysis ended
without shifting the burden to the employer to show a legitimate, non-discriminatory reason for
failing to hire the charging party.
A decade after the Board’s decision in Santa Clara USD, supra, PERB Decision No.
104, the Board held that applicants for employment were not entitled to statutory protection as
“employees” under the statute. (Hacienda La Puente Unified School District (1989) PERB
Decision No. 741.) At the time, EERA section 3543.5, subdivision (a) did not include the
phrase “For purposes of this subdivision, ‘employee’ includes an applicant for employment or
re-employment.” In response to the Board’s exclusion of applicants from coverage under
EERA, in 1989, the California Legislature amended EERA section 3543.5, subdivision (a) to
include the additional phrase, “For purposes of this subdivision, ‘employee’ includes an
applicant for employment or re-employment,” thus extending protection from retaliation to
applicants for employment.
In a case involving a charging party appearing on his own behalf, the Board applied the
Novato standard for refusal to hire cases arising under the Dills Act, but also acknowledged
that the NLRB standard for refusal to hire cases required a showing that the applicant was or
might be expected to be a union supporter, the employer was aware of the applicant’s
sympathies, and that the employer refused to hire the applicant because of those union
sympathies. (State of California (2002) PERB Decision No. 1484-S, proposed dec., pp. 19-
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20.) The Board noted, “The requirement that an applicant actually submit an application for an
available position is an important factor in establishing a prima facie case under a
discriminatory refusal to hire theory.” (Id. at proposed dec., p. 19.) Thus, the Board
concluded that the charging party failed to establish that the State had taken any adverse action
against him because there was no evidence that the State employer was hiring or that that
charging party had submitted an application for any vacant position. The Board went on to
note,
The process for hiring State employees is a formal one.
Ordinarily, a position must be announced, applications must be
submitted, and other well-established competitive steps must be
followed. None of these events occurred here. Nor is there
evidence that other applicants were hired in positions for which
[the charging party] was qualified.
(Id. at proposed dec., p. 24.)
Since then, the Board has not had occasion to refine the test for a discriminatory refusal
to hire under EERA.40 Accordingly, it is appropriate for PERB to look to the decisions of the
NLRB and other federal precedent when determining whether an employer has unlawfully
refused to hire an applicant. (Fire Fighters, supra, 12 Cal.3d 608.)
The NLRB has long considered applicants for employment to be covered under the
NLRA due to the statutory proscription against discrimination in the hiring of employees. (See
Nevada Consolidated Copper Corp. (1940) 26 NLRB 1182.) And while the NLRB has
consistently extended coverage under the NLRA to applicants for employment, the elements of
40 In a more recent case arising under the Higher Education Employer-Employee
Relations Act (Cal. Gov. Code, § 3560 et seq.), Trustees of the California State University
(2008) PERB Decision No. 1970-H (CSU), the Board adopted a portion of the proposed
decision of an Administrative Law Judge (ALJ) that cited to the NLRB’s test under FES (A
Division of Thermo Power) (2000) 331 NLRB 9 in the remedy section of a discriminatory
refusal to hire case. That case is further discussed below.
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a prima facie allegation of discrimination against an applicant for employment under the
NLRA have been the subject of inconsistent decisions over the years. In FES, A Division of
Thermo Power (2000) 331 NLRB 9 (FES), the NLRB clarified the allocation of burdens for
both the charging party and the respondent to an allegation that the respondent refused to hire
an applicant for employment:
To establish a discriminatory refusal to hire, the General Counsel
must, under the allocation of burdens set forth in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), first show the following at the
hearing on the merits: (1) that the respondent was hiring, or had
concrete plans to hire, at the time of the alleged unlawful
conduct; (2) that the applicants had experience or training
relevant to the announced or generally known requirements of the
positions for hire, or in the alternative, that the employer has not
adhered uniformly to such requirements, or that the requirements
were themselves pretextual or were applied as a pretext for
discrimination; and (3) that antiunion animus contributed to the
decision not to hire the applicants. Once this is established, the
burden will shift to the respondent to show that it would not have
hired the applicants even in the absence of their union activity or
affiliation. If the respondent asserts that the applicants were not
qualified for the positions it was filling, it is the respondent’s
burden to show, at the hearing on the merits, that they did not
possess the specific qualifications the position required or that
others (who were hired) had superior qualifications, and that it
would not have hired them for that reason even in the absence of
their union support or activity. In sum, the issue of whether the
alleged discriminatees would have been hired but for the
discrimination against them must be litigated at the hearing on the
merits.
(FES, supra, 331 NLRB at p. 12; footnotes omitted.)
The above standard is consistent with PERB’s own treatment of retaliatory failure to
hire cases and will provide an appropriate framework for addressing the claims in this case.
Accordingly, this test shall be applied to the facts of this case to determine whether the District
59

discriminatorily refused to hire any of the 12 teachers at issue who applied for a position in the
Magnet schools.
1. 	The District Was Hiring
There is no dispute as to this element of the above test. It is clear that the District was
seeking to fill all certificated and classified positions within the new Magnet schools at the
time of the alleged unfair practice.
2. 	The Applicants Had Requisite Experience or Training
With the exception of Luna, as further discussed below, there is no dispute that all of
the other teachers at issue here were fully qualified to fill available teaching positions within
the new Magnet schools. Therefore, this element of the above test is met for 11 of the 12
discriminatees at issue.
Regarding Luna, it is clear from her testimony and the documentary evidence that she
sought to continue teaching Landscaping in the new Magnet schools. Luna’s letter of intent
submitted with her application only discussed the Landscaping course and its suitability for
inclusion in any of the three Magnet schools. The letter of intent did not state that she was
applying for any other teaching position, ROP or otherwise. The letter of intent did not discuss
Luna’s qualifications to teach other ROP courses that may have been planned or offered. It is
undisputed that Landscaping was discontinued as a course offering in the new Magnet schools.
It is undisputed that ROP course offerings are left entirely to the discretion of the school’s
management. Thus, it does not appear that the District was hiring for the position Luna sought.
It is further not clear from the evidence presented that Luna’s CTE credentials would have
allowed her to teach any of the ROP courses that were to be offered in the Magnet schools.
Even if they did, under the circumstances, since Luna only indicated her interest in continuing
60

to teach Landscaping, and had only ever taught Landscaping at Crenshaw High School, it is
not clear how Corley would have been expected to know that. Under these facts, this element
of the test for discriminatory refusal to hire is not met for Luna and the Union therefore has not
made a prima facie showing. Accordingly, allegations in the complaint regarding Luna are
hereby dismissed.
3. 	Union Animus Contributed to the Decision Not to Hire the Applicants
a. 	Legal Standards
The determination of this element of the discriminatory refusal to hire test requires
evidence showing that the respondent was unlawfully motivated in its hiring decision. Because
direct evidence of unlawful motivation is rare, PERB typically looks for circumstantial
evidence to reveal a respondent’s true motivation. In order to assist in this assessment, 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 a connection between them: (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 USD, supra, 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. 15); (4) the
employer’s cursory investigation of the employee’s misconduct (City of Torrance (2008)
PERB Decision No. 1971-M, p. 19; (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, p. 10) or the offering of exaggerated, vague, or ambiguous reasons (McFarland
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Unified School District (1990) PERB Decision No. 786, pp. 13-14); (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 (North Sacramento School District (1982) PERB Decision No. 264, p. 22).
b. 	Analysis
As a threshold matter, the District does not dispute and I find that the numerous
concerted activities described herein that were undertaken by employees in response to the
District’s Magnet conversion plan, such as: leafleting, wearing symbolic colors or clothing to
show union solidarity, participating in press conferences and meetings with parents to discuss
working conditions, attending, en masse, meetings of the BOE to protest the Magnet
conversion’s effect on working conditions, etc. were classic expressions of protected union
activities under EERA. The record is clear that Corley and other District officials were aware
of these activities by the employees at issue and believed generally that UTLA was officially
opposed to the Magnet conversion. All of the employees’ activities were close in time to the
non-selections.
UTLA’s chief arguments regarding evidence of the District’s unlawful motivation in
this case is that since the District never stated its reasons for not selecting the employees at
issue at the time of the decision, and for the first time at hearing provided numerous, mostly
performance-based reasons, over which none of the subject employees had received formal
discipline or negative performance assessments, that shows a discriminatory motive.41 Next,
41 UTLA makes a related argument that since the District made no effort to reveal
information from the employee interviews, that the selection process itself was a sham. I
disagree. Corley testified that he took the raters’ information into account when making his
selections, but also provided detailed testimony about his own experiences with the internal
applicants having the most bearing on his decision-making process. That is a reasonable
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UTLA argues that Superintendent Deasy’s statements showing his union animus must be
imputed to the putative decision-maker, Corley, and further argues that it is illogical that
Superintendent Deasy would not have been involved in the staffing decisions for the Magnet
schools since Superintendent Deasy made the decision to convert Crenshaw High School to a
full Magnet program. These arguments are addressed in turn below.
i. 	Lack of Reasons Given for the Non-Selections
As noted above, PERB often finds a respondent’s lack of justification to an employee
for its action indicative of an unlawful motive. However, that is not always the case. In City
of Alhambra (2011) PERB Decision No. 2161-M, the Board found that an employer’s refusal
to inform a probationary employee of the reasons he was being let go did not support an
inference of unlawful motivation under the circumstances. Citing to NLRB case law finding
that a vague statement such as employees did not “fit into the scheme of things,”42 did not
necessarily show discriminatory intent, the Board held, “we find an employer’s failure to offer
justification at the time it took action is not a reliable indicator of discriminatory intent unless
the employer was required by law, policy, or past practice to give a reason.” (Id. at p. 17.)
In this case, the District refused to explain its selection rationale to employees, even if
they asked. It never deviated from that practice, simply ignoring the sometimes repeated
requests for an explanation. The consistency of the action in this regard implies a conscious
decision to keep the deliberative process confidential. There was no evidence presented that
position and does not imply that the selection process was pretense. For the employees at
issue, Corley testified that he had reasons for his decisions distinct from anything that came out
of the interviews. That does not also imply that for every other internal applicant, the
interview performance may have had more or less influence over Corley’s decision.
42 BLT Enterprises of Sacramento, Inc., d/b/a Sacramento Recycling & Transfer Station
& Chauffeurs, Teamsters & Helpers Local Union No. 150, Int'l Bhd. of Teamsters, AFL-CIO
(2005) 345 NLRB 564, at pp. 570, 575.
63

the District has a policy or practice to inform applicants for employment with the reasons that
they were not successful, which would have required disclosure of the reasons under City of
Alhambra. Under the circumstances, especially given that the District acted at all times
consistently, I do not find the lack of justification to employees for their non-selection to be a
reliable indicator of unlawful motivation.
ii. 	Union Animus
As an initial matter, UTLA’s argument that Superintendent Deasy “must” have had
input over staff selections in the Magnet schools is based entirely on conjecture. UTLA
presented no evidence that a Superintendent is routinely involved in site staffing decisions in
the District, or that Superintendent Deasy was involved in the decisions in this case.
Bartleson’s and Corley’s testimony over who made the final hiring decisions was credible.
Ignangi testified that principals are always vested with the authority to make staff selections at
their schools. There is no compelling reason to find that anyone other than Corley was
responsible for the selection of employees in the Magnet schools.
As to the issue of animus toward UTLA, the evidence presented by UTLA showing that
Superintendent Deasy harbored ill will toward UTLA activists at Crenshaw, albeit primarily if
not exclusively directed toward Caputo-Pearl, was persuasive. Grimsby and King were
witnesses with no particular interest in the outcome of the case and therefore no obvious
motivation to exaggerate. Their testimony regarding Superintendent Deasy’s statements
regarding the Union and Caputo-Pearl was compelling and believable. Ms. Brown’s testimony
over Superintendent Deasy’s acrimonious exchange with Caputo-Pearl during a faculty
meeting was also telling. PERB has recognized that not every expression of frustration or
anger by a manager who is the object of employees’ criticism is evidence of an unfair practice.
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(See City of Oakland, supra, PERB Decision No. 2387-M, pp. 24-25, and the cases cited
therein.) However, Ms. Brown’s account of Superintendent Deasy’s reaction to Caputo-Pearl’s
accusations over his anti-union motivations went beyond just an expression of anger at a
personal attack. Superintendent Deasy essentially communicated to Caputo-Pearl and the rest
of the teachers present at the faculty meeting that he, as Superintendent, could not be called to
task by a teacher or the Union. When the whole record is considered, it is apparent that
Superintendent Deasy had animus toward Caputo-Pearl’s advocacy on behalf of UTLA and
Crenshaw High School employees. The question is whether Superintendent Deasy’s union
animus can be imputed to Corley as the decision-maker in this matter.
As discussed previously, the Board in Santa Clara USD found that administrators’
separate reasons for taking action could not be parsed out and since both were agents of the
employer and therefore their conduct necessarily inhered to the employer. (Santa Clara USD,
supra, PERB Decision No. 104 at p. 14.) More recently, the Board set forth a rule for
determining when it is appropriate to impute animus from an official of the employer to the
decision-maker. In Regents of the University of California (Los Angeles) (2008) PERB
Decision No. 1995-H (Regents), the Board rejected a union’s argument, citing NLRB
authority, that a supervisor’s unlawful motivation is imputable to the employer even if the
official who takes the adverse action is unaware of the supervisor’s animus. In rejecting the
NLRB’s approach, the Board stated:
In San Bernardino City Unified School District (2004) PERB
Decision No. 1602 (San Bernardino), a director of classified
personnel removed a substitute teacher from a phone calling
system’s bank of substitute teachers based on the recommendation
of an assistant affirmative action officer, whose investigation
revealed that the teacher used physical force on a student. The
ALJ’s proposed decision in San Bernardino would have imputed
the director’s knowledge of the substitute teacher’s union activities
65

to the affirmative action officer in the absence of any evidence that
the officer was aware of the teacher’s protected activity. The
Board did not affirm that portion of the proposed decision and
specifically found that the imputation of knowledge under those
circumstances was not warranted. (San Bernardino, at p. 25, fn.
22.) Therefore, under PERB precedent, one individual’s
experience will not be imputed to another unless it is warranted
under the circumstances.
(Regents, supra, PERB Decision No. 1995-H, p. 13.) The Board concluded in the Regents case
that since the decision-maker was not aware of the other officials’ unlawful motivation and had
not consulted with them over the layoff decision at issue, animus could not be imputed to the
decision-maker under those circumstances. (Id. at pp. 13-14.)
Under the rationale in Regents, supra, PERB Decision No. 1995-H, Superintendent
Deasy’s union animus can only be imputed to Corley over Superintendent Deasy’s statements of
which Corley was aware. There is no evidence that Corley was present for the GCEP meeting
where Superintendent Deasy made disparaging statements about Caputo-Pearl being a trouble-
maker and the Union being an impediment to progress at Crenshaw High School. Likewise,
there is no evidence that Corley was aware of the telephone call between Superintendent Deasy
and King where the Superintendent blamed UTLA and its activists for his need to end the GCEP
MOU. However, Corley was present during faculty meetings where Caputo-Pearl and
Superintendent Deasy exchanged heated words over the Magnet conversion process and the
Superintendent’s strong reaction to Caputo-Pearl’s advocacy in that setting can be reasonably
imputed to Corley.
Additionally, some of Corley’s own actions may also show union animus. The fact that
Corley abruptly ended, without explanation, his practice of regularly meeting with Caputo-Pearl
over teachers’ employment concerns at Crenshaw High School followed closely by his
elimination of the Union’s access to the school’s public address system shows that he may have
66

harbored some ill will toward the Union and its representatives. His explanation over why he cut
off access to the public address system at the time he did was not particularly plausible. Corley
testified to allowing unauthorized after school meetings to take place on campus even though he
asserted that was in violation of District policies. It is not clear why the public address policy
would require adherence where the other did not. Corley also had a somewhat heated exchange
over the Magnet conversion and employment concerns with Caputo-Pearl in a faculty meeting
according to the testimony of several Union witnesses. Their specific testimony over that
incident is credited over Corley’s general assertion that he enjoyed a good relationship with
Caputo-Pearl and Ms. Brown’s assessment of Corley’s generally polite nature.
UTLA also notes that Corley was prone to surveillance of Union activities by video
recording employees asking questions during the faculty meeting, and taking notes at press
conferences and at a meeting of the Crenshaw Cougar Coalition. In Lake Tahoe Unified School
District (1999) PERB Decision No. 1361, warning letter, p. 2, the Board cited to the NLRB’s
stance on unlawful surveillance:
The National Labor Relations Board (NLRB) has generally found
that an employer has engaged in unlawful surveillance when the
employer photographs or videotapes employees or openly engages
in recordkeeping of employees participating in union activities.
(F.W. Woolworth Co. (1993) 310 NLRB 1197.) The mere
observation of open, public union activity on or near the
employer’s property, however, does not constitute unlawful
surveillance. (National Steel & Shipbuilding Co. (1997) 324
NLRB 499.)
Under the above standards, the note-taking at the press conference, being an observation
of open, public union activity on the District’s property, would not constitute unlawful
surveillance. Likewise, the video recording was done in a faculty meeting called by the
employer, not in a UTLA meeting. The reasons for the recording were undisputed and
67

believable. The fact that some employees may have felt uncomfortable asking questions while
being recorded at a meeting of the employer does not transform Corley’s actions into unlawful
surveillance. However, Corley’s popping in and taking notes for a few minutes at a meeting of
the Crenshaw Cougar Coalition, where employees were speaking out against the Magnet
conversion, is questionable. That action would reasonably tend to chill employees’ speech and
Corley’s reasons for doing so were not explained. The fact that he felt the need to record
something about that meeting may indicate animus toward union activities.
On whole, there is a sufficient inference of union animus by the District to suggest that it
may have been discriminatorily motivated in its selection of staff for the Magnet schools. Even
though the evidence suggests the strongest prima facie case as to Caputo-Pearl, since the other 10
employees were also engaged in concerted activities against the Magnet conversion plan and
there is a specter of animus against such activities by Corley, I find the Union has met its prima
facie burden for all employees still at issue. Thus, under the standard set forth in FES, supra,
331 NLRB 9, the burden shifts to the District to show that it would not have hired the remaining
applicants even in the absence of their union activity or affiliation.
4. 	Burden Shift
Since the FES discriminatory refusal to hire standard employs the Wright Line burden
shifting analysis that PERB adopted in Novato, it is appropriate to analyze the District’s burden
under the same framework used in the Novato retaliation test. (Novato, supra, PERB Decision
No. 210.) Where there is evidence that the respondent’s action was motivated by both lawful
and unlawful reasons, “the question becomes whether the [adverse action] would not have
occurred ‘but for’ the protected activity.” (Martori Brothers Distributors v. Agricultural
Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730 (Martori Bros.).) The “but for” test is “an
68

affirmative defense which the respondent must establish by a preponderance of the evidence.”
(McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.) As
discussed above, in Palo Verde, the Board clarified that in order for a respondent to meet its
burden, it must show both that it had and acted because of an alternative, non-discriminatory
reason. (Palo Verde, supra, PERB Decision No. 2337, p. 31.)
In assessing the evidence, PERB’s task is to determine whether the respondent’s
“true motivation for taking the adverse action was the employee’s protected activity.”
(Regents of the University of California (2012) PERB Decision No. 2302-H, p. 3, citations
omitted; see also Los Angeles County Superior Court (2008) PERB Decision No. 1979-C,
p. 23.) Further, PERB “weighs the respondent’s justifications for the adverse action against
the evidence of the respondent’s retaliatory motive.” (Baker Valley Unified School District
(2008) PERB Decision No. 1993, p. 14 (Baker Valley).) If PERB determines that a
respondent’s action was not taken for an unlawful reason, it has no authority to also determine
whether the action was otherwise justified or proper. (City of Santa Monica (2011) PERB
Decision No. 2211-M, p. 17.)
a. 	The District’s Defense as to: Cathy Garcia, Meredith Smith, Linh Cao,
Kenneth, Maxey, Margot Tiff, Cathy Creasia, Tracy McKinney,
Christina Lewis, Chandra Roberts, and Lynn Turner
UTLA urges PERB to find that the District’s performance-based reasons for not
selecting the above-named employees at issue were pretextual and illegitimate because these
teachers had never received formal discipline or negative performance evaluations for the
reasons highlighted by Corley during the hearing and he did not formally document his
concerns by either note-taking during his observations and/or sharing those concerns with the
employees. UTLA also points out a factual dispute between the subject teachers and Corley
69

regarding the number of times Corley allegedly observed their classes and argues that Corley’s
testimony was not credible.
As to the latter assertion, in evaluating the credibility of the testimony of witnesses, the
ALJ may rely on observational factors, such as, demeanor, manner, and attitude, and non-
observational factors, including those specified in Evidence Code section 780. (Palo Verde,
supra, PERB Decision No. 2337, p. 28.) Non-observational credibility factors in Evidence
Code section 780 include: the extent of the witness’s capacity to perceive, to recollect, or to
communicate any matter about which he or she testifies; the existence or non-existence of any
fact testified to by the witness; the existence or nonexistence of the witness’s bias, interest, or
other motive; and a statement made by the witness that is inconsistent with any part of the
witness’s testimony at the hearing. Based on the above standards, I find no reason to conclude
that Corley’s testimony was not generally truthful and credible, even though I have made and
will make below some adverse rulings against the District. I also find no reason to doubt the
veracity of the Union’s witnesses on the issue of the frequency of Corley’s observations. The
factual dispute regarding the number of observations could be explained a number of ways.
For example, there is no information in the record showing that any of the subject teachers
were in a formal evaluation cycle during the 2012-2013 school year. Accordingly, all of
Corley’s classroom observations appear to have been informal. It is conceivable that a quick,
pop-in visit by Corley may not have made a lasting impression on the teacher under the
circumstances. In any event, I do not find that the factual dispute in this regard casts doubt
over the truthfulness of Corley’s testimony.
As to the argument that Corley’s stated reasons for not selecting the above-named
teachers were pretextual, I am not persuaded. Corley’s explanation for the reason that he was
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________________________
unable to document every performance concern that was raised in his mind during his busy
first year at Crenshaw High School, especially given the massive restructuring that the Magnet
conversion planning entailed, was reasonable under the circumstances.43 Even if Corley’s
failure to document his stated concerns before he relied on those concerns during his selection
process was a poor personnel practice, PERB has found that “numerous instances of poor
personnel relations and personnel practices” to be “insufficient evidence to discredit [an]
employer’s stated motive for the actions[,]” where there was no evidence of the employer’s
treatment of an employee inconsistent with past practice or of disparate treatment. (California
State University (San Francisco) (1986) PERB Decision No. 559-H, proposed dec., pp. 48-49.)
There was no evidence of disparate treatment or that Corley deviated from past practice
regarding the above-named employees, and there is nothing in the record that causes me to
believe that Corley did not think the performance concerns that he testified about regarding
them were genuine.
In several instances, such as Corley’s stated concerns over Garcia (absences), Cao
(classroom management), Tiff (stern demeanor toward students and excessive failure rate),
Creasia (late/incomplete IEPs, missed IEP meetings, not accompanying Special Education
students to General Education classes, and doing personal work during instructional time),
McKinney (leaving students unattended and inappropriate grade-level curriculum) Lewis (lack
of instructional rigor), and Roberts (tardiness and doing personal work during instructional
time), they were corroborated by either Ms. Brown or Frierson, and in some cases by both
43 In cases like Baker Valley, supra, PERB Decision No. 1993, the Board has found an
employer’s failure to document performance concerns that were later relied upon to support the
non-reelection of probationary employees to be persuasive evidence that the employer acted
for an unlawful reason. I do not find that rationale persuasive under this circumstance, where
all positions in the school were being eliminated.
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Ms. Brown and Frierson. There is no basis to doubt the testimony of either Ms. Brown or
Frierson. To the extent that there were factual disputes between the accounts of the teachers
and Ms. Brown and/or Frierson, Ms. Brown’s and Frierson’s more believable and detailed
testimony is credited in each instance over the more general denials by the teachers. Likewise,
Corley’s testimony over times when he had discussed a particular issue with one of the
employees in question was generally more detailed and believable than the employees’ general
denials that no one had ever addressed the issue with them.
UTLA also presented evidence attempting to show that Corley’s performance concerns
were baseless and therefore cannot be legitimate business reasons. For example, Garcia
explained, very rationally, why she used the book, “Flatlands,” in her geometry class. Garcia
also explained that all of her absences were ultimately approved by the District. Creasia
explained why IEPs can be late for reasons other than teacher error. Tiff explained why she
felt justified in conducting tardy sweeps. But PERB’s function is not to determine whether the
employer’s stated reasons for its actions are correct or justified.
In California State University, Long Beach (1987) PERB Decision No. 641-H
(CSULB), the Board noted that there was some evidence of animus toward the union by the
supervisor of an employee who had suffered adverse action. However, the record also showed
that the supervisor believed, rightly or wrongly, that the employee was a poor worker, would
not improve with time, and required more supervision than was necessary. (Id. at proposed
dec., p. 49.) PERB said its role was not to decide whether the supervisor was justified in his
belief that the employee was in fact a “problem employee,” but instead to determine the likely
basis for the employer’s conduct. The Board concluded that the supervisor’s beliefs about the
employee’s work habits, rather than union animosity, was the primary motivator. (Id. at
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proposed dec., pp. 53-54.) In another case with similar facts to those here, where employees in
an entire division of an employer, including many union activists, were forced to apply to
continue working for their employer due to a reorganization, the ALJ noted that “[s]ome
reasons for the hiring decisions may seem petty or unfair, and some may not have been well
communicated to the employees, but they do not appear pretextual.” (Regents of the University
of California (1999) PERB Decision No. 1354-H, proposed dec., p. 59.)
Similarly, in this case, the above-named employees may dispute that Corley was correct
in his assessments of their performance, but whether he was correct or not is not the point of
PERB’s inquiry. As stated above, PERB’s role is to suss out the true motivation for the
conduct. An employer may take action for a number of incorrect reasons that are not
necessarily unlawful. PERB has also recognized that a desire to staff a school with superior
employees is within the right of a school district employer. (Bellevue Union Elementary
School District (2003) PERB Decision No. 1561, p. 4 (Bellevue).) In that case, two
probationary employees who had overall satisfactory performance ratings were non-reelected.
The two employees at issue had, with all other teachers at their site, participated in a concerted
work-to-contract action. The union argued that since their performance was satisfactory, the
teachers’ non-reelection must have been because of their participation in union activities.
Despite prima facie evidence of retaliation, the Board agreed with the ALJ that the employer
had met its defense by showing that even though satisfactory, the teachers’ performance had
not met the employer’s standards of superiority. (Ibid.) The Board further found that because
there was no showing that the two employees were leaders of the teachers’ protest or were
especially active in the campaign, the union’s theory that the employees were targeted as being
part of a union stronghold was speculative and unsupported. (Id. at pp. 2-3; proposed dec.,
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________________________
p. 41 [“no evidence of protected conduct that [was] unique to [the discriminates]”.)
By all measures, Corley’s concerns about the above-named employees appeared to be
genuinely held. As discussed above, many of those concerns were corroborated by members
of his administrative staff. In other instances, Corley had previously shared some concerns
with the employee, as was the case with Smith (student supervision issues when she was
Athletic Director), Turner (absences from required school functions, lack of rigor in
instruction, and student relationships), Roberts (use of videos and early release of students),
and Maxey (unstructured PE program).44 Thus, rightly or wrongly, Corley had and acted upon
non-discriminatory reasons for not selecting the above-named employees. I draw no
conclusions on whether he was correct or incorrect in his individual assessments of these
teachers. His desire to staff the school with what he viewed to be the best fitting employees
for the programs in the new Magnet schools is also in accord with the rationale in Bellevue,
supra, PERB Decision No. 1561.45 Also as in Bellevue, the above-named employees here
44 Corley’s testimony regarding Turner was unrefuted since she did not testify. As to
Maxey, Corley’s explanation over why he was not selected to teach PE was really less over
any performance concern than it was due to fewer positions being available. Furthermore, the
fact that Corley intended to offer Maxey a newly created position and actually allowed him to
serve as a football coach in the new Magnets undercuts the theory that Corley harbored animus
toward Maxey’s UTLA activities.
45 Likewise, regarding the statements made by Creasia, Lewis, and Roberts that the full
inclusion model of Special Education would never work and/or that Special Day students
would not be able to perform in that model having influenced Corley’s decision not to hire
them, PERB has found that the desire to conduct an educational program according to the
employer’s own judgment, where an employee was opposed to those objectives, provides a
non-discriminatory reason for adverse action. (CSULB, supra, PERB Decision No. 641-H,
proposed dec., pp. 54-55.) Although under EERA an employee has a protected right to voice
complaints on educational policy (see Berkeley Unified School District (2015) PERB Decision
No. 2411, p. 19), the comments here that influenced Corley’s decision were teachers’
questioning students’ ability to perform. Under Bellevue, supra, PERB Decision No. 1561 and
CSU, supra, PERB Decision No. 1970-H, Corley’s desire to staff the school with employees
who supported the program in the new Magnets was justified.
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participated in roughly the same amount and kind of protected activities that employees who
were ultimately selected for Magnet positions—for example, Altuner and Mr. Brown—also
participated in. While a discriminatory motive is not disproved by an employer failing to weed
out every union adherent in the workplace (see State of California (Department of
Transportation) (1984) PERB Decision No. 459-S, p. 7), in this instance none of the above-
named employees played any unique role in UTLA’s campaign as compared to employees who
were selected for Magnet positions. This provides further evidence that it was likely Corley’s
stated concerns which motivated his decision not to select the above-named employees for
Magnet positions rather than their involvement in Union activities.
For all of the reasons stated above, the District has met its burden regarding the non-
selection of Garcia, Smith, Cao, Maxey, Tiff, Creasia, McKinney, Lewis, Roberts, and Turner.
The allegations in the complaint regarding those employees are therefore dismissed.
b. 	The District’s Defense as to: Alex Caputo-Pearl
Unlike the employees previously discussed, Caputo-Pearl’s role in UTLA’s protests over
certain aspects of the District’s plan for Magnet conversion was unique because of his visible
leadership in organizing the press conferences, the tenor of his public comments against the plan,
and open criticisms of Superintendent Deasy’s union animus. Actions by Corley found here to
signal union animus were almost exclusively in reaction to speech or representational activity by
Caputo-Pearl. In Bellevue, the ALJ distinguished a case relied on by the union, Livingston
Union School District (1992) PERB Decision No. 965 (Livingston). The ALJ in Bellevue said
about Livingston:
There are some similarities between Livingston and this case, but
there are also significant differences. The probationary teachers in
Livingston engaged in several acts of protected conduct that put
them directly at odds with the principal. Indeed, the principal
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referred to a faction of the faculty which included the probationary
teachers as “bitchers” or “gripers,” a district official commended
the principal for the way she dealt with the “malcontents,” and the
principal indicated who the teachers associated with was more
important than their performance. In contrast, [the Bellevue
employees at issue] engaged in no protected conduct, which set
them apart from other teachers. All teachers in this case engaged
in precisely the same conduct. . . . And there is no evidence of
labels attached to [the Bellevue employees at issue] such as
“bitcher” or “griper.”
[¶. . .¶]
Plainly, the circumstances underlying the Board’s decision in
Livingston are different from the record in this matter. While the
failure to make the reelection standard absolutely clear may
suggest an unlawful motive that leads to a finding that a
nonreelection decision is truly pretextual, those circumstances are
not present here. Thus, I find that Livingston does not compel a
finding that the District violated EERA when it decided to
nonreelect [the Bellevue employees at issue].
(Bellevue, supra, PERB Decision No. 1561, proposed dec., pp. 48-49.) The Board agreed with
and adopted the analysis of the ALJ. (Id. at pp. 2-3.)
Like the employees in the Livingston case, Caputo-Pearl’s actions put him directly at
odds with Corley and Superintendent Deasy. (Livingston, supra, PERB Decision No. 965.) It is
conceivable that Corley, having witnessed Superintendent Deasy’s tense interactions over the
Magnet conversion with Caputo-Pearl would have been influenced by Superintendent Deasy’s
obvious disdain over Caputo-Pearl’s sharply worded advocacy on behalf of teachers. And while
Corley seemed to sincerely believe some of his stated reasons for failing to consider Caputo-
Pearl for a position in the Magnet schools, such as Corley’s criticism of the amount of videos
shown by Caputo-Pearl during instruction and the age of the posted student work in his
classroom, the one factor Corley labeled as the most “significant” in his decision was highly
suspect. Corley admitted that he did not know whether Caputo-Pearl had actually given credit
76

for students’ completion of surveys. He further admitted that he took no steps to verify the truth
of the student’s comment in this regard and did no investigation. Ms. Brown was familiar with
the rumor, but she testified to her belief that it had been resolved by Corley having spoken with
Caputo-Pearl about it. Corley admitted that he never even took that basic step. Yet, Corley also
gave vague testimony over his intent to initiate discipline against Caputo-Pearl, but was unable
to do so because of personal hardship. I find that Corley’s intention to discipline Caputo-Pearl
over an alleged infraction that he had taken no steps to verify the truth of provides evidence that
this reason for Caputo-Pearl’s non-selection was pretextual.
Furthermore, Corley’s initial testimony over his lack of familiarity with educational
programs initiated by Caputo-Pearl at Crenshaw High School was at odds with Corley’s later
admissions that he had personal familiarity with those programs because he met with Caputo-
Pearl and officials from the Ford Foundation and thoroughly discussed them. His testimony in
this regard and attempt to bolster the comparative contributions of Mr. Brown with Caputo-
Pearl’s just did not ring true. I find this as further evidence that Corley’s reasons for not
selecting Caputo-Pearl were a pretext.
Based on the whole record, it appears that “but for” Caputo-Pearl’s UTLA adherence and
protected activities, he would have been selected for a teaching position in the Magnet schools.
When weighing the evidence of the District’s retaliatory motive in Caputo-Pearl’s case against
its stated reasons for failing to hire him, the evidence tips in favor of finding that an unlawful
motivation was the true reason for the District’s action. (Baker Valley, supra, PERB Decision
No. 1993, p. 14.) Thus, the District has failed to meet its burden regarding Caputo-Pearl and the
allegations in the complaint regarding him are sustained.
All other allegations in the complaint are hereby DISMISSED.
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REMEDY
PERB has broad remedial powers to effectuate the purposes of EERA. EERA
section 3541.5(c) states:
The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including but not
limited to reinstatement of employees with or without back pay,
as will effectuate the policies of this chapter.
It has been found that the District violated EERA by discriminatorily refusing to hire
Caputo-Pearl as a teacher in the Magnet schools. It is therefore appropriate to order the
District to cease and desist from retaliating against employees for their union activities. (Baker
Valley, supra, PERB Decision No. 1993, p. 16.) Since Caputo-Pearl was considered as an
applicant, but was not hired in the Magnet schools for discriminatory reasons, the appropriate
remedy is to order the District to offer Caputo-Pearl the position he applied for in the Magnet
schools or, if that position no longer exists, then to offer a substantially similar position.
(CSU, supra, PERB Decision No. 1970-H, proposed dec., p. 28; Stamford Taxi, Inc. (2000)
332 NLRB 1372, 1375-1376.) It is also appropriate to order the District to pay Caputo-Pearl
back pay for any loss of earnings that resulted as a result of his failure to be hired at the
Magnet schools, augmented with interest at a rate of 7 percent per annum. (CSU, supra, PERB
Decision No. 1970-H, proposed dec., p. 28; Journey Charter School (2009) PERB Decision
No. 1945a, p. 2.)
Finally, it is appropriate to order the District to post a notice incorporating the terms of
this order at all locations where notices to unit employees are usually posted. Posting of such a
notice, signed by an authorized representative of the District, provides employees with notice
that the District acted in an unlawful manner, must cease and desist from its illegal action, and
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will comply with the order. In addition to physical posting of paper notices, the notice shall be
posted by electronic message, intranet, internet site, and other electronic means customarily
used by the District to communicate with employees in the certificated bargaining unit. (City
of Sacramento (2013) PERB Decision No. 2351-M, pp. 43-45.) It effectuates the purposes of
PERB-enforced statutes to inform employees of the resolution of this controversy. (See
Omnitrans (2010) PERB Decision No. 2143-M, proposed dec., p. 19.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it is found that the Los Angeles Unified School District (District) violated the
Educational Employment Relations Act (EERA or Act), Government Code section 3543.5,
subdivisions (a) and (b). The District violated EERA when it refused to hire Alex Caputo-
Pearl as a teacher at Crenshaw Magnet High School for a discriminatory reason.
Pursuant to Government Code section 3541.5, subdivision (c), it is hereby ORDERED
that the District, its governing board, and its representative shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against certificated employees because of their union
activities.
2. 	Failing to select Alex Caputo-Pearl for a teaching position at Crenshaw
Magnet High School.
3. 	Interfering with the right of certificated employees to be represented by
United Teachers Los Angeles.
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4. 	Interfering with the right of United Teachers Los Angeles to represent its
members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Within ten (10) work days of the service of a final decision in this
matter, offer Alex Caputo-Pearl the teaching position for which he applied at Crenshaw
Magnet High School, or if such a position no longer exists, then a substantially similar
position. If applicable and at the request of United Teachers Los Angeles, the effective start
date of the position may coincide with the end of Mr. Caputo-Pearl’s term as United Teachers
Los Angeles president.
2. 	Within ten (10) workdays of a final decision in this matter, make whole
Alex Caputo-Pearl for losses which he suffered as a result of the District’s refusal to hire him
at Crenshaw Magnet High School, including paying him back-pay augmented at an interest
rate of 7 percent per annum, from the beginning of the 2013-2014 school year until the date of
the offer of the new position, subject to any mitigation.
3. 	Within ten (10) workdays of a final decision in this matter, post at all
work location where notices to certificated employees are customarily posted, copies of the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
the District, indicating that the District will comply with the terms of this Order. Such posting
shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that this Notice is not reduced in size, altered, defaced or covered with any
other material. In addition to physical posting of paper notices, the Notice shall be posted by
electronic message, intranet, internet site, and other electronic means customarily used by the
District to communicate with its certificated employees.
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4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or to the General Counsel’s designee. The District shall provide reports, in writing, as directed
by the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on United Teachers Los Angeles.
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
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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
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
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