Los Angeles Unified School District (PERB 2479E)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DAVID C. PETERS,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5576-E
PERB Decision No. 2479
April 20, 2016
Appearances: William D. Evans, Attorney, for David C. Peters; Office of the General Counsel
by Effie Turnbull, Assistant General Counsel, for Los Angeles Unified School District.
Before Martinez, Chair; Winslow and Gregersen, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by David C. Peters (Peters) to the proposed decision
(attached) of PERB administrative law judge (ALJ). The unfair practice complaint alleges that
the Los Angeles Unified School District (District) violated the Educational Employment
Relations Act (EERA)1 by retaliating against Peters because of his protected activity. The ALJ
concluded that Peters failed to demonstrate that the District made its decision to terminate his
employment as a substitute teacher in retaliation for his exercise of rights under the EERA and
dismissed the complaint.
The Board has reviewed the proposed decision, Peters’ exceptions, and the District’s
response in light of the record and the relevant law. The ALJ’s factual findings are supported
by the record and, we therefore adopt them as the findings of the Board itself. The ALJ
concluded that (1) Peters failed to demonstrate a prima facie case of retaliation, and (2) the
1 EERA is codified at Government Code section 3450 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

District established that it had terminated Peters because of an alternative non-discriminatory
reason. The ALJ’s conclusions are well-reasoned and consistent with applicable law. We
therefore adopt the proposed decision as the decision of the Board itself subject to the
following discussion of Peters’ exceptions.
PROCEDURAL HISTORY
On April 30, 2012, the Office of the General Counsel issued a complaint alleging that
the District violated EERA section 3543.5, subdivision (a) by retaliating against Peters because
of his protected activity. On May 18, 2012, the District filed its answer denying the essential
allegations of the complaint and raising several affirmative defenses.
On September 11, 2012, the parties met for an informal settlement conference, but the
matter was not resolved. A formal hearing was conducted on March 18-22, 2013. The ALJ
issued a proposed decision on June 11, 2014.
On July 21, 2014, Peters timely filed exceptions to the ALJ’s proposed decision. On
August 8, 2014, the District timely filed its response. Also on August 8, 2014, PERB’s
Appeals Assistant notified the parties that the filings were complete and that the case had been
placed on the Board’s docket.
FACTUAL SUMMARY
Peters has regularly worked for the District as a substitute teacher since 1994. District
substitute teachers are included in a bargaining unit exclusively represented by the United
Teachers of Los Angeles (UTLA) and are covered by a collective bargaining agreement (CBA)
between UTLA and the District. (Proposed Dec., p. 2.)
Peters held various leadership positions for substitute teachers with UTLA including
chapter chairperson, substitute director, and substitute committee chairperson. As a UTLA
representative, Peters regularly represented other bargaining unit employees in meetings with
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the District regarding disciplinary matters. In 2009, Peters participated in unfair practice
proceedings undertaken by substitute teachers against UTLA challenging a side-letter
agreement UTLA had entered into with the District regarding substitute teachers’ available
work assignments. Peters personally questioned District managers, including then-
Superintendent Ramon Cortines, concerning the District’s involvement in the side-letter
agreement. Peters also participated in a public protest about the side-letter agreement in front
of District offices and addressed the District’s Board of Education on the side-letter agreement
at a public meeting. District administrators, including those who upheld the decision to
terminate Peters’ employment, knew of these activities. (Proposed Dec., p. 5.)
On November 29, 2010, Peters accepted a substitute teaching assignment via
Subfinder2 at West Vernon Elementary School (West Vernon) teaching first grade. Peters had
taught at West Vernon on a dozen or so other occasions. (Proposed Dec., p. 5.)
When Peters’ students returned from lunch, one of the students was missing. Also at
this time, a man identifying himself to Peters as “Mr. Montes” (Montes) entered the classroom
claiming to be a teacher’s aide. West Vernon teacher’s aides do not customarily display name
badges or other employment identification. Peters testified that he had no reason to doubt that
Montes was a teacher’s aide. He did not, however, call the office or inquire with the teacher in
the adjoining room to verify that a teacher’s aide had been assigned to his classroom.
(Proposed Dec., p. 6.)
Montes volunteered to look for the missing student and left the classroom with two of
Peters’ male first grade students, who went with Montes to help find the missing student.
Shortly thereafter, Montes returned with the missing student and the other two students. After
Montes returned with the students, Peters assigned him to circulate through the classroom and
2 Subfinder is an automated phone system through which the District’s substitute
teachers receive teaching assignments.
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to assist students individually with math worksheets. Montes remained in the classroom for
approximately one hour before leaving at approximately 1:15 p.m. The school day ended at
2:15 p.m. (Proposed Dec., p. 6-7.)
At approximately 2:45 p.m., a fifth grade student approached then-assistant principal,
Daniel Laner (Laner), who was in charge of security and student discipline. The fifth grader
reported to Laner that her younger sister and another female student in Peters’ first grade class
had been touched on the “butt” during class time by a man helping in the classroom. Laner
reported this to then-principal, Lupe Buenrostro (Buenrostro), and the two administrators
decided that the school’s psychiatric social worker, Dionicia Fox (Fox), should be the first
point of contact with the two students. Buenrostro also instructed Laner to contact Peters to
find out if the then unknown man had been in Peters’ classroom during class time. (Proposed
Dec., p. 8.)
During Peters’ conversation with Laner, Peters confirmed that Montes had been in
Peters’ classroom and gave Laner a description of Montes. Laner informed Peters that an
allegation of inappropriate touching had been made. Peters reported that he had not observed
Montes touching any students or acting inappropriately. Peters asked Laner if he would be
“written-up” over the incident. There is a dispute over this exchange, but Laner admits he told
Peters that he had no reason to investigate Peters’ behavior, and was merely trying to gather
information so that the then unknown man could be identified and apprehended. (Proposed
Dec., p. 8.)
Later that day, Fox interviewed the two girls who had reportedly been touched by
Montes. After the interview, Fox reported to Laner and Buenrostro that it appeared to be a
serious case of sexual abuse. Laner called the Los Angeles Police Department (LAPD) who, in
turn, directed Laner to contact the District’s own police department. Thereafter, two District
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police officers interviewed the two girls separately in Fox’s presence. Fox thereafter submitted
a written report of the interviews to Buenrostro. One of the District police officers interviewed
Peters in the other officer’s presence. The District police officers filed a report, after which
jurisdiction was turned over to the LAPD.
In addition to the investigative report filed by District police officers, an incident report
was generated by their supervising sergeant. The incident report stated that Montes touched
two students on the buttocks and, with regard to one of the students, he did so while rubbing
his own genital area outside of his pants. (Proposed Dec., p. 9.) Peters testified that: “It’s
possible that [Montes] touched two students on the buttocks when I wasn’t --- I didn’t look at
him every second that he was in the room. But there’s no way he could have masturbated.”
On November 30, 2010, the LAPD began its own investigation. LAPD police officers
interviewed the two girls separately at West Vernon in the presence of school psychologist,
Aaron Socie (Socie), who prepared a report of the interviews for Buenrostro. Laner
accompanied the LAPD officers to the classroom where the incident occurred. While there,
another student reported to the LAPD police officers that he had seen a man masturbating in
the classroom the day before. (Proposed Dec., p. 11.)
On December 1, 2010, Peters called Subfinder because he had not received an
assignment. Peters was informed that he had been placed on inactive status. Peters went to the
District’s employee relations office where he was informed that he would have to be cleared by
West Vernon administrators before he could receive another substitute teaching assignment in
the District. Peters went to West Vernon where he spoke with Laner. Peters asked Laner if he
would be “written-up” for the incident. Laner explained that the LAPD had not finished its
investigation and that West Vernon had not yet conducted its own investigation. During this
meeting, Peters informed Laner that he had held leadership positions with UTLA and had
5

extensive experience representing substitute teachers in disciplinary actions. Prior to this
meeting, Laner had been unaware of Peters’ union activities. Laner relayed the information
regarding Peters’ union activities to Buenrostro. (Proposed Dec., pp. 12-13.)
Also on December 1, 2010, Peters spoke with the District administrator who directly
supervised Buenrostro after which he attended a regular UTLA meeting. After the UTLA
meeting, Peters spoke with Buenrostro by telephone and tried to arrange a meeting with her for
later that day. Buenrostro declined to meet that day and scheduled a meeting with Peters at
11 a.m. the next day, December 2, 2010. Buenrostro also informed Peters that the LAPD had
authorized West Vernon to commence its own investigation. (Proposed Dec., p. 14.)
On December 2, 2010, Peters arrived for his meeting with Buenrostro at 11 a.m. At the
outset, Peters asked Buenrostro if the meeting could lead to discipline. Buenrostro informed
Peters that the meeting was investigatory, but would not confirm that discipline could not result.
Peters informed Buenrostro that he wanted representation if the meeting was investigatory.
Buenrostro rescheduled the meeting for December 6, 2010. (Proposed Dec., p. 15.)
Also on December 2, 2010, Buenrostro instructed Laner to begin preparations for the
school’s internal investigation. On December 2, 2010, Buenrostro interviewed the two first
graders who allegedly had been inappropriately touched by Montes. On December 3 and
December 6, 2010, Laner interviewed six randomly selected first grade students who were
present in Peters’ classroom at the time in question. (Proposed Dec., p. 15.)
On December 3, 2010, Buenrostro called Peters to remind him of their upcoming
meeting and to reiterate that he was entitled to bring a representative. Peters confirmed that
the UTLA chapter chair/site representative would represent him at the meeting. After speaking
with Buenrostro, Peters decided he did not want the chapter chair/site representative to
represent him, and tried reaching Rick Schwab (Schwab), one of UTLA’s outside legal
6

counsel, but was unable to speak to him. Peters sought Schwab’s representation because Peters
felt that Schwab was the “heavy hitter” for substitute disciplinary cases and Peters hoped that
UTLA would pay for Schwab’s representation. (Proposed Dec., p. 16.)
Peters contacted Buenrostro shortly before the scheduled meeting time on December 6
to inform her that he had changed his mind and did not want to meet without an attorney.
Peters stated that he had not yet spoken with Schwab about his availability and therefore could
not reschedule the meeting with Buenrostro. Peters reminded Buenrostro that, under Article X,
section 7.0 of the CBA, she had ten working days after the date of the incident to issue an
Inadequate Service Report (ISR). Peters testified that Buenrostro repeatedly asked him if he
was refusing to attend the meeting to which Peters replied that he was not refusing to meet, but
that he would not meet without an attorney. Buenrostro testified that she thought Peters was
“stonewalling.” Later that day, Buenrostro asked Peters if he could attend a meeting in the late
afternoon or participate telephonically. Peters, not yet having spoken to Schwab, was
unwilling to proceed without him. (Proposed Dec., pp. 16-17.)
Also on December 6, 2010, Buenrostro began preparing an ISR recommending Peters’
termination. In reaching this conclusion, Buenrostro took into consideration her interviews
with the two first graders whom Montes had allegedly inappropriately touched, Laner’s report
of his interviews of other children in Peters’ class, the District police department report, and
the reports of Fox and Socie. Peters was not the only employee fired over the incident.
Buenrostro also fired an at-will employee who had been assigned to monitor visitors’ arrivals
at the school’s main entrance. (Proposed Dec., p. 17.)
On December 7, 2010, Buenrostro issued the ISR, recommending that Peters not be
reassigned to West Vernon and that his employment with the District be terminated because he
allowed an unidentified man to enter and remain in his classroom for one hour, and while there,
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the man touched two girls on the buttocks. The ISR also stated that a student approached Peters
afterward to say that the man had touched her and Peters said, “tell your teacher tomorrow.”
Buenrostro testified that she believed Peters’ termination was appropriate because Peters did not
properly supervise his classroom and children were hurt. Also, according to Buenrostro, Peters
did not respond appropriately when one of the students reported that she had been touched by
Montes. Laner testified that he believed Peters had been lax in monitoring the classroom
because he should have been continuously scanning the class for safety issues. Because several
children had observed Montes’ inappropriate behavior, Laner reasoned that had Peters exercised
reasonable care as a teacher, he would have seen it too. (Proposed Dec., p. 18.)
On December 14, 2010, the District dismissed Peters. Subsequently, Peters requested
an administrative review of the District’s decision. On February 24, 2011, the District’s
review committee informed Peters that it had decided to uphold the decision to terminate his
employment. (Proposed Dec., p. 19.)
PROPOSED DECISION
The ALJ identified the issue as whether the District had terminated Peters’ employment
in retaliation for his protected activities. The ALJ noted that in order to demonstrate a prima
facie case that an employer discriminated or retaliated against an employee in violation of
EERA section 3543.5, subdivision (a), the charging party must show by a preponderance of
evidence that: (1) the employee exercised rights under EERA; (2) the employer had
knowledge of the exercise of those rights; (3) the employer took adverse action against the
employee; and (4) the employer took the action because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210, pp. 6-8 (Novato).)
The ALJ noted that if a charging party demonstrates a prima facie case, the burden then
shifts to the respondent to prove an affirmative defense, namely: (1) that it had an alternative
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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.
(See Palo Verde Unified School District (2013) PERB Decision No. 2337, p. 31 (Palo Verde)
and the cases cited therein.) The ALJ observed that an employee who is subject to dismissal
without cause bears a heavier burden in overcoming the employer’s case for non-
discriminatory motive. (County of Santa Clara (2012) PERB Decision No. 2267-M
(Santa Clara), proposed dec., p. 23.)
Peters’ Prima Facie Case
The ALJ determined that Peters established the first three elements of a prima facie
case of retaliation/discrimination, Peters’ protected activity, the District’s knowledge of Peters’
protected activity and adverse action.
Regarding the fourth element, retaliatory motive, the ALJ concluded that the only
persuasive evidence demonstrating nexus is the close timing between Peters’ request for union
representation at the investigatory meeting with Buenrostro and the District’s decision to
terminate his employment. As to nexus factors other than timing, the ALJ concluded that Peters
produced no evidence of disparate treatment; failed to demonstrate that the District departed
from established procedures or gave inconsistent, contradictory, exaggerated or ambiguous
reasons for Peters’ termination; failed to demonstrate that the District’s investigation was
cursory; and failed to demonstrate that the District harbored animosity toward union activists.
As the ALJ stated, “[c]lose timing, without more, is insufficient to demonstrate a causal
connection between the adverse action and the protected conduct,” citing Charter Oak Unified
School District (1984) PERB Decision No. 404. On this basis, the ALJ concluded that Peters
failed to demonstrate a prima facie case of discrimination and that “there is no inference of
unlawful motivation underlying the District’s action.” (Proposed Dec., p. 33.)
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The District’s Defense
The ALJ assumed for discussion purposes only that even had Peters met his prima facie
burden, the District proved its affirmative defense by establishing that it had an alternative,
non-discriminatory reason for the challenged action and that it acted because of that non-
discriminatory reason in this case. The District consistently maintained that it terminated
Peters because it had determined, based on its own administrators’ investigation and the
reports of law enforcement agencies, that Peters did not reasonably supervise his classroom on
November 29, 2010.
The ALJ found that classroom supervision is one of a teacher’s core responsibilities,
and concluded that the District had a legitimate concern for the integrity of its education
program. The ALJ found that Peters appeared to be more concerned with potential disciplinary
action the District might take against him than he was with student safety. The ALJ
emphasized Peters’ repeated inquiries regarding potential discipline as well as his failure to
question whether a person holding himself out as an aide was who he purported to be.
According to the ALJ, “[t]his suggests a willingness to allow strangers in classrooms he
supervises for fear of jeopardizing his own employment. This type of attitude would also
reasonably cause the District to question whether Peters was fit to continue to be entrusted with
students’ safety.” (Proposed Dec., p. 34.)
The ALJ also rejected Peters’ refutation of the adequacy of the District’s reasons for his
termination, in which he asserted that the District failed to call the first grade students to testify
about what happened in Peters’ classroom; that the only non-hearsay account regarding the
incident is his own; and that while it is at least possible that Montes touched the children on
their buttocks, it is impossible that Montes was masturbating at the time.
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The ALJ ruled that it was fruitless for Peters to refute the adequacy of the District’s
“cause” for termination, as the District is not required to show “cause” to terminate a substitute
teacher under Education Code section 44953. The ALJ observed that the relevant inquiry in a
retaliation/discrimination allegation before PERB is not whether the employer acted for a
lawful reason, i.e., had “cause” for termination, but whether it acted for an unlawful,
discriminatory reason.
The ALJ rejected Peters’ assertion that the District improperly relied on hearsay
evidence in establishing its non-discriminatory reason. The ALJ ruled that the summary
reports of the students’ statements were not offered for the truth of the matters asserted therein,
but merely to show the District’s information about the incident and that the District took
action based on that information. The ALJ cited Office of the Los Angeles County
Superintendent of Schools (1982) PERB Decision No. 263 for the proposition that absent
evidence of an employer’s intentional reliance on inaccurate information, the truth of the
allegations against an employee need not be proven in order to assess whether the employer
acted lawfully. (See also, Pasadena Unified School District (1999) PERB Decision No. 1331
[employer’s failure to show truth of student’s complaints not an issue before PERB].)
The ALJ, however, observed, that the Board in Palo Verde had held that, where the
employer’s proffered non-discriminatory reason for acting is the employee’s improper
workplace conduct, the employer may not prove that it acted for that reason based only on a
litany of hearsay reports without direct, corroborating evidence. The ALJ concluded that even
if the students’ statements contained in the reports were offered to prove the underlying truth
of the matters asserted, an exception to the hearsay rule applies and the evidence would be
admissible in court, at least as to those statements given to Fox and the District police officers
soon after the incident. As the ALJ noted, the students’ statements qualify under the
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spontaneous statement exception to the hearsay rule under Evidence Code section 1240. 	The
ALJ cited other authority for the principle that in cases of sex abuse, statements older than
spontaneous statements are also admissible. The ALJ concluded that the District adequately
demonstrated that it had, and terminated Peters because of, an alternative, non-discriminatory
reason, and not because of Peters’ protected activity.
PETERS’ EXCEPTIONS AND DISTRICT’S RESPONSE
Peters takes exceptions to the ALJ’s proposed decision. Nine of Peters’ exceptions are
to the ALJ’s credibility determinations. Two exceptions are hearsay objections regarding the
children’s statements to investigators. Two exceptions are to the ALJ’s determination that
Peters’ advocacy regarding the 2009 unfair practice charge against UTLA was too remote in
time to support an inference of unlawful motive by the District. Six exceptions are to the
ALJ’s determination that the District did not deviate from past practice in issuing Peters the
ISR. One exception is to the ALJ’s determination that the District did not offer exaggerated
reasons for terminating Peters. Five exceptions are to the ALJ’s determination that the District
did not conduct an inadequate investigation. Two exceptions are to the ALJ’s conclusion that
Peters did not demonstrate a prima facie case of retaliation/discrimination. Five exceptions are
to the ALJ’s determination that the District had an alternative, non-discriminatory reason for
terminating Peters’ employment. Two exceptions are to the ALJ’s determinations regarding
Peters’ motives in expressing concern over potential discipline during the various
investigations. Four exceptions are to the ALJ’s determination that PERB’s inquiry was
limited to determining whether the District acted for an unlawful reason, not whether the
District had cause to terminate Peters. One exception is to the ALJ’s determination that Peters
did not demonstrate that the District offered shifting justifications for Peters’ dismissal.
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Finally, one exception is to the ALJ’s determination that the District did not offer a pretextual
reason for terminating Peters’ employment.
The District responded, urging the Board to dismiss Peters’ exceptions and affirm the
ALJ’s proposed decision.
DISCUSSION
Standard of Review
The Board defers to the ALJ’s findings of fact which incorporate credibility
determinations absent evidence to support overturning such determinations. (Los Angeles
Unified School District (2014) PERB Decision No. 2390.) While the Board will defer to the
ALJ’s findings of fact that incorporate credibility determinations, the Board is free to draw
both its own, and perhaps contrary, inferences from the evidence presented, and form its own
conclusions. (Palo Verde, supra, PERB Decision No. 2337; Woodland Joint Unified School
District (1990) PERB Decision No. 808a; Santa Clara Unified School District (1979) PERB
Decision No. 104.)
EERA Rights of Substitutes
Under Education Code section 44953, substitute teachers are considered “at-will”
employees and, as provided therein, are subject to dismissal “at any time at the pleasure of the
[district governing] board.” As substitute teachers, they are not entitled to Education Code due
process procedures afforded permanent school district employees.
Substitute teachers are, however, “public school employees” within the meaning of
EERA section 3540.1, subdivision (j).3 Thus, substitutes enjoy the same rights under EERA to
form, join and participate in the activities of employee organizations of their own choosing as
3 EERA section 3540.1, subdivision (j) provides: “‘Public school employee’ or
‘employee’ means a person employed by a public school employer except persons elected by
popular vote, persons appointed by the Governor of this state, management employees, and
confidential employees.”
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any other public school employee; and they enjoy the same protections under EERA to be free
from reprisals, threats, discrimination, restraints and coercion because of their exercise of
protected rights as any other public school employee. (EERA, §§ 3543, 3543.5, subd. (a);
Dixie Elementary School District (1981) PERB Decision No. 171 [substitutes and temporary
employees]; Oakland Unified School District (1983) PERB Decision No. 320 [substitutes];
Davis Joint Unified School District (1984) PERB Decision No. 474 [temporary employees];
McFarland Unified School District (1990) PERB Decision No. 786 [probationary employees].)
To establish a prima facie case under our statutes of unlawful discrimination or
retaliation, an employee must demonstrate protected activity, knowledge thereof by the
employer, adverse treatment by the employer, and unlawful motivation or nexus between the
protected activity and the adverse treatment. (Novato, supra, PERB Decision No. 210.) These
elements of a prima facie case remain the same, regardless of the employee’s at-will or similar
status or the procedural protections to which the employee may or may not be entitled to in a
different forum. Likewise, once the employee establishes a prima facie case, the employer’s
Novato defensive legal burden attaches, regardless of the status of the employee. The
employer must demonstrate that it had, and acted because of, an alternative, non-
discriminatory reason, and not because of the employee’s protected conduct. (Palo Verde,
supra, PERB Decision No. 2337.)
The ALJ noted, citing to County of Santa Clara, supra, PERB Decision No. 2267-M,
ALJ proposed decision, p. 21: “An employee alleging discrimination who is subject to
dismissal without cause bears a heavier burden in overcoming the employer’s case for non-
discriminatory motive.” There is too great a risk that this statement from County of Santa Clara
can be read to mean that at-will employees enjoy fewer rights and lesser protection under EERA
than other public school employees or that there is a different legal standard to be applied to
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their prima facie case or to the employer’s defense. While the ALJ here labored under no
misunderstanding of the applicable standards in deciding this case, we take the opportunity to
affirmatively disavow such reading and caution against reliance on this passage from County of
Santa Clara in a retaliation analysis. As many a Board precedent has pointed out:
[The retaliation analysis and burden-shifting approach] apply
despite the fact that the Education Code permits the public school
employer’s non-reelection of a probationary teacher without
cause. (Ed. Code, § 44929.21; McFarland Unified School
District v. PERB (1991) 228 Cal.App.3d 166 [11 Cal.Rptr.2d
405] (McFarland).) The District’s power to non-reelect a
probationary teacher for any lawful reason does not insulate its
decision from PERB review in cases where that decision was
made in retaliation for conduct protected under EERA.
(Oakland Unified School District (2007) PERB Decision No. 1880, ALJ proposed decision, p. 61.)
Peters’ Exceptions
Many of Peters’ exceptions raise points adequately dealt with by the ALJ in her
decision, and those we do not revisit here. We consider Peters’ exceptions to the ALJ’s
credibility determinations, to the ALJ’s hearsay rulings, to the ALJ’s conclusions concerning
Peters’ prima facie case, and finally to the ALJ’s conclusions concerning the District’s defense.
The ALJ’s Credibility Determinations
Exceptions 1-7, 21 and 35 pertain to the ALJ’s credibility determinations in favor of
Laner and Buenrostro over Peters. Peters argues that some of the ALJ’s credibility
determinations are based on “weighing the probabilities of the situations, rather than based on
[Peters’] demeanor.” (Exceptions, p. 18.) We conclude that the ALJ properly assessed the
credibility of witnesses using non-observational criteria.
PERB and the National Labor Relations Board (NLRB) have long recognized the
appropriateness of assessing witness credibility on non-observational criteria. (Regents of the
University of California (1984) PERB Decision No. 449-H [inconsistent pretrial statements;
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selective memory on cross examination; evasive, exaggerated, or inconsistent testimony;
inherently unbelievable testimony]; North Sacramento School District (1982) PERB Decision
No. 264 [inconsistent testimony, contradictory documentary evidence]; In Re Daikichi Corp.
(2001) 335 NLRB 622 [all the circumstances, including a party’s failure to offer available
witness testimony]; Shen Automotive Dealership Group (1996) 321 NLRB 586 [weight of the
respective evidence, established or admitted facts, inherent probabilities, reasonable inferences
which may be drawn from the record as a whole].)
Peters argues that his testimony that Laner told him he was not contemplating discipline
against him and that he would be put on a “preferred list” to receive substitute assignments
should be credited over Laner’s testimony that his sole focus on the day of the incident was on
gathering information about the then unknown man so that he could be identified and
apprehended. Peters relies on the following:
Laner . . . confirmed that one of the first questions that Peters
asked him was whether the incident would result in an
“unsatisfactory act” for Peters. Laner testified regarding his
response to that question:
Frankly…I told him no….I wasn’t investigating his
behavior. I had no reason to. I hadn’t heard anything
against him….We needed the information, who is this
guy, what was he doing in your room after lunch.
(Proposed Dec., p. 8.)
Laner’s testimony concerned a telephone conversation he had with Peters during the
time period immediately following a reported case of sex abuse against two first grade
children. The focus was necessarily on identifying and apprehending the suspected child
assailant, not on the future of Peters’ employment with the District. The ALJ concluded that
“[i]t simply does not make any sense that, in the midst of trying to gather information over a
serious, criminal incident involving students, Laner would pause to assure Peters of future
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favored treatment.” (Proposed Dec., p. 9.) The ALJ’s determination is based on inherent
probabilities and reasonable inferences, both permissible bases on which to make a credibility
determination. Because West Vernon had not yet conducted its own investigation or evaluated
Peters’ conduct during the incident, Laner’s statement cannot reasonably be construed to
foreclose the possibility of future discipline against Peters.
Peters also asserts that his own testimony should have been credited over Buenrostro’s
with regard to a telephone conversation wherein Peters claimed that Buenrostro told him that
he was “totally ‘blameless’ [4] and/or ‘innocent.’” (Proposed Dec., p. 14.) The ALJ credited
Buenrostro’s denial that she would have said anything regarding blame or fault before West
Vernon had finished its investigation. According to the ALJ, “it is inherently unbelievable that
an experienced administrator, at that point in time, would have conveyed to Peters that
disciplinary action was not even contemplated.” (Ibid.) Again, the ALJ’s credibility
determinations are based on inherent probabilities and reasonable inferences, both permissible
bases on which to make a credibility determination.
Without citing to a specific part of the record, Peters claims that a UTLA official,
Virginia Sajor (Sajor), overheard the conversation on speakerphone, and corroborated Peters’
version of the conversation. However, as the ALJ points out:
Sajor testified during cross-examination that there was no
discussion of any potential violation of District policies during
the phone conversation. Sajor testified that she thought that
Buenrostro’s comments implied that Buenrostro did not think
Peters was under suspicion of committing a crime.
(Proposed Dec., p. 14.) Thus, rather than corroborating Peters’ testimony, Sajor’s testimony
supports the ALJ’s determination that Buenrostro did not suggest that Peters would not be
subject to disciplinary action by the District. Moreover, the events surrounding the phone call
4 It is noted that Peters claims Laner used the same word, “blameless,” to describe
Peters’ purported lack of culpability.
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bely Peters’ assertion that Buenrostro told him he was “blameless” or “innocent” and would
not be “written up.” Buenrostro concluded the call by asking Peters to meet her the next day at
11:00 a.m. At that meeting, Peters asked her if the meeting could lead to discipline. When
Buenrostro did not assure him that discipline would not result, Peters informed Buenrostro that
he would not meet without representation. In light of this evidence, we agree with the ALJ that
Peters’ testimony that Buenrostro told Peters he was “blameless,” had nothing to worry about
and would not be written up is not credible. Similar to the ALJ’s credibility determination
favoring Laner over Peters, comments made by Buenrostro that might have had a reassuring
effect pertained solely to the fact that Peters was not under criminal suspicion for sexual
assault. As the District had yet to conduct its own investigation, it was in no position to assure
Peters of any particular outcome. In the days immediately following the incident, the District’s
top priority was to identify the then-unknown assailant and gather as much information about
him as possible. Peters was the only adult percipient witness who could assist in this effort.
That the District sought, and appreciated, Peters’ cooperation in the identification and
apprehension of a suspected sexual assailant should not have led Peters to believe that he
would be given a pass once the District’s attention shifted to him. If Peters had that belief, it
was not because of anything Laner or Buenrostro said to him. The ALJ was right to credit
their testimony over his about the statements they made. As the ALJ aptly stated:
I find that, in general, Peters’s characterization of administrators’
statements to him regarding his lack of culpability to be
exaggerated and self-serving, or at the very least colored by his
own subjective view of these events. Put another way, I think
Peters either heard what he wanted to hear or chose to ignore the
context of the administrators’ statements.
(Proposed Dec., p. 14.)
We conclude that the ALJ relied on permissible bases, including non-observation
criteria, in making credibility determinations in favor of Laner and Buenrostro over Peters.
18

Thus, Peters’ exceptions, asserting that the ALJ erred in crediting Laner and Buenrostro’s
testimony over his own testimony, lack merit and are denied. As guided by our long
established principles of appellate review, we defer to the ALJ’s findings of fact incorporating
credibility determinations because there is no evidence to support overturning them.
(Los Angeles Unified School District, supra, PERB Decision No. 2390.)
Hearsay
Peters takes exception to testimony of Socie, Buenrostro and Fox that they believed
students’ statements made during the investigation that Montes had “spit” on the arm of one of
his victims referred to seminal ejaculate rather than saliva. Peters asserts that these were
hearsay statements upon which the ALJ impermissibly based findings.
PERB Regulation 32176, in relevant part, states:
Compliance with the technical rules of evidence applied in the
courts shall not be required. Oral evidence shall be taken only on
oath or affirmation. Hearsay evidence is admissible but shall not
be sufficient in itself to support a finding unless it would be
admissible over objection in civil actions.
The ALJ made no factual findings on the issue of what the students meant by “spit,” nor does
the issue of whether Montes masturbated figure into the retaliation analysis. The ISR
recommended Peters’ termination because he allowed an unidentified man to enter and remain
in the classroom for one hour, and while there, the man touched two girls on the buttocks. No
other details of the assailant’s conduct were described in the ISR and accompanying
conference memorandum prepared by Buenrostro recommending that Peters be terminated.
For this reason, Peters’ exceptions lack merit.
Peters’ Prima Facie Case
Peters takes exception to the ALJ’s determination that he failed to demonstrate a prima
facie case of retaliation/discrimination. As noted above, the ALJ concluded that Peters
19

established three of the four elements of a retaliation/discrimination prima facie case, but failed
to demonstrate a nexus between his protected activity and the District’s adverse action.
Peters’ takes exception to the ALJ’s determination that his advocacy on behalf of
substitute teachers regarding the 2009 unfair practice charge filed against UTLA was too
remote in time from the District’s decision to dismiss him from employment. The proximity in
time between the protected activity and the adverse action goes to the strength of the inference
of unlawful motive, but is not determinative by itself: there is no “bright line” rule for
determining how close in time the protected activity must be to the adverse action in order to
establish a strong inference of unlawful motive based on “close” temporal proximity. (Regents
of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H
[concluding that a seven-month gap in time between the protected activity and the adverse
action created a “minimally sufficient temporal proximity” sufficient to establish an inference,
albeit a weak one, of unlawful motive].)
We conclude on the facts before us that the gap between Peters’ Fall 2009 protected
activity in advocating for substitutes, and the dismissal of Peters in mid-December 2010, is too
great to support an inference of retaliatory motive. As the ALJ noted, between the time of
Peters’ Fall 2009 protected activity and the District’s decision to terminate Peters in mid-
December 2010, Peters continued to receive substitute teaching assignments.
Peters also takes exception to the ALJ’s conclusion that he failed to demonstrate any
other nexus factor.
Peters’ exceptions fail to address the ALJ’s determinations regarding whether the
District departed from its established procedures by issuing an ISR in fewer than ten days or
prior to meeting with Peters after making an effort to do so and whether such a departure
would have been relevant in light of the District’s right under the Education Code to terminate
20

Peters’ employment at any time and for any lawful reason. We conclude with the ALJ that
Peters failed to demonstrate a departure from established procedures.
Peters also takes exception to the ALJ’s determination that he failed to demonstrate
that the District offered exaggerated reasons for terminating his employment. Peters relies
on the District’s submission of evidence regarding Montes’ masturbation in the classroom
(which Peters claims it did not present prior to hearing) for his assertion that the District
exaggerated the reasons for his termination. As the ALJ properly noted, additional
justifications revealed after-the-fact, which do not undermine the official reason for
termination, do not provide evidence of shifting justifications. (County of Santa Clara, supra,
PERB Decision No. 2267-M.) Moreover, the District has consistently maintained that it
terminated Peters’ employment because he failed adequately to supervise his classroom and as
a result two children were inappropriately touched. Whether or not Montes also masturbated
in the classroom does not change the reason for Peters’ termination. Therefore we agree with
the ALJ that Peters failed to demonstrate that the District offered shifting or exaggerated
reasons for his dismissal.
Peters asserts that the ALJ should have concluded that the District failed to conduct an
adequate investigation largely because it did not interview all of the children who were in
Peters’ classroom on November 29, 2010. According to the ALJ,
[T]he District relied on the information provided by and the
conclusions of two law enforcement agencies, two licensed
mental health professionals, and two experienced administrators
in reaching its decision. This hardly implies a perfunctory
investigation.
(Proposed Dec., p. 32.) The fact that more students were not interviewed does not undermine
the statements from those students who were interviewed. The six students who were
interviewed were selected using a “random selection protocol,” which is the standard practice
21

where children have witnessed a criminal act. These students provided the District with
sufficient information to conclude that sexual abuse had occurred in Peters’ classroom, and
that Peters had failed adequately to monitor Montes’ behavior. We conclude, with the ALJ,
that the District did not conduct a perfunctory investigation merely because it did not interview
all of the students who were in Peters’ classroom on the day in question.
In sum, Peters has demonstrated a close temporal proximity between his request for
union representation and the District’s subsequent adverse action. Peters, however, has not
maintained that the District harbored animosity toward him because of the representation
request. Rather, Peters has consistently maintained that it was his advocacy on behalf of
substitute teachers in 2009 that drew the District’s ire. We conclude, as noted above, that
Peters’ protected activity in 2009 was too remote in time to support an inference of unlawful
motive for the mid-December 2010 termination. Regarding Peters’ request for union
representation, there is insufficient evidence of nexus for us to conclude that the decision to
terminate Peters’ employment was taken because of anti-union animus rather than Peters’
conduct during the November 29, 2010, incident in his classroom. We conclude, with the ALJ,
that Peters failed to demonstrate a prima facie case for retaliation/discrimination.
The District’s Defense
Peters’ failure to demonstrate a prima facie case of discrimination/retaliation is
sufficient basis to dismiss his claim. We address here Peters’ exceptions to the ALJ’s
determination that even if Peters had established a prima facie case, the District established
that it had acted because of an alternative, non-discriminatory reason when terminating Peters.
The ALJ determined that classroom supervision is a “core responsibility of a teacher,
and failures in that regard would reasonably tend to cause the employer legitimate concern
over the integrity of the education program.” (Proposed Dec., p. 34.) Noting that the Board
22

has generally refused to overturn a public school employer’s decision to terminate employment
where the employer demonstrated legitimate concerns that a teacher’s conduct may affect the
integrity of its education program, the ALJ determined that the District had demonstrated that
it would have terminated Peters’ employment regardless of his protected activity. (See
Fall River Joint Unified School District (1998) PERB Decision No. 1259.)
With regard to Peters’ challenge to the District’s proffered reasons for terminating him,
the ALJ determined: (1) it was pointless for Peters to challenge the District’s cause for
termination when under the Education Code the District may terminate a substitute teacher
without cause; (2) the relevant inquiry for PERB is not whether an employer acted for a lawful
reason, but whether the employer acted for an unlawful reason under EERA; and (3) the
District did not offer the reports of student statements for the truth of the matter asserted
(hearsay) but to show that the District received the reports of student statements and relied on
those statements in making its decision. On this basis the ALJ concluded that even if Peters
had demonstrated a prima facie case of retaliation/discrimination, the District established an
alternative non-discriminatory reason, and that it acted against Peters because of that reason
and not because of his protected activity.
We affirm the result reached by the ALJ, to wit, that the District established that it had,
and acted because of, an alternative nondiscriminatory reason for terminating Peters.
In Palo Verde, supra, PERB Decision No. 2337, the Board considered the release by a
public school employer of a probationary classified employee. The employee established a
prima facie case of retaliation because of her protected activity. The employer defended
alleging that the employee was terminated not for her protected activity, but because she was
unable to get along with other employees, thus disrupting the workplace. As to the employer’s
defensive burden, the Board stated:
23

To succeed under Novato, supra, PERB Decision No. 210,
the employer must meet or exceed a charging party’s prima facie
case with equally or more persuasive affirmative defense. The
degree of persuasion required of the employer will depend on the
extent and persuasiveness of the prima facie case. Absent
unlawful motivation, California statutory and common law often
afford wide discretion to an employer to discharge an at-will or
probationary employee with little or no warning, reason, notice or
hearing. However, under our statutes once the charging party
presents a persuasive prima facie case that the employer acted
against an at-will or probationary employee because of the
employee’s protected conduct, the employer’s burden under
Novato, supra, PERB Decision No. 210 attaches. To succeed, the
employer must then demonstrate persuasively that it had both a
permissible (alternative and non-discriminatory) reason for its
action and that it acted because of this reason and not the
employee’s protected conduct.
Our statutes protect the right of at-will and probationary
employees to engage in protected activity and to be free of
discrimination or retaliation therefor. (McFarland, supra,
228 Cal.App.3d 166.) A PERB ALJ hearing a retaliation case,
including one brought on behalf of an at-will or probationary
employee, must “inquire fully into all issues and obtain a
complete record upon which the decision can be rendered”
[fn. omitted] and “issue a written proposed decision.” [fn.
omitted.] Thus, when the burden in a PERB hearing shifts to an
employer to establish an affirmative defense to a charge of
discrimination or retaliation, the employer must demonstrate that
it exercised its statutory or common law discretion in a manner
consistent with the employee’s rights under our statutes. We
acknowledge that such demonstration imposes on an employer a
greater burden of proof than would be required to sustain a
routine discharge within its discretion where there has been no
allegation of unlawful motivation.
We hold that under Novato, supra, PERB Decision
No. 210, PERB’s duty is to “analyze thoroughly and completely
the justification for the . . . action presented by the employer”
(Escondido, supra, PERB Decision No. 2019, at p. 21), and that
in so doing PERB may “inquire fully into all issues” bearing on
the employer’s Novato, supra, PERB Decision No. 210 burden to
establish that employer’s affirmative defense was “honestly
invoked” and its justification “was in fact the cause of the
employer’s action.” (Chula Vista, supra, PERB Decision
No. 2221, at p. 21.) We likewise hold that the employer’s
Novato, supra, PERB Decision No. 210 defensive burden is not
limited by the extent of the employer’s statutory or common law
24

________________________________
duty to the employee(s), but is measured rather by the extent and
persuasiveness of the employee(s) prima facie case which a
successful affirmative defense must either meet or exceed.
(Palo Verde, supra, PERB Decision No. 2337, pp. 33-34.)
In Palo Verde the employer relied on hearsay and double hearsay evidence of reports
by co-employees, presented through testimony of a supervisory employee and a manager, that
the discharged employee engendered disruptive personality conflicts. The Board affirmed the
ALJ’s determination that this hearsay evidence was insufficiently reliable to support a finding.
The Board stated:
A responding party must prove up its affirmative defense through
persuasive evidence. Although admissible, hearsay testimony
and documents are insufficient to support a finding. (PERB
Reg. 32176.) [Fn. omitted.] The Board requires “sufficient
independent [non-hearsay] evidence” to conclude that the
challenged action would have occurred in the absence of the
employee’s protected activity. (County of Riverside (2009)
PERB Decision No. 2090-M; Escondido Union Elementary
School District (2009) PERB Decision No. 2019 (Escondido);
The Regents of the University of California (1998) PERB
Decision No. 1255-H (Regents); Woodland Joint Unified School
District (1987) PERB Decision No. 628.)9
9 See also Hilmar Unified School District (2004) PERB Decision
No. 1725 (Hilmar) (district official’s testimony regarding alleged
complaint from health plan administrator about union agent’s
telephone calls to administrator deemed hearsay and insufficient
to establish operational necessity defense to alleged interference);
Alamo Rent-A-Car, Inc. (2002) 338 NLRB 275 (Alamo) (absent
independent evidence, supervisor’s hearsay account of customer
complaint held insufficient to establish Wright Line, supra,
251 NLRB 1083, defense to General Counsel’s prima facie case
of retaliation).
(Id. at p. 19.)
Returning to the case at hand, we conclude, along with the ALJ, that the District met its
burden under Novato, supra, PERB Decision No. 210, to prove by persuasive evidence that it
had, and acted because of, an alternative, non-discriminatory reason, and not because of Peters’
25

protected activity, when it terminated his employment on December 7, 2010. In particular, the
District adduced persuasive admissible evidence of the incident occurring in Peters’ first grade
classroom on November 29, 2010, through the statements of student witnesses recorded and
testified to by the school’s psychiatric social worker and by the District’s own police.
(Proposed Dec., pp. 36-37.) The District relied on this evidence to support its conclusion that
Peters’ classroom conduct on November 29, 2010, was inappropriate, to wit, insufficiently
attentive to the safety of his students, who, while Peters was in the classroom, were reportedly
sexually abused by an unauthorized intruder posing as a teacher’s aide.
Peters argued that the District should have produced first grade student witnesses to
testify at the PERB formal hearing. The District’s failure to do so, according to Peters, leaves
no admissible evidence upon which to base a finding except his own account of what
happened. Peters’ account, however, includes an admission that he did not watch Montes
continuously and that it is at least possible that Montes touched the children on their buttocks.
The ALJ concluded that Peters’ arguments in rebuttal to the District’s affirmative defense were
misplaced for three reasons.
The ALJ reasoned that refuting the adequacy of the District’s “cause” for termination
was fruitless because the District is not required to show cause to terminate a substitute teacher
under the Education Code. 	It is true that the District is not required to show cause to terminate
a substitute teacher for Education Code purposes. To the extent this statement can be
interpreted to mean that for EERA purposes the employer’s Novato defense is altered as a
result, that interpretation is rejected. The legal elements of the defense are the same no matter
the status of the employee. As stated above, a public school employee’s status as a substitute
teacher affects no modification in the prima facie elements of the charging party’s case or in
the legal element of the employer’s defense. Regardless of the employee’s status as a
26

substitute teacher, the employer in proving up its affirmative defense must demonstrate by a
preponderance of the evidence that it did not take adverse action against the charging party
because of the charging party’s protected activity.
In making its case, the employer must prove that it had an alternative non-
discriminatory reason for the challenged action and that it took adverse action against the
employee because of that reason. An employer that is not required to show “cause” to
terminate an at-will employee under a different statutory regime is still required to overcome a
charging party’s proven prima facie case with persuasive evidence that it took adverse action
against the charging party for a non-retaliatory reason. For the reasons adequately described
above and in the proposed decision, the District has met that burden in this case.
A charging party has the right to attempt to discredit or undermine the employer’s
stated reason for the adverse action, notwithstanding the charging party’s at-will employment
status. Peters failed to rebut the District’s affirmative defense not because of Peters’ status as
an at-will employee under the Education Code. Peters failed to rebut the District’s affirmative
defense because he failed to persuade the ALJ, and now the Board, that the District’s reason
for terminating him was unlawful under EERA, i.e., that the District terminated his
employment because of protected activity and not because he failed to adequately supervise his
classroom. That Peters admits that first grade children might have been touched on the
buttocks by Montes under his watch supports the District’s case that it would have terminated
Peters even in the absence of his protected activity.
Relying on a much-cited Board decision, Baker Valley Unified School District (2008)
PERB Decision No. 1993, the ALJ states that the relevant inquiry for PERB is not whether the
employer acted for a lawful reason, i.e., had “cause” to terminate under the Education Code, but
whether the employer acted for an unlawful, discriminatory reason.
27

While this is an accurate statement of the law, we caution against interpreting it to
mean that PERB has no right to question a school district’s reasons for terminating a teacher
when evaluating whether the school district was motivated by anti-union animus. As the
Board explained in County of Orange (2013) PERB Decision No. 2350-M:
The ALJ relied on Baker Valley Unified School District (2008)
PERB Decision No. 1993 (Baker Valley) in his articulation of the
standard for the proposition that “the focus of this analysis ‘is not
whether the employer had a lawful reason for the action but whether
it took the action for an unlawful reason.’” In Baker Valley, the
school district argued that PERB had no authority to second-guess
its reasons for not renewing a teacher because the administrative
hearing procedure in the Education Code provides the exclusive
means for making that assessment. In other words, the school
district argued that the [EERA] may not supersede these Education
Code sections under a preemption-type analysis. The Board in
Baker Valley rejected the school district’s argument holding:
The District’s argument misconstrues PERB’s inquiry
in a retaliation case. PERB does not determine whether
the employer had cause to discipline or terminate the
employee. (San Bernardino City Unified School
District (2004) PERB Decision No. 1602.) Rather,
PERB weighs the employer’s justifications for the
adverse action against the evidence of the employer’s
retaliatory motive. Thus, PERB’s inquiry is not
whether the employer had a lawful reason for the action
but whether it took the action for an unlawful reason.
(See McFarland Unified School Dist. v. Public
Employment Relations Bd. (1991) 228 Cal.App.3d 166,
169 [276 Cal.Rptr. 26] [stating “the District has cited
no authority, nor can it, for the proposition that its
power to deny tenure for any lawful reason insulates it
from the scrutiny of the PERB when an unfair labor
practice complaint alleges that tenure was denied in
retaliation for the exercise of a protected right”].)
Context is critical. In stating that PERB’s inquiry is not “whether
the employer had a lawful reason,” the Board was responding to
and rejecting the school district’s argument that the Education
Code provides the exclusive measure of what is lawful in a non-
renewal setting and that PERB has no authority to evaluate the
school district’s proffered reasons.
(Id. at pp. 16-17.)
28

The role PERB plays in retaliation cases is shaped by the specific labor relations
concern underlying the statutory scheme. PERB’s role is to ensure that public employees can
exercise their right to participate in union and other organizational activities free of adverse
action by the employer. The reason proffered by the employer for the adverse action is
necessarily what must be examined by PERB in determining whether it is pretextual or, in
cases involving dual motives, whether it is the “but for” cause for the adverse action. After a
charging party has met its prima facie burden of establishing retaliatory motive and the burden
shifts to the employer to prove its affirmative defense, the charging party is entitled to
challenge and probe the employer’s evidence to ensure that the employer’s evidence is
credible, the employer’s affirmative defense is honestly invoked and the employer’s
justification for the challenged action is the true cause for the action taken. (Chula Vista
Elementary School District (2011) PERB Decision No. 2221.) It, however, matters not
whether the proffered reason for the adverse action meets external law or contractual
standards, except to the extent that deficiencies in the employer’s discipline case against the
employee evidences an unlawful retaliatory motive.
In a case, such as this, involving the termination of an at-will employee, PERB must
examine the employer’s exercise of discretion, but not to second guess or judge it for any other
reason than to ensure that the employer’s exercise of discretion was not motivated by the
employee’s exercise of protected rights. The ALJ did so here.
The ALJ determined that the evidence supporting the District’s affirmative defense was
sufficient. We agree.
When assessing the persuasiveness of an employer’s Novato, supra, PERB Decision
No. 210 defense, PERB must “‘inquire fully into all issues’” in order to “establish that the
employer’s affirmative defense was ‘honestly invoked’ and its justification ‘was in fact the
29

cause of the employer’s action.’” (Palo Verde, supra, PERB Decision No. 2337, p. 34.)
Relevant evidence includes any evidence bearing on the persuasiveness of the employer’s
defensive claims. That would include, without limitation, the extent to which reports relied
upon by the employer regarding events forming the basis for discipline or discharge of the
employee, are reliable. An employee seeking to rebut an employer’s Novato defense may
adduce, and, subject only to admissibility standards, PERB must consider, argument, testimony
and documentary evidence tending to challenge the accuracy, truthfulness or reliability of the
testimony or documentary evidence adduced by the employer in support of its defense.
Regarding Peters’ assertion that the children’s statements were hearsay and could not
be relied on, the ALJ observed that the District did not intend to offer the students’ statements
for the truth of the matters asserted, but to show the information it was given and the actions
that it took based on that information. As the ALJ points out, even if the statements were
offered for the truth of the matter asserted, an exception to the hearsay rule applies. The
statements were made by first grade students within hours of the trauma, while it was still fresh
in their minds and still under the stress of the event. Statements made under those
circumstances are inherently reliable, which is why they qualify under the spontaneous
utterance exception to the hearsay rule under Evidence Code section 1240. And, as the ALJ
pointed out, even older statements are admissible in cases of sex abuse.
The ALJ’s reliance on Office of the Los Angeles County Superintendent of Schools
(1982) PERB Decision No. 263 and Pasadena Unified School District (1999) PERB Decision
No. 1331 does not suggest that PERB must accept a respondent’s asserted reason for taking
adverse action unquestioningly, or that a charging party may not seek to discredit the
respondent’s asserted reason. If the charging party can show that the respondent’s reason for
30

the adverse action was pretextual or the respondent’s “alternative non-discriminatory” reason
in a dual motive case is not credible, then the employer’s affirmative defense fails.
Particularly in light of Peters’ concession that he did not watch Montes continuously
and that it is at least possible that Montes touched the children on their buttocks, we agree with
the ALJ that Peters’ attempt to undermine the accuracy of the children’s statements about the
sexual assaults that reportedly took place in his classroom is of no avail. For PERB’s
purposes, the determinative fact proven at the formal hearing is that the District took adverse
action against Peters based on the information it and law enforcement authorities had gathered,
including the children’s statements. The District was not required to prove up its affirmative
defense by subpoenaing these former first grade children to testify at a formal hearing about
what happened on the day in question. The odious nature of such a requirement
notwithstanding, it matters not what the children would have testified to on the stand, but what
they reported to school administrators and law enforcement authorities that became the basis
for the District’s decision to terminate Peters’ employment. There is no evidence that the
District fabricated the children’s statements, exaggerated the seriousness of the events or
intentionally relied on information it knew to be false. It is not that the “accuracy” of the
underlying events is unimportant in the evaluation of the District’s affirmative defense. It is
that Peters has given PERB no reason to conclude that the District’s affirmative defense was
not honestly invoked and that the District’s proffered reason for the challenged action was not
the true reason for his termination. Ultimately, even if criminal proceedings were to exonerate
Montes or the children were subsequently found to be lying about the incident in question,
neither would negate the proven fact that the reason for Peters’ termination was not that he
requested union representation, or going further back in time, advocated on behalf of substitute
31

teachers, but that he failed to supervise his classroom in which first grade students had
reportedly been sexually assaulted.
In sum, we conclude, with the ALJ, that Peters failed to prove up a Novato, supra,
PERB Decision No. 210, prima facie case of discrimination/retaliation. We also conclude that
even had Peters established his prima facie case, the District established its Novato defense,
viz., that it both had, and terminated Peters because of, an alternative, non-discriminatory
reason, and not because of his protected activity.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5576-E are
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members Winslow and Gregersen joined in this Decision.
32

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
DAVID C. PETERS,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5576-E
PROPOSED DECISION
(06/11/2014)
Appearances: William D. Evans, Attorney, for David C. Peters; Office of the General Counsel
by Effie Turnbull, Assistant General Counsel, for Los Angeles Unified School District.
Before Valerie Pike Racho, Administrative Law Judge.
In this case, a substitute teacher alleges that his employer terminated his employment
because he is a union activist. The employer denies any unfair practices and asserts that it took
action because the substitute teacher failed to properly monitor classroom activities, and as a
result, two female first grade students were assaulted by an unauthorized visitor.
PROCEDURAL HISTORY
On June 14, 2011, David C. Peters filed an unfair practice charge with the Public
Employment Relations Board (PERB or Board) against the Los Angeles Unified School
District (District). On March 1, 2012, a first amended charge was filed. On April 30, 2012,
the PERB Office of the General Counsel issued a complaint alleging that the District retaliated
against Peters because of his protected activity in violation of the Educational Employment
Relations Act (EERA).1
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.

________________________
On May 18, 2012, the District filed its answer to the complaint, denying any unfair
practices and asserting various affirmative defenses, including that the charge was not timely
filed.2
On September 11, 2012, PERB held an informal settlement conference, but the dispute
was not resolved and the matter was set for hearing.
The formal hearing was held on March 18-22, 2013. With receipt of the parties’ post-
hearing briefs on July 18, 2013, the record was closed and the matter was submitted for
decision.
FINDINGS OF FACT3
The District is a public school employer within the meaning of section 3540.1(k). Prior
to December 14, 2010, Peters was an employee within the meaning of section 3540.1(j) and
included in a bargaining unit exclusively represented by United Teachers-Los Angeles (UTLA
or the union.) The District and UTLA were at all relevant times parties to an operative
collective bargaining agreement (CBA).
Background Events and Relevant CBA Provisions
Peters was first employed as a substitute teacher by the District in 1964, and had
regularly worked in that capacity for the District since 1994. Because of year-round school
schedules, Peters averaged around 220 days of teaching per year and received health insurance
coverage. Substitutes receive their teaching assignments via an automated telephone system
2 The District did not present any evidence demonstrating that the charge was untimely
nor argue that theory in its post-hearing brief. For this reason, the affirmative defense is not
considered herein. (See, Los Angeles Unified School District (2014) PERB Decision No.
2359.)
3 The proposed decision omits discussion of facts in the record deemed to be immaterial
to deciding the issues presented.
2

________________________
called Subfinder. Substitute teachers who work regularly, like Peters did, typically receive
daily calls from Subfinder beginning around 5:30 a.m.
CBA Article XIX, “Substitute Employees,” section 10.0, “Information,” requires that
substitutes be given information necessary for performance of their duties, “including, but not
limited to, student attendance information, lesson plans, class roster, appropriate keys, seating
chart(s), and security and emergency plans.” Such information can be contained in a “Sub
Folder” that is given to the substitute teacher at the school office and which would also
indicate if the classroom is assigned a teacher’s aide and the times of the aide’s service. It is
undisputed that Sub Folders are commonly missing for many assignments, as well as lesson
plans and even class rosters. In that case, the substitute teacher must draw upon common sense
and experience to plan the day’s lessons. Peters acknowledged that it is “absolutely” the
responsibility of the substitute teacher to monitor and control the classroom environment.
Because substitutes frequently travel to different school sites, the District expects that they will
ask as many questions of office staff, colleagues, and even students as necessary to familiarize
themselves with the school’s procedures.
While substitute teachers are included in the UTLA bargaining unit and therefore
subject to the CBA, they are at-will employees who may be dismissed from employment
without cause and thus are not entitled to the same due process procedures afforded to
permanent employees.4 Substitute teachers may be informed of deficient performance by
4 See Education Code section 44953: “Governing boards of school districts may
dismiss substitute employees at any time at the pleasure of the board.” Compare with
Education Code sections 44932-44939 and the California Supreme Court’s decision in Skelly v.
State Personnel Board (1975) 15 Cal.3d 194, 215, which govern the procedural due process
rights for permanent employees in public employment.
3

issuance of an Inadequate Service Report (ISR). ISR procedures are set forth at CBA Article
X, “Evaluation and Discipline,” section 7.0 (section 7.0):
Inadequate Service by Substitutes: The site administrator may,
for cause, issue to a day-to-day substitute employee a notice of
inadequate service. Such a notice shall, absent compelling
circumstances, be issued within ten working days after the date(s)
of service, with a copy to the employee (either in person or by
certified mail to the employee’s address of record). Prior to
issuance of such a notice, the site administrator shall make a
reasonable effort to contact and confer with the substitute
regarding the allegations. Upon employee request, a meeting will
be held to discuss the matter. The employee may be
accompanied by a UTLA representative or a person of the
employee’s choice as long as that person is not a representative of
another employee organization. The timeliness of the employee’s
request for a meeting, or the non-availability of the employee or
representative shall not delay issuance of the Inadequate Service
Report beyond the ten working days period set forth above. In
addition to the grievance procedure, the employee may attach a
written response to the report within ten working days from the
date received. The written response becomes a permanent part of
the record.
(Emphasis added.)
It is the District’s practice in dismissal and disciplinary actions involving substitute
employees to submit the charges for review by an ad hoc committee (review committee) of
administrators, whose composition varies. The review committee may decide to uphold the
recommended action, to modify it, or that no action is warranted. The employee is informed of
the committee’s determination by letter and may request additional administrative review.
These are voluntary actions by the District. The District chooses to take them because it has an
interest in trying to retain qualified and experienced employees. Because substitute teachers
are at-will employees who may be dismissed with or without cause under the Education Code,
even a successful grievance over the failure to follow the ISR procedures described above has
no bearing on the District’s analysis of the conduct described in the ISR. Thus, in such a case,
even if an ISR was removed from an employee’s personnel file at the conclusion of the
4

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grievance procedure, it does not automatically follow that the District’s decision to terminate
employment would be disturbed.
Since at least 2004, Peters has held various UTLA leadership positions for substitute
teachers, including chapter chairperson, substitute director, and substitute committee
chairperson. In those capacities he communicated regularly with unit employees via a widely
distributed email newsletter. He also regularly represented employees in meetings with the
employer regarding discipline matters. In 2009, he was a participant in an unfair practice
charge filed collectively by substitute teachers against UTLA over a side-letter agreement
reached with the District that affected substitutes’ available work assignments. While visiting
District offices, Peters personally questioned then-Superintendent Ramon Cortines and another
District management employee, Susan Masters, over the District’s involvement in reaching
that agreement. Peters thought they looked annoyed by his questions. Peters also participated
in a public protest in front of District offices around that time, and afterward spoke publicly
during the District Board of Education meeting. It is undisputed that higher-level District
administrators, including those that upheld the final decision to terminate his employment,
were aware of Peters’s union positions and activism on behalf of substitute teachers.
The Incident at West Vernon Elementary School on November 29, 2010
On November 29, 2010,5 Peters accepted an assignment via Subfinder at West Vernon
Elementary School (West Vernon) teaching first grade. He had taught there previously,
perhaps a dozen times. When Peters arrived at the school office before the start of school that
5 All dates hereafter refer to the year 2010 unless stated otherwise.
5

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day, there was no Sub Folder or lesson plans for his assignment.6 Initially, he was given keys
to the wrong room.
The morning passed uneventfully. At the conclusion of the lunch period, around
12:15 p.m., Peters went to the playground to accompany the children back to the classroom.
When they returned to the room, some students announced that a male student was not with the
group. At that point, a man who identified himself as “Mr. Montes” entered the classroom
claiming to be a teacher’s aide.7 Aides at the school did not customarily display name badges
or other identification showing that they were District employees. Peters testified that he had
no reason to doubt that Montes was who he purported to be, and said it would be “suicidal” for
a substitute teacher to challenge the authority of a teacher’s aide because school management
“always backed the aides.” Peters opined that it would not be in a substitute teacher’s interest
to risk disciplinary action by offending an aide.8 Peters did not call the office, or inquire with
the teacher in the adjoining room, to verify that the class was assigned an aide named Montes.
Montes told Peters that he knew the missing student and offered to look for him along
with two male students who had volunteered to go get him. Peters apparently agreed and the
three of them left the room together. It was Peters’s impression that the students knew Montes,
but he admitted that he did not ask any students whether they recognized the man, whether he
6 Peters admitted during cross examination that he could not recall ever being provided
with a Sub Folder during any assignments at West Vernon.
7 This person’s true identity is not known. For ease of discussion, he will be referred to
herein as Montes.
8 Tom Stekol, field director in the District office of staff relations, testified that he has
never seen a grievance filed by a substitute employee or UTLA over any disciplinary action
imposed because the substitute questioned or challenged the authority of a teacher’s aide.
Stekol’s office has handled approximately 1,000 grievances per year since he began working
there in 2002.
6

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was their regular aide, or whether the class even had an aide. It is undisputed that there are
only a handful of aides working at the school.
Montes returned to the classroom shortly thereafter with the missing student and the
other boys. Peters and Montes chatted about Montes’s native American heritage and service in
the Marine Corps. The students were working on math worksheets. Peters told Montes to
walk around and individually assist the students with their worksheets, and the man did so.
Peters thought that, for the most part, he was “probably on the right side [of the classroom]”
and Montes was “probably on the left side.” Peters could not confirm that all children were
seated during the time that Montes was present and “may” have remembered some children
being off to the side or in an alcove. Montes was in the classroom for about an hour and left at
approximately 1:15 p.m. Peters did not notice anything unusual about Montes or about any
activities in the classroom while Montes was present.
The school day ended at approximately 2:15 p.m. Daniel Laner, then-assistant
principal at West Vernon,9 was in charge of security and student discipline. In this role, he
regularly monitored the campus during lunch periods and after school and was in charge of
locking and unlocking gates. Laner’s campus rounds ended that day at approximately
2:45 p.m. As he was walking back to his office, a female fifth grade student ran up to him
saying that she had been looking for him. Laner knew this student. She was the older sister of
a first grade student from Peters’s class. She told Laner that a man helping in her sister’s class
had touched her sister and another female first grade student on the “butt” during class time.
Laner immediately told the principal, Lupe Buenrostro, and they decided that such an
allegation required the school’s psychiatric social worker, Dionicia Fox, to be the first point of
9 At the time of the hearing, Laner had retired from employment with the District.
7

________________________
contact with the girls. The complaining first grade students were identified in the record as C2
and C3.10 Buenrostro told Laner to call Peters while Fox began her interviews to find out if
another man had been in his classroom.
Peters received Laner’s first phone call that afternoon just after he had returned home.
Laner asked whether a man had been present in his classroom after lunch, and Peters recounted
everything he could remember about Montes’s physical description and what Montes had said
and done in class. Laner told Peters what had been reported by the students and stated that
school management was urgently trying to get a description of the man. Laner did not recall
the exact words he used to describe the allegations to Peters, but stated generally that there had
been reports of inappropriate touching. Laner testified that Peters was helpful and cooperative.
Peters reported to Laner that he had not observed Montes touching any students or acting
inappropriately.
Peters recalled asking Laner during phone conversations that day if he would be
written-up over the incident, to which Laner replied that Peters was “blameless” and that it was
the school’s fault, since the man was able to gain entry to the campus. Peters also testified that
Laner told him the campus wanted him back and that he would be put on a “preferred list” to
receive substitute assignments. Laner did not recall ever saying that the school was at fault,
and could not precisely recall whether he used the word “blameless,” but confirmed that one of
the first questions that Peters asked him was whether the incident would result in an
“unsatisfactory act” for Peters. Laner testified regarding his response to that question:
Frankly…I told him no….I wasn’t investigating his behavior. I
had no reason to. I hadn’t heard anything against him….We
needed the information, who is this guy, what was he doing in
your room after lunch.
10 No students testified in the hearing. Their names were redacted from the record to
protect the privacy of minor children.
8

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Laner testified that his focus that day was entirely on gathering information about the
unknown man so that he could be identified and apprehended. He was not questioned about
whether he told Peters he would be put on a preferred assignment list. I credit Laner’s
testimony over Peters’s. Laner testified consistently that, since it did not appear that Peters
had touched the students in question, he was concentrated on “catching the rat,” as he put it.
Thus, any statement that Peters was “blameless,” if Laner used that word, was likely regarding
the fact that Peters was not being accused of touching the girls. Furthermore, I find it
unbelievable that, given the backdrop of events, Laner would have said that Peters would
henceforth be targeted for preferred assignments at West Vernon.11 It simply does not make
any sense that, in the midst of trying to gather information over a serious, criminal incident
involving students, Laner would pause to assure Peters of future favored treatment.
Fox conducted the interviews of C2 and C3 separately. Afterward, she told Laner and
Buenrostro that it appeared to be a serious case of sexual abuse and Laner called the Los
Angeles Police Department (LAPD), per protocol in such situations. The LAPD directed
Laner to contact the District’s school police department. Two school police officers, Alan
Chavez and David Joyce, were then dispatched to West Vernon to investigate.
The school police officers interviewed the girls separately. Fox was present during
these interviews, but she did not ask any questions. Fox later prepared a written report that
summarized her own interviews and the ones she observed, which was presented to Buenrostro
on or about December 1.
11 See Regents of the University of California (1984) PERB Decision No. 449-H,
proposed decision at pp. 84-88 [inherently unbelievable testimony casts considerable doubt
over the bulk of testimony].)
9

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After their first interview of one of the girls, an officer asked Laner to call Peters to find
out whether Peters recalled Montes being near one or both of the complaining students. Laner
called Peters, who said that he did not remember Montes being near the girls or touching
anyone, even casually. Later, Officer Chavez also called Peters directly while in Officer
Joyce’s presence. Officer Chavez did not testify. Officer Chavez prepared a report of the
incident that night, which Officer Joyce reviewed and approved. Officer Joyce testified that in
cases like this, after taking initial statements and filing a report, jurisdiction is then turned over
to local law enforcement for further investigation, which here was the LAPD. He and Officer
Chavez had no further involvement in the investigation after they filed their report.
In addition to the investigative report filed by school police officers, an incident report
called an “I-STAR” was generated by their supervising sergeant. The I-STAR is mandatory for
events on a school campus involving an injury to students, staff, or visitors. It is distributed to
management officials at a school site and District offices. The I-STAR in this case described
the substance of the incident verbatim as follows:
On November 29, 2010, at 1215 pm [sic], an unknown adult male
walks into a first grade classroom with a classmate of the victims.
He makes contact with the teacher and identifies himself as a
school staff member. He states that he travels to different
classrooms assisting students in need.
The suspect walks over to Victim #1 [12] and has her stand up. He
then touches her buttocks three times while simultaneously
rubbing genital area outside of his pants. Victim #1 said she was
scared. The suspect then walks over to Victim #2 and touches
her buttocks two times. He then leaves and goes over to a male
student and then returns and touches Victim #2 two more times
on her buttocks.
Per the teacher, the suspect spent approximately one hour in the
classroom helping different students before leaving.
12 In the school police report and I-STAR, Victim #1 refers to the student identified in
the record as C3. Victim #2 refers to the student identified in the record as C2.
10

________________________
Peters testified regarding Montes’s classroom conduct: “It’s possible that he touched two
students on the buttocks when I wasn’t—I didn’t look at him every second that he was in the
room. But there’s no way he could have masturbated.” He also noted that he had not learned
until the hearing in this matter that it was alleged that Montes had been touching himself.
Events After the Incident
November 30
Peters received a call from Subfinder for a teaching assignment at a different school.
Peters accepted and performed the assignment.
LAPD officers went to the West Vernon campus to investigate the incident and conduct
individual interviews of C2 and C3.13 The school psychologist, Aaron Socie, was present to
observe both interviews, which took place in his office. He did not personally ask C2 or C3
any questions. Socie prepared a report of the observed interviews, which was presented to
Buenrostro on or about December 2.14
While Laner escorted officers to the classroom where the incident occurred, a boy
identified in the record as C8 excitedly approached Laner and exclaimed that he had seen a
man masturbating in class the day before. C8 used common vernacular to describe this sexual
act. Socie and Laner testified that it is not uncommon for West Vernon students, even younger
13 LAPD officers did not testify and their investigative report was not introduced in
evidence.
14 Socie testified that the interviews he observed took place on the same date of his
report (December 2), and was not sure whether the law enforcement entity conducting
interviews was the school police or the LAPD. In comparing the testimony of other witnesses,
it is clear that LAPD officers were only present on campus on November 30, and that these are
the interviews Socie observed. His lack of clarity on these details does not materially impact
the substance of his testimony, nor cast doubt on his general reliability as a witness.
11

________________________
ones, to have knowledge of adult topics, such as sexual acts and drug use. Thus, the way C8
described a sexual act was not that surprising to Laner.
December 1
Around 6:00 a.m., since Peters still had not received a Subfinder call, he called in to the
system and was informed that he had been placed on inactive status. He knew this was a bad
sign. Peters then visited the District’s employee relations office to find out what was
happening and was told that he would need to be cleared by West Vernon before he could go
back to active status and receive assignments in Subfinder.
Next, Peters headed to West Vernon and spoke to Laner. According to Peters, Laner
reiterated that Peters was completely blameless in the matter and further opined that he had
acted “commendably,” but also stated that he would need to talk to an administrator from the
Local District office in order to be cleared for future teaching assignments.15 Laner said the
police were following up on a lead that the assailant was the father of a student in class.16
When questioned about this meeting with Peters, Laner again noted that Peters had been very
cooperative with the police and with Laner’s own attempts to gather information about the
incident. Thus, I find if Laner commented that Peters had acted “commendably,” it was likely
in that context.
Peters asked repeatedly whether he was going to written-up. At this point, however,
West Vernon administration had not yet been given clearance by either Local District 5 or the
LAPD to begin its own administrative investigation into the incident. Laner and other District
witnesses testified that in employment incidents involving alleged criminal conduct, local law
15 The District is subdivided into numbered “Local Districts” by region. West Vernon
is located in Local District 5.
16 The police later cleared that person as a suspect.
12

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enforcement has discretion to allow the District to do an administrative investigation
concurrently with a police investigation, or to require the District to wait until the police have
finished with witness and victim interviews before allowing it to proceed. At the time of this
meeting with Peters, West Vernon had received no permission from LAPD to proceed with its
own investigation. So in response to Peters’s questions about being written-up, Laner told him
that he had not yet investigated his conduct and that the District was focused on trying to aid
the police’s investigation in order to catch the unknown assailant.
Laner admitted that Peters informed him about his UTLA leadership positions and his
extensive experience representing substitute teachers in disciplinary actions. Prior to this
conversation, Laner did not know about Peters’s history of union activities. Laner testified that
he told Buenrostro about Peters’s union activities, stating that Peters seemed to have more
experience dealing with the District’s offices of staff relations and employee relations than
they did.17
After leaving West Vernon, Peters visited Local District 5 offices and spoke with the
director of elementary education, Maria Martinez. Martinez is Buenrostro’s direct supervisor.
Peters testified that Martinez told him that everything was going to be okay and the matter
should be taken care of quickly. Peters said that Martinez told him he would be able to return
to work soon because an arrest in the case was expected. Martinez did not testify. I decline to
credit Peters’s testimony here and thus do not consider this purported statement by Martinez as
falling within a party admission exception to the hearsay rule. I find Peters’s account of her
statements highly implausible. It is unclear what bearing an arrest in the case would have had
17 District management representatives in the office of staff relations are responsible for
collective bargaining and the administration of the CBA, including grievance processing,
whereas management representatives in the office of employee relations are responsible for
maintaining employee records and overseeing discipline and dismissal processes.
13

on Peters’s role in the events that day or his ability to return to the classroom. I find that, in
general, Peters’s characterization of administrators’ statements to him regarding his lack of
culpability to be exaggerated and self-serving, or at the very least colored by his own
subjective view of these events. Put another way, I think Peters either heard what he wanted to
hear or chose to ignore the context of administrators’ statements.
Late in the afternoon, Peters went to UTLA offices to attend a regular meeting.
Afterward, Peters gave a ride home to the treasurer of the UTLA substitute committee,
Virginia Sajor. As they were getting into the car, Peters recognized an incoming call from a
West Vernon campus phone number and answered it on speaker so that Sajor could overhear
the conversation. Buenrostro was the caller. According to Peters and Sajor, Buenrostro said
that Peters was totally “blameless” and/or “innocent” and had nothing to worry about. Peters
also asserted that Buenrostro said that he would not be written-up, but Sajor testified during
cross-examination that there was no discussion of any potential violation of District policies
during the phone conversation. Sajor testified that she thought that Buenrostro’s comments
implied that Buenrostro did not think Peters was under suspicion of committing a crime.
Buenrostro testified that she would never have said anything about Peters’s blame or fault
before the school’s investigation had concluded. I credit Buenrostro, because it is inherently
unbelievable that an experienced administrator, at that point in time, would have conveyed to
Peters that disciplinary action was not even contemplated. It is much more likely that, similar
to Laner, any comments intimating Peters’s innocence by Buenrostro were regarding the fact
that he was under no criminal suspicion.
According to Peters, he also mentioned during this phone conversation that he was
blocked in Subfinder and asked if he could immediately go to West Vernon to talk to
Buenrostro, but she said no. Peters testified that Buenrostro told him that she was driving at
14

the time of their conversation, which he knows was false, since the caller identification showed
that the call originated from West Vernon. Sajor testified that Buenrostro said in response to
Peters’s request to meet right away: “No. I am going home. I’m on my way home. I’m
driving home.” Buenrostro, however, testified that Peters did not ask to meet that day. I find
this factual dispute to be inconsequential. It is more likely than not that Peters requested to
come by the office, Buenrostro indicated words to the effect that she was about to drive home,
and she did not recall these details of the conversation during her examination at hearing.
Buenrostro concluded the call by asking Peters to meet her the next day at 11:00 a.m., and told
him that the LAPD had now authorized the school to begin its own investigation.
December 2
Peters arrived for his meeting with Buenrostro at 11:00 a.m. Before it began, he asked
her whether it could lead to discipline. She told him that the meeting was investigatory and
would not confirm that discipline could not result. Peters informed Buenrostro that he could
not meet without representation if the meeting was investigatory. Buenrostro agreed to
reschedule the meeting for the following Monday, December 6.
Also on this date, Buenrostro instructed Laner to begin preparations for the school’s
internal investigation into the incident. She told him to use a “random selection protocol” to
determine which students to interview, which Laner testified was the standard practice where
children have witnessed a criminal act. Depending on the number of students in a class,
typically between four and five students are selected to interview. It was six students in this
case. Buenrostro had Laner prepare a diagram of the classroom so that students could identify
where Montes and Peters were located during the time Montes was in the room. Buenrostro
also told him to prepare a series of questions that would be asked of each student and
instructed him to not deviate from those questions for consistency. Laner’s interviews of the
15

children took place on December 3 and 6. He prepared a report that was presented to
Buenrostro. Buenrostro conducted her own interviews of C2 and C3 inside of their classroom
on December 2.
Events Between December 3-5
Buenrostro called Peters on Friday, December 3 to remind him that they were
scheduled to have a conference the following Monday and that he was entitled to bring a
representative. Peters confirmed that a UTLA chapter chair/site representative, Paul
Hernandez, would represent him in the meeting. According to Peters, Buenrostro stated
several times that the meeting was no longer investigatory, but a “conference.” Buenrostro
testified that she called him to confirm the conference, but did not address whether she told
him there was no longer an investigation.
After his conversation with Buenrostro, Peters concluded, “I wasn’t going to trust my
fate to a chapter chair.” He believed that site representatives, for lack of a better description,
were “in bed with the principal,” and were therefore ineffective. He tried all weekend to reach
UTLA outside legal counsel Rick Schwab by telephone, but was unable to speak to him.
Peters was not interested in trying to secure any other lawyer from Schwab’s firm, because
Schwab was the “heavy hitter” for substitute discipline cases. He was also not interested in
trying to secure a lawyer in another firm because he was really hoping that UTLA would foot
the bill. Presumably, Schwab’s firm operates under a retainer agreement with UTLA.
Events Between December 6-14
Peters called Buenrostro shortly before the scheduled time of the conference on
December 6 to inform her that he had changed his mind about who should represent him in the
meeting, and no longer was satisfied with representation by a UTLA site representative. Peters
stated he did not want to meet without an attorney. Peters had just learned from Schwab’s
16

office staff that Schwab was to be in court all day. Peters admitted to Buenrostro that he had
not yet spoken with Schwab to confirm his availability, and therefore could not reschedule the
conference with her. Peters told her that Schwab would “likely” be available on another day
that week. Peters also informed her that under section 7.0, she had until
December 13 (the following Monday) to issue an ISR. She said was aware of the contractual
timeframes. According to Peters, Buenrostro repeatedly asked whether he was refusing to
come to the conference, and Peters said that he was not refusing to meet, but he could not do so
without his attorney. Buenrostro believed that Peters was “stonewalling.” Later that day, she
called Peters to see whether he could participate in a conference late that afternoon or even by
telephone, but he still had not talked to Schwab directly at that point and was unwilling to
proceed without him.
Also on December 6, Buenrostro began preparing an ISR recommending to terminate
Peters’s employment with the District. In reaching that decision she considered her own
interviews with C2 and C3; Laner’s report of his interviews of other children in Peters’s class;
and the reports of the school police, Fox, and Socie. She never discussed the substance of the
incident with Peters. Peters was not the only employee fired over the incident. Buenrostro
also fired an at-will employee who had been assigned to monitor visitors’ arrivals at the
school’s main entrance. Laner testified that on his campus rounds on November 29, all of the
gates were properly locked. It was later concluded that the man most likely entered the
campus by walking in through the main entrance where visitors are supposed to sign-in, or by
hopping a back fence.
17

________________________
On December 7, Buenrostro issued the ISR and accompanying conference
memorandum18 to Peters via certified mail to his home address.19 He received it on the
evening of December 9. The documents informed Peters that he had until December 13 to
respond in writing, which does not track the deadline set forth in section 7.0 for an ISR
response. Buenrostro admitted that the CBA allows ten working days to respond to an ISR,
and noted that Peters’s written response to the ISR was received and accepted by the District
after the deadline she set forth in her letter had passed.20 She also essentially admitted that she
used the wrong timeframe in her letter and that it was inadvertent.
The substance of the ISR and accompanying memorandum informed Peters that it was
recommended that he not be reassigned to West Vernon and that his District employment be
terminated because he allowed an unidentified man to enter and remain in his classroom for
one hour, and while there, the man touched two girls on the buttocks. No other details of the
assailant’s conduct were described in these documents. The report also stated that a student
approached him afterward to say that the man had touched her and Peters said, “tell your
teacher tomorrow.” Peters was instructed that it is a part of his professional responsibility to
not allow unauthorized visitors to enter a classroom and touch students, to actively monitor all
18 The “conference memorandum” was written from the perspective of what she would
have told him, had they held a conference discussing the substance of the allegations.
19 After Buenrostro issued the ISR, she received on December 9 a letter from Schwab
dated December 7 stating that he was representing Peters regarding the incident and requesting
to schedule a conference with her. On December 14, Buenrostro received another letter from
Schwab dated December 10 that discussed Peters’s position on the incident.
20 By letter dated December 22, Schwab responded on Peters’s behalf to the ISR and
the District’s decision to terminate Peters’s employment.
18

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persons and classroom activities, and to promptly report to the administration and child
protection agencies any reports of inappropriate touching.21
Buenrostro believed that termination was appropriate because, in her opinion, Peters
had not properly supervised the classroom and children were hurt. Additionally, she believed
that Peters had not properly acted when a student reported to him that she had been touched,
and Buenrostro could not say with certainty that Peters could properly supervise classrooms if
allowed to continue substitute teaching. Similarly, Laner testified that he believed that Peters’s
classroom monitoring had been lax because, at minimum, he should have been continuously
scanning the class for safety issues. Since several children observed Montes’s inappropriate
behavior, if Peters had been exercising reasonable care as a teacher, he would also have seen
the conduct.
By letter from the District dated December 14, Peters was notified that after review of
the conduct described in the ISR, he was dismissed from “substitute status,” effective
immediately.
Events after December 14
At some point in late December or early January 2011, Peters requested an
administrative review of the District’s decision to terminate his employment. Peters’s appeal
package consisted of over 100 pages, including his own statement regarding what happened in
the classroom on the day in question, the previously submitted letters from Schwab, and many
personal recommendations by administrators and teachers. Regarding the incident, Peters
stated that it was the school’s responsibility, not his, to ensure that visitors to a school are
21 A grievance filed by UTLA over the issuance of the ISR in this case is in abeyance
pending the adjudication of the unfair practice charge by mutual agreement between the
District and UTLA.
19

properly identified and admitted, and noted that there was no established practice requiring a
substitute teacher to verify the identity of an aide before permitting the aide to enter the
classroom. Peters maintained that he observed the classroom conscientiously and did not
notice any untoward conduct. He disputed that any child reported to him that he or she had
been touched. Peters also continued to dispute that latter point during the PERB hearing.
Peters further noted in his appeal submission that he had been denied the opportunity to present
his side of the story, since Buenrostro had issued the ISR prior to holding a conference with
him.
The District’s director of employee relations, Ira Berman, was on the review
committee. Berman testified that while he did not directly participate in his office’s initial
decision to accept Buenrostro’s recommendation to terminate Peters’s employment, by virtue
of his position, he is the supervisor of the entire process. He identified the other District
administrators who initially reviewed the documentation supplied by Buenrostro and readily
admitted that all of them were aware of Peters’s union activities. Berman was also personally
familiar with Peters’s union leadership positions and advocacy.
In his role on the review committee, Berman reviewed the ISR and accompanying
documents, I-STAR, school police report, and Peters’s appeal documents. Berman concluded
that the termination should stand. Berman testified that he believed the investigation of the
incident was competent and thorough, and that the primary reason termination was warranted
under the circumstances was because Peters did not adequately supervise his classroom, which
put his students in jeopardy. Student safety is of paramount importance to the District, and
therefore, ensuring the safety of students is the most fundamental duty required of its
employees. Berman described incidents involving probationary and substitute employees
20

whose employment was terminated for less serious conduct than at issue here. Peters was
informed of the review committee’s determination by letter dated February 24, 2011.
Investigation Procedures
As noted previously, all of the children were questioned separately by each interviewer.
Fox, Socie, Officer Joyce, Laner, and Buenrostro all testified that after listening to the accounts
of C2, C3, and/or the other children present in class, they believed that the children were being
truthful. They noted that C2’s and C3’s accounts were largely consistent with each other.
They each testified to techniques that they have been trained in to interview young children
about traumatic events and confirmed that they used those methods in this case. A commonly
recounted technique is to ask the same question in different ways in order to check for
consistency in the account of the interviewee. All of these witnesses testified regarding the
professional degrees and/or certifications they possess. All of them are legally mandated to
report suspected child abuse and receive yearly training conducted by the District in that
regard. Peters also receives this training. In Laner’s case, he also administered such training
to other employees.
The children’s accounts across the interviews vary slightly in their details. What was
consistently reported in all interviews by C2 is that Montes asked her to stand up while she was
working on the math worksheet and then he touched her buttocks. The man walked away,
approached C3, and then touched C3’s buttocks. C2 stated in the interview observed by Socie
that Montes “spit” on her arm. She also said this in Buenrostro’s interview of her. Buenrostro
tried to interview C2 a second time at the District’s behest to clarify whether Montes had
touched her inside of her underpants. During the second interview the child became very upset
and the District determined that they should not ask her any more questions about the incident
for fear of causing further trauma. Socie and Buenrostro testified that after considering all of
21

the information provided, they assumed that “spit” in this case was seminal ejaculate and not
saliva. In C2’s interview with the school police, she noted that Montes was sweating all over
his face. C2 confirmed with Buenrostro that she did not tell Peters what happened to her.
C3 reported consistently in all interviews that Montes asked her to stand up while she
was working on math, and then he touched her buttocks several times. C3 also reported that he
did the same thing to C2. In her interviews by Fox, the school police, and observed by Socie,
C3 described in her own words what all of the interviewers interpreted as masturbation by
Montes. C3 was also able to consistently demonstrate by gesturing the actions she observed.
In her interviews with Fox and observed by Socie, C3 stated that she saw Montes “spit” on
C2’s arm. Fox testified that she assumed the spit was actually seminal ejaculate. In her
interviews with Fox and the school police, C3 noted that the man’s face was covered in sweat
and that he said he was there “to help the bad kids.” In her interviews with Fox and
Buenrostro, C3 said that she told the teacher, i.e., Peters, that Montes had touched her, to
which Peters replied, “Tell your teacher tomorrow.”
Both C2 and C3 said during their interviews with Buenrostro that while Montes was
touching them, Peters was helping other children in the classroom.
Some of the other children present during the incident who were interviewed saw
Montes put something on C2’s shoulder. Some did not see Montes do anything unusual. One
student, C8, witnessed Montes taking actions that Laner interpreted as being consistent with
masturbation.
ISSUE
Did the District terminate Peters’s employment in retaliation for his union leadership
roles and/or other protected activities?
22

________________________
CONCLUSIONS OF LAW
To demonstrate that an employer discriminated or retaliated against an employee in
violation of EERA section 3543.5(a), the charging party must show by a preponderance of
evidence that (1) the employee exercised rights under EERA, (2) the employer had knowledge
of the exercise of those rights, (3) the employer took adverse action against the employee, and
(4) the employer took the action because of the exercise of those rights. (Novato Unified
School District (1982) PERB Decision No. 210, pp. 6-8 (Novato).)
If a charging party produces sufficient evidence demonstrating a prima facie case, and
therefore an inference that the respondent’s action was unlawfully motivated, the burden shifts
to the respondent to prove (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. (See Palo Verde Unified School District
(2013) PERB Decision No. 2337, p. 31 and the cases cited therein (Palo Verde).) An
employee alleging discrimination who is subject to dismissal without cause bears a heavier
burden in overcoming the employer’s case for non-discriminatory motive. (County of
Santa Clara (2012) PERB Decision No. 2267-M, proposed decision, p. 21(Santa Clara).)22
Protected Activity, Employer’s Knowledge and Adverse Action
The threshold requirements to establish a prima facie case of unlawful retaliation are
evidence that the employee engaged in activities protected under EERA and that the employer
was aware of those activities. (Palo Verde Unified School District (1988) PERB Decision
No. 689.)
22 When interpreting EERA, it is appropriate to rely upon decisional authority
interpreting parallel provisions of state and federal labor relations law. (Temple City Unified
School District (1990) PERB Decision No. 841, fn. 14, citations omitted.)
23

EERA section 3543(a) protects employees’ right to form, join, and participate in the
activities of employee organizations. It is therefore well-established that seeking help from
and being represented by a union regarding employment concerns is protected activity.
(Los Angeles Unified School District (1991) PERB Decision No. 894.) Likewise, holding
union office and actively representing employees in grievance or disciplinary proceedings on
behalf of the exclusive representative is protected conduct. (Klamath-Trinity Joint Unified
School District (2005) PERB Decision No. 1778.) Voicing employment concerns and/or
criticisms of management for the purpose of advancing the interests of employees in their
working conditions is protected by EERA. (California Teachers Assn. v. Public Employment
Relations Bd. (2009) 169 Cal.App.4th 1076, 1091; San Ramon Valley Unified School District
(1982) PERB Decision No. 230.)
To demonstrate the knowledge element of a prima facie case, at least one of the
individuals responsible for taking the adverse action must be aware of the protected conduct.
(Oakland Unified School District (2009) PERB Decision No. 2061 (Oakland).) In other
words, the issue is whether “the individual(s) who made the ultimate decision to take adverse
action against the employee had such knowledge.” (Sacramento City Unified School District
(2010) PERB Decision No. 2129, p. 7 (Sacramento), citing City of Modesto (2008) PERB
Decision No. 1994-M.)
Removing a substitute teacher’s name from the employer’s active substitute list is a
classic adverse action because it terminates the substitute’s employment. (Sacramento, supra,
PERB Decision No. 2129, citing Regents of the University of California (Einheber) (1997)
PERB Decision No. 949-H.)
These first three elements of the prima facie case are not in serious dispute and are met
in this case. It is undisputed that Peters was, before December 6, seeking help from a UTLA
24

representative regarding the scheduled meeting with Buenrostro and that she was aware of that
activity. Laner testified to informing Buenrostro of Peters’s union leadership positions after he
learned about Peters’s history from Peters himself. Berman readily admitted that he and other
higher-level administrators were aware of Peters’s representational activities.
Some of Peters’s advocacy on behalf of substitutes described at hearing was not alleged
as protected activity in the complaint. Consideration of unalleged protected activities is
appropriate where those activities are related to the claims in the complaint and the parties
have had the full opportunity to litigate all issues. (Lake Elsinore Unified School District
(2012) PERB Decision No. 2241.) Here, it is at least arguable that Peters’s advocacy
regarding substitutes’ work assignments and criticisms of District management in connection
with the group unfair practice charge filed against UTLA could be related to the instant claims.
Furthermore, because District administrators testified openly regarding their general awareness
of Peters’s union activities and the parties had full opportunity to litigate these issues, they are
properly considered.
The District does not dispute in its closing brief that Peters termination from
employment was an adverse action and such a conclusion is undisputable. Rather, the focus of
the District’s argument is that Peters failed to establish a causal connection between his
employment termination and his protected activity.
Nexus
A critical element of a prima facie case is whether there is a causal connection, or
nexus, between the adverse actions and the protected activity. Because direct evidence of
unlawful motivation is rare, the existence or absence of nexus is usually established
circumstantially after considering the record as a whole. (San Bernardino City Unified School
District (2012) PERB Decision No. 2278; Moreland Elementary School District (1982) PERB
25

Decision No. 227.) In other words, nexus evidence must not be viewed piecemeal or in
isolation, but in the proper context of the entire record.
The timing between protected activity and adverse action is an important circumstantial
factor to consider in determining whether evidence of unlawful motivation is present. (North
Sacramento School District (1982) PERB Decision No. 264 (North Sacramento.) However,
“‘the closeness in time (or lack thereof) between the protected activity and the adverse action
goes to the strength of the inference of unlawful motive to be drawn and is not determinative in
itself.’” (California Teachers Association, Solano Community College Chapter, CTA/NEA
(Tsai) (2010) PERB Decision No. 2096, p. 11, quoting Metropolitan Water District of
Southern California (2009) PERB Decision No. 2066-M.)
In order to assist in assessing circumstantial evidence of unlawful motive, PERB has
developed a set of nexus factors. In addition to close timing, one or more other factors
demonstrating unlawful motivation must be present for a prima facie case: (1) the employer’s
disparate treatment of the employee (State of California (Department of Transportation)
(1984) PERB Decision No. 459-S); (2) the employer’s departure from established procedures
and standards when dealing with the employee (Santa Clara Unified School District (1979)
PERB Decision No. 104); (3) the employer’s inconsistent or contradictory justifications for its
actions (State of California (Department of Parks and Recreation) (1983) PERB Decision No.
328-S); (4) the employer’s cursory investigation of the employee’s misconduct (City of
Torrance (2008) PERB Decision No. 1971-M; Coast Community College District (2003)
PERB Decision No. 1560); (5) the employer’s failure to offer the employee justification at the
time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or the
offering of exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa
26

Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer’s unlawful motive (North Sacramento, supra, PERB Decision
No. 264; Novato, supra, PERB Decision No. 210).
Timing of Protected Activity in This Case
The only specific instance of protected conduct that closely preceded the adverse action
in this case is Peters informing Buenrostro that he would seek to be represented by a union site
representative in an investigatory meeting with her. Although Peters spoke generally about his
long history of representing substitute teachers in disciplinary conferences, he did not describe
any recent examples, nor provide any approximate dates of that activity. He also, notably, did
not assert that he had previously represented substitutes on assignments at West Vernon or in
front of Buenrostro. Thus, it is not possible to conclude that such representational activity was
recent enough to provide a strong inference of unlawful motivation by Buenrostro specifically
or the District generally.
Regarding the other protected conduct discussed herein, it appears that Peters’s
advocacy regarding substitute employees’ working conditions took place in or around Fall
2009, more than a year before the District terminated his employment. PERB has found such a
gap in time to be too attenuated to support an inference of unlawful motivation. (Garden
Grove Unified School District (2009) PERB Decision No. 2086 [lapse of approximately two
years between protected activity and alleged adverse action was insufficient to suggest nexus];
Los Angeles Unified School District (1998) PERB Decision No. 1300 [gap of five or six
months between protected activity and adverse action is not close enough in time to show
nexus].) Notably, Peters continued to receive regular teaching assignments from the time of
this protected activity up until his dismissal. It seems that if the District’s actions were
27

motivated by his conduct in this regard, then its adverse action would have been more swift.
Therefore, the timing of the District’s action here in relation to Peters’s critical comments over
the District’s involvement in a side-letter agreement with UTLA and other concerted activities
in 2009 does not provide a strong inference of an unlawful motivation.
Based on review of the entire record and as further explained below, the only evidence I
find in support of the factors of discriminatory intent is the close timing between Peters’s
request for union representation in an investigatory meeting and his release from employment.
Peters Failed to Show Disparate Treatment
The record shows that Peters was not the only employee whom Buenrostro decided to
fire over the incident. She testified to also determining to release from employment the
employee charged with checking in visitors at West Vernon’s main entrance on the day in
question because she observed some carelessness by that employee. Carelessness or lack of
reasonable diligence is the same essential reason that Buenrostro cited for recommending that
Peters be terminated from District employment. Peters produced no evidence showing that
other employees under similar circumstances were treated less harshly. Rather, Berman
testified that substitute, and even probationary, employees have been terminated for less
egregious actions than those at issue in this case, such as a belligerent attitude with office staff
and inadequate supervision of students on a bus. Thus, Peters established no evidence showing
that he was singled out or treated differently than other employees facing similar charges.
Peters Failed to Show That the District Departed From Relevant Established Procedures
Peters argues that the District departed from its procedures under the CBA by issuing
the ISR without first providing him a conference with his chosen representative and truncating
the timeframe for his written response thereto. For several reasons, I do not find that these
28

arguments persuasively demonstrate that the District’s motivation was unlawful in light of the
totality of the evidence.
First, section 7.0 sets a maximum, not minimum, number of days within which an ISR
may be issued absent compelling circumstances. Thus, that Buenrosto chose to issue the ISR
on or about the sixth day of the 10-day time period does not show any deviation from
established practice. Second, given Peters’s equivocation over his choice of representative and
since he had already cancelled the scheduled conference once, Buenrostro cannot be faulted for
failing to accept Peters’s assertions regarding his desire to reschedule the conference. Peters
admitted to Buenrostro that he had not yet spoken with his attorney when he told her it was
“likely” the attorney would be available to meet on another day that week. Peters made it clear
that he was unwilling to proceed without this particular, seasoned attorney whose
representation he had not at that point secured. Under the circumstances, I find that she made a
reasonable effort to confer with Peters as required by section 7.0, and no departure from
procedures can be inferred by the fact that she chose not to risk an unreasonable delay in the
process by waiting for Peters to secure the representation of his preferred attorney.
Finally, and most importantly, even if there was a departure from section 7.0
procedures, such as imposing a shortened timeframe for Peters’s written response, it is
irrelevant to the termination action. Where an action alleged to be a departure from procedures
does not substantively affect the outcome of the adverse action at issue and does not result in
other harm to the charging party, the Board has refused to view the procedural defect as
supporting a nexus finding. (Regents of the University of California (2012) PERB Decision
No. 2302-H; see also Regents of the University of California (1987) PERB Decision No. 615-
H, pp. 20-22.) Notably, nothing in the language of section 7.0 requires that prior to
recommending the termination of employment of a substitute employee, the substitute must be
29

issued an ISR. Indeed, such a requirement would be at odds with the nature of substitutes’ at-
will employment status under the Education Code.
Under the express language of section 7.0, substitute employees may be informed of
their inadequate service under the procedures set forth in that section. Nothing in this section
can be reasonably interpreted as imposing upon the District any procedural or substantive
termination procedures for substitutes. If the adverse action at issue here was the manner in
which Peters was informed of his inadequate service, then his argument that such procedures
were not followed would then at least apply to the action at issue. But that is not the case. The
only adverse action alleged in the complaint is Peters’s termination from employment with the
District. Berman provided undisputed evidence of the District’s procedures and decision-
making process in that regard. Consistent with Berman’s testimony, review committees
evaluated both Buenrostro’s initial recommendation to terminate employment and Peters’s
request for additional administrative review. Peters produced no evidence demonstrating that
the reviewing committees did not respect and follow these procedures.
The District also provided undisputed testimony that procedural defects in ISRs that
may result in a successful grievance have no influence on the District’s conclusions regarding
the underlying substantive conduct, nor disturb any disciplinary action issued. Thus, even if
all ISR procedures were not precisely executed that could not have affected the outcome here
as the ultimate decision-makers testified that they believed the substance of Peters’s conduct
justified dismissal from employment. Accordingly, any failure to comply with ISR procedures
does not provide competent evidence of nexus between Peters’s protected activity and the
District’s decision to terminate his employment.
Peters also argues that since there was no written procedure requiring substitute
teachers to verify the identity of an aide, and because he was not provided with a Sub Folder,
30

he should not have been held responsible for Montes’s unauthorized entry to the classroom.
These arguments fail. Peters was not fired because he allowed Montes to enter the classroom
unquestioned. He was fired because the District did not believe he exercised the reasonable
care required of any teacher regarding classroom supervision. Peters admitted that it is
absolutely the responsibility of the substitute teacher to monitor and control the classroom
environment. District witnesses testified that, at minimum, a teacher should be vigilant in
monitoring the room for safety issues. These are the standards that were applied by the District
and there is no evidence that they were not followed in this case.
Peters Failed to Show That the District Gave Inconsistent, Contradictory, Exaggerated,
Vague, or Ambiguous Reasons for Its Action
Most of Peters’s arguments regarding alleged inconsistent or contradictory reasons
offered for the District’s action center around the statements of administrators regarding
Peters’s lack of fault over the incident. Peters’s testimony regarding these statements has been
discredited for the reasons previously discussed and thus provides no persuasive evidence of
nexus.
Peters also argues that the District exaggerated or shifted the reasons for his termination
by first revealing during the hearing that Montes was accused of masturbating in addition to
touching the first grade students. Additional justifications revealed after-the-fact that do
nothing to undermine the official reason for termination do not provide evidence of shifting
justifications. (Santa Clara, supra, PERB Decision No. 2267-M, proposed decision, p. 22.)
The District has consistently informed Peters, and all of its witnesses testified at hearing, that
the reason his employment was ended was due to the fact that he failed to adequately supervise
his classroom on November 29, and as a result two children were assaulted by an unauthorized
visitor. No additional details regarding Montes’s conduct that were revealed at the hearing
31

disturb or alter that official reason for his employment termination. Therefore, I reject Peters’s
argument that the District offered any exaggerated reasons for its actions.
Peters Failed to Demonstrate That the District’s Investigation Was Cursory
As concluded above, Buenrostro made a reasonable effort under these circumstances to
confer with Peters before making the decision to recommend his employment release. Thus,
her failure to get Peters’s side of the story before making her decision does not demonstrate a
cursory investigation. Furthermore, Peters had already told Laner and the police that he did
not observe any inappropriate conduct by Montes that day. This was communicated to
Buenrostro. Thus, it is not clear what substantive information Peters could have really added
to the investigation other than to express doubt over the children’s allegations, as he did during
his testimony.
Peters takes issue with the substance of the District’s investigation. He contends that in
a case like this every student in the class should have been questioned. He also argues that the
District should have asked other follow-up questions regarding what was meant by the
allegation that Montes “spit” on C2’s arm, for example. Peters’s arguments do not establish
that the District conducted an inadequate investigation. Almost every investigation could be
more detailed. Even if it were true that the District could have tried to elicit more information
or conducted additional interviews, Peters has not shown that its failure to do so indicated a
lack of interest in uncovering the truth of what occurred. Each of the witnesses who were
involved in interviewing the children testified to their professional training and qualifications
and to the standard investigation practices they employed in this and similar cases. The record
showed that the District relied on the information provided by and the conclusions of two law
enforcement agencies, two licensed mental health professionals, and two experienced
administrators in reaching its decision. This hardly implies a perfunctory investigation.
32

Peters Failed to Demonstrate That the District Had Animosity Toward Union Activists
or Any Other Factor Showing Nexus
The crux of Peters’s evidence regarding the District’s alleged animosity toward his
union activism is that prior to December 3, Laner and Buenrostro were telling him that he was
blameless and would not suffer any adverse consequences, and thereafter that story changed.
He assumes that the source of the change must have been their consultation with higher-level
District administrators, whom he believes must have been looking for an excuse to get rid of
him due to his high-profile union activism. Again, Peters’s subjective interpretation of Laner’s
and Burnrostro’s comments to him before December 3 are not credited. Furthermore, absent
Peters’s speculation, there is no evidence in the record demonstrating that Berman, or any
other higher-level administrator actually involved in the review process harbored any animus
toward Peters specifically or UTLA generally. “EERA does not guarantee employee activists a
right to be insulated from non-discriminatory personnel actions.” (Office of the Los Angeles
County Superintendent of Schools (1982) PERB Decision No. 263, p. 9 (LA County Schools).)
In sum, the only persuasive evidence demonstrating nexus is the close timing between
Peters’s request for union representation for the conference with Buenrostro and the District’s
decision to release him from employment. Close timing, without more, is insufficient to
demonstrate a causal connection between the adverse action and the protected conduct.
(Charter Oak Unified School District (1984) PERB Decision No. 404.) For this reason, I find
that Peters has failed to demonstrate a prima facie case of discrimination and that there is no
inference of unlawful motivation underlying the District’s action. However, for purposes of
discussion, even if Peters had met his burden the District showed that it had an alternative,
non-discriminatory reason for its action and that it acted because of that non-discriminatory
reason in this case. (Palo Verde, supra, PERB Decision No. 2337.)
33

The District’s Case
Where an employer has demonstrated legitimate concerns that a teacher’s conduct may
affect the integrity of its education program, PERB has refused to disturb the employer’s
decision to terminate employment. (Fall River Joint Unified School District (1998) PERB
Decision No. 1259.) The District has consistently maintained that it released Peters from
employment because, based on its own investigation into the incident in conjunction with the
reports of law enforcement agencies, it concluded that Peters did not reasonably supervise
classroom activities on November 29, or he would have observed two children being sexually
molested while in his care.
Adequate classroom supervision is a core responsibility of a teacher, and failures in that
regard would reasonably tend to cause the employer legitimate concern over the integrity of
the education program. Furthermore, from almost the first moment that Peters learned about
the children’s allegations and as reinforced throughout his testimony, his primary concern
seemed not to be whether children had actually been harmed, but whether he would be
subjected to disciplinary action. This was demonstrated by the fact that Peters asked Laner if
he would be written up during initial contacts by Laner attempting to elicit information about
the suspect. Laner, on the other hand, was focused on identifying and apprehending the
assailant. It was also demonstrated by Peters’s assertion that it would be “suicidal” to his own
employment interests to question whether a person holding himself out as an aide was who he
purported to be. This suggests a willingness to allow strangers in classrooms he supervises for
fear of jeopardizing his own employment. This type of attitude would also reasonably cause
the District to question whether Peters was fit to continue to be entrusted with students’ safety.
Peters attempts to refute the adequacy of the District’s cause for termination by urging
PERB to reject the District’s evidence because it did not produce students to testify regarding
34

classroom events on the day in question, and thus, the only non-hearsay account of those
events that may be relied upon is Peters’s. Peters, although admitting that he did not watch
Montes every second and thus it is at least possible that the man touched the children on their
buttocks, finds it utterly impossible that the man was also masturbating. Thus, he disputes that
these events happened. Peters’s arguments are misplaced for at least three reasons. First,
refuting the adequacy of the District’s “cause” for termination is fruitless because the District
is not required to show cause to terminate a substitute employee under any circumstances.
(See Education Code section 44953.)
Second, the relevant inquiry for PERB is not whether the employer acted for a lawful
reason (i.e., in this case had “cause” for employment termination), but whether the employer
acted for an unlawful, discriminatory reason. (Baker Valley Unified School District (2008)
PERB Decision No. 1993.) There is no evidence of discriminatory reasons here.
Third, it appears that the District did not intend to offer the students’ statements for the
truth of the matters asserted, but to show the information it was given and the actions that it
took based upon that information. In LA County Schools, supra, PERB Decision No. 263, the
Board found that absent evidence of the employer’s intentional reliance upon inaccurate
information, the truth of the allegations against an employee need not be proven in order to
assess whether the employer acted lawfully:
[T]he accuracy with which [management] personnel interpreted
certain incidents goes more to the issue of whether [the employer]
made a sound decision in deciding not to retain [the employee]
rather than the issue before PERB of whether it made a
discriminatory decision within the meaning of section 3543.5(a).
The soundness of the decision made by [management], in the
absence of discrimination for reasons of protected activity, is
simply a matter outside the jurisdiction of PERB.
(Id., proposed decision, p. 33; see also Pasadena Unified School District (1999) PERB
Decision No. 1331 [employer’s failure to show that student’s complaints were true not at issue
35

before PERB].) Thus, determining the accuracy of the underlying events here is not within
PERB’s purview. Moreover, there has been no evidence presented that the District fabricated
or intentionally relied upon information it knew to be false. However, the Board recently held
that where the employer’s proffered non-discriminatory reason for acting is the employees’
improper workplace conduct, it may not prove that it acted for that reason based only upon a
litany of hearsay reports without direct, corroborating evidence. (Palo Verde, supra, PERB
Decision No. 2237, p. 23, citations omitted.) PERB’s general rule regarding hearsay evidence
is that it is insufficient to support a finding unless it would be admissible over objection in civil
actions. (PERB Regulation 32176.)
In this case, even if the students’ statements to District witnesses were offered to prove
the underlying truth of the matters asserted, at least for those statements given to Fox and the
school police, an exception to the hearsay rule applies and the evidence would be admissible in
court. C2’s and C3’s statements to Fox and the school police were made within hours of the
girls’ experiencing a traumatic event, while it was still fresh in their minds and while they were
still under the stress and excitement of the event, and thus qualify under the spontaneous
statement exception. (Evid. Code, § 1240; Matter of Damon Drew H. (1985) 165 Cal.App.3d
471 [statement of two-year-old still in pain describing sexual molestation was spontaneous];
Matter of Cheryl H. (1984) 153 Cal.App.3d 1098 [hearsay declaration admitted as fresh
complaints under Evidence Code section 1240.) Moreover, in cases of sex abuse, even older
statements are admissible. The delay affects weight, not admissibility. (People v. Clark
(1987) 193 Cal.3d 178 [statement made seven months after sexual abuse admissible where
child did not have impetus to make complaint until she attended class and learned importance
of reporting molestation].) Thus, the District’s evidence is sufficient to support a finding that
it acted for a non-discriminatory reason in this case, especially given that Peters essentially
36

admitted that Montes may have been able to inappropriately touch students because he did not
watch him all of the time.
The District has adequately demonstrated that it acted in this case not because it found
Peters’s union activities or request for representation objectionable, but simply because it did
not trust that Peters should continue to supervise students. Additionally, Peters did not meet
his initial burden of showing that the District’s conduct was because of a discriminatory intent.
PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire record in this
case, the complaint and underlying unfair practice charge in Case No. LA-CE-5576-E, David
C. Peters v. Los Angeles Unified School District, are hereby DISMISSED.
Right to Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision
and Order shall become final unless a party files a statement of exceptions with the Public
Employment Relations Board (PERB or Board) itself within 20 days of service of this Decision. The
Board’s address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any, relied upon for such exceptions. (Cal.
Code Regs., tit. 8, § 32300.)
A document is considered “filed” when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (a).)
A document is also considered “filed” when received by facsimile transmission before the close of
37

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 Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140, and
32135, subd. (c).)
38