Rio School District (PERB 2449E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LYNETTE LUCAS,
Charging Party,
v.
RIO SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5717-E
PERB Decision No. 2449
August 31, 2015
Appearances: Lynette Lucas, on her own behalf; Atkinson, Andelson, Loya, Ruud & Romo by
Mark R. Bresee, Attorney, for Rio School District.
Before Martinez, Chair; Banks and Gregersen, Members.
DECISION
GREGERSEN, Member: This case comes before the Public Employment Relations
Board (PERB or Board) on exceptions filed on January 22, 2015, by Lynette Lucas (Lucas) to
a proposed decision (attached) by an administrative law judge (ALJ), dismissing the complaint
and underlying unfair practice charge against the Rio School District (District). The complaint
alleged that the District issued Lucas a notice
of
non-reelection in retaliation for speech
activity protected under the Educational Employment Relations Act (EERA). 1
The Board has reviewed the entire record in this matter and finds the proposed decision
well-reasoned, adequately supported by the record and in accordance with applicable law.
Accordingly, the Board hereby adopts the proposed decision as the decision
of
the Board itself
subject to the discussion
of
Lucas' exceptions below.
1 BERA is codified at Government Code section 3540 et seq.

PROPOSED DECISION
The ALJ concluded that Lucas engaged in protected conduct when she made speeches
at the District governing board meetings regarding the Boys & Girls Club, because such
comments pertained to both the financial status
of
the District and the quality
of
the District's
education programs, which PERB has previously determined to be protected conduct.
(Mt. San Antonio Community College District (1982) PERB Decision No. 224
affd.
by
California Teachers Association
v.
PERB (2009) 169 Cal.App.4th 1076.) The ALJ also
concluded that Lucas' speeches to the District governing board concerning negotiations
between the Rio Teachers Association and the District constituted protected activity because
such conduct was a challenge to the existing union leadership. ( California State Employees
Association (Hackett, et al.) (1995) PERB Decision No. 1126-S.)
It was undisputed that the District's decision to not reelect Lucas was adverse to her
employment. Further, the ALJ found that the District governing board members responsible
for not reelecting Lucas had heard her speak at the
l;>oard
meetings and therefore had the
requisite knowledge.
The ALJ
fou1+d
that while several nexus theories were not substantiated by Lucas,
nexus was nevertheless established because
of
the timing between Lucas' speeches and her
non-reelection. (Escondido Union Elementary School District (2009) PERB Decision
No. 2019, citing Mountain Empire Unified School District (1998) PERB Decision No. 1298.)
As additional nexus factors, the ALJ found that the District governing board deviated from its
own voting procedures (Garden Grove Unified School District (2009) PERB Decision
No. 2086) and expressed enmity towards Lucas and her speeches. (Bellevue Union Elementary
School District (2003) PERB Decision No. 1561.)
2

However, under PERB's burden-shifting framework, the ALJ ultimately determined
that the District met its burden
of
proving that it would have issued the non-reelection notice
even
if
Lucas had not engaged in protected activity.
DISCUSSION
Lucas' exceptions
do
not generally challenge any factual findings or legal conclusions.
made
by
the ALJ related to any
of
the four elements
of
the prima facie case, or to the District's
affirmative defense. Instead, Lucas claims that the ALJ erred in failing to address her concerns
about witness tampering and intimidation, which "interfered with Charging Party's ability to
put on a fair case" and is grounds for a new hearing. Each
of
the bases supporting Lucas'
claim
of
witness tampering and intimidation is unfounded. Moreover, there is no basis on
which to grant Lucas' request for a new hearing.
Inability to Present Two Witnesses
Lucas' primary contention is that she was unable to present two witnesses during her
case-in-chief who, allegedly, would have allowed her to present sufficient evidence to prove
her case. 	Prior to the formal hearing, Lucas sought to compel the attendance at the formal
hearing
of
District employees Eve Acosta (Acosta) and Maria Mauricio (Mauricio) by
subpoena. Also at some point prior to the hearing, Lucas released both potential witnesses
from the obligation to testify because, as Lucas argues, they were too intimidated and fearful.
As a result, neither Acosta nor Mauricio testified on Lucas' behalf. Lucas now claims that
these witnesses were critical to her case and the ALJ erred in failing to protect them. In
support
of
her contention, Lucas argues that once the allegations
of
witness tampering and
2
Despite her contention, Lucas did prevail in establishing a prima facie case of
retaliation. The excluded witnesses would not have changed that result. Rather, the witnesses
would only have affected the outcome of the District's affirmative defense.
2
3

intimidation were brought to the attention
of
the ALJ, it was the ALJ's responsibility to
investigate and determine
if
the District was, in fact, acting illegally.
The problem with this argument, however, is that Lucas readily admits that she
voluntarily excused the witnesses. The transcript quote cited in Lucas' exceptions states:
The big problem is that I withdrew a witness yesterday because
she was fearful. This person, she was shaking, and she cried in
my arms. And she told me directly that,
if
she testified, that she
was worried about -- about the District taking her job.
(Reporter's Transcript (RT) Vol. II, p. 13:18-22.)
Further review
of
the transcript also found that, as a result
of
an off-the-record discussion, the
ALJ made the following statement:
Charging Party is no longer seeking to call Eve Acosta as a
witness. So we will not be requiring her testimony at this time,
and I will not be ruling on the Respondent's motion to quash her
testimony -- quash her subpoena.
(RT Vol.
I,
p. 36:11-15.)
Thus, when the accusations
of
tampering and intimidation were declared to the ALJ, neither
witness was under subpoena to testify.
The burden
of
proof rests with the charging party to prove its case by a preponderance
of
the evidence. (PERB Reg. 32178.) 	Thus, at the formal hearing, it is incumbent on the
charging party to present sufficient evidence to meet this burden. 	By withdrawing her
subpoenas rather than letting the ALJ address the issue
of
alleged witness tampering and
intimidation at the formal hearing, Lucas cannot'now complain that she was unable to prove
her case without the witnesses she had planned to call or that the ALJ failed to protect them.
Accordingly, we find no merit to this exception.
3
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3
4

5
ALJ's
Statement to Witnesses
Lucas also takes exception to what she identifies as the ALJ's failure to provide District
employee witnesses with a statement informing them that their right to participate in the PERB
process is protected. According to Lucas, despite the ALJ agreeing to make such statement, he
did not actually provide the statement to any
of
the District employees called as witnesses. As
such, Lucas argues that she had no means to believe that
her witnesses would have any
assurance
of
protection
if
she were to recall those witnesses during rebuttal testimony. Lucas
states that she was "pinned down" into not being able to present all
of
the evidence necessary
to win her case.
The discussion with the ALJ Lucas references took place on the second day
of
formal
hearing. At the start
of
day two, Lucas asked the ALJ to provide "instructions to each
of
the
witnesses that they can testify and tell the truth and be protected, and
if
the School District
takes any action against them, that they can bring it before the Board." After some discussion,
the ALJ agreed that, before District employees testify, he would inform them that their right to
participate in the PERB hearing process is protected under state law.
However, on day one, prior to her request for this instruction, Lucas had called five
witnesses.
	Of
those five witnesses, only two witnesses, Carmen Vasquez and Donna Collins
were District employees.
It appears that Lucas did not call any District employees as witnesses after she made
her request for the ALJ instruction. Other than herself, Lucas called: (1) Amy Prado, who
confirmed when the ALJ asked her that she is not a District employee; (2)Tim Blaylock and
Mike Barber, two individuals who had already been identified in the record as Board members;
5

and (3) Lawrence Anthony Frunk, who had testified the day prior and identified himself
as
"a
licensed California private investigator" working on Lucas' behalf.4
We find nothing in the transcript to show that the ALJ failed to follow through with his
pledge to make the statement to potential District employees Lucas called as witnesses. As
such, we find no merit to this exception.
Failure to Remove Individual from the Hearing
Lastly, Lucas excepts to the ALJ's failure to remove an individual from the hearing
room. At the outset
of
the hearing, Lucas requested that the Rio Teachers Association
President, Rebecca Barbetti (Barbetti), who is identified on the record as an observing member
of
the public, be removed from the hearing because
of
her alleged past history
of
intimidation,
coercion, and retaliation against District employees. A sequestration order had been issued for
all potential witnesses, but, at the time
of
the discussion, it was not yet clear whether Barbetti
would be testifying. After some discussion, the parties agreed to allow Barbetti to remain in
the hearing. Lucas now takes exception with the ALJ's "decision" and argues that Barbetti's
mere presence in the hearing room was a "force
of
coercion."
Upon review
of
the hearing transcript, the following exchange occurred after an off-the-
record discussion:
ADMINISTRATIVE LAW JUDGE CU: 	Okay. We're back on
the record. We were about to call the Charging Party's first
witness, but before we do that,
I'd
like to talk about a couple
things we talked about off the record.
Three
of
the District's five witnesses were also District employees including Rio Real
Principal Maria Hernandez, Rio Lindo Principal Veronica Rauschenberger, and Director
of
Human Resources Director Carolyn Bernal. However, nothing in the record or in Lucas'
statement of exceptions seems to suggest that the instruction was intended for these three
witnesses.
4
6

7
And the other issue is that Ms. Rebecca Barbetti is in the room
presently as an observing member
of
the public. It is
my
understanding.that the parties do not yet have a full understanding
of
whether she's going to testify here and that the parties are
jointly willing to agree that
my
previous ruling to exclude
witnesses will not apply to Ms. Barbetti; is that correct as to both
things, Acosta and Barbetti?
MS. LUCAS: 	Yes.
MR. BRESEE: 	Yes, your Honor.
(Reporter's Transcript, Vol. I, p. 36:7-24.)
From the record,
it
is clear that the parties mutually agreed that Barbetti could remain
in
the hearing. The ALJ did not fail to disallow Barbetti's presence. Accordingly, we find no
merit to this exception.
Request for New Hearing
Also included in the statement
of
exceptions is a request for a new hearing pursuant to
both federal and state laws. Citing both the United States Code and the California Penal Code,
Lucas asserts that witness tampering is grounds for a new hearing. However, PERB's
jurisdiction is limited to the determination
of
unfair practices arising under EERA and other
public sector employer-employee relations statutes which we administer. PERB does not have
jurisdiction over claimed violations
of
the California Penal Code (State
of
California
(Department
of
Corrections) (2003) PERB Decision No. 1559-S) as well as a variety
of
federal
statutes including the United States Code (Service Employees International Union, Local 535
(Mickle) (1996) PERB Decision No. 1168). As such, we simply do not have jurisdiction to
enforce the statutes relied on by Lucas.
When considering a request to reopen the record to admit new evidence, the Board
applies the standard set forth in PERB Regulation 32410(a) for a request for reconsideration
7

based on the discovery
of
new evidence. (State
of
California (Department
of
Parks and
Recreation) (1995) PERB Decision No. 1125-S.) The regulation provides, in relevant part:
A request for reconsideration based upon the discovery
of
new
evidence must be supported by a declaration under the penalty
of
perjury which establishes that the evidence: (1) was not
previously available; (2) could not have been discovered prior to
the hearing with the exercise ofreasonable diligence; (3) was
submitted within a reasonable time
of
its discovery; (4) is
relevant to the issues sought to
be
reconsidered; and (5) impacts
or alters the decision
of
the previously decided case.
The information contained in Lucas' statement
of
exceptions fails to meet this standard.
Included in her request to reopen the record, Lucas submitted a summary
of
the testimony that
would have been provided by Mauricio had she testified at the formal hearing as well as a
description
of
meetings which occurred between the (subpoenaed) witnesses and District
representatives prior to the formal hearing.
5
However, in her discussion
of
these facts and
subsequent analysis, Lucas fails to explain why she did not provide the information earlier and
therefore fails to establish that it could not have been discovered prior to the hearing with the
exercise
of
reasonable diligence. Therefore, we decline to consider the new evidence on
appeal.
6
Lucas does not identify the names
of
the witnesses subjected to meetings with the
District, and refers to them only as "the teachers."
5
Lucas seeks to include the description
of
the pre-hearing meetings to support her
accusations
of
witness tampering. Citing Tuttle
v.
Combined Ins. Co. (E.D. Cal. 2004)
222 F.R.D. 424,431 (Tuttle), Lucas asserts that "an attorney cannot even indirectly cause a
witness to not want to testify" and that the District's counsel violated the California Rules
of
Professional Conduct for attorneys. However, PERB lacks jurisdiction to enforce rights or
duties imposed on attorneys by the California Rules
of
Professional Conduct. The power to
impose attorney disciplinary actions is an inherent and exclusive judicial function, and it is
exclusively held by the Supreme Court and the state bar, acting as its administrative arm. (See,
e.g., In re Rose (2000) 22 Cal.4th 430; Sheller v. Superior Court (2008) 158 Cal.App.4th 1697,
as modified on denial of rehearing (February. 6, 2008).) As such, we find Tuttle inapplicable
to the facts presented in this matter.
6
8

9
ORDER
The complaint and unfair practice charge
in
Case No. LA-CE-5717-E are hereby
DISMISSED.
Chair Martinez and Member Banks joined
in
this Decision.
9

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
LYNETTE LUCAS,
Charging Party,
V.
RJO SCHOOL DISTRICT,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5717-E
PROPOSED DECISION
(November 20, 2014)
Appearances: Lynette Lucas, on her own behalf; Atkinson, Andelson, Loya, Ruud & Romo by
Mark
R.
Bresee, Attorney, for Rio School District.
Before Eric J. Cu, Administrative Law Judge.
In
this case, a former public school employee alleges that a public school employer
issued her a notice
of
non-reelection in retaliation for speech activity protected under the
Educational Employment Relations Act (EERA). 1 The employer denies any violation.
PROCEDURAL HISTORY
On July 9, 2012, Lynette Lucas filed the instant unfair practice charge with the Public
Employment Relations Board (PERB), alleging retaliation by the Rio School District (District)
because
of
speeches before the District's governing board about various topics. On December
12, 2012, the PERB Office
of
the General Counsel issued a complaint on Lucas's behalf,
alleging that the District issued her a notice
of
non-reelection because, be.tween "May
11
through March 2012," Lucas spoke "at [the District's] board meetings concerning retention
of
an after school program." On January 7, 2013, the District filed an answer to the PERB
complaint, denying the substantive allegations and asserting multiple affirmative defenses.
1 EERA is codified at Government Code section 3540 et seq.

The parties attended an informal settlement conference on May 16, 2013, but the matter was
not resolved.
The parties participated in a formal hearing taking place on five non-consecutive days
between January 13, 2014, and May 15, 2014. At the opening of the hearing, the
Administrative Law Judge (ALJ) noted for the record that neither Lucas's unfair practice
charge nor the District's response to that charge constituted evidence for the purposes of the
formal hearing and that "I want the parties to fully understand that we are here to adjudicate
what was - what is in the [PERB] complaint." Both parties agreed.
On the second day of hearing, January 14, 2014; Lucas verbally moved to amend the
C
PERB complaint to add additional protected activity. Lucas described her amendment as
seeking to add speech activity criticizing the District and her union's "negotiations in relation[]
to pay and health benefits and class size." Lucas further stated that her speeches took the form
of speeches during governing board meetings from May 2011 to March 2012, the same
timeframe originally stated in the complaint. The motion was granted over the District's
objection.
At the end of the formal hearing, the ALJ directed that closing arguments be submitted
in the form of simultaneous closing briefs due on July 15, 2014. After granting multiple
requests to extend the briefing deadline, both parties submitted closing briefs on Friday,
September 12, 2014.
On Monday, September 15, 2014, Lucas attempted to file a "revised closing brief." She
then asserted via e-mail that she inadvertently filed an incomplete draft of her brief on
September 12, 2014. Lucas asked to accept her "revised closing brief' in its place. Later that
day, the District e-mailed its opposition to accepting Lucas's new filing.
2

On October 16, 2014, the ALJ took official notice of the parties' e-mail correspondence
over the filing of Lucas's "revised closing brief." The ALJ informed the parties that he would
consider the parties' e-mail messages to be their official positions regarding Lucas' s late filing.
At that point, the record was closed and the case was considered submitted for decision.
LUCAS'S REQUEST TO ACCEPT THE "REVISED CLOSING BRIEF"
do not set forth specific timelines for filing closing briefs,
PERB Regulations 32170, subdivision (j), and 32212 authorize the assigned ALJ to regulate
the submission of briefs, including the time for filing. In general, requests to extend a filing
deadline must be made in writing at least three days beforehand. (PERB Reg. 32132, subd.
(c).) Under PERB Regulations, late filings may be excused "for good cause only." (PERB
Reg. 32136.)
Although PERB Regulations2
In Stanislaus Consolidated Fire Protection District (2012) PERB Order No. Ad-392-M,
PERB held that "good cause" exists for a filing delay when based upon a "reasonable and
credible" explanation, "honest mistakes," or some other short delay based on excusable
misinformation or circumstances beyond the filing party's control. (Id. at pp. 3-4.)
Additionally, "good cause only exists where the party has made a conscientious effort to timely
file and the delay did not cause prejudice to any party." (Trustees of the California State
University (San Diego) (2006) PERB Order No. Ad-355-H, p. 3, citing United Teachers of
Los Angeles (Kestin) (2003) PERB Order No. Ad-325.)
In Chaffey Joint Union High School District (1982) PERB Decision No. 202 (Chaffey
JUHSD), PERB accepted a document that was sent by the filing party before the filing
deadline passed, but arrived late because the filing party inadvertently used the wrong delivery
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
3

method. (Id. at pp. 2-3.) PERB concluded that the filing party's "explanation of what
occurred was not so unreasonable as to be unbelievable" and there was no showing that the
opposing party was prejudiced by the delay. (Id., citation omitted.) Similarly, in Trustees of
the California State University (1989) PERB Order No. Ad-192-H (CSU), the filing party
attempted to file a document on time, but due to errors in its postage meter, the document did
not arrive until after the filing deadline. (Id. at p. 5.)
In City of Redding (2011) PERB Decision No. 2190-M, the respondent filed its closing
brief on the deadline provided, but the charging party did not. After still not receiving the
charging party's brief 15 days later, PERB granted the respondent's motion to reject any
submission as untimely. (Id. at proposed decision, p. 2, fn. 5.)
In the present case, Lucas filed a version of her closing brief electronically on
September 12, 2014, before the filing deadline passed. Three days later, on September 15,
2014, Lucas attempted to electronically file her "revised closing brief." In support of the late
submission, Lucas explained that she inadvertently sent an incomplete version of her brief on
September 12, 2014, and that the "revised closing brief' was the document she intended to file.
Lucas also explained that she was confused about PERB' s electronic filing and service
requirements. Somewhat consistent with her explanation, Lucas's earlier filed brief does
appear to be incomplete. Unlike the "revised closing brief," the earlier brief is written in
multiple typefaces and includes blank spaces and sections where it appears as though Lucas
intended to add content at another time. The earlier brief is 31 pages. The "revised closing
brief' is 37 pages and is signed and dated September 14, 2014.
The District disputes Lucas's assertion that she was unfamiliar with PERB's filing
process. It also takes issue with Lucas's failure to correct or mitigate the alleged error until
4

three days after the filing deadline. It asserts prejudice by the additional time Lucas had to
complete her argument.
Although Lucas' s explanation for not submitting the proper
brief
on time might be
characterized as "honest mistake" about the version she filed, the present situation is
fundamentally different from what occurred in Chaffey JUHSD, supra, PERB Decision
No. 202 or CSU, supra, PERB Order No. Ad-192-H. Unlike each
of
those cases, Lucas
remained in possession
of
the "revised closing brief," including the full ability to revise the
document until September 15, 2014. At this point, there is no way to verify to what extent
Lucas continued editing her brief during this additional time after the District filed its brief. In
fact, Lucas never represented that she did not continue working on the document until
September 15, 2014. It is undisputed that Lucas signed the "revised closing
brief'
on
September 14, 2014. For these reasons, I cannot conclude that Lucas made a conscientious
effort to file the "revised closing
brief'
on time.
More importantly, I agree that accepting Lucas' s revised brief at this point would
prejudice the District because the District already filed its own brief. I made it clear at the
close
of
the hearing that that closing briefs were to be filed simultaneously, meaning on the
same day. Even
if
Lucas did not review the District's brief until after she submitted the
"revised closing brief," it remains true that she had more time than the District to develop her
closing arguments. Again, Lucas has not demonstrated or asserted that she did not use this
additional time to improve her arguments in the "revised closing brief." The harm from that
advantage cannot now be undone. Because
of
this prejudice, Lucas's request to accept her
"revised closing brief' is denied. The "revised closing brief' will not be considered as part of
the record and only her original brief will be reviewed.
5

FINDINGS OF FACT
The Parties
The District and its governing board are collectively a public school employer within
the meaning of BERA section 3540.1, subdivision (k). Prior to her non-reelection in June
2012, Lucas was a public school employee within the meaning ofEERA section 3540.l(i). At
the relevant times of her employment, Lucas worked as a teacher at the District.
The Rio Teachers Association
The Rio Teachers Association (RTA) is the exclusive bargaining representative of the
District's teachers and other certificated employees. Rebecca Barbettis is the RTA president.
The District and RTA were parties to a Collective Bargaining Agreement (CBA) that was in
effect by its own terms from July 1, 2007, to Jurie 30, 2011. Many terms of that CBA
continued to represent the status quo for District teachers after the CBA expired. This includes
the evaluation procedures, the teacher assistance program, and the public complaint procedure.
The CBA also had a grievance procedure that culminated in binding arbitration during its
effective period. It is unclear whether the grievance and arbitration procedure continued to
apply after the CBA expired.
In 2011 and 2012, the District and RTA were in negotiations over a successor CBA. In
or around March 2011, they reached impasse and invoked impasse resolution procedures
pursuant to EERA section 3548. In May 2012, the parties participated in the factfinding
process pursuant to EERA section 3548.l et seq. They again failed to reach agreement and the
factfinding panel issued a set of recommendations that were not included in the record. The
District elected not to adopt the factfinders' report. Instead the two sides resumed negotiations
and ultimately reached an agreement later in 2012.
6

The District's Governing Board
The· District's governing board consists of five publicly elected officials. The board
holds regular public meetings where it may discuss and take action on agendized items. The
governing board may also discuss certain issues, such as personnel matters, during "closed
session," which as its name implies, is not open to the public.
Governing board meetings also include a public comment period where individual
speakers may provide input on agenda or non-agenda items for up to three minutes, unless the
governing board modifies the public presentation time. Although the governing board may not
act on matters not already on its agenda, board members may briefly respond or ask questions
about issues raised during public comment.
RTA and the other union at the District, California School Employees Association
(CSEA) are both involved in governing board politics. Both organizations have endorsed and
campaigned for candidates. Other local community members and groups are also involved in a
similar fashion.
As of November 2010, the District's governing board members were Mike Barber, Tim
Blaylock, Henrietta Macias, Ramon Rodriguez, and Eleanor Torres. At one point or another,
Blaylock, Macias, Rodriguez, and Torres received election support from RTA. Macias,
Rodriguez, and Torres commonly voted together on certain issues and were referred to by
some, including Lucas, as "the board majority."
Lucas's Speeches at Governing Board Meetings
It is undisputed that Lucas spoke at several governing board meetings on a variety of
subjects. Witnesses described Lucas as ,making general expressions of animus towards
governing board members. Other witnesses said that she "frequently" spoke on the
7

negotiations between the District and RTA. At one meeting, on May 12, 2011, Lucas spoke on
a multiple subjects. For example, Lucas claimed that governing board member Macias
unlawfully took money from her employer in her private life. Lucas also complained about
RTA's representation in negotiations, stating that RTA failed to properly to update unit
members. She also asserted that Barbetti was looking out for herself at the expense of others.
Barbetti also spoke about negotiations at the May 12, 2011 meeting. She said that the
District did not fully comply with requests for information during bargaining and implied that
the District declared impasse prematurely. Around that time, the District was circulating
bargaining updates and stating its perspective on the negotiations.
The District's Afterschool Program
The District sponsors an afterschool program for District students on District premises.
The afterschool program is operated and staffed by the Boys and Girls Club of Oxnard and
Point Hueneme (Boys & Girls Club). The District's relationship with the Boys & Girls Club is
defined in a memorandum of understanding (MOU) between the two organizations. The
program is funded, at least in part, by two grants. At the times relevant to this case, the After
School Education and Safety grant was managed by the District and the 21st Century grant was
managed by the Boys & Girls Club. Each grant was for roughly $1 million. Governing board
member Blaylock is also the chief professional officer of the Boys & Girls Club.
In or around May 2011, the board majority supported an audit of the Boys & Girls
Club's relationship with the District. One purpose of the audit was to address whether
Blaylock had any conflict of interest due to his role at both the District and the Boys & Girls
Club. Around this time, members of the community raised other concerns about the Boys &
Girls club. Governing board member Rodriguez said that his constituents mentioned the
8

conflict
of
interest issue, as well as concerns over the quality
•Of
the education components in
the afterschool program, and the cleanliness
of
Boys & Girls Club staff. Rodriguez said heard
about these issues from District teachers and from community members.
Lucas testified that, as this was happening, there was some discussion amongst the
public about whether another entity could administer the afterschool program instead
of
the
Boys & Girls Club. Other options bandied about included the Young
Men's
Christian
Association or the District's own teachers. There is no evidence that the governing board ever
voted on or discussed any alternative administrator for the afterschool program.
In
June 2011, an independent audit was performed on the afterschool program.
Relevant to this case, the audit concluded that Blaylock's role on both the governing board and
the Boys & Girls Club created a "potential conflict
of
interest." The auditor recommended that
Blaylock recuse himself from voting on financial m~tters involving the Boys & Girls club.
The auditor further recommended the District and the Boys & Girls Club sign a new MOU
without Blaylock's participation or signature. The District adopted that recommendation and
agendized the issue
of
a new MOU for its August 17, 2011 governing board meeting.
The August 17, 2011 Governing Board Meeting
On August 17,2011, the District's governing board held a meeting to discuss, among
other things, a new MOU with the Boys & Girls club. Many members
of
the public, including
parents
of
students in the afterschool program, attended the meeting. Before the meeting,
Lucas had passed out flyers encouraging members
of
the public to attend and speak to the
governing board about preserving the District's afterschool program.
The attendance at the meeting was well-over the capacity for the meeting room. The
governing board decided to postpone the vote over theMOU until it could secure a larger room
9

for the public attendees. Before the meeting adjourned, members
of
the public, including
Lucas, commented about the afterschool program. Lucas's comments centered around her
belief that retaining the Boys & Girls club as the operator
of
the afterschool program would
ensure that the District received
$1
million in grant funding for the program and that losing
those funds harmed the District's ability to serve children. Those comments were similarto
assertions .she made in flyers that she either created
or
passed out before the meeting. Lucas's
flyers also implied that the District was planning on either discontinuing the program or
severing its relationship with the Boys & Girls Club. Both Rodriguez and Torres responded
negatively to the flyers, describing them as "lies" or "fabrication."
Before the meeting ended, Torres made a statement to the crowd. She said:
The Rio School District will continue to have an afterschool
program until your kids are out
of
the District. That was not an
option. 	So those
of
you who thought, "what is going to happen
to my kids when school starts?"
Don't
worry. Everything will
stay the same. There will not be any cancellation
of
the
afterschool program. So I hope I have made that clear.
(Emphasis supplied.) Shortly afterwards, the meeting adjourned.
Lucas's September 22, 2011 Speech
On September 22,2011, Lucas again addressed the governing board during the public
comment period. Lucas spoke about how she believed the Boys & Girls Club afterschool
program benefitted students. According to Lucas, "[k]ids that went to afterschool club made
much more growth than kids that did not go to the afterschool club." She also stated that
teachers could request assistance from Boys & Girls Club staff. For instance, Lucas saidthat
she asked Boys & Girls Club staff to work with her students and teach them to write their
names. Lucas also said that a Boys & Girls Club staff member attended her class and
translated for a student who only spoke an indigenous Mexican dialect.

The October 13, 2011 Governing Board Meeting
The District's governing board reconvened to discuss the Boys & Girls Club on
October 13, 2011. The meeting was held in a room that could accommodate a larger audience.
The governing board voted unanimously to approve the MOU, except Blaylock did not
participate on behalf of either the Boys & Girls Club or the governing board.
At the same meeting, District interim-superintendent Howard Hamilton formed an ad
hoc committee to review the District's afterschool program further. The committee later
concluded that the Boys & Girls Club ran the program effectively, but recommended that if the
District appointed the director of the program, it would give the District more say in how to
run the program. As of the date of the hearing, the Boys & Girls club continued to administer
the District's afterschool program. There was no evidence that the District ever considered·
either eliminating the afterschool program or selecting another administrator.
Lucas's Employment at the Child Development Center
Lucas was hired by the District as a teacher at an unspecified time during the 2009-
2010 school year. The nature of her teaching position was not made clear for the record.
Lucas testified that she was "pinked' every school year between 2009-2010 and 2010-2011,
but "I was brought back, so each year, I was brought back." The circumstances of her return
during each of those years were also not made clear for the record. 3
There was some documentary evidence suggesting that Lucas was hired as a tenure-
track probationary teacher in the 2009-2010 school year, but the content of those documents is
hearsay. No evidence was offered about who produced the documents or under what
circumstances. Nor was the infonnation from the documents verified by any non-hearsay
source. One of Lucas' s former supervisors, Veronica Rauschenberger, said that she heard
Lucas was probationary in 2009, but that she had no direct knowledge ofLucas's employment
status.
3
11

Lucas's first teaching assignment was at the Community Day School (CDS). That
school serves at-risk youth who were either expelled or serving extended suspensions. The
CDS was designed to help those kids change some behaviors and re-integrate back into
mainstream education programs. The CDS had one full-time teacher with other part-time
teachers and staff. Prior to Lucas's hiring at some point in the 2009-2010 school year, the
District had difficulty retaining a full-time teacher in that position.
Lucas's supervisor at CDS, Veronica Rauschenberger, described Lucas as "actually
really good with [the student] population [at the CDS], and she was a step ahead ofthose kids
in the school." She also said that Lucas sometimes had difficulty collaborating with some of
the part-time people" and that "other staff members complained that "Lynette was yelling at
them or being difficult to work with." Rauschenberger recalled an encounter with Lucas
during a meeting over Lucas's performance evaluation. She said:
[W]hen we got to the part where I was discussing an
improvement needed on item six [on the performance evaluation
form],[ l she got upset. She stood up, was agitated and cut my
conversation short. As she was walking out, she said, you know,
this is bullshit, and slammed my door. And I wasn't able to
finish the conversation.
4
In or around November 2010, Lucas testified that then-governing board president
Macias visited her classroom and said that if Lucas stopped speaking at governing board
meetings, she (Macias) would make sure that the District did not close the CDS. At the time,
the District was considering closing the CDS for budgetary reasons. Lucas told
Rauschenberger that Macias should not have been allowed to visit unannounced.
Item 6 on the District's evaluation form is labeled "Developing as a Professional
Educator" and references working with communities, families, and colleagues.
4
12

Rauschenberger said that governing board members visit classrooms frequently and that she
welcomes such visitations.
The CDS continued operating during the 2010-2011 school year with Lucas as its only
full-time teacher. Rauschenberger said Lucas's interactions with colleagues would improve
and regress "depending on what was going on." That year, she issued Lucas a performance
evaluation with no negative marks or comments on it. Rauschenberger explained these scores
by stating that she was trying to focus on the "positive" aspects ofLucas's performance and
that she "tried to be supportive and not really focus on the area that [they] tried to discuss
before and just try and make it through and get through the year."
At the end of the 2010-2011 school year, the District closed the CDS. Rauschenberger
said she supported that decision because of the large budget cuts the District experienced that
year and because the CDS program had only limited ability to reach students given its small
size. Lucas was allowed to select a new position from among all available teaching spots
throughout the District. She selected a first and second grade combination class at Rio Real in
the 2011-2012 school year.
Lucas's Position at Rio Real
Lucas taught a first and second grade combination class at Rio Real during the 2011-
2012 school year. The principal of that site is Maria Hernandez. 	Early in that school year,
some faculty members complained to Hernandez about Lucas's rude behavior. For example,
on or around September 13, 2011, two language testing facilitators complained that Lucas was
rude when they entered her classroom during instructional time to take some students for
testing. Lucas told the facilitators that the students they requested had already been tested.
5
5 Hernandez and Rauschenberger are in a romantic relationship.
13

Hernandez recalled the facilitators describing Lucas as loud, rude, and unprofessional. None
of
the facilitators testified in this case.
In October 2011, Heather Knauer, a second grade teacher at Rio Real, complained
about some encounters with Lucas that Knauer described variously as "aggressive,"
"unprofessional," "impolite," "disrespectful," "inconsiderate," "insulting," and "intimidating."
Knauer described those encounters in an e-mail message on or around October 21, 2011.
Knauer recounted an October 6, 2011 data team meeting where teachers meet to review data
from student assessments. Lucas had not input the data from her own students, which Knauer
felt affected the group's ability to discuss the data. Knauer described Lucas as being
unprofessional and argumentative with·the data team coordinator.
Knauer also described ,an incident during a meeting between second grade teachers on
October 16, 2011. According to Knauer, Lucas acted rudely during a discussion about the
focus
of
instruction that year. Knauer also referred to other incidents where she felt Lucas was
disrespectful. Knauer did not testify.
Hernandez received other complaints from others at Rio Real, including the data team
coordinator and staff members. According to Hernandez, the complaints were similar to those
reported by the test facilitators and by Knauer. Those complaints were also broadly consistent
with Hernandez's own experience with Lucas. Hernandez also attended the October 6, 2011
data team meeting and said that Lucas was rude to both her and to the data team coordinator.
Hernandez took issue with Lucas's "argumentativeness" and how she spoke to others.
Hernandez said that her concerns were ''[nJot necessarily that [Lucas] didn't agree with
[others] on issues but just the manner in which that disagreement was expressed, and the,
14

maybe, unwillingness to work collaboratively and to come to either a consensus or a resolution
to the disagreement."
Another Rio Real teacher, Carmen Vasquez, testified during the hearing that she was
uncomfortable with how Lucas expressed herself during staff meetings. She also recalled other
teachers, including Knauer, complaining about Lucas's behavior. Vasquez did not file any
complaints against Lucas.
The Verbal Warning
Later in October 2011, Hernandez met with Lucas to discuss her interactions with her
coworkers. She issued Lucas a "verbal warning" based on the complaints she received and
Hernandez's own observations ofLucas's behavior. Hernandez directed Lucas to behave more
professionally and to not speak negatively to her colleagues. Hernandez also tried to minimize
the amount of time Lucas and Knauer worked together. She issued Lucas a memo
summarizing the meeting and allowed Lucas to respond in writing. The memo was not placed
in Lucas's personnel file. Hernandez described Lucas as being unreceptive to her feedback.
Hernandez also said that she did not feel that Lucas's behavior improved afterwards.
Lucas responded to the verbal warning on or around November 5, 2011. In the
response, Lucas disputed that some of the complaints could form the basis for discipline for
various reasons. Regarding her encounters with Knauer, Lucas acknowledged that they had a
"heated debate over education strategies" and suggested that Knauer had behaved
inappropriately. Similarly, Lucas acknowledged during the hearing that there was a "rift"
between herself and Knauer. At no point in either her response to the verbal warning or during
the hearing did Lucas confirm or deny that she had treated others rudely or disrespectfully.
15

Lucas's December 2011 Speeches to the Governing Board
At some point in December 2011, Lucas spoke at another governing board meeting
about an agreement reached between RTA and the District increasing class sizes for teachers
(the class-size MOU). Lucas described the class-size MOU as a "backroom deal" because
RTA never informed its members about the agreement and the District had not approved the
deal at a governing board meeting. She also complained that the agreement included "locking
class size at 30," something she apparently opposed. District human resources director
Carolyn Bernal confirmed that Lucas spoke at a governing board meeting about this issue.
Neither provided the specific date of the meeting.
In or around March 2012, the governing board agendized the class-size MOU for
discussion at one of its meetings. The board formally approved the class-size MOU. Lucas
said that, at some point, she filed an unfair practice charge against RTA over the class-size
MOU.
The Soledad Trevino Complaint
On or around January 4, 2012, Soledad Trevino, a member of the community, filed a
written complaint against Lucas with Bernal. Trevino stated that Lucas threatened her as well
as other people, including RTA president Barbetti and governing board member Macias.
Trevino had raised these same issues to the District earlier verbally, but the District took no
action. Bernal formally notified Lucas of the complaint on or around Jariuary 11, 2012. The
District hired an independent investigator to look into the matter, but decided against pursuing
the complaint further after the investigator reported having difficulty reaching Lucas.
Lucas testified that, in November 2011, Bernal sent her a text message about Trevino's
complaint. According to Lucas, Bernal's message said something to the effect of "watch out
16

and they are coming after [you.]" Bernal said that she typically informs employees ahead of
time if she hears about a complaint being filed. Bernal said she was doubtful that she used the
words Lucas described, but acknowledges that she may have warned Lucas about the
complaint beforehand.
Hernandez's Recommendation for Non-Reelection
On January 30, 2012, Bernal e-mailed each District principal whether she would be
recommending to not reelect any of their probationary teachers. This was Bernal's regular
practice. In her e-mail message to Hernandez, Bernal stated "I think I know the answer, but
please clarify ... will you be recommending this teacher as a non-reelect and if so, will it be a
surprise to her? Please let me know." Lucas was the only probationary teacher assigned to
Rio Real that year. Bernal explain·ed that she already knew that Hernandez was having
difficulty with Lucas because the two had discussed issues such as Lucas's interpersonal
conflicts with her colleagues and Lucas' s failure to promptly meet upon request. There was no
evidence that the two ever discussed any of Lucas's speeches before the governing board.
Hernandez responded to Bernal on February 7, 2012. She said that she would be
recommending that Lucas not be reelected and that Lucas would not be surprised. Bernal said
that she had the authority to override a principal's non-reelection recommendation but she did
not exercise that authority in Lucas's case. Non-reelection decisions are not final until it is
approved by the governing board.
On February 21, 2012, Hernandez met with Lucas to discuss a formal observation she
previously conducted of Lucas's classroom. Although Hernandez did not observe Lucas's
interaction with any coworkers during the observation, Hernandez raised that issue during the
meeting. She said that Lucas was not receptive to any feedback about her interactions with her
17

coworkers. She described Lucas's behavior during the meeting as argumentative and
disruptive, not allowing Hernandez to speak or respond to Lucas's questions. Hernandez's
observation notes were used in Lucas's formal evaluation that year. Lucas later filed a
grievance over Hernandez's evaluation. That grievance was never resolved.
The March 8, 2012 Governing Board Meeting
The District governing board met on March 8, 2012, to vote on, among other things, the
non-reelection of probationary teachers for the following school year. The District's typical
practice is that non-reelection decisions are made in a closed session meeting. The governing
board is given a list with the employee identification numbers for all the teachers under
consideration. The teachers are not identified by name. Board members have the opportunity
to question all the principals about their non-reelection recommendations. After any questions
are answered, the supervisors leave the room and board votes to approve or reject the entire list
of teachers recommended for non-reelection.
During a closed session portion of the March 8, 2012 meeting, the governing board
received a list of the teachers being considered for non-reelection for the 2012-2013 school
year, identified only by employee number. 	Board members Barber, Blaylock, Rodriguez, and
Torres were present. Macias did not attend. Deviating from the normal process, Blaylock
inquired about whether Lucas was among those 1mder consideration.
6
Bernal confirmed that
Lucas was on the list. Members Barber and Blaylock expressed concern that Lucas might sue
the District. Blaylock also sought assurances that proper evaluation procedures had been
7
Evidence from the closed session portion of the March 8, 2012 meeting was produced
in this case with the consent of the District's governing board.
6
Blaylock also said that board members sometimes learn who is under consideration
for non-reelection from side conversations with the superintendent, outside of closed session.
7
18

followed for all the teachers on the list. He said he wanted to know whether any principal' s
recommendations were influenced by others.
Barber, Rodriguez, and Torres all voted to adopt all the non-reelection decisions.
Blaylock voted against the decision. Rodriguez and Torres both said they supported the non-
reelection decisions because they trusted the principals making the recommendations .. A prior
governing board member, Simon Ayala, testified that the board historically approved non-
reelection decisions based solely on principals' recommendations.
Blaylock said that he too normally made non-reelection decisions based on "trust" of
the recommending administrators but recently began having concerns that the board majority
"targeted" their opponents. He said that he felt the need to do his "due diligence" to ensure
that principals' non-reelection recommendations were not "being directed by somebody else."
Blaylock admitted having no proof that any principal's recommendation was unduly
influenced. He also did not elaborate on why he felt the board majority "targeted" others.
Barber said that he cast his vote after interim-superintendent Hamilton told him that if
the governing board would need to reconvene at a special meeting with all members present if
there was a tie in the vote. Hamilton expressed confidence that the entire non-reelection list
would be approved at a special meeting. Barber said that he did not feel that more time or
resources should be spent on the issue.
After the vote, Barber met with Hernandez to discuss her recommendation. He said
that, like Blaylock, he had concerns over whether the board had coerced any principals'
recommendations. Hernandez explained the nature of her concerns about Lucas's performance
and that she was not influenced by anyone. Barber said he believed Hernandez was telling the
19

truth. He did not speak with any other principals about their non-reelection recommendations
that year. The District then sent Lucas a notice of non-reelection on or before March 15, 2012.
ISSUE
Did the District not re-elect Lucas to a permanent teaching position because of
protected comments she made during District governing board meetings between May 2011
and March 2012?
CONCLUSIONS OF LAW
The PERB complaint, as amended, alleges that Lucas was non-reelected because of
protected statements she made during governing board meetings between May 2011 and March
2012. To demonstrate that an employer discriminated or retaliated against an employee in
violation of EERA section 3543.5(a), the charging party must show that: (1) the employee
exercised rights under EERA; (2) the employer had knowledge of the exercise of those rights;
(3) the employer took adverse action against the employee; and (4) the employer took the
action because of the exercise of those rights. (Novato Unified School District (1982) PERB
Decision No. 210, pp. 6-8.)
Protected Activity
The first element of a prima facie case is whether Lucas engaged in BERA-protected
activity by making statements to the District governing board during the time period alleged in
the complaint. EERA section 3543 protects public school employees' right to form, join, and
participate in the activities of their chosen employee organization for the purpose of
representation in labor relations matters. BERA section 354, subdivision (a), includes the right
to engage in "self-representation," meaning an individual's advocacy that is "a logical
continuation of group activity." (San Joaquin Delta Community College District (2010) PERB
20

Decision No. 2091, p. 3.) However, an individual's advocacy made solely for his or her own
benefit is not protected. (Ibid.) These protections may extend, for instance, to a teacher's
comments to supervisors and to the school board about working conditions shared with other
employees, such as class sizes. (Livingston Union School District (1992) PERB Decision
No. 965 (Livingston USD), p. 3, proposed decision, p. 27, citations omitted; see also Sierra
Joint Community College District (1983) PERB Decision No. 345, p. 5, pp. 15-16 (Sierra
JCCD).) In contrast, an employee's complaints about his own work assignments and his
performance evaluation, unrelated to a negotiated dispute resolution procedure, were only for
his own benefit and not protected. (Regents of the University of California (2010) PERB
Decision No. 2153-H, warning letter, p. 5, citing California State University (1990) PERB
Decision No. 853-H.) This case concerns Lucas 's speeches made at governing board meetings
·on two broad subjects: (a) the Boys & Girls Club; and (b) negotiations between RTA and the
District. I will address each issue separately, below.
a. 	Comments About the Boys & Girls Club
EERA protects employees' and employee organizations' right to comment on "working
conditions," a term PERB has purposefully defined broadly. (Sierra JCCD, supra, PERB
Decision No. 345, p. 15.) Thus, PERB held that a faculty union had the protected right to
present to the school board its idea to hire an independent consultant to review the district's
operations and finances. (Id. at pp. 2-3, 14-15.) The union's proposal in that case related to
the district's assertion that it lacked the funds to support cost-of-living salary increases. (Ibid.)
Similarly, in Mt. San Antonio Community College District (1982) PERB Decision No. 224 (Mt.
San Antonio CCD), a group of nine faculty members distributed literature to students that was
critical of a school district's management practices. (Id. at p. 6.) Although the teachers' union
21

and the district were in negotiations at the time, the leaflet made no reference to the
negotiations or to the union. (Id. at pp. 3, 7.) PERB nonetheless held that the content of the
flyers was a protected attempt to "bring attention to the plight of the college, allegedly
endangered by bad management, and to work for the preservation of the college's high
educational quality." (Id. at p. 6.) PERB reasoned that those issues were "oflegitimate
concern to teachers as employees." (Id. at p. 7.) PERB distinguished the flyers in that case
from other speech such as attacks on the quality of the employer's services, with no discernible
relationship to working conditions. (Id. at pp. 4-6.)
A court applied the holding from Mt. San Antonio CCD, supra, PERB Decision
No. 224, in California Teachers Association v. PERE (2009) 169 Cal.App.4th 1076 (Journey
Charter School). In that case, all the teachers at a charter school jointly drafted a letter to
parents of students expressing "serious concerns over the financial, executive management,
and accountability of the school," raising questions about the continued viability of the school.
(Id. at pp. 1081-1083.) As PERB found in Mt. San Antonio CCD, the court drew the "obvious
inference" that teachers, as employees, had an interest discussing both the quality of the
school's education programs and its financial well-being. (Id. at pp. 1091-1092.)
In the present case, as in both Mt. San Antonio CCD, supra, PERB Decision No. 224,
and Journey Charter School, supra, 169 Cal.App.4th 1076, Lucas's comments during
governing board meetings pertained to both the financial status of the District and the quality
of the District's education programs. Lucas made the argmnent that the Boys & Girls Club
guaranteed an additional $1 million in funding for the District's afterschool program that the
22

District would not otherwise receive. 	Lucas spoke on these issues during the August 17, 2011
meeting, shortly before the governing board adjourned the meeting due to lack of space. Lucas
made similar comments in flyers encouraging the community to attend the August 17, 2011
governing board meeting. At the September 22, 2011 meeting, Lucas spoke about how
students participating in the Boys & Girls Club's afterschool program performed better in the
classroom, which assists teachers. She also said that Boys & Girls Clubs staff sometimes
assisted teachers with instruction.
8
I conclude that these issues bear a ~ufficient relationship to working conditions for
teachers because they involve matters of interest to teachers as employees. Lucas adequately
explained how her statements about the Boys & Girls Club relate to teachers' work. The
record shows that the Boys & Girls Club was a topic of concern for other teachers as well.
Governing board member Rodriguez testified that his constituents, including teachers,
requested that he review Boys & Girls Club's education programs and the manner in which
Boys & Girls Club staff use District facilities. For all these reasons, I conclude that Lucas's
Lucas never established that the District would actually lose any funding for the
afterschool program if it terminated its relationship with the Boys & Girls Club. Equally
unclear is whether the District governing board ever actually considered terminating its
relationship with the Boys & Girls Club or what effect, if any, the District's failure to approve
the new MOU with the Boys & Girls Club, as recommended by the audit, would have had.
Resolution of these unknowns is not necessary to conclude that Lucas's commentary on these
issues is protected under EERA. Even speech containing "inaccuracies and exaggerations"
retained its protected status, if the speech concerned employment related subjects. (Trustees of
the California State University (Sonoma) (2005) PERB Decision No. 1755-H, p. 6, citing
Pomona Unified School District (2000) PERB Decision No. 1375, State of California
(Department of Transportation) (1983) PERB Decision No. 304-S.) It is only when the speech
is "so 'opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice"'
that it loses its statutory protection. (Rancho Santiago Community College District (1986)
PERB Decision No. 602, quoting Mt. San Antonio CCD, supra, PERB Decision No. 224, p. 6.)
In this case, Lucas provided unrebutted evidence that RTA and other community members
supported replacing the Boys & Girls Club. Irrespective of whether anyone from the
governing board supported those ideas, Lucas had a legitimate interest in speaking on the
matter.
8
23

comments both about retaining the Boys & Girls Club as the administrator of the afterschool
program and about the positive impact of that program were matters of legitimate concern to
teachers as employees. Those comments were accordingly protected under EERA.
The District attempts to distinguish the present case from Journey Charter School,
supra, 169 Cal.App.4th 1076 by stating that the holding in that case only applied to situations
where a group of teachers acted collectively .. This argument is rejected because even an
individual's complaints relating to matters of common concern is protected under EERA.
(Los Angeles Unified School District (1995) PERB Decision No. 1129, proposed decision, p.
8.) Also rejected is the District's assertion that the Journey Charter School holding only
applies to cases involving charter schools. The court specifically rejected this argument,
stating that its conclusions applied even if the court left aside any issues relating to the
employer's status as a charter school. (Id. at p. 1090.) For these reasons, I conclude that
Lucas's speech about the Boys & Girls Club were protected under EERA.
b. 	Comments about Negotiations
Lucas also commented to the governing board about the quality of RT A's
representation in negotiations. PERB has previously recognized that an employee's challenges
to and public disapproval of existing union leadership constitutes protected activity.
(California State Employees Association (Hackett, et al.) (1995) PERB Decision No. 1126-S,
p. 6, proposed decision, p. 4, proposed decision, p. 25.) Other critical comments about the
union are also protected. (See Civil Service Division, California State Employees' Association
(Eisenberg) (2009) PERB Decision No. 2034-S, dismissal letter, p. 3, warning letter, p. 4.)
In this case, Lucas called RTA president Barbetti a "hypocrite" at the May 12, 2011
governing board meeting, asserting her belief that RTA was not providing tmit members with
24

sufficient information about ongoing negotiations and accusing Barbetti benefitting herself at
the expense of others. In a December 2011 meeting, Lucas complained that the District and
RTA negotiated a class-size MOU without informing the bargaining unit at large, and without
governing board approval. Bernal admitted to hearing Lucas' s comments about the class-size
MOU in or around December 2011. Based on these facts, Lucas's critical comments about
RTA and the class-size MOU were protected.9
2. 	Knowledge of Protected Activity
The second element of the prima facie case for retaliation is whether the respondent
was aware of the charging party's protected activity. The charging party must prove that "at
least one of the individuals responsible for taking the adverse action [was] aware of the
protected conduct." (_Los Angeles Unified School District (2014) PERB Decision No. 2390
(LAUSD), proposed decision, p. 12, citing Oakland Unified School District (2009) PERB
Decision No. 2061, pp. 8-9; California State University (San Francisco) (1986) PERB
Decision No. 559-H, pp. 5-6.)
a. 	The Governing Board's Knowledge of Lucas's Protected Activity
The District admits that all of its governing board members have heard Lucas speak at
board meetings. It contends, however, that because Lucas spoke so frequently at governing
board meetings on a mixture of different subjects, she failed to prove that the governing board
members who actually voted on her non-reelection were present during the time she spoke on
protected subjects. This argument is rejected. All three board members who supported
Lucas's non-reelection testified at the hearing and are therefore readily recognizable. Both
The District's assertion that Lucas's comments on these subjects lack specificity is
rejected. There was ample evidence supporting Lucas's claims, including the video and
transcript of the May 12, 2011 meeting and the testimony of both Lucas and Bernal. This
evidence provides a consistent and specific description of Lucas's comments on these issues.
9
25

Barber and Torres were observed in the video exhibit of the May 12, 2011 meeting, where
Lucas spoke about RTA. Likewise, Barber, Rodriguez, and Torres can be observed in the
video exhibit of the August 17, 2011 meeting, where Lucas spoke about the Boys & Girls
Club. All three admit that they attended that meeting. Barber, Rodriguez, and Torres were
also observed in the video exhibit of the September 22, 2011 governing board meeting where
Lucas spoke about the Boys & Girls Club.
The same conclusions can be reached regarding Lucas's December 2011 speeches to
the governing board. Lucas testified that she addressed the board about the class-size MOU
that month. Although Lucas never specified which governing board members attended that
meeting, the weight of the evidence supports the conclusion that the members who voted for
her non-reelection were aware of her speech. The District's governing board could not have
convened a meeting to conduct official business without at least three of its five members
present. (Ed. Code, § 35164.) That means at least one of the three members who voted in
favor of Lucas's non-reelection must have been present.
Furthermore, both Lucas and Bernal testified about Lucas's comments at the meeting in
question. Neither identified the board members present, instead referring to the board as a
single entity. However, I find it more likely than not that at least one of these two witnesses
would have noted the absence of a board member had that been the case. For example, Bernal
was asked specifically about each governing board· member's reaction to Lucas' s comments
that day. If a board member was absent, I believe Bernal would have said so during this
questioning. Finally, it is undisputed that the governing board continued discussing the class-
size MOU issue after the December 2011 meeting. The governing board subsequently
approved the class-size MOU at a public meeting, as Lucas had requested. Thus, even if
26

certain governing board members were not present at the December 2011 meeting, I conclude
that it is more likely than not they were otherwise made aware of Lucas's comments.
Therefore, the governing board members responsible for voting to not reelect Lucas to a
permanent position were aware of her protected comments during board meetings.
b. 	Hernandez's Knowledge ofLucas's Protected Activity
On the other hand, there was no evidence that Hernandez knew anything about Lucas' s
governing board speeches between May 2011 and March 2012. There was no showing, for
example, that Hernandez attended any governing board meeting where Lucas spoke on
protected subjects. Nor was there evidence that Hernandez learned of Lucas's speech through
some other means. 	Therefore, Lucas has failed to demonstrate that Hernandez knew of
Lucas's protected activities at the time she recommended Lucas for non-reelection. (See
Sacramento City Unified School District (1985) PERB Decision No. 492, proposed decision, p.
34-35 [declining to impute knowledge of protected activity from one representative to
another].)
10
The record shows that Hernandez was aware that Lucas filed a grievance during the
2011-2012 school year. Generally speaking, filing and pursuing grievances to enforce
contractual rights is protected under EERA. (Jurupa Unified School District (2013) PERB
Some limited evidence was produced that Lucas told Rauschenberger about speaking
at governing board meetings during the 2009-2010 and the 2010-2011 school years, while
Lucas was assigned to CDS. Rauschenberger is Hernandez's romantic partner. However, this
is insufficient to establish that Hernandez had knowledge ofLucas's protected speech activity
at issue in this case. No evidence was shown that Rauschenberger and Hernandez ever
discussed Lucas's speeches. Even if they did, the record does not show that Lucas ever
explained to Rauschenberger what she was speaking about. I am unwilling to impute
knowledge of any protected activity onto Hernandez solely by her relationship to
Rauschenberger. Similarly, even though Bernal and Hernandez had discussed Lucas's
problems at Rio Real, and were personal friends, there is insufficient evidence to conclude that
they also discuss·ed Lucas's speeches to the governing board concerning protected subjects.
10
27

28
Decision No. 2309, proposed decision, p. 7, citing Ventura County Community College District
(1999) PERB Decision No. 1323.) However, Lucas's grievance activity was not described in
the PERB complaint. Lucas did not mention the grievance in her verbal motion to amend the
PERB complaint during the hearing. PERB may only address such unalleged issues when the
following criteria are met:
(1) [A]dequate notice and opportunity to defend has been
provided [to] the respondent; (2) the acts are intimately related to
the subject matter of the complaint and are part of the same
course of conduct; (3) the unalleged violation has-been fully
litigated; and (4) the parties have had the opportunity to examine
and be cross-examined on the issue.
(Lake Elsinore Unified School District (2012) PERB Decision No. 2241, p. 8 (Lake Elsinore
USD), citing County of Riverside (2010) PERB Decision No. 2097-M; Fresno County Superior
Court (2008) PERB Decision No. 1942-C; Tahoe-Truckee Unified School District (1988)
PERB Decision No. 668.) These standards are not met here because, when Lucas moved to
amend the complaint, she explicitly informed the District that the only protected activities she
would be litigating in this case were speeches to the governing board between May 2011 and
March 2012 about RTA's negotiating conduct and the class-size MOU. Nothing in Lucas's
conduct during the hearing expressed or implied that Lucas was changing this position. In
other words, the District was totally without notice that Lucas might attempt to later claim that
28

her non-reelection was also due to her grievance activity. 11 Therefore, it is not appropriate to
consider Lucas' s grievance as additional protected activity in this case. 12
3. 	Adverse Action
The charging party also has the burden to prove that he or she suffered an adverse
employment action at the hands of the respondent. The issue is whether a reasonable person
under the same circumstances would consider the respondent's action to be adverse to
employment._ (Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12.) In
applying that standard, PERB has consistently found that the termination of a probationary
employee is an adverse employment action. (City of Santa Monica (2011) PERB Decision
No. 2211-M, p. 14, citing County of Riverside (2011) PERB Decision No. 2184-M, California
State University, Fresno (1990) PERB Decision No. 845-H; see also Oakland Unified School
District (2007) PERB Decision No. 1880, p.31.) This is undisputed by the District.
Therefore, Lucas has established this element of her prima facie case.
4. 	Nexus
The final element of a prima facie case is whether there is a causal connection, or
nexus, between the charging party's protected activity and the respondent's adverse action.
In addition, the record shows that Hernandez made the recommendation not to reelect
Lucas on February 7, 2012. Lucas did not file her grievance until around a month later. Under
these circumstances, Hernandez's recommendation could not have been in retaliation for
protected activity that had not occurred yet. (See Grossman! Union High School District
(2010) PERB Decision No. 2126, proposed decision, p. 6.)
11
The same can be said about Lucas' s filing of an unfair practice charge against RT A
sometime in or armmd January 2012. Although PERB normally finds the filing and
prosecuting of an unfair practice charge to be protected (San Bernardino City Unified School
District (1998) PERB Decision No. 1270, proposed decision, p. 72, citations omitted), the
District had no notice that Lucas might be basing her retaliation claims on that conduct.
Furthermore, Lucas did not establish that either Hernandez, or the District's governing board
were aware of her other charge.
12
29

The existence or absence of nexus is usually established circumstantially after considering the
record as a whole. (San Bernardino City Unified School District (2012) PERB Decision
No. 2278, warning letter, p. 3, fn. 2, citing Moreland Elementary School District (1982) PERB
Decision No. 227.)
a. 	Timing as Evidence of Nexus
Closeness in time between the charging party's protected activity and the employer's
adverse actions is typically an important circumstantial factor to consider in proving or
disproving nexus. (North Sacramento School District (1982) PERB Decision No. 264,
proposed decision, p. 23) PERB has held that "[t]iming is important in an unlawful motivation
inquiry to the extent that it shows that [the respondent] responded to protected activity by
initiating [a] negative personnel action against the [charging party]." (State of California
(Department of Social Services) (2000) PERB Decision No. 1413-S, proposed decision, p. 11.)
In the present case, Lucas's protected activity covered a wide timespan. As explained
above, Lucas commented on protected subjects at governing board meetings starting in or
around May 12, 2011, and continuing until at least December 2011. 	The governing board
voted to not reelect her for the following school year three months later, on March 8, 2012.
This closeness in time supports an inference of unlawful retaliation. (See Escondido Union
Elementary School District (2009) PERB Decision No. 2019 (Escondido UESD), p. 27, citing
Mountain Empire Unified School District (1998) PERB Decision No. 1298.)
13
According to the PERB compla\nt, as amended, Lucas's protected activity continued
until March 2012, but Lucas presented insufficient evidence of any protected comments made
to the governing board after December 2011.
13
30

b. 	Departure From Established Procedures
PERB has found that it may infer unlawful motive from a respondent's departure from
existing practices in its dealings with the charging party. (Garden Grove Unified School
District (2009) PERB Decision No. 2086, dismissal letter, p. 4.) To establish such an
inference, the charging party must typically demonstrate what the respondent's practice is and
how the respondent deviated from that practice. (Ibid.; see also LAUSD, supra, PERB
Decision No. 2390, pp. 1 l;.12, proposed decision, p. 16.)
1. 	The Non-Reelection Vote
In the present case, the record is clear that the District did not follow its own standard
procedures regarding the governing board's vote not to reelect Lucas. The District admits that
the governing board normally does not know the identity of any probationary employee
considered for non-reelection until after the vote. Rather, the governing board votes based
only on a list of employee numbers. The District further admits that it did not follow this
practice at the March 8, 2012 meeting. Instead, Lucas was specifically identified before the
board's vote. This departure implies that knowing Lucas was under consideration for non-
reelection factored into the vote. It is accordingly additional evidence of nexus.
11. 	The District's Public Complaint Procedures
Lucas contends that the District also deviated from existing procedures in how it
handled complaints registered agaip.st her filed by Trevino, a member of the community.
However, assuming for the sake of argument that Lucas' s assertions were true, PERB has held
that "not all departures from existing practices are evidence of unlawful motive." (Regents of
the University of California (2012) PERB Decision No. 2302-H, proposed decision, p. 25,
citation omitted (UC Regents).) In UC Regents, PERB found that minor deviations in a self-
31

evaluation process with no apparent effect on the charging party's suspension or termination
was not evidence of nexus, absent some showing that the events were related. (Id. at proposed
decision, p. 25, fn. 7, citation omitted.) In Pasadena Unified School District (1999) PERB
Decision No. 1331, PERB held that an employer_'s alleged failure to maintain a report on
student abuse complaints was not evidence of nexus where the charging party was terminated
for failing to cooperate in the investigation, not the complaints themselves. (Id. at warning
~etter, p. 4.) In R~g~nts of the University of California (19~7) P~RB Decision No. 615-H,
PERB declined to find evidence of nexus where the employer's deviations from its existing
appeal hearings process actually worked to the benefit of the charging party. (Id. at p. 21.)
In this case, Lucas did not establish that anyone from the District considered the
Trevino complaint when deciding whether to reelect Lucas to a permanent position. Moreover,
there was no showing that the Trevino complaint impacted Lucas's employment in any way.
The record shows that the District declined to pursue the complaint after having trouble
reaching Lucas. Under these circumstances, Lucas has not demonstrated that the District's
handling of these complaints demonstrates nexus.
111. 	The District's Designation of Lucas as a Probationary Employee
Lucas also maintains that the District wrongly classified her as a probationary
employee for the 2011-2012 school year. Lucas asserts that she was a probationary employee
for both the 2009-2010 and the 2010-2011 school years. She now argues that she should have
received a permanent teaching position in the following year, 2011-2012 and was therefore
ineligible for termination by non-reelection. Presumably, Lucas is referring to Education Code
section 44929 .21, subdivision (b ), which guarantees permanency to certificated employees
who work "two complete consecutive school years," and then return for a third year at a
32

qualifying school district. A "complete school year," for purposes of that section is defined as
at least 75 percent of all regular school days that year. (Ed. Code,§ 44908; Cox v. Los Angeles
Unified School District (2013) 218 Cal.App.4th 1441, p. 1445.)
Lucas failed to establish key facts supporting her claim that she should be considered a
permanent employee. For instance, Lucas did not show that she worked "two complete
consecutive school years" as defined by the Education Code. Lucas claims that documents
admitted	- 	-
	into-
the-
record support	- 	-
her claim, but the content	--
of--
	those documents are hearsay	-
	and
not sufficient to support a factual conclusion. (See PERB Regulation 32176; Escondido
UESD, supra, PERB Decision No. 2019, p. 23.) Moreover, even relying upon those
documents would not be sufficient. The documents indicate that Lucas was hired as a
probationary employee in or around November 2009. Without evidence about the length of the
school year in 2009-2010 or in 2010-2011, it remains unclear whether Lucas worked "two
complete consecutive school years" under the Education Code. The documents also indicate
that Lucas was laid off at the end of the 2009-2010 school year, which again, muddies the
record about whether Lucas should have received tenure in the 2011-2012 school year. 14
Lucas's own ambiguous statements about her employment history are also insufficient to
demonstrate that she worked the required time to be considered permanent.
1v. 	The 2011-2012 Performance Evaluation
Lucas also contends that Hernandez failed to follow CBA procedures concerning her
2011-2012 performance evaluation. During the hearing, Lucas intimated that Hernandez failed
to timely notify Lucas that she would be evaluated that year, failed to follow the evaluation
timelines, and failed to follow through with her promise to issue Lucas an assistance plan.
Education Code section 44929 .21 (b) also only applies to school districts above a
minimum enrollment threshold. No evidence was presented about the District's enrollment.
14
33

However, adjudication of these claims is unnecessary to decide this case because Lucas never
established that Hernandez was aware of any ofLucas's protected activities. Thus, any
examples of Hernandez's deviation from existing practices would not indicate animosity
towards that activity.
c. 	Disparate Treatment
Lucas asserts that the District governing board treated her differently from other
speakers	-
	during public comment	- 	-
periods. Evidence that -
the charging	-
	party or alleged
discriminate was treated differently from similarly situated employees may be evidence of
nexus. (Lake Elsinore USD, supra, PERB Decision No. 2241, pp. 14-15.) Lucas asserts that
speakers who supported certain governing board members were allowed to exceed the three-
minute public comment period, while those who did not were criticized and limited in time.
While the record appears to show that the governing board enforced its procedural rules
haphazardly, there was insufficient evidence that the board targeted Lucas or others who spoke
against the District. In at least two of Lucas's video exhibits, she was allowed to exceed the
public comment time period. One time, she spoke for almost an entire minute beyond her
allocated time. In addition, during the August 17, 2011 meeting, the governing board delayed
its vote on the Boys & Girls Club MOU specifically for the purpose of accommodating all the
people who wanted to weigh in on the issue. During that meeting, the governing board heard
and responded to the comments of another community member who spoke negatively about the
governing board's failure to approve the Boys & Girls Club MOU.
Regarding the allegedly favorable treatment of other speakers, Lucas asserts that R TA
president Barbetti was allowed to exceed the public comment time period during her
presentation at the May 12, 2011 governing board meeting. However, in the exhibit Lucas
34

submitted to support this claim, Barbetti's speech was less than three minutes long. Moreover,
even if Barbetti did exceed the time limit at the meeting, it should be noted that Barbetti
expressed frustration at the District for its position in negotiations. For all these reasons, Lucas
has not established that the governing board treated her, or others who were critical of the
governing board, disparately. Therefore, this does not support Lucas's retaliation claims.
d. 	Shifting Justifications
Lu~as_ als9 a~serts !_hat Rodr~guez's conflicting testi]]lony_ about his concern over the
Boys & Girls Club MOU, and this his shifting positions are further evidence of nexus. An
employer's inconsistent and/or contradictory explanation for taking adverse employment
actions against a charging party may be evidence that those actions were taken for unlawful
reasons. (Livingston USD, supra, PERB Decision No. 965, p. 4, proposed decision, p. 30.)
However, it does not necessarily follow that an employer's inconsistency on other matters also
demonstrates a retaliatory motive. Here, Rodriguez's alleged shift in position involved the
Boys & Girls Club MOU, not Lucas's non-reelection vote. Lucas fails to establish how the
two matters are related. 15 Therefore, Lucas's argument is unpersuasive.
e. 	The District's Alleged History of Retaliation
Lucas maintains that the District retaliated against anyone who opposed the board
majority, Macias, Rodriguez, and Torres. Proof of this claim was sparse, but not entirely
absent. Blaylock testified that he was wary of his fellow governing board members because he
Moreover, Lucas did not prove, as a matter of fact, that Rodriguez actually changed
his position. According to Lucas, Rodriguez originally said that his concerns were based on
Blaylock's role on both the District governing board and Boys & Girls Club. Lucas asserts
that he altered this position later, stating that his concerns stemmed from complaints he heard
from constituents about Boys & Girls Club operations. Rodriguez's actual testimony was that
he was concerned with both issues, but that he eventually voted to support the Boys & Girls
Club MOU once those concerns were alleviated. I find no inconsistency in this position.
15
35

felt they "targeted" opponents. Barber expressed a similar sentiment. However, neither
purported to have any support for these beliefs. Moreover, it remains unclear whether either
believed that anyone from the governing board had a propensity for retaliation against EERA-
protected activity. Even if the governing board openly displayed animus towards political
opponents. or conduct unrelated to employee working conditions, it would not necessarily
follow that board members also harbored animus towards conduct protected under EERA.
(Se_e LAUSD,_ supra, PERE3 Decision No. 2390, p. 11 [ho_ldjng tliat alleged animus over a
student attendance dispute di:d not necessarily establish animus towards EERA-protected
activities].) In fact, the record shows that RTA president Barbetti spoke negatively about the
District's position in negotiations without any adverse consequences.
In addition, the record here.shows that the governing board actually supported the
positions taken in Lucas's protected speech activity. For example, on October 13, 2011, the
board unanimously approved the Boys & Girls Club MOU, as Lucas had requested. Lucas also
complained about RTA's failure to properly update unit members about negotiations. The
District, apparently agreed, issuing its own bargaining updates to teachers with its perspective
of the ongoing negotiations. Finally, the governing board held a public meeting and voted on
the class-size MOU after Lucas complained about it. This suggest that her views on issues
relating to employee working conditions were not that different from the governing board's
own views. For these reasons, Lucas's argument is unpersuasive.
f. 	Statements From District Representatives
Lucas provided evidence about a variety of District representatives who allegedly made
incriminating statements about the District's unlawful motives. The Board has found that
outward expressions of animus towards union or other protected activity may provide evidence
36

of nexus. (Rocklin Unified School District (2014) PERB Decision No. 2376, p. 7.) In
Los Angeles Community College District (1995) PERB Decision No. 1091, PERB held that a
supervisor's complaint about an employee's grievance activity, in conjunction with other
evidence, demonstrated nexus. (Id. at pp. 2, 5.) There, the supervisor described having to deal
with the employee's grievances as "pain in the ass." (Id. at proposed decision, pp. 14-15.)
PERB reached a similar conclusion about negative comments regarding grievance activity in
J_urupa _Commun~ty Service_s District (2007) PERB Decision 1'io._ 1920-M (Jur!tpa CSD).
There, PERB found animus where a manager actively discouraged an employee from filing
grievances and described the employee as having a "bad attitude" after that advice was not
followed. (Id. at proposed decision, pp. 15-16; see also Trustees of the California State
University (San Marcos) (2009) PERB Decision No. 2070-H, pp. 3, 11 [finding evidence of
nexus in a director's comments that an employee's complaints to his union about the transfer
of unit work were "getting under his skin" and "not a good thing"].)
However, a respondent's statements must be interpreted in the proper context. In State
of California (Department of Corrections & Rehabilitation) (2010) PERB Decision No. 2118-
S, PERB dismissed a retaliation charge prior to issuing a complaint. The charge was based
primarily on the claim that a union representative received negative comments on his
evaluation in retaliation for filing grievances. (Id. at p. 6.) The union based its nexus
argument on a supervisor's statement that the employee was "bringing his [union] issues to
work." (Id. at 3.) PERB concluded that this was insufficient evidence of unlawful motive
because the "charge [did] not describe the context in which the statement was made or even
when the statement was made." (Id. at p. 8; see also Fallbrook Union Elementary School
District (2011) PERB Decision No. 2171, p. 10.)
37

1. 	Comments by Macias in November 2010
Lucas asserts that in November 2010, Macias told Lucas that the District would not
close Lucas' s school site if Lucas stopped speaking at governing board meetings. This
allegation does not support Lucas' s retaliation claim because it is too vague. This alleged
conversation occurred before any of the protected activity pled in the PERB complaint, as
amended. In addition, Lucas did not establish that her speeches to the board at the time
qualified as activity-
protected-
under-
EERA. Therefore, even if Macias's statements
demonstrated some kind of animus towards Lucas's speeches at the time, there is insufficient
evidence in the record to conclude such animus was directed towards protected activity or
towards the activity that is the focus of this case. Furthermore, Macias did not vote on
Lucas's non-reelection and there was no showing that Macias was otherwise involved in that
decision in another way. For these reasons, Lucas has not established that Macias's alleged
comments in November 2010 support the present retaliation claim.
- 	- -
11. 	Comments by Bernal
Lucas also claims that Bernal sent Lucas a text message with words to the effect of
"watch out and they are coming after [you.]" Bernal expressed doubt that she would have used
those words, but did admit to sending Lucas text messages. She also acknowledged that it is
her practice, as director of human resources, to inform employees ahead of time if she learns of
a public complaint. After reviewing the record as a whole, I conclude that it is unlikely that
Bernal would have sent the text message as stated by Lucas. My impression of Bernal was that
she is conscientious in her duties as human resources director, and generally honest. I find it
highly improbable that she would send a text message that could implicate the District the
governing board in wrongdoing. If she did, I believe she would have said so. It is also unclear
38

from Lucas's testimony whether she was trying to quote from Bemal's actual text message or
whether Lucas was merely providing her own interpretation of that message. Lucas declined
to either clarify this issue or provide the actual text message during her own testimony. After
reviewing the record as a whole, I find it much more likely that Bernal notified Lucas that
Trevino was considering filing a complaint, and that Lucas, perhaps even innocently,
misremembered or misunderstood the content ofBernal's message.
Lucas also cites in support other comments by Bernal in support of her case. When
Lucas asked Bernal whether she believed that her own job as human resources director could
be jeopardized if the District discovered that Bernal's children passed out flyer's supporting
the Boys & Girls Club, Bernal responded that "it could." Bernal also testified that she was
"aware of some people who weren't favorable of certain [governing] board members [that] no
longer work" at the District. However, both of these statements are far too vague to support an
inference of unlawful motive. Neither statement, read separately or together with the record as
a whole, indicates that anyone from the District possesses the motive to retaliate against public
school employees for engaging in EERA-protected activity.
- - 	-- - 	- 	-- - 	- 	-- 	- - 	- 	-- 	- 	- 	- 	- --- 	-- -- -
m. 	Comments and Actions by Rodriguez
Lucas also claims that Rodriguez's reaction to her protected activity demonstrates
nexus. He admitted being "frustrated" by the flyers produced and/or distributed by Lucas
about the Boys & Girls Club. Those flyers contained the same basic message that Lucas
expressed in speeches to the governing board. Rodriguez said that he was bothered because
Lucas asserted to the public that the District planned on either eliminating the afterschool
program or severing its relationship with the Boys & Girls Club. Rodriguez said that the
governing board never entertained either option. Nevertheless, as discussed above, I find that
39

Lucas's statements were protected because these issues were in the periphery at the time the
governing board was considering the Boys & Girls Club MOU. Lucas's comments on the
matter, even if not fully accurate, remain protected because of their relationship to teachers'
working conditions and the District's education programs as a whole.
I also find that Rodriguez's response to Lucas's comments to provide some evidence of
nexus. While, not all expressions of frustration at protected activity demonstrate nexus (see
l}elle_vue [!nio_n E_lemen~al)J Scho!]l D~stric! (20Q3) PER~ l)e~is~o~ No. _].5~1 (Bepevi'!! UE_SD)~
proposed decision, p. 37), I conclude that such evidence is present here. Rodriguez admitted to
walking out during Lucas's speeches during governing board meetings multiple times, which I
consider to be a sign of disrespect. He justified this by saying that he oftentimes had to use the
restroom whenever Lucas spoke, but this explanation lacks credibility. Rodriguez also
admitted to removing posted flyers containing Lucas's message about the Boys & Girls Club. 16
He admitted to taking the flyers down because of their message. Considering all these factors
together, I find sufficient evidence of animus towards Lucas's protected speech. 17
_
After viewing the entire record in this case, including the timing of events, Rodriguez's
reactions to Lucas's protected speech, and the District's failure to follow existing procedures, I
conclude that Lucas has demonstrated a sufficient nexus between her protected activities and
Lucas said that Rodriguez aggressively confronted her when he saw her posting these
flyers in his neighborhood. He denies this. I find it unnecessary to resolve this factual dispute
because, either way, his removing of the flyers supports an inference ofretaliation.
16
Torres also said she was "upset" by Lucas's flyers because, like Rodriguez, she felt
that Lucas's statements were untrue. However, I view her reaction differently from
Rodriguez's. Unlike Rodriguez, Torres did not display animus towards Lucas's activities in
any other fashion. She is entitled to her own point of view on this issue. (Bellevue UESD,
supra, PERB Decision No. 1561, proposed decision, p. 37.) Moreover, her view that Lucas's
statements were untrue is basically accurate. There was no showing that the District ever
contemplated replacing the Boys & Girls Club.
17
40

her non-reelection. Therefore, Lucas has established all the elements of a prima facie case for
retaliation.
5. 	The District's Burden of Proof
If the charging party proves all of the elements of the prime facie case for retaliation,
the burden of proof shifts to the respondent to show that the adverse action occurred for
reasons umelated to the protected activity. (Chula Vista Elementary School District (2011)
~RB D~ci_si()__n ~o._2221 (_Chitla Vista ESD), p. 21, citiI1J~J\Toya~ USD,!ul!ra, P~RB Dec_isiol!
No. 210; Martori Bros. Dist. v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721.) In
cases where an adverse action appears to have been motivated by both protected and
unprotected conduct, the issue is whether the adverse action would have occurred "but for" the
protected acts. (Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p.
22.) This requires the employer to establish both:
( 1) that it had an alternative non-discriminatory reason for the
challenged action; and (2) that it acted because of this alternative
non-discriminatory reason and not because of the employee's
protected activity.
(Palo Verde Unified School District (2013) PERB Decision No. 2337 (Palo Verde USD), pp.
18-19, citations omitted; see also County of Orange, supra, PERB Decision No. 2350-M, p.
16.) Stated another way, the respondent must prove by a preponderance of the evidence that
""the challenged action would have occurred in the absence of the employee's protected
activity." (Palo Verde USD, p. 19, citing County of Riverside (2009) PERB Decision
No. 2090-M; Escondido UESD, supra, PERB Decision No. 2019; The Regents of the
University of California (1998) PERB Decision No. 1255-H; Woodland Joint Unified School
District (1987) PERB Decision No. 628.)
41

It should be noted that, "the mere presence of animus is not determinative" in
retaliation cases. (Bellevue UESD, supra, PERB Decision No. 1561, proposed decision, p. 37.)
An employer may satisfy its burden of proof even in light of direct evidence of nexus. (UC
Regents, supra, PERB Decision No. 2302-H, p. 4.) In Bellevue UESD, nexus was established
based in part on a principal's bias against union activity and the district's failure to disclose or
adequately investigate parent complaints. (Id. at proposed decision, pp. 35-37.) In the end,
PERB concluded	- 	- 	- 	-
that	- 	--
retaliation	- 	- 	- 	-
was-
	not the	-- -
true-
	motive	-
	behind	- 	-
the--
non-reelection	-- 	- 	- -
	decisions,	-
given the lack of evidence of discrimination against other teachers who had engaged the same
activity and the employer's legitimate concerns about work performance that predated the
protected activity. (Id. at proposed decision, p. 48.)
In this case, the District asserts that Lucas's principal, Hernandez, had a legitimate non-
discriminatory reasons for recommending Lucas for non-reelection and that the District
governing board would have accepted that recommendation even absent Lucas's protected
activities.
a. 	Hernandez's Recommendation for Non-Reelection
PERB has previously found that concerns over an employee's performance may
provide a legitimate, non-discriminatory reason for adverse employment actions. In Cerritos
Community College District (1980) PERB Decision No. 141 (Cerritos CCD), PERB held that a
school district's decision not to retain a probationary employee was justified because his
"suspicious, contentious and aggressive behavior prevented him from getting along with
others." (Id. at proposed decision, p. 14.) In Coast Community College District (2003) PERB
Decision No. 1560 (Coast CCD), PERB held that discipline was warranted where "the record
was replete with examples of [the charging party's] failure to peacefully coexist with other
42

employees" and the failure to take direction from his supervisors. (Id. at proposed decision, p.
44; see also Scotts Valley Union Elementary School District (1994)PERB Decision No. 1052,
proposed decision, pp. 28-29 .) In City of Santa Monica (2011) PERB ~ecision No. 2211-M,
the Board found that an employee's release from probation was warranted given his history of
complaints by others and the number of past warnings he received to correct his behavior. (Id.
at pp. 9, 17.)
In contrast, in Chula Vista ESD, supra, PERB Decision No. 2221, the employer
asserted that adverse actions were justified because of the charging party's lack of
"interpersonal skills." PERB concluded that this explanation was pretext because the evidence
showed that the employee worked well with others and there was no evidence that the
employer previously counseled or directed her to improve in that area. In Baker Valley Unified
School District (2008) PERB Decision No. 1993 (Baker Valley USD), an employer stated that
it decided against retaining a probationary teacher "because of problems with student
engagement in the classroom." PERB found that explanation was pretext for retaliation
because there was no record of problems in that teacher's performance evaluations nor any
record of counseling or discipline in his personnel file. (Id. at p. 13, citing Simi Valley Unified
School District (2004) PERB Decision No. 1714.) PERB concluded that the employer in that
case failed to carry its burden of proving that it would have made the same decision even if the
teacher did not engage in any union activity. (Id. at p. 14.) In Jurupa CSD, supra, PERB
Decision No. 1920-M, PERB similarly found pretext where the employer's justification for
termination was supported almost entirely by exaggerated claims and hearsay. (Id. at proposed
decision, pp. 17-19 .) Under those circumstances, PERB found that the employer did not meet
its burden of proof and concluded that the employee's termination was retaliatory. (Id. at p. 4.)
-- - 	- 	- 	- 	-- 	- 	-- - - 	-- - 	- 	-- - - 	- 	--
43

In this case, as explained above, there was no evidence that Hernandez knew of any of
Lucas's speech activity before the governing board. Thus, I cannot conclude that her
recommendation to not reelect Lucas to a permanent position was based on Lucas's protected
activity. Rather, as in Cerritos CCD, supra, PERB Decision No. 141, the District
demonstrated that Hernandez's recommendation was based on Lucas's interpersonal conflicts
with other employees at Rio Real. The District produced multiple complaints Hernandez
received about Lucas's behavior. Those complaints focused on Lucas's unprofessional attitude
and discourteous treatment of others. Unlike in Jurupa CSD, supra, PERB Decision No. 1920-
M, Hernandez corroborated the substance of the complaints with her own testimony at the
PERB hearing. She also described her own personal experience with Lucas, stating that she
found Lucas to be disrespectful towards herself and other adults and was unreceptive to
feedback. Another Rio Real teacher, Vasquez, also testified at hearing that she was
uncomfortable with how Lucas expressed herself during faculty meetings. She also recalled
hearing complaints from coworkers.
- 	- 	- 	- 	- 	- 	- 	- - 	- 	- 	- 	- 	- 	- 	---- 	- 	- - 	- 	- - 	- 	- 	- - 	- 	- 	- 	- -
As in City of Santa Monica, supra, PERB Decision No. 2211-M, and unlike in Chula
Vista ESD, supra, PERB Decision No. 2221, and Baker Valley USD, supra, PERB Decision
· No. 1993, Hernandez warned Lucas that her behavior was unacceptable. Hernandez issued
Lucas a verbal warning about that issue in October 2011 and .also took steps to minimize
Lucas's contact with those who complained about her. And as both in City of Santa Monica
and Bellevue UESD, supra, PERB Decision No. 1561, Lucas had been warned about her
unprofessional demeanor with colleagues even before any of her protected activity. While it
appears as though her performance improved in the 2010-2011 school year, problems arose
44

again in 2011-2012. Hernandez said that Lucas's conduct did not improve throughout that
year and that Lucas was unreceptive to feedback on the subject.
The legitimacy
of
Hernandez's concerns is further supported by the fact that Lucas
never denied treating Hernandez or other Rio Real teachers rudely. (See City
of
Sacramento
(2013) PERB Decision No. 2351-M, p. 32, [holding that uncontradicted and unimpeached
testimony is sufficient to carry a party's burden
of
proving an issue in dispute].) Governing
board member Barber said that he met with Hernandez to determine whether she was pressured-
by anyone to make her recommendation. Hernandez explained her reasoning and confirmed
that she was not coerced by anyone. Barber said that he did not believe that Hernandez was
being untruthful. Lucas also admitted that there was a "'rift" between herself and Knauer, one
coworker who complained about her. Lucas also did not dispute either that she was
unreceptive to Hernandez's feedback or that she followed Hernandez's directives. (See
California State University, Long Beach (1987) PERB Decision No. 641-H, proposed decision,
p.
55
[holding that adverse actions due to an employee's "resistance to accepting directions and
criticism from the supervisors."].)
- 	··~ - 	-
Lucas contends that non-reelection was unwarranted because she was effective in the
classroom. However, this argument is undermined by Hernandez's testimony that "Lucas had
difficulty interacting with adults on campus, which is a large part
of
what a teacher's function
is." Hernandez's assertion is consistent with the fact that "Working with colleagues to
improve professional practice" is one
of
the standards under which all District teachers are
evaluated. Moreover, even
if
Lucas's assertion was true, PERB considered and rejected this
argument in Coast CCD, supra, PERB Decision No. 1560. There, PERB found adverse
employment actions justified even though the charging party was "a very capable instructor,"
45

because of his history of inappropriate confrontations with others. (Id. at proposed decision, p.
44.) The same is true in this case. Hernandez issued Lucas specific directives about acting
more professionally around her colleagues. Hernandez gave unrebutted testimony that Lucas
failed to improve in her perfonnance .. Finally, even if Hernandez's reasoning was flawed,
there is still no evidence that she knew of any of Lucas's protected activity or that she
recommended Lucas for non-reelection for retaliatory reasons. (See Cerritos CCD, supra,
PERB Decision No. 141, proposed decision, p. 16 ["Non-retention because of a personality
conflict, however regrettable or seemingly unjustified, does not constitute a violation of the
EERA."]
Lucas also argues that some teachers did not complain about her behavior and that she
was able to work with other teachers without incident. This argument is unpersuasive in light
of Lucas's failure to rebut the complaints claiming that she treated others unprofessionally.
Thus, it remains undisputed that Lucas treated at least some of her colleagues, including her
principal, unprofessionally. Furthermore, Lucas fails to address the possibility that some
employees, like Vasquez, may have been uncomfortable with Lucas's behavior, but never filed
a complaint about it. The fact that not all employees registered complaints against Lucas does
not render Hernandez's assessment ofLucas's performance as unjustified.
For all these reasons, I conclude that Hernandez's recommendation to not reelect Lucas
for the following year was based on Lucas's performance during the 2011-2012 school year,
not her protected speech activity before the governing board.
b. 	The Governing Board's Non-Reelection Decisions
Multiple governing board members testified that the board's usual practice was to vote
consistently with principals' non-reelection recommendations. Former governing board
46

member Ayala said that this was the board's practice since as early as 2000. Rodriguez said he
believed that he should trust the principals' recommendations because board members do not
typically evaluate rank-and-file employees. Torres likewise explained that she relies on the
administrators' insights whose job it is to be familiar with the day-to-day operations at school
sites.
Blaylock said he previously made non-reelection decisions based on "trust,"
of
administrators, but later believed that the governing board should play a more active role in
assuring that employees considered for non-reelection were evaluated properly and that the
non-reelection recommendations were free from coercion. He had no evidence that any
principal's recommendation was unduly influenced.
Barber was not questioned about the extent to which he trusted administrators'
recommendations, but his primary motivation for supporting Lucas's non-reelection appears to
be unrelated to her protected activity. He said that he voted in favor
of
non-reelection because
he did not wish to convene a special board meeting to reconsider the matter. He also said that
he believed Hernandez was telling the truth when she said that the was not influenced or
coerced in her recommendation.
18
Untangling Lucas's protected activity from the governing board's motives in this case
is not a simple task. Where it is not possible to separate the adverse action from the protected
activity, then the adverse act must be rescinded. (Los Angeles CountySuperior Court, supra,
PERB Decision No. 1979-C, p. 22, citing Be/ridge School District (1980) PERB Decision
Upon reflection, Barber did say that "after all I saw, all the-everything that turned
out, I probably would not have voted the way I did." He did not explain this statement further.
He also reiterated that he voted for Lucas's non-reelection because he felt that "I didn't think
this issue needed another special meeting" and because he believed the matter would have
passed anyway.
18
47

No. 157; San Ysidro School District (1980) PERB Decision No. 134.) However, comparing
the District's evidence about its reasons for terminating Lucas's employment against Lucas's
circumstantial evidence of nexus, I conclude that it is more likely than not that the governing
board would have voted for Lucas's non-reelection even if she did not engage in protected
activity. It is true that the governing board deviated from its normal practices by identifying
Lucas before the vote. Under certain circumstances, one might infer that the board did so in
order to target Lucas. But in this case, it was Blaylock who asked about Lucas, and he did not
support the non-reelection decision. Lucas does not maintain that he had any retaliatory
motive. Rodriguez, in contrast, said that he wished that he did not know that Lucas was on the
list. Blaylock also said that board members have deviated from this practice in other cases, by
asking the superintendent about which teachers are under consideration. Thus, the departure
from nonnal practices is not conclusive on the issue ofretaliation.
In addition, although Rodriguez admitted to reacting negatively to Lucas's speeches
about the Boys & Girls club, his response is tempered by the fact that he ultimately agreed
with Lucas's position and, like Lucas, he supported the Boys & Girls Club. As to the other
evidence that Rodriguez disliked Lucas, it is unclear from the record whether those reactions
were in response to Lucas' s protected speech, or some other statements, such as general
animus to the board or personal attacks against board members.
After reviewing the record as a whole, I conclude that Hernandez recommended Lucas
for non-reelection based on Lucas's undisputedly unprofessional conduct with her colleagues,
not for retaliatory reasons. Notwithstanding the evidence of nexus on the part of the governing
board, I also conclude that a preponderance of the evidence shows that a majority of the board
would have voted consistently with Hernandez's recommendation even if Lucas had not
48

engaged in any protected speeches. Specifically, I believe the board members would have
either accepted the recommendation or voted to avoid a tie. Thus, the District would have
issued Lucas a notice
of
non-reelection regardless
of
her protected activity. Lucas's retaliation
claim is therefore dismissed.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-5717-E,
Lynette Lucas
v.
Rio School District, are hereby DISMISSED.
Right to Appeal
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB) itself within 20 days
of
service
of
this Decision.
PERB
'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 receivedby facsimile
49

transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
or
received
by
electronic mail before the close
of
business, which meets the requirements
of
PERB Regulation 32135(d), provided the filing party also places the original, together with the
required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, §
32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090, 32091 and 32130.)
Any statement
of
exceptions and supporting
brief
must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party
or
filed with the PERB Board itself. (See Cal. Code Regs., tit. 8,
§§
32300, 32305,
32140, and 32135, subd. (c).)
50