San Diego Unified School District (PERB 2666E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CORNELIUS OLUSEYI OGUNSALU,
Charging Party, 	Case No. LA-CE-5930-E
v. 	PERB Decision No. 2666
SAN DIEGO UNIFIED SCHOOL DISTRICT, 	August 27, 2019
Respondent.
Appearances: Cornelius Oluseyi Ogunsalu, on his own behalf; Amy J. Bozone, Assistant
General Counsel II, for San Diego Unified School District.
Before Shiners, Krantz, and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Cornelius Oluseyi Ogunsalu (Ogunsalu) to a proposed
decision by an administrative law judge (ALJ), which dismissed the complaint and unfair
practice charge. The complaint alleged that the San Diego Unified School District (District)
violated the Educational Employment Relations Act (EERA)1 by taking adverse actions against
Ogunsalu in retaliation for his protected activities. Based on our review of the proposed
decision, the entire record, and relevant legal authority in light of the parties’ submissions,2 we
affirm the dismissal of the complaint for the reasons set forth below.
1 EERA is codified at Government Code section 3540 et seq. All statutory references
are to the Government Code unless otherwise indicated.
2 After the filings in this matter were complete, Ogunsalu filed a response to the
District’s response to his exceptions. Because PERB Regulations do not expressly permit or
prohibit reply briefs, we have discretion to consider them. (City of Milpitas (2015) PERB

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BACKGROUND
On July 1, 2013, Ogunsalu became a probationary teacher at the District’s Bell Middle
School. Michael Dodson (Dodson) was the principal and Precious Hubbard-Jackson
(Hubbard-Jackson) and Marco Samaniego (Samaniego) were vice principals. Thelma
Hernandez-Felix (Hernandez-Felix) was the campus police officer assigned to Bell.
On October 7, 2013, a student reported that Ogunsalu pulled him by either his backpack
or a chain around his neck after the student refused Ogunsalu’s command to remove the chain.
Ogunsalu admitted that when the student tried to walk past him, he pulled the student by his
backpack to stop him. On November 22, 2013, a student filed a complaint against Ogunsalu
stating that he “keeps on pulling people, and he pulled me like 5 times.” On December 2,
2013, Hubbard-Jackson saw Ogunsalu pulling a student by the backpack toward the
administrative office. After the student wriggled out of the backpack, Ogunsalu threw it in the
direction of the student.
On December 3, 2013, Hubbard-Jackson spoke with Ogunsalu about the November 22
complaint and December 2 incident. Ogunsalu admitted grabbing the backpack on
December 2 and throwing it because the student refused his instructions to leave the classroom.
Hubbard-Jackson ordered Ogunsalu to refrain from making physical contact with students. On
December 5, Samaniego ordered him to “keep his hands off student clothing, backpacks, and
persons.”
Decision No. 2443-M, p. 13.) We have reviewed Ogunsalu’s response and determined that it
does not assist our review of this case and would not, in any event, alter the outcome. We
therefore have not considered his response in rendering our decision.
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On February 4, 2014, Officer Hernandez-Felix saw Ogunsalu engage in a tug-of-war
with a student over a backpack in front of her office.3 Hernandez-Felix reported the incident to
Dodson. On February 7, Dodson e-mailed Interim Chief Human Resources Officer Bernadette
Nguyen (Nguyen) that he had a probationary teacher he wanted to non-reelect4 “because he
can’t seem to keep his hands off the students.” On March 11, the District Board of Education
approved Dodson’s recommendation to non-reelect Ogunsalu.
On March 12, Dodson told Ogunsalu about the non-reelection. Dodson initially gave
him the option to take paid administrative leave for the rest of the school year or continue
teaching, but two days later determined that the better course was to place Ogunsalu on paid
administrative leave.
On March 13, the day before Dodson placed him on administrative leave, Ogunsalu
suspected he may be replaced by a substitute. He logged into the substitute finder website,
found a substitute assigned to his class the next day, and removed the substitute assignment.
Then, at 1:29 a.m. on March 14, he sent an e-mail to Dodson, Hubbard-Jackson, Samaniego,
Bell Middle School teachers, and others, accusing Dodson of a lack of judgment because “[m]y
replacement for the rest of the school year is going to come from the custodian’s office.”
Later that morning, Dodson asked Hernandez-Felix to bring Ogunsalu to his office.
District police detective Keith Boyd (Boyd) trailed behind Hernandez-Felix and Ogunsalu as
they walked to Dodson’s office. Once there, Dodson told Ogunsalu the District was putting
him on paid administrative leave. Ogunsalu went to his classroom to gather some personal
3 Unless otherwise specified, all further dates refer to 2014.
4 Non-reelection is a release from probation, terminating employment. (Ed. Code,
§ 44929.21, subd. (b).)
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items and left the school. Shortly thereafter, Information Technology staff shut down
Ogunsalu’s District e-mail.
Ogunsalu immediately began inappropriate communications with Dodson, including
texting Dodson on his personal cell phone. On March 23, Nguyen ordered Ogunsalu “to
discontinue your contacts and communications to [Principal] Michael Dodson.” But beginning
on April 26 at 3:15 a.m., Ogunsalu resumed his e-mails, which became increasingly vulgar and
abusive. Nguyen repeated her order to stop and warned, “[y]our refusal to comply will be
deemed as insubordination.” Nonetheless, Ogunsalu continued sending messages, including
racist comments, gendered pejoratives, and allusions to violence.
Dodson grew concerned by the increasingly menacing character of Ogunsalu’s
messages and requested the District seek a restraining order. On April 28, Hernandez-Felix
filed a police report on behalf of Dodson. On April 29, District General Counsel Andra
Donovan directed Ogunsalu to immediately stop contacting District staff and warned of legal
consequences for continued harassment. Ogunsalu continued sending messages of the same
character to Dodson and began sending similar messages to Samaniego. On May 5, district
police detectives went to Ogunsalu’s home, asked him to stop sending messages to Dodson and
Samaniego, and warned him that since Dodson had reported being a victim of a crime,
continued harassment could be considered witness intimidation. But Ogunsalu’s messages
continued. Boyd filed a police report and submitted both the Dodson and Samaniego claims to
the San Diego City Attorney’s Office for them to make charging decisions.
Ogunsalu filed an unfair practice charge with PERB on June 23. He later amended the
charge and withdrew certain allegations. PERB’s Office of the General Counsel issued a
complaint on July 6, 2015. On or about January 23, 2016, Ogunsalu made a motion to amend
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the complaint, which was granted, in part, on February 12, 2016. The amended complaint
alleged the District took multiple unlawful adverse actions including events leading up to and
including his non-reelection, failure to provide training and evaluations, and various responses
to Ogunsalu’s conduct after he was notified of his non-reelection. The ALJ conducted a
prehearing conference, four days of hearing, a second conference, and an additional three days
of hearing. On April 11, 2018, he issued a proposed decision dismissing the complaint.
Ogunsalu timely filed exceptions to nearly all of the ALJ’s findings and conclusions.
DISCUSSION
Although the Board reviews exceptions to a proposed decision de novo, to the extent
exceptions merely reiterate factual or legal contentions resolved correctly in the proposed
decision, the Board need not further analyze those exceptions. (City of Calexico (2017) PERB
Decision No. 2541-M, pp. 1-2.) The majority of Ogunsalu’s exceptions raise arguments the
ALJ considered and resolved appropriately, and we therefore do not address them here. We
also decline to address arguments Ogunsalu makes for the first time in his exceptions. (Los
Angeles County Superior Court (2018) PERB Decision No. 2566-C, pp. 11-12; Colusa Unified
School District (1983) PERB Decision No. 296, p. 4.)
Furthermore, the Board need not address alleged errors that would have no impact on
the outcome of the case. (Los Angeles Unified School District (2015) PERB Decision
No. 2432, p. 2; Regents of the University of California (1991) PERB Decision No. 891-H p. 4.)
Some of Ogunsalu’s exceptions assert that certain factual findings constitute error but fail to
explain how the alleged error impacts the outcome of his case. For example, though the ALJ
found that Dodson, who initiated Ogunsalu’s non-reelection, was aware that the San Diego
Education Association (SDEA) had assisted Ogunsalu in obtaining second-year probationary
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teacher status, Ogunsalu further excepts to the finding that Human Resources Officer Darin
Noyes (Noyes), who was not involved in the non-reelection process, was not similarly aware,
but does not explain how finding such knowledge on Noyes’ part would change the outcome of
this case. Absent such a showing, we need not consider these exceptions. (Lake Elsinore
Unified School District (2019) PERB Decision No. 2633, p. 7; Stanislaus Consolidated Fire
Protection District (2012) PERB Decision No. 2231a-M, pp. 7-8.)
Although we decline to address the majority of Ogunsalu’s exceptions, we briefly
summarize the predominant reason why Ogunsalu has not established an EERA violation. To
demonstrate that an employer has discriminated or retaliated against an employee in violation
of EERA section 3543.5, subdivision (a), a charging party must establish a prima facie
showing that the exercise of employee rights granted by EERA was a motivating factor in the
adverse action(s) taken by the employer. (Novato Unified School District (1982) PERB
Decision No. 210, pp. 6-8 (Novato).) If a charging party establishes such a prima facie case,
the burden shifts to the employer to prove that its action(s) would have been the same despite
the protected activity. (Id. at p. 14.) To prove this affirmative defense, the employer must
demonstrate it had both an alternative, non-discriminatory reason for taking the adverse action
and that it, in fact, acted because of this alternative, non-discriminatory reason, and not
because of the employee’s protected activity. (Palo Verde Unified School District (2013)
PERB Decision No. 2337, pp. 12-13, 31 (Palo Verde).)
The evaluation of evidence under this framework “is less formulaic than it may appear
from our usual articulation of the Novato standards.” (San Diego Unified School District
(2019) PERB Decision No. 2634, p. 13, fn. 7.) The essence of the Novato test is to determine
whether the employer acted for a discriminatory reason. (Regents of the University of
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California (2012) PERB Decision No. 2302-H, p. 3.) To make this determination, we weigh
the evidence supporting the employer’s justification for the adverse action against the evidence
of the employer’s unlawful motive. (Los Angeles County Superior Court, supra, PERB
Decision No. 2566-C, p. 19; Rocklin Unified School District (2014) PERB Decision No. 2376,
p. 14; Palo Verde, supra, PERB Decision No. 2337, p. 33.) As a result, the outcome of a
discrimination or retaliation case ultimately is determined by the weight of the evidence
supporting each party’s position. (See Novato, supra, PERB Decision No. 210, p. 14 [“After
all the evidence is in, it is a question of the sufficiency of the proof proffered by the various
parties.”].)
The District has not excepted to the ALJ’s findings that Ogunsalu engaged in protected
activity, the District knew of Ogunsalu’s exercise of employee rights, the District took some
adverse actions against him, and the District was at least partially motivated by Ogunsalu’s
protected activity.5 However, based on a thorough review of the record, we find the ALJ
correctly determined that the District established its affirmative defense that it would have
taken the same actions even absent such protected activity.6
The ALJ’s findings of numerous incidents in which Ogunsalu violated school norms
and policies by engaging physically with students, as well as his inappropriate communications
5 Ogunsalu’s protected activity included seeking and obtaining help from his union,
SDEA, as well as sending several communications to District administrators and teachers
containing protected statements.
6 In this case, the evidence supporting the District’s burden on the retaliation allegations
is also sufficient to meet its burden in response to the concurrent interference allegations, i.e.,
that operational necessity justified any harm to Ogunsalu’s EERA-granted rights.
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with school administrators, are amply supported by the record.7 As the ALJ correctly
observed, the evidence that the District was motivated by Ogunsalu’s protected activities is
“sparse,” while the evidence supporting the District’s legitimate, non-discriminatory reasons
for the adverse actions is substantial. The District thus convincingly demonstrated that
Ogunsalu’s erratic and non-protected behavior would have led to the same consequences even
had it not been intermixed with limited protected activity by Ogunsalu.
Finally, Ogunsalu describes parts of his exceptions as a request for injunctive relief and
motion for reconsideration of the ALJ’s ruling on his motion to amend the complaint. While
neither was filed consistent with PERB’s regulations, even if they had been, we would deny
them because they lack merit.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5930-E are
DISMISSED.
Members Shiners and Krantz joined in this Decision.
7 Ogunsalu asks the Board to consider new evidence that his criminal conviction for
sending threatening communications to Dodson and Samaniego has been set aside. We decline
to do so because the evidence in the record does not suggest that the District “exaggerated or
otherwise mischaracterized [the facts that led to the criminal charges], thereby evidencing an
unlawful motivation.” (Adelanto Elementary School District (2019) PERB Decision No. 2630,
p. 11.) That a court later set aside the conviction thus is irrelevant to our inquiry. (See
Santa Ana Unified School District (2012) PERB Decision No. 2235, p. 14 [“Once PERB
determines that the employer did not take action for an unlawful reason, its inquiry is at an end;
PERB has no authority to determine whether adverse action not motivated by protected activity
was just or proper.”].)
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