Oakland Unified School District (PERB 1880E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	
I)
OAKLAND EDUCATION ASSOCIATION,
Charging Party,
v.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-2283-E
PERB Decision No. 	1880
J a n u a r y 	1 1 , 	2007
Appearances: Beeson, Tayer & Bodine by Sheila K. Sexton, Attorney, for Oakland Education
Association; Liebert Cassidy Whitmore by Emi R. Uyehara, Attorney, for Oakland Unified
School District.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
DUNCAN, Chairman: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Oakland Unified School District (District) to the
administrative law judge's (ALJ) proposed decision (attached). The complaint alleged that the
District violated the Educational Employment Relations Act (EERA)1 by retaliating against
teacher Ronald Robinson (Robinson) for engaging in protected activities when it (1) issued
him a notice of non-reelection, and (2) subsequently placed him on paid administrative leave.
The Oakland Education Association (OEA) charges that this conduct violated EERA
section 3543.5(a).
We have reviewed the entire record in this matter, including, but not limited to, the
hearing transcript, the complaint, the ALJ's proposed decision, the District's exceptions2 and
1EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2The District filed 103 exceptions to the ALJ's proposed decision.

OEA's response. 	We find the ALJ's findings of fact to be free from prejudicial error and we
adopt the proposed decision as the decision of the Board itself, except as set forth below.
We conclude that the District did retaliate against Robinson when it issued him a notice
of non-reelection. However, the District has met its burden and demonstrated that it would
have placed Robinson on administrative leave even if he had not engaged in protected activity.
DISCUSSION
2N
I. 	Standard 	of 	Review
PERB Regulation 323203 provides, in pertinent part, that "[t]he Board itself may . . .
[i]ssue a decision based upon the record of hearing, or . . . [a]ffirm, modify or reverse the
proposed decision." Accordingly, the Board enjoys broad discretion in its review of an ALJ's
proposed decision.
The Board announced the proper standard of review in Santa Clara Unified School
District (1979) PERB Decision No. 104 (Santa Clara):
While the Board will afford deference to the hearing officer's
findings of fact which incorporate credibility determinations, the
Board is required to consider the entire record, including the
totality of the testimony offered, and is free to draw its own and
perhaps contrary inferences from the evidence presented.
The Board affords "great deference to the ALJ's credibility determinations because the ALJ is
in a better position to make those findings." (Fresno County Office of Education (2004) PERB
Decision No. 1674 (Fresno COE); see Whisman Elementary School District (1991) PERB
Decision No. 868, noting that the Board will defer to the ALJ's credibility determinations
absent evidence in the record to support overturning those determinations; United Teachers of
PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.

Los Angeles (Keskey) (1991) PERB Decision No. 914, holding that the Board will defer to the
ALJ's findings of fact based upon the credibility of witnesses.)
II. 	Retaliation Claims
EERA section 3543.5(a), declares that it shall be "unlawful for a public school
employer to . . . [i]mpose or threaten to impose reprisals on employees, to discriminate or
threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce
employees because of their exercise of rights guaranteed by this chapter."
To establish a prima facie case of retaliation under Section 3543.5(a), the charging
party must show that: 	(1) the employee exercised rights under EERA; (2) the employer had
knowledge of the exercise of those rights; and (3) the employer imposed or threatened to
impose reprisals, discriminated or threatened to discriminate, or otherwise interfered with,
restrained or coerced the employee because of the exercise of those rights. 	(Novato Unified
School District (1982) PERB Decision No. 210 (Novato); Carlsbad Unified School District
(1979) PERB Decision No. 89 (Carlsbad).)
The third element of the Novato test is often the lynchpin in a charge of retaliation.
This element speaks to the employer's "unlawful motive" in pursuing its chosen course of
action. 	The "unlawful motive" element represents the "specific nexus required in the
establishment of a prima facie case." (Novato.) Time and again, the Board has recognized the
difficulty of providing direct proof of a retaliatory motive. 	The Board has thus concluded that
"unlawful motive can be established by circumstantial evidence and inferred from the record as
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a whole." (Ibid.; Carlsbad.)
The timing of an employer's adverse action is an important indicia of unlawful motive.
(North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento).)
However, adverse action taken in close temporal proximity to an employee's engagement in
W
	3

protected activity is not, by itself, sufficient to establish a prima facie case of retaliation.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more of the following additional factors must also be present: (1) the employer's disparate
treatment of the employee (State of California (Department of Transportation) (1984) PERB
Decision No. 459-S (Transportation I)); (2) the employer's departure from established
procedures and standards when dealing with the employee (Santa Clara); (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 (Parks and Recreation)): (4) the
employer's cursory investigation of the employee's misconduct; (5) the employer's failure to
offer the employee justification at the time it took action or the offering of exaggerated, vague,
or ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572 (Cupertino)): or (7) any other
facts which might demonstrate the employer's unlawful motive. 	(Novato; North Sacramento.)
If the charging party establishes a prima facie case of retaliation, the burden then shifts
to the employer "to prove that its action(s) would have been the same despite the protected
activity." (Novato: see also, Wright Line, A Div. of Wright Line. Inc. (1980) 251 NLRB 1083
[105 LRRM 1169]; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981)
29 Cal.3d 721, 729-30 [175 Cal.Rptr. 626] (Martori Brothers).) In the so-called "dual motive"
case, where it appears that adverse action taken against an employee was motivated by both
valid and invalid reasons, "the question becomes whether the [adverse action] would not have
occurred 'but for' the protected activity." (Martori Brothers.) Under this "but for" test, once
the burden has shifted to the employer, the employer must show that it would have pursued its
chosen course of action regardless of the employee's engagement in protected activity. 	(Id at
A	4

p. 730.) If the employer fails to carry this burden, the Board is entitled to find the adverse
action improper. 	(Ibid.)
III. 	Robinson's Non-Reelection to the 2002-2003 School Year
The ALJ concluded that Robinson engaged in a variety of activities protected under
EERA. 	Specifically, the ALJ found Robinson's protected activity to be (1) participation in the
Mayor Brown meeting; (2) his decision to copy Bruce Colwell (Colwell) on his April 27 letter
to Lynn Haines Dodd (Dodd); (3) his numerous requests for, and representation by OEA; and
(4) his committee participation.
A. 	Protected Activities
1. 	Mayor Brown Meeting
The District excepts to the ALJ's findings regarding the Mayor Brown meeting as being
beyond the scope of the first amended complaint,4 and thus, the ALJ's scope of authority.
In Antioch Unified School District (1985) PERB Decision No. 515 (Antioch), the
Board found that the ALJ had "improperly broadened the scope of his proposed decision on his
own initiative." In Antioch, it was absolutely essential to the Board's conclusion that the ALJ
issued a ruling finding independent violations of EERA which were alleged neither in the
charge nor in the complaint. In that sense, Antioch is clearly distinguishable from the present
case.
Here, the ALJ did not use evidence regarding the Mayor Brown meeting to form the
grounds for an independent violation of EERA, but rather only as "background information"
necessary to understanding the tension underlying Robinson's relationship with Dodd during
The first amended complaint in paragraph 4 confines the scope of Robinson's
engagement in protected activities to the period "[i]n or about September 2000 through May
2002."
5

the course of his employment at McClymonds High School. 	The ALJ noted that the Mayor
Brown meeting is relevant as it represents the commencement of a "pattern of antagonism"
between Robinson and Dodd. 	Evidence regarding the Mayor Brown meeting was offered by
OEA for the exact purpose of showing that "pattern of antagonism," and the evidence is thus
relevant in establishing an unlawful motive attributable to the District when it issued Robinson
a notice of non-reelection.
The Mayor Brown meeting focused on issues affecting conditions of employment at
McClymonds, such as student violence and disciplinary issues. Robinson's participation in the
Mayor Brown meeting was protected under EERA. (Sec. 3543.2(a); see San Diego
Community College District (1983) PERB Decision No. 368 (San Diego).)
2. 	April 27, 2001. Letter to Dodd
The ALJ found that Robinson's complaints about student fights in his April 27, 2001,
letter to Dodd, and his decision to copy Colwell on that correspondence, were protected under
EERA.
Copying a union representative on correspondence, without more, neither rises to the
level of protected conduct nor establishes an intent to solicit union assistance. 	(California
State University. Long Beach (1987) PERB Decision No. 641-H.) "Whether such conduct
may be characterized as protected activity depends entirely upon the context in which it occurs
and must be resolved on a case-by-case basis." (Ibid.)
In his April 27 letter, Robinson addressed safety and violence issues at McClymonds.
Robinson discussed in the letter Norman Thompson's (Thompson) failure to timely respond to
a student fight sixteen days earlier. 	In this context, Robinson engaged in protected activity
relating to the conditions of his employment at McClymonds when he copied Colwell. (See
San Diego.)
66

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The ALJ made significant credibility determinations regarding the circumstances
surrounding the April 27 letter. As noted above, the Board will afford "great deference" to the
ALJ's findings of fact incorporating determinations on the credibility of witnesses.
(Fresno COE.)
The District is unable to offer any evidence sufficient to support a decision to overrule
the ALJ's determination on this issue. While Robinson's April 27 letter primarily concerns
itself with an incident alleged to have occurred sixteen days earlier, the District counters with
certain evidence regarding an incident alleged to have occurred on April 27. The District's
arguments on this matter are thus misguided and unpersuasive.
The ALJ's findings of fact regarding Robinson's April 27 letter, and his decision to
copy Colwell, are supported by the record, and the Board will not disturb them.
3. 	Requests for, and Representation by OEA
The ALJ devoted considerable attention to Robinson's numerous requests for, and
representation by OEA during the course of his employment at McClymonds.
Robinson's request for representation at the Hickory Pit meeting was protected under
EERA. The Supreme Court of the United States has declared that an employee may request
union representation as a condition of his participation in an interview with the employer
where the employee has a reasonable basis to believe that disciplinary action will result.
(NLRB v. Weingarten (1975) 420 U.S. 251, 255 [88 LRRM 2689] (Weingarten): see
Rio Hondo Community College District (1982) PERB Decision No. 260 (Rio Hondo),
adopting the rule of Weingarten.) It should be noted, however, that Weingarten becomes
applicable only when there is a reasonable belief that discipline will result. The issue thus
77

becomes whether the District's decision not to reemploy a teacher employed on a temporary
contract is consistent with the notion of "discipline" contemplated by Weingarten. 	If it is, the
employee is entitled to have representation at the time such a decision is made.
1A school district may deny continued employment to temporary and probationary
employees not eligible for permanent status regardless of the sufficiency of the cause. 	(Ed.
Code sec. 44929.21; McFarland Unified School Dist, v. Public Employment Relations Bd.
(1991) 228 Cal.App.3d 166 [11 Cal.Rptr.2d 405] (McFarland).) Such a decision lies entirely
within the discretion of the governing board of the school district. 	(McFarland.) Thus, faculty
employees employed on the basis of a temporary or probationary contract not yet eligible for
permanent employee status have no legitimate claim to an expectation of continued
employment. 	(See Coleman v. Department of Personnel Administration (1991) 52 Cal.3d
1102, 1112 [278 Cal.Rptr. 346], stating that "California's statutory scheme regulating
employment in civil service 'confers upon an individual who achieves the status of permanent
employee' a property interest in the continuation of his [or her] employment which is protected
by due process'.")
Termination is the most severe form of discipline which an employer can impose on
one if its employees. 	Sue Woehrle (Woehrle) conditioned Robinson's continued employment
at McClymonds on his decision to attend the Hickory Pit meeting. Whether a condition placed
on the renewal of a temporary or probationary contract constitutes an unfair labor practice, it
must be made on the basis of the facts of the case before the Board. In Los Angeles Unified
School District (2004) PERB Decision No. 1657, the Board concluded that the union failed to
establish a prima facie case of retaliation when the district decided to not reelect a temporary
8

teacher after that teacher failed to sign a "commitment form" which the district required. 	The
Board concluded that the employee did not engage in protected activity, and that the
commitment form imposed a "valid term and/or condition of employment." 	(Ibid.)
In the present case, Woehrle and Dodd scrutinized Robinson and his tendency to
involve "outsiders" in school affairs. 	The ALJ credited Robinson's testimony that Woehrle
and Dodd expressed concern over Robinson's commitment to the "McClymonds family" as a
result of his tendency to seek OEA representation and advice.
Robinson's letter to Dodd regarding student violence, his decision to copy Colwell on
that letter, his decision to copy Colwell again on his correspondence to Harold Pendergrass
regarding his employment status, and his decision to request Colwell's presence at the Hickory
Pit meeting were all protected under EERA. 	The conditioning of his continued employment at
McClymonds on his assurance not to engage in protected activity cannot be said to be a valid
term and/or condition of employment. 	In fact, the District's conduct in this regard approaches
the level of unlawful interrogation. 	(See Clovis Unified School District (1984) PERB Decision
No. 384 (Clovis), stating that an unlawful interrogation exists where, in the context of an
interview, the employer conveys "disapproval toward the union and creates an expectation of
employee response"; see also S & R Sundries. Inc. (1984) 272 NLRB 1352 [118 LRRM 1085]
(S & R Sundries), finding that employer's inquiries as to employee's "loyalty" was coercive.)
Robinson reasonably believed that his continued employment at McClymonds would
be decided at the Hickory Pit meeting, and his request for OEA representation was thus
protected. (See Clovis.)
The ALJ also concluded that Robinson's request for representation at a counseling
session following his use of the silent sustained reading (SSR) "provocative prompt" was
protected under EERA. 	When Robinson made his request to Dodd for OEA representation,
99

Dodd expressed her anger and frustration at Robinson's inability to meet with her promptly
regarding his distributed SSR material.
Robinson was instructed by Thompson to obtain representation because the session
would be dealing with a "very serious matter."5 Indeed, Robinson reasonably believed he
would be facing some sort of disciplinary action for distributing the prompt to his students, and
his request for OEA representation was thus protected. 	(Weingarten; Rio Hondo.)
4. 	Committee Participation
Robinson's participation in the School Climate and Leadership Committees became a
focal point of tension in his relationship with Dodd. 	These committees devoted significant
attention to issues such as safety, school violence and student discipline. The committees
essentially represented vehicles through which faculty at McClymonds could voice their
concerns over, and formulate specific proposals towards, improving the conditions of
employment at McClymonds. 	(EERA sec. 3543.2(a), defining "terms and conditions of
employment" to include "safety conditions of employment"; see King City Joint Union High
School District (1982) PERB Decision No. 197, concluding that "the range of representational
activities protected by [EERA] . . . includes a broad spectrum of concerns which arise out of
the employment relationship and employee rights granted by EERA"; San Diego, finding that
speech at faculty senate meeting regarding wages and hours concerned "employment relations"
and were thus protected.)
We agree with the ALJ that Robinson's participation on the School Climate and
Leadership Committees constituted protected activity under EERA section 3543.2(a).
3 We note here our belief that the Hickory Pit meeting, too, concerned a "very serious
matter." However, unlike Robinson's counseling over his SSR prompt, Robinson was warned
against bringing representation to that meeting.
10
----·-----

B. 	Prima Facie Case of Retaliation
Robinson engaged in a variety of protected activities during the course of his
employment at McClymonds. It is not disputed that the District knew Robinson participated
in such activities. The Board now turns its attention to the critical third element of the
Novato test for establishing a prima facie case of retaliation under EERA: 	Whether the
District acted with an unlawful motive when it issued Robinson a notice of non-reelection to
the 2002-2003 school year. (Novato.)
Of course, the search for direct evidence of a retaliatory motive is often daunting and
elusive, and the Board has recognized that such an unlawful motive "can be established by
circumstantial evidence and inferred from the record as a whole." (Novato.) Here we find that
the District acted with an unlawful motive when it issued Robinson a notice of non-reelection.
1. 	Timing
The element of close temporal proximity between the protected activity and adverse
action has been met. On the same day that Robinson delivered to Dodd the minutes of the
controversial School Climate Committee meeting, Dodd recommended Robinson's non-
reelection to the District. 	This timing coupled with the District's inconsistent justifications for
its decision sufficiently state a prima facie case of retaliation.
2. 	Pretext Treatment
The record demonstrates that Robinson has been subjected to disparate treatment in
relation to other faculty members at McClymonds. 	(See Transportation I.) The District asserts
that it has a clear policy against showing "R" rated films in the classroom without prior
administration approval.6 No written form of this policy was offered at hearing. 	Additionally,
6 The District excepts to the ALJ's descriptions of the films "Menace II Society"
and "Sankofa" which rely on information accessed online at
http://www.suntimes.com/ebert/ebert_reviews/l993/05/85947.html and
11

the District asserts that films not listed in a District pre-approved list must be approved by the
administration prior to being shown in the classroom. No such list was ever produced at
hearing. Two faculty members, Richard Charlesworth (Charlesworth) and Al Claiborne
(Claiborne), testified at hearing that they were completely unaware of any District policy
regarding the use of "R" rated films. Charlesworth and Claiborne have taught at McClymonds
High School for 12 and 24 years, respectively. The District's heavy reliance on the clarity of
its "R" rated film policy is thus undermined by the ignorance of any such policy by two well-
seasoned veterans of McClymonds. 	Furthermore, while it does appear that Robinson showed
more films in the classroom than did the average teacher, testimony and evidence offered at
hearing established that there were some teachers who showed more films than Robinson.
The District also subjected Robinson to disparate treatment when it required him to
attend the Hickory Pit meeting in July 2001 as a condition of continued employment. No other
teachers were required to attend any such off-campus meetings in the middle of summer. 	The
record indicates that teachers at McClymonds were notified regarding the status of their
continued employment well before July 2001. Robinson, on the other hand, was required to
attend this meeting at the Hickory Pit in early July 2001, and ultimately did not receive a new
contract until July 23, 2001.
http://dickinsg.intrasun.tcjn.edu/sankofa/s-scenelog.html. 	The District contends that the
ALJ improperly passed upon the educational value of the films, as opposed to rendering an
independent legal judgment as to the non-retaliatory purpose the District proffered for non-
reelecting Robinson.
The District's contentions are without merit. The ALJ looked to the websites noted
above for descriptive purposes, in order to put the films in context for the unknowing reader.
It cannot be said that the ALJ relied on these descriptions in reaching any substantive
determinations. The information provided by the ALJ serves only a descriptive purpose, and in
no way supports any factual determinations made regarding the appropriateness of the films for
classroom instruction.
12

3. 	Inconsistent Justifications
The District has proffered inconsistent justifications for its adverse action against
Robinson. (See Parks and Recreation.) In an email dated April 2, 2002, Dodd responded to a
request by the District for reasons why Robinson was being non-reelected. 	Dodd responded in
that email by providing the following list:
* 	2000-01 Evaluation indicated does not meet standards
developing in 3 out of 6 teaching standards.
* 	2001-02 Evaluation (formal - still in progress) indicates
meeting standards.
* 	Informal evaluations indicate lack of student engagement,
use of video's [sic] and/or lecturing for majority lessons
[sic].
* 	Use of inappropriate instructional materials.
* 	Instructional practices not aligned with identified best
practices and student outcomes as indicated in the II/USP
Comprehensive School Site Action Plan.
* 	Inconsistent grading policies and attendance procedures.
* 	No consistency between formal and informal classroom
observations.
Robinson received notice of his non-reelection on March 8, 2002. Robinson requested a
meeting with Dodd, and Dodd, Thompson and Robinson met on March 25, 2002, to discuss the
matter. Dodd prepared a list of "talking points" prior to that meeting. 	That list was largely
similar to the email list which Dodd sent to the District, but it did contain some points left out
of the email. 	Among her talking points, Dodd included references to Robinson's students not
being challenged and Robinson's lack of assigned homework.
In stark contrast to its justifications for non-reelecting Robinson at or around the time
such action was taken, the District offered at hearing the SSR "provocative prompt" as a key
ground for its decision, in addition to Robinson's failure to implement SSR in his classroom.
Dodd testified heavily on the SSR prompt in this regard. However, because the SSR prompt
was never raised among the grounds for its decision not to reelect Robinson, the District's
reliance on the SSR prompt at hearing is questionable. Also, as the ALJ notes, Dodd's
13

concerns regarding Robinson's implementation of SSR arose only after she had communicated
her recommendation for Robinson's non-reelection to the District. Thus, the issue of
Robinson's implementation of the SSR is irrelevant to the decision not to reelect Robinson, as
it had not ripened prior to the time that adverse action was taken.
The District excepts to the ALJ's treatment of Robinson's SSR prompt.7 We believe
that the ALJ committed an error in substituting his own personal judgment for that of Dodd
regarding the appropriateness of the prompt for classroom distribution. 	The ALJ characterized
Dodd's reaction to the prompt as "sanctimonious and overly dramatic." Evidence offered at
hearing, in addition to Robinson's exceedingly evasive testimony on the matter at hearing,
highly suggest that Robinson authored the prompt. A high school principal has every reason to
take alarm at reading material distributed to students by a teacher which contains profanity,
slang and derogatory racial commentary. 	The ALJ should have limited treatment of the
prompt strictly to its relevance as a justification for Robinson's non-reelection.
However, we find that the ALJ's error in this regard has not resulted in prejudice to the
District. 	The facts remain the same in the context of the District's decision to non-reelect
Robinson. The District placed heavy emphasis on the prompt at hearing as providing
justification for Robinson's non-reelection. Even in its appeal to the Board, the District
reiterates this heavy reliance on the SSR prompt as a legitimate, non-pretextual justification for
Robinson's release. However, from the evidence and witness testimony offered at hearing, the
prompt never, at or around the time of Robinson's non-reelection, entered into the District's
The District also excepts to the ALJ's use of the Berkeley High School Slang
Dictionary in relation to Robinson's SSR prompt. However, like the websites identified in
footnote 6, the ALJ does not use the Berkeley High School Slang Dictionary in order to
support any substantive finding regarding the prompt. Rather, the ALJ used the dictionary
only to clarify the meaning of some of the relevant language in order to put such language in
context for the unknowing reader.
14

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calculus regarding the decision whether or not to reelect Robinson. 	If Robinson's use of the
prompt did, in fact, constitute one of the District's relied upon grounds for non-reelection, the
District should have so indicated at the time it took the adverse action.
4. 	Antiunion Animus
The record demonstrates that the District has shown an animosity towards union
activity. 	(See Cupertino.) 	Such animosity is evident in both Dodd's and Woehrle's reactions
to Robinson's requests for union representation, in addition to Robinson's decision to copy his
union representative on certain correspondence. It is apparent throughout the record and
hearing transcript that Dodd perceived such actions on Robinson's part as a lack of
"commitment" to McClymonds and that Robinson was not a "team player" because of it.
Indeed, Robinson was questioned by both Woehrle and Dodd regarding his "commitment" to
McClymonds and his decisions to involve "outsiders" in school affairs. (See S & R Sundries,
concluding that employer's questioning of employee was coercive where employee was placed
in position of having to reveal her "loyalties".) An employer may never require an employee
to forego or refrain from exercising protected rights as a quid pro quo of continued
employment. (See Waterbury Hotel Mgmt. LLC (2001) 333 NLRB 482 [171 LRRM 1348],
finding interference with protected activity when employee wearing union button was
terminated following comment that he was not a "team player".)
OEA has carried its burden in establishing a prima facie case of retaliation. 	OEA has
satisfied the Novato test, and has established the "specific nexus" necessary in establishing an
unlawful motive attributable to the District when it issued Robinson a notice of non-reelection.
(Novato.)
The burden now shifts to the District to establish that it would have pursued its chosen
course of action regardless of Robinson's engagement in protected activities.
15

C. 	District's Burden
The District is unable to carry its burden. 	Specifically, the District is unable to show
that it would have pursued its chosen course of action regardless of Robinson's participation in
protected activities.
As stated in Martori Brothers, the issue is "whether the [adverse action] would not have
occurred 'but for' the protected activity." In the present case, Robinson's engagement in
protected activities provided the major driving force behind the District's decision not to
reelect him.
The District proffers various grounds allegedly justifying its decision to non-reelect
Robinson. 	The District points to Robinson's inconsistent scores on his formal and informal
evaluations. In his first formal evaluation in January 2001, Robinson received scores
indicating that he was mostly meeting standards. In her email to the District, Dodd asserts that
Robinson failed three out of six teaching standards in this evaluation. 	That assertion is
contradicted by the evaluation form itself. 	In his January 2001 formal evaluation form,
Thompson left the "summative rating" boxes unmarked. Robinson largely scored as meeting
standards in that first formal evaluation, and only in a few categories were his scores
substandard. 	As the "summative ratings" for each category were left blank, Robinson received
no cumulative scores on which Dodd could ground her assertion that Robinson failed in three
out of six categories.
In his second formal evaluation, which took place in December 2001, Robinson scored
as meeting standards in every category marked. However, the District points to various
informal evaluations of Robinson which indicate substandard effectiveness in his teaching
style. The ALJ discussed various issues which arose in this context, and made significant
credibility determinations based on the witness testimony offered at hearing. 	Thompson
16

testified that he conducted two informal evaluations in Robinson's classroom during March
and April 2002. Thompson claimed to take personal notes of his classroom observations, but
could not produce any such notes at hearing. Robinson denied being observed on these
occasions. 	Also, the ALJ determined that Thompson manipulated a "final evaluation report"
dated April 23, 2002 in order to create a paper trail justifying the District's non-reelection
decision. Robinson claimed that the evaluation report was not in his personnel file when he
inspected it on April 30, 2002, but that the report did appear in his file when he inspected it in
December 2002. 	A clerk at the District's human resources office told Robinson that the form
appeared to have been improperly filed because it bore no date-filed stamp. The ALJ
discredited Thompson's testimony as implausible.
This "final evaluation report" was allegedly the product of a third formal evaluation.
The District's formal evaluation reports contain spaces where the evaluator may make certain
comments or critiques of a teacher, and there is additional space for the evaluated teacher to
respond to those comments. Robinson used these spaces in the past to voice disagreements
with Thompson's critiques or to state his agreement with Thompson on the progress of the
students. 	On this "final evaluation report" allegedly completed by Thompson, the spaces
allotted for Robinson's responses were all blank. 	The ALJ found it implausible that Robinson
would forego the opportunity to respond to such a negative evaluation when he had in the past
asserted his right to respond on such forms to much less negative critiques. We agree.
With regards to the negative substance of this alleged "Final Evaluation Report," we
also find it suspicious that in his December 2001 formal evaluation, Robinson scored as
"meeting standards" in every completed category, and Thompson even entered very positive
remarks on Robinson's teaching style at that time.
17

The ALJ also discussed discrepancies in the District's reliance on Robinson's excessive
use of films in his classroom instruction. In September 2001, Robinson met with Thompson to
discuss his objectives and teaching agenda for the 2001-2002 school year. At that meeting,
Robinson presented Thompson with his Stull Objectives for the school year. 	Robinson
informed Thompson of his plan to show several controversial films over the course of the
school year. 	Thompson objected to two such films, and Robinson accordingly withdrew those
two from his agenda for the year. 	Thompson denied receiving Stull Objectives from Robinson,
and also denied reaching any agreement on Robinson's use of films for the school year.
However, Thompson was forced to retract these claims when presented with an evaluation
report on which Thompson had indicated that the objectives were received and that an
agreement had been reached.
The District also relies on Robinson's failure to teach to standards. As discussed
above, Robinson's formal evaluations indicate that Robinson did teach to standards. However,
the District also asserts that Robinson failed to give sufficient homework to his students, failed
to challenge his students, and failed to display student work in the classroom. 	SAT-9 testing
scores offered at hearing show Robinson as ranking fourth out of six teachers for his students'
performance. However, a closer look at the actual scores shows that Robinson's students scored near, albeit below, th
The District additionally proffers Robinson's inconsistent grading and attendance
policies as justifying his non-reelection. 	Indeed, the evidence adduced at hearing does raise
some troubling questions. The District emphasizes Robinson's award of a "B" grade to a
8Additionally, Robinson's students scored much closer to the top three than the bottom
two, who were considerably below the top four. Thus, the District's assertions that Robinson's
students were deficient in reading and writing skills are contradicted by the evidence in the
record.
18
0

deceased student. 	After Robinson explained to Thompson that he had mixed up the names of
two students, Thompson remained unconvinced because the student which Robinson indicated
had already been awarded a grade. Furthermore, the record does demonstrate a troubling trend
of high grades being awarded to students who failed to attend any other classes at
McClymonds. 	Indeed, various students who had virtually dropped out of school for all intents
and purposes somehow continued to receive "A"s and "A+"s in Robinson's class, which
represented the only class for which these students were awarded grades. 	When confronted
with such evidence at hearing, Robinson's testimony was evasive and unconvincing.
However, due to the glaring inconsistencies underlying the District's decision to non-
reelect Robinson, the Board holds that the District has failed to carry its burden in showing that
it would have chosen to non-reelect Robinson regardless of his engagement in protected
activities.
Due to the abundant inconsistencies in the District's case, and the doubts raised by the
anti-union animus evident in the conduct of Dodd and Woehrle, we find that the District
retaliated against Robinson for engaging in protected activities when it issued him a notice of
non-reelection in violation of EERA section 3543.5(a).
Because the District retaliated against Robinson for engaging in protected activities, we
also find that the District concurrently violated EERA section 3543.5(b), by denying OEA the
right to represent its members.
IV. 	Robinson's Placement on Paid Administrative Leave
The ALJ concluded without discussion that OEA had established a prima facie case of
retaliation, relying heavily on the Board's holding in Oakland Unified School District (2003)
PERB Decision No. 1529 (Oakland). We are required to review the entire record, including
the testimony and evidence offered at hearing, and to rely on Oakland would be to shirk our
19

responsibility to do so here. 	(See Santa Clara.) Therefore, we find that while Oakland
indicates OEA established a prima facie case at that stage of the proceeding, it is not
controlling to the ultimate decision reached by the Board on a full record.
The District contends that it placed Robinson on paid administrative leave on May 17,
2002, after finding that he posed a credible safety threat to himself and others at McClymonds.
OEA alleges that the District retaliated against Robinson for engaging in protected activity
when it placed him on administrative leave. 	We find that Robinson's actions in the days
immediately preceding his placement on administrative leave were unprotected by EERA. 	In
his proposed decision, the ALJ discussed Robinson's May 13, 2002, memorandum to Dodd
only in passing. We, however, believe the memo deserves far closer attention.
While an employee's criticism of his or her employer is protected to the extent it is
intended to further a legitimate interest in terms and conditions of employment (Barstow
Unified School District (1996) PERB Decision No. 1164), an employee's criticism of his or
her employer based upon a personal grudge is not protected. 	(State of California (Department
of Transportation) (1982) PERB Decision No. 257-S (Transportation II): Pittsburgh Unified
School District (1978) PERB Decision No. 47, concluding that leaflets used to wage personal
attack on management employee were not protected.)
Robinson's May 13 memo does discuss, albeit in passing, certain committee activities
and reform proposals. 	The memo further criticizes Dodd for her administration's actions in
blocking committee proposals. And although Robinson does claim in the memo that it is not
intended to serve as a personal attack on Dodd, the overall tone and content of the memo lead
to the inevitable conclusion that it is nothing more than that. Robinson devotes much of his
attention in the memo to matters completely irrelevant to any committee activities, and further
voices his personal dismay at how Dodd could appear to be so ignorant of his qualifications as
20

a teacher. The memo continues to discuss at quite some length Robinson's own personal
feelings about Dodd and her administration at McClymonds.9 The overall tone of the memo
conveys a mocking and accusatory message directed specifically at Dodd.
Robinson's May 13 memo cannot be considered protected under EERA, as Robinson
has transgressed the realm of protected activity in order to wage his own personal attacks on
Dodd. 	It is true that an employee's criticism of his or her employer is protected to the extent
that the "purpose is to advance the employees' interests in working conditions." (Trustees of
the California State University (Sonoma) (2005) PERB Decision No. 1755-H (CSU (Sonoma).)
In CSU (Sonoma), the Board declared that "[t]his protection extends to speech that is
uncomplimentary to the employer; and even to speech containing inaccuracies and
exaggerations." It is only when the speech is so "opprobrious, flagrant, insulting, defamatory,
insubordinate, or fraught with malice" as to cause "substantial disruption of or material
interference with school activities" that it loses its protected status. (Rancho Santiago
Community College District (1986) PERB Decision No. 602 (Rancho Santiago).)
We do not believe that Robinson's May 13 memo to Dodd is intended to advance any
legitimate employee interests in terms and/or conditions of employment at McClymonds, and
that the memo thus does not fall within the class of activities protected under EERA. Robinson
uses the memo as a means of waging his own personal attack against Dodd and her
administration, and devotes a great deal of attention in the memo to boast his own personal
credentials and qualifications as a teacher. And, assuming arguendo, that Robinson's May 13
memo did fall within the realm of protected speech by furthering employee interests in
working conditions, we would still find that the speech became stripped of its protected status
In the May 13 memo, Robinson progresses into a lengthy tangent in which he likens
himself to Lieutenant Doug Roberts aboard the U.S.S. Reluctant, and refers to Dodd as
"Captain of the McClymonds ship."
21

in that the speech was so "opprobrious, flagrant, insulting, defamatory, insubordinate, or
fraught with malice" as to cause "substantial disruption of or material interference with school
activities." (Rancho Santiago.) In this regard, we must consider the May 13 memo not in
isolation, but in the overall context of the surrounding circumstances, including the committee
meetings held on May 14. Viewed in this context, we believe that Robinson's conduct did
substantially disrupt and materially interfere with school activities to the point where such
conduct could no longer be considered protected under EERA.
The activities of the faculty committee and Leadership Committee are within the sphere
of activities protected under EERA. 	(EERA sec. 3543.2(a); see San Diego.) However, on
May 14, Robinson used these committee meetings as a platform from which to levy his final
salvo at the McClymonds administration. An employee cannot cloak his or her own personal
agenda in the veil of protected activity, and then seek the same insulation which such protected
activities are afforded under EERA. 	(See Transportation II, finding that speech is not
protected when it is "for the purpose of humiliating the supervisor against whom the employee
harbored a personal grudge".)
Robinson used the faculty council meeting to force a discussion of his May 13
memorandum. 	The ALJ found that the faculty largely agreed to his proposal. However, the
ALJ reached this conclusion by specifically discrediting pertinent witness testimony that the
faculty felt uncomfortable with Robinson's proposal because they believed that the memo was
a matter solely concerning Robinson's battle for reelection, a matter more appropriately
addressed to OEA rather than the faculty council. As evidenced in the events following the
Leadership Committee meeting, we believe that the ALJ erred in discrediting witness
testimony stating that the faculty did not wish to discuss Robinson's May 13 memo. Our
review of the record shows that in the context of the events which occurred on May 14, various
22

faculty members did feel uncomfortable with Robinson's determined stance to force his
May 13 memo into the faculty council agenda. We look especially at the events of the
Leadership Committee meeting for corroboration.
The Leadership Committee meeting proved to be a very tense and unsettling event, and
a group of faculty members felt compelled to remain after the meeting so that they could
discuss the source of the meeting's tension. 	They agreed that the source of that tension was
Robinson. 	They further discussed the general ineffectiveness of Robinson's teaching style and
Robinson's apparent anger and frustration at the lack of support he had been able to garner
from the faculty in his fight for reelection. 	Indeed, the lack of faculty support for Robinson in
his reelection struggle and the lack of any similar support for his outspoken criticism of the
administration further undermine the proposition that Robinson was engaging in any sort of
concerted activity for which protection must be afforded under EERA. 	(Mushroom Transp.
Co. v. NLRB (1964) 330 F.2d 683, 685 [56 LRRM 2034], finding that an employee's speech
aimed at improving that employee's own status without involving other employees is "an
individual, not concerted, activity,. . . more than likely to be mere 'griping'"; see Hentzel v.
Singer Co. (1982) 138 Cal.App.3d 290, 296, fn. 4 [188 Cal.Rptr. 159], discussing the National
Labor Relations Act, and stating that "while the actions of an individual employee to enlist the
support of other employees for the purpose of improving working conditions may be . . .
'concerted' . . . the 'public venting of a personal grievance, even a grievance shared by others,
is not a concerted activity'.") To the contrary, this evidence all points to the conclusion that
Robinson on May 13 and 14, 2002, had personally attacked Dodd.
The faculty members remaining present following the Leadership Committee meeting
also discussed Robinson's mental, emotional and physical stability. They described
Robinson's conduct at the meeting as rude, and further described Robinson as having been red
23

in the face, yelling, not pausing for interruption, in addition to appearing physically tense and
twitching. 	These faculty members largely tied Robinson's apparent instability to his
unsuccessful attempt to win faculty support in his bid for reelection. 	Three faculty members,
Jennifer Ough (Ough), Bridget Taylor (Taylor) and Edna Perkins (Perkins), were so affected
by the events of May 14 that they felt compelled to submit written letters to Dodd expressing
their concerns that Robinson posed a credible safety threat not only to himself but those around
him, and particularly Dodd.
Motivated by the letters which she received, Dodd contacted her immediate supervisor,
Jose Martinez (Martinez), to relay the substance of those letters. Martinez arrived at
McClymonds two days later on May 17, and conducted several interviews with faculty
members regarding the current situation with Robinson. 	Martinez concurred with Dodd's
characterization of Robinson as a credible safety threat at McClymonds, and the two requested
that the requisite paperwork for placing Robinson on administrative leave be initiated. This
paperwork was completed by District Labor Relations Analyst, Leonard Bellows, and
Robinson received notice that he was being placed on paid administrative leave later that same
day.
The ALJ concluded from witness testimony offered at hearing that Dodd solicited the
letters regarding Robinson's condition. The ALJ determined that Dodd's testimony on the
matter gave rise to a conflict in witness testimony regarding the submission of the letters, and
the ALJ resolved that conflict by concluding that Dodd solicited the letters. 	Upon review of
the hearing transcript and the pertinent witness testimony, we do not perceive the testimony in
question to be so conflicting that it merits a finding that Dodd acted unilaterally in
implementing Robinson's placement on administrative leave. Further, we do not believe that
24

Martinez acted simply as a rubber-stamp with regards to Dodd's decision to report Robinson's
apparent instability.
Ough, Taylor and Perkins all testified that the letters they submitted were not solicited.
Dodd testified that she asked that the faculty place their concerns about Robinson in writing.
However, the line of questioning posed to Dodd with regards to this issue is not entirely clear.
The ALJ stated in his proposed decision that Martinez directed Dodd to have the teachers put
their statements in writing, but all the pertinent testimony offered at hearing indicates that the
statements were placed in writing and submitted to Dodd before she spoke with Martinez. It
also appears from the line of questions presented to Dodd that the timing of certain events is
not entirely clear. Indeed, it is a common theme throughout the entire hearing transcript that
the parties, witnesses, and even the ALJ, became confused at various points about the timing of
certain events and to which time periods certain lines of questioning were being directed. 	It
appears in the questions presented to Dodd on this issue that the chronology of events is
blurred. 	We thus do not believe that Dodd's testimony regarding the submission of letters was
so fatal as to reach the conclusion drawn by the ALJ that Dodd played the instigating role in
initiating and following through with Robinson's placement on administrative leave. 	Rather,
we are persuaded by the testimony of Robinson's own faculty peers, Ough, Taylor and Perkins,
who all testified in uniformity regarding Robinson's threatening and aggressive behavior.
Indeed, it is the testimony of McClymonds faculty members which provided the impetus for
reporting Robinson's conduct to District officials.
We conclude that Robinson did not engage in protected activity in the days preceding
his placement on administrative leave. He engaged in a personal attack on Dodd and her
administration after he learned that he would not be reelected, and his decisions to express his
25

own personal grievances in his May 13 memo and at the faculty and Leadership Committee
meetings do not merit protected status under EERA. 	Robinson's own faculty peers felt
threatened in Robinson's presence, and described him as a safety threat. Martinez's suggestion
to Dodd to contact local police authorities does not lend support to the ALJ's conclusion that
Martinez acted as Dodd's "rubber stamp" in the decision to place Robinson on administrative
leave. 	Dodd was not required to wait for the worst to happen before reporting Robinson's
condition to local police. It is a reasonable safety precaution to alert local authorities when a
teacher has been described as a safety threat by other faculty members. However, we do note
here that no police report was ever filed, nor was any police action at the school site requested.
Dodd merely advised local authorities as to the potential safety threat posed to the faculty and
student body at the school. Nor do we believe that Martinez's failure to interview Robinson
when he arrived at the school site lends support to the ALJ's conclusion that Martinez was a
rubber stamp. 	Indeed, Robinson was the subject of the interviews being conducted, and the
pertinent inquiry in those interviews focused appropriately on Robinson's status as a perceived
safety threat to other faculty members.
Here, the District has met its burden and demonstrated that it would have placed
Robinson on administrative leave even if he had not engaged in protected activity. 	(Ventura
County Community College District (1999) PERB Decision No. 1323.)
ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
case, it is found that the Oakland Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.5(a) and (b).
26

Pursuant to EERA section 3541.5(c), and Public Employment Relations Board (PERB)
Regulation 32325 (Cal. Code Regs., tit. 8, sec. 31001, et seq.), it is hereby ORDERED that the
District, its administrators and representatives, shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against Ronald Robinson (Robinson) by non-reelecting
him for the 2002-2003 school year because of his exercise of protected rights under EERA;
2. 	Denying the Oakland Education Association (OEA) its right to represent
employees in their employment relations with the District by the above-described conduct.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, rescind the notice of non-reelection issued to Robinson and destroy all copies
thereof.
2. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, reinstate Robinson to an equivalent position in the Oakland Unified School
District and make him whole for lost benefits, monetary and otherwise, including back pay,
plus interest at the rate of 7 percent per annum.
3. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations in the District where notices to employees
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent of the District, indicating that the District will comply with
the terms of this Order. Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced, or covered with any other material.
27

4. Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The District
shall provide reports, in writing, as directed by the General Counsel or his/her designee. All
reports regarding compliance with this Order shall be concurrently served on OEA.
Member McKeag joined in this Decision.
Member Shek's concurrence and dissent begins on page 29.
28

SHEK, Member, concurring and dissenting: 	I respectfully concur with the majority
decision on the issue of involuntary administrative leave, but based on a different rationale;
and dissent from the majority decision on the issue of non-reelection. 	I would find that the
Oakland Unified School District (District) would have neither reelected Ronald Robinson
(Robinson), nor exercised its discretion to rescind its non-reelection decision, even if Robinson
had not involved himself in protected activities. Additionally, I would conclude that the
District did not place Robinson on paid involuntary administrative leave because of protected
activity.
Summary of Background
Robinson was a probationary teacher at McClymonds High School (McClymonds) of
the District for three academic years between 1999 and 2002. In the 1999-2000 school year,
Robinson taught multi-cultural studies and social studies. In 2000-2001, the District offered
Robinson a second temporary contract to teach multi-cultural studies and United States history.
In 2001-2002, the District offered him a probationary teacher contract to teach U.S. history and
life skills sections. On January 31, 2002, McClymonds Principal Lynn Haines Dodd (Dodd)
informed the District of her decision not to reelect Robinson. 	The District's governing board
adopted Dodd's recommendation on February 27, 2002. Robinson was released from his
probationary contract on March 8, 2002, and did not return for the 2002-2003 year.
Robinson claims that the District retaliated against him because of protected activities
by: (1) not reelecting him, and (2) placing him on paid involuntary administrative leave.
Standard of Review
In considering an appeal, the Public Employment Relations Board (PERB or Board)
reviews the entire administrative record as well as the parties' appellate papers. PERB reviews
29

the record de novo. It may reverse legal determinations of an administrative law judge (ALJ)
and, from the factual record, may draw opposite inferences to those drawn by the ALJ.
(Woodland Joint Unified School District (1990) PERB Decision No. 808a; Santa Clara Unified
School District (1979) PERB Decision No. 104.) However, PERB ordinarily gives deference
to an ALJ's factual findings, which incorporate credibility determinations based on
considerations such as witness demeanor and appearance. In the present matter, I would defer
to the ALJ's painstakingly thorough findings of facts and credibility determinations. 	However,
I draw different inferences from those of the ALJ, and reach a different result.
Unlawful Retaliation Charge - Non-reelection
To establish an unlawful retaliation violation of the Educational Employment Relations
Act (EERA) section 3543.5(a), the charging party bears the burden of showing that he/she
engaged in protected activity, that the employer knew of the activity; and that the protected
activity was a "motivating factor" in the employer's decision not to reelect him. 	(Novato
Unified School District (1982) PERB Decision No. 210 (Novato): Carlsbad Unified School
District (1979) PERB Decision No. 89.) The charging party must also show, under objective
standards, that the employer's action was adverse to the employee. (Palo Verde Unified
School District (1988) PERB Decision No. 689.)
Protected Activity
Beginning as early as the 2000-2001 school year, and continuing until the District's
decision not to re-elect him, Robinson engaged in activities protected under EERA. He copied
one of his complaints about student fights to the Oakland Education Association (Association).
30

He used and requested representation by the Association at the "commitment" session1 and the
silent sustained reading (SSR) counseling session. There is no dispute that Dodd had
knowledge of Robinson's protected activities or that Robinson suffered adverse action as a
result of his non-reelection and placement on administrative leave. (Proposed dec, at pp. 62-
63.)
Unlawful Motivation
When direct proof of unlawful motivation is not readily available, the Board reviews
the record as a whole to determine if the inference of unlawful motive should be drawn.
Factors that may support such an inference include the timing of the employer's adverse action
in relation to the employee's protected conduct. 	(North Sacramento School District (1982)
PERB Decision No. 264). However, timing alone, without more, does not demonstrate the
McClymonds was officially designated a school within the State Immediate
Intervention/Underperforming Schools Program (II/USP) in the fall of 1999. 	If test scores did
not improve over time, the state superintendent of schools was authorized to impose a number
of harsh sanctions, including closure, reconstitution of the school and staff, and removal of
staff. (Proposed dec, at pp. 3-4.)
Pursuant to the official designation of McClymond's as a school within the II/USP,
an outside evaluator Ralph Baker (Baker) developed a report of findings on "barriers to
student success" by March 2001. The findings were incorporated into the II/USP action
plan for McClymond's. In April 2001, Dodd, Executive Director of High Schools Sue
Woehrle (Woehrle) and Baker held individual II/USP "commitment sessions" for the
teachers at McClymonds as part of the action plan implementation. The purpose was to
obtain each teacher's commitment to implementing the plan. A teacher who could not make
such a commitment would need to consider a transfer to another school. The District
assessed the teachers' ability and willingness to develop rigorous lesson plans that centered
on the standards tested by the state. Represented by Association Executive Director Bruce
Colwell (Colwell), Robinson discussed his desire to teach critical thinking skills, make his
curriculum relevant to the students' own life experiences, connect the past with the present,
and teach African-American students to overcome the "collision of value systems" that
impeded their learning of history. 	Woehrle noted that Robinson was not clear on
"differentiated" teaching and gave a weak answer on standards. 	Dodd recalled Robinson
stating he would become a "better team player," on the various teams, "be it leadership, be it
Positive School Climate meetings like that." (Proposed dec, at pp. 13-14.)
31

necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more of the following additional factors must also be present: (1) the employer's disparate
treatment of the employee (State of California (Department of Transportation) (1984) PERB
Decision No. 459-S); (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; (5) the employer's failure to
offer the employee justification at the time it took action or the offering of exaggerated, vague,
or ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts which
might demonstrate the employer's unlawful motive. 	(Novato; North Sacramento School
District, supra. PERB Decision No. 264.)
On January 17, 2002, Robinson, Colwell, Dodd, and Vice-Principal Dr. Norman
Thompson (Thompson), met to discuss the "provocative prompt"2 distributed by Robinson
during SSR in his classroom. Addressing Colwell, Dodd stated that as a parent, she, too,
2 The "provocative prompt" read, in part:
First Day SSR, I look around the room and I see students doing
SSS, silent sustained sleeping. . . . I gave them a two page
excerpt from a speech by Frederick Douglass, an ex-slave who
taught himself to read under threat of death, because black folk in
the day could get 'killt' if they were caught reading.
. . . Worse yet, they think they already know everything
already — that they're already adults. 	'I'm a grown ass man.' Or
'I'm a grown ass woman,' yet they're scared of silence, or of
reading a book. No wonder our people are the laughing stock of
the human race.
32
•

would have been appalled. Dodd directed Robinson to discuss the matter with the complaining
parent, meet with Thompson regarding lessons in the future, and confine future lessons to the
"context of the subject and content area." At the conclusion of the meeting, Robinson offered
a hug to Dodd, who refused, stating, "I'm still mad at you." When Robinson reported back to
Dodd, Dodd told him he should have been "man enough" to meet without the Association.
(Proposed dec, at pp. 35-36.)
Since the SSR counseling session and Dodd's last comment about union representation
occurred on or about January 17, 2002, approximately two weeks before Dodd's
recommendation to non-reelect Robinson on January 31, 2002, it can reasonably be inferred
that Dodd's action against Robinson was motivated by his exercise of protected rights.
The "But For" Test
In retaliation cases, once an inference of unlawful motivation is drawn, the burden
shifts to the employer to establish that it would have taken the action regardless of the
employee's protected conduct. 	(Novato.)
[T]he test of employer conduct in a mixed motive situation,
where legitimate business reasons arguably concur with anti-
union motivations as the basis for an employment decision, is a
'but for' test - whether the discharge or other violation of
protected activity would have occurred anyway regardless of the
improper antiunion motivation, 	this is an affirmative defense
which the employer must establish by a preponderance of the
evidence, once the charging party has proved antiunion animus
played any part in the decision.
(McPherson v. Public Employment Relations Bd. (1987) 189
Cal.App.3d 293, 304 [234 Cal.Rptr. 428].)
Participation in protected activity does not insulate or immunize an employee against decisions
made by the employer, including adverse employment actions. (Martori Brothers Distributors
v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721 [175 Cal.Rptr. 626].) The Board
33

will find the employer's conduct to be unlawful if it determines that the action would not have
been taken but for the employee's protected conduct. 	(Id, at p. 730.)
-
The ALJ's findings and the witnesses' testimony support a finding that the District
would have non-reelected Robinson regardless of whether he had engaged in protected
activity. As the District contends, there were valid reasons not to re-elect Robinson. Dodd's
reasons for her recommendation not to re-elect Robinson were:
2000-01 Evaluation indicated does not meet
standards[/]developing in 3 out of 6 teaching standards.
2001-02 Evaluation (formal - still in progress)
indicates meeting standards.
Informal evaluations indicate lack of student engagement, use of
video's [sic] and/or lecturing for majority lessons [sic].
Use of inappropriate instructional materials.
Instructional practices not aligned with identified best practices
and student outcomes as indicated in the II/USP Comprehensive
School Site Action Plan.
Inconsistent grading policies and attendance procedures.
No consistency between formal and informal classroom
observations.
Dodd explained to Robinson on March 25, 2002, upon his request, the reasons for his
non-reelection. 	Dodd referred to Robinson's deficiency in embracing the comprehensive
school site plan as it related to best teaching practices, and in providing rigorous and engaging
lessons for students. 	Dodd stated that Robinson's teaching practices were counter-productive
to the agreed-upon implementation of quality teaching occurring at all times in all classrooms.
Students were not challenged. There were numerous ditto sheets, minimum writing and
reading for both the classroom and homework. 	Students did not read at high reading levels.
34
--

Robinson used simple media and ditto sheets to teach students the content standards. He
assigned little or no homework throughout the course of the school year. 	The majority of
classroom instruction was lecturing or video, and there was little evidence of accumulated
student work. There was also poor documentation on attendance. Robinson did not
acknowledge Dodd's areas of concern and became agitated with her. 	Dodd then terminated the
meeting with Robinson.3
The preponderance of the evidence in this record shows that the District consistently
and thoroughly documented the standards required for Robinson's successful performance as a
probationary multi-cultural and U.S. history teacher. Robinson was undisputedly aware of the
fact that McClymonds, a designated II/USP school, was under a state mandate to improve test
scores. McClymonds adopted an II/USP action plan after Baker, an outside evaluator,
identified lack of assessment findings, effective use of classroom management strategies, and
enforcement of attendance policies as "barriers to success." As part of the action plan
implementation, Dodd and Woehrle conducted "commitment" sessions with individual
teachers, including Robinson, to explain to them the District's expectation. It was apparent
even during the commitment session that Robinson was more concerned with making his
curriculum relevant to the students' own life experiences than teaching to the standards.
Woehrle noted that Robinson gave a weak response on standards.
Thompson, Robinson's evaluator, repeatedly expressed his concerns about Robinson's
teaching methodology to Dodd and Robinson. 	Dodd's decision for non-reelecting Robinson
was based on many of these same concerns. In his 2000-2001 evaluation of Robinson,
Thompson stated that Robinson lectured too much on "critical thinking" instead of actually
Hearing transcript, Volume IX.
35

engaging students in such thinking. Under the category for the classroom environment,
Thompson noted that Robinson failed to display more of the students' work in the room, and
allowed some students to walk in late without admonition or apparent disciplinary
consequence. 	Under the curriculum planning category, Thompson noted that Robinson had
used some video material that might not have been appropriate for the students. 	(Proposed
dec, at p. 12.) Thompson had early concerns about Robinson's own way of teaching and
evaluating students. The curriculum being taught by Robinson, in many cases, did not
conform to the norms of the District or the school. He did not have proper evaluation of
students' response to course materials. Thompson expressed to Dodd his concerns about
Robinson's failure to differentiate in the classroom, utilize "best practices," provide sufficient
feedback in grading, assign sufficient homework, and refrain from using videos unrelated to
the curriculum. 	Thompson had recommended that Robinson not be rehired for the 2001-2002
year, but Dodd rejected his recommendation. (Proposed dec, at p. 13.)
Robinson did not adopt a curriculum that conformed to the norms of the District or the
school. For the 2001-2002 school year, Thompson and Robinson met on September 18, 2001,
to outline an educational plan for the school year and reach an agreement on objectives, as part
of the required evaluation process for probationary teachers. 	Thompson testified that he had
not received a syllabus for United States History and Multi-Cultural Studies from Robinson, at
least during the 2001-2002 school year, in spite of repeated verbal and written requests. Social
Studies Department Chair Richard Charlesworth (Charlesworth) testified that teachers should
36

have a class syllabus.4 Robinson also failed to provide Thompson with the required six-week
lesson plans for each marking period.5
Thompson conducted two days of formal classroom observation of Robinson in
December 2001 in the 2001-2002 school year. Thompson gave Robinson a summative ranking
of " 3 " out of "4" in five of six categories. Thompson noted on the evaluation form, "Teacher
is making every effort to make standard base [sic] learning/teaching the heart of the course."
During the hearing, Thompson noted Robinson had displayed the standards in his classroom,
and on the days of the formal classroom observation, he was teaching to the standards.
(Proposed dec, at p. 32.) Thompson opined that a lot of work remained to be done.6
Although Thompson found Robinson's teaching to be satisfactory during the formal
classroom observation in December 2001, Thompson had noted inconsistency between formal
and informal classroom observation. During informal observations in many instances,
Thompson found it difficult to associate the activities in Robinson's classroom with the course
content that had to do with standards. 	Several students were not on task. Robinson would
engage a very small group of students in discussion, while the other students would participate
in their own activities.7 Thompson testified to two informal observations of Robinson's
classroom on March 5, and April 11, 2002 respectively, conducted in accordance with District
policy. 	Thompson observed Robinson discussing current events without any reference to the
Charlesworth testified that he had reviewed a syllabus prepared by Robinson, but there
is no evidence that Robinson had submitted one to Thompson. A course syllabus should
include a course description, standards and outline of the specific content of the various
chapters.
5Hearing transcript, Volume VIII.
6Hearing transcript, Volume VIII.
7Hearing transcript, Volume VIII.
37

substantive content of the course.8 Thompson questioned Robinson's teaching methodology,
which involved student discussion without any "closure" as to what the students should
understand, or what would be a socially acceptable reaction to certain stimulus and
information.9 Thompson also observed that Robinson was not teaching to the standards, which
he had simply posted in the classroom. °
Thompson was suspicious of Robinson's grading policies. 	Some of Robinson's
students who had essentially dropped out of other classes received high marks from him. 	The
District introduced documents indicating that instances of the same occurred in 2001-2002.
Thompson began monitoring this situation after he learned that Robinson had given a deceased
student a passing grade. (Proposed dec, at pp. 15, 68-69.)
Robinson's explanation for these incidents of inconsistent grading policies was
implausible. He explained that the passing grade given to the deceased student was probably
meant for another student whose name was just below that of the deceased. However, the
other student also received a grade. A grade analysis report showed that several students were
given grades, even honor grades, in Robinson's class when in fact, they had attended no other
classes. Robinson's explanation was that students were attending his class because they liked
his class, yet, a student who had been marked absent a considerable number of times in
Robinson's class received an honor grade of "B+." Another student whom the other teachers
Hearing transcript, Volume VIII.
9Hearing transcript, Volume VIII.
10Hearing transcript, Volume VIII.
38

had not seen for a minimum of ten days in a marking period received a grade of "A+" from
Robinson. Robinson stated that the student liked his class and was a good student.11
A major concern of Thompson was that Robinson was not displaying more of the
students' work. In February/March 2002, Robinson displayed students' "bust a nut" posters in
his classroom. 	Thompson told Robinson that such posters were not the kind of student work
appropriate for display. 	Despite Robinson's explanation for it, Thompson found the posters to
be quite objectionable on their face.
Thompson was concerned about Robinson's use of inappropriate instructional
materials. 	The rules for SSR provided that students would select their own materials, and
neither of them could read the same book. 	Thompson found Robinson's creation of a
"provocative prompt" on one subject or for one book was totally out of order and therefore
inappropriate.13 Despite Thompson's recurring request to obtain parental approval before
showing controversial materials including videos to students, Robinson would decline to do it
or wait until after the fact to do so. Robinson's refusal to abide by District policy, Thompson's
recommendations and direction was a source of concern.14
Opportunities for staff training and development were made available to the teachers,
but there was no evidence to show that Robinson was unaware of these staff training and
development sessions or had participated in them. Wednesdays were minimum days designed
for providing district-wide training to teachers in every department in the school, including
11Hearing transcript, Volume VIII.
12Hearing transcript, Volume VIII.
13Hearing transcript, Volume VIII.
I4Hearing transcript, Volume VIII.
39

social studies teachers. 	Staff development training on the content as well as methodologies
was offered to the teachers one Saturday per month.15
The record herein solidly establishes that Robinson would not have been reelected,
regardless of his protected activity. 	Robinson showed a disregard of the school's commitment
to implement the II/USP action plan, and a lack of cooperation with the school administration
in utilizing the "best practice" in teaching. Accordingly, I would find the District did not
violate EERA section 3543.5(a) in non-reelecting Robinson.
Retaliation Charge - Involuntary Administrative Leave
Background Facts
On May 17, 2002, District Labor Relations Analyst Leonard Bellow, pursuant to the
requests of Dodd and Dodd's immediate supervisor Jose Martinez (Martinez), gave Robinson
written notice that he was placed on paid administrative leave based on allegations of
"unprofessional conduct" at a Leadership Team meeting on May 14, 2002.
The Leadership Team consisted of the principal, two of the vice-principals, department
chairs, and a representative from the University of California Academic Partnership Program.
Robinson was a member from the outset, even though he was not a department chair.
At the meeting, Robinson insisted to be heard on a matter discussed in his
memorandum to Dodd, dated May 13, 2002, entitled "The Corrosive Impact of the Contentions
& Unresolved Issues Between McClymonds' Leadership Committee and School Climate
Committee and Yourself."16 The matter of his memorandum was not on the agenda of the
75Hearing transcript, Volume VIII.
16Robinson sent copies of his May 13, 2002, memorandum to then-District
Superintendent Dennis Chaconas, the Leadership Committee, the Climate Committee and the
faculty council.
40

Leadership Team meeting, but he insisted on being heard and prevailed. In the memorandum,
Robinson accused Dodd of tabling or blocking from the faculty meetings recommendations
from the School Climate Committee (Climate Committee) and Leadership Committee with
which she disagreed. Robinson accused Dodd of singling him out as being a "disloyal enemy,"
isolating him, and making an example of him. He raised issues concerning the lack of respect
shown for his contributions; both in terms of the reform initiative and the personal skills he
offered, namely, his use of video and technology in the classroom. He blamed the
administration for failing to implement the Climate Committee's recommendations. 	(Proposed
dec. at p. 53.)
The Climate Committee, which addressed issues of student behavior, was one of four
subcommittees of the II/USP Whole School Reform Committee. At Baker's direction, a
Whole School Reform Committee was established to implement the II/USP action plan. 	It was
separate from, but essentially parallel to, the Leadership Team. The Climate Committee's
purpose was to assist in developing an assessment document to identify priorities for
programmatic change. The Climate Committee was a carryover of a previous school
committee called the Positive School Climate Committee. The earlier committee developed in
response to a District-wide task force investigating the high suspension rates of minority
students. Dodd had selected Robinson to be on this committee in October 2000. Robinson
became its chair formally, when Baker recommended that chairs be appointed. 	Robinson
remained a chair, or co-chair, of this committee until his termination.
After the adjournment of the May 14, 2002, Leadership Team meeting, a group that
included Dodd, social studies teacher and Leadership Team member Bridget Taylor (B.
Taylor), LuPaulette Taylor (L. Taylor), math teacher Edna Perkins (Perkins) and English
41

teacher Jennifer Ough (Ough), both of whom were job stewards in the school, discussed the
unnerving events during the meeting that Robinson's situation partially created. 	Subsequently,
Ough, B. Taylor and Perkins submitted separate letters to Dodd expressing their concerns over
Robinson's behavior at the Leadership Team meeting.17 Dodd contacted Martinez who advised
T7Ough submitted a memorandum to Dodd on May 15, 2002, stating in part:
After the [Faculty Council meeting on May 14], a number of
faculty expressed concern to me over Ron's mental state. 	They
are worried that he is so unstable that he could hurt himself, but
also that he could take out his frustration on the McClymonds
'family' of which he is no longer a part. I believe you will be
that target of his retaliation.
After the Leadership Team meeting, where he demonstrated more
so [sic] his irrational and delusional state of mind, I feel the
danger that we face is that he realized, or should have realized,
that he does not have support from the faculty.
B. Taylor submitted a memorandum with the following:
On May 14, 2 0 0 2 , . . . I noticed Ron's aggressive behavior begin
to take over. He seemed very defensive and paranoid when a
person tried to address the issues stated in the letter. It was at
that time I noticed a physical change in his dealings with
coworkers. He leaned in and raised his voice frequently,
disagreeing with everything that was said to him in an effort to
gain clarity on the issues stated in his letter.
At the leadership meeting, he came in seeming to have a set
agenda for the evening, all about Ron. He first began with the
attack on you, stating that you would not allow 'his' document
from school climate committee and the group had to explain and
prove to him that that statement was untrue. 	. . . It frightened me!
He had the presence of a person on the verge of a breakdown. I
actually looked at him during one of his tirades and had a flash of
fear overcome me. I felt as though he might hurt any one of us at
any time during that meeting, in particular, you. 	. . . I am writing
this letter to you as a warning to keep your eyes open. I think
things could become dangerous. . . . . 	I am afraid he may do
something irrational for attention. Please be careful, I have a bad
feeling about this situation.
42

her to contact law enforcement, and she did. Martinez came to the school site on May 15 and
met with faculty members. 	There was no evidence that Martinez spoke with Robinson.
Prior to attending the Leadership Committee meeting on May 14, 2002, Robinson
attended a faculty council meeting.1 8 During the meeting, he brought up the allegations against
the administration's failure to adopt the Climate Committee's recommendation as stated in his
memorandum to Dodd dated May 13, 2002. Attending the faculty council meeting were
B. Taylor, L. Taylor, Perkins, Ough, Spanish teacher Kafi Payne (Payne), and math teacher
Stanley Heron. 	After some discussion, the faculty council members present at the meeting
declined to take any action on Robinson's allegations against the administration. Payne agreed
to discuss the memorandum further if Robinson would make it more specific. 	There was a
general feeling that Robinson should take his allegations to the Association rather than present
it to the faculty council.
DISCUSSION
In determining whether the District retaliated against Robinson by placing him on
administrative leave for criticizing the administration for its failure to finalize and implement
the Climate Committee's recommendations, the threshold issue is what protected rights, if any,
were exercised here.
Dodd recalled that Taylor was the one voicing the greatest concern about her
safety. 	Perkins offered a similar, but more sympathetic, memorandum:
Ron's outward appearance changes during the day from happy,
all is well to frustration and anger, which is understandable, but
there seems to be an edge to his moods that feels unpredictable.
. . . Is there a way to get Ron some sort of exit counseling as he is
making the transition?
18The faculty council is a creature of the contract between the District and the
Association and intended for collective, site-based decision-making.
43

I find earlier that Robinson engaged in protected activities by copying one of his
complaints about student fights to the Association, and having a union representative present at
the "commitment" session and the SSR counseling session. I also find a reasonable inference,
based on the proximity of time, that Dodd's recommendation to non-reelect Robinson on
January 31, 2002, was motivated by Robinson's being represented by the Association at the
SSR counseling session on January 17, 2002. However, Dodd's comment that Robinson was
not "man enough" to attend the session without union representation occurred on or about
January 17, 2002, approximately four months before the District placed Robinson on
involuntary paid administrative leave. 	The "commitment" session and the copying of a
complaint to the Association occurred during the 2000-2001 school year, almost a year ago. It
cannot be established that the adverse action, effective May 17, 2002, followed close in time to
Dodd's comments or these other protected activities, which were too tenuous to show any
antiunion animus. 	(Los Angeles Unified School District (1998) PERB Decision No. 1300,
adopting the Bd. agent's dismissal, at p. 1; and San Diego Unified School District (1991)
PERB Decision No. 885.)
I would find Robinson's May 13 and May 14, 2002 criticism to be an act of self-
representation, and therefore unprotected under Woodland Joint Unified School District (2004)
PERB Decision No. 1722 (Woodland). Subsequent to the release of the ALJ's proposed
decision, the Board issued Woodland on August 31, 2004, holding that the protected right of
self-representation no longer exists under EERA. 	The Board stated that when EERA section
3543 was amended to include language discussing the imposition of fair share fees, the
Legislature inexplicably deleted the original language granting employees the right to represent
44

themselves "individually."19 In Woodland, the Board reasoned that it "must presume the
Legislature was aware that the language it removed was the very language granting employees
the right to self-representation... and conclude that the protected right of self-representation no
longer exists under EERA." (Woodland, at p. 2.)20 Under Woodland, EERA no longer
Prior to the legislative amendment, EERA section 3543 included the following
provision:
Public School employees . . . shall have the right to represent
themselves individually in their employment relations with the
public school employer,. . .
The quoted language above was construed in Pleasant Valley School District (1988)
PERB Decision No. 708 (Pleasant Valley) as granting employees a protected right of self-
representation. The rationale in Pleasant Valley, however, is based entirely upon the statutory
right of public employees "to represent themselves individually in their employment relations
with the public school employer." The legislative amendment of 2000 has removed this
language from Section 3543.
20As now written, Section 3543 does not identify either a right of employees "to
represent themselves individually in their employment relations with the public school
employer" or a right "to refuse to join or participate in the activities of employee
organizations." (Woodland, adopting proposed dec, at pp. 25-26.) Such omissions are "strong
evidence of a contrary legislative intent." 	(Regents of the University of California v. Public
Employment Relations Bd. (1985) 168 Cal.App.3d 937, 945 [214 Cal.Rptr. 698].) This seems
especially true where the Legislature has removed a right that was contained in the EERA for
25 years. It may well be that the Legislature intended to take the EERA away from permissive
individual representation that historically has been a characteristic of California public sector
labor law and move the EERA toward the collective-representation-only model that marks
federal labor relations statutes covering the private sector. 	(Woodland, adopting proposed
dec, at p. 26; see, e.g., Meyers Industries. Inc (1984) 268 NLRB 493 [115 LRRM 1025].)
The Board also did not find the right of self-representation in Section 3543(b) that
permits a school employee to "present grievances to his or her employer, and have such
grievances adjusted, without the intervention of the exclusive representative." The language in
Section 3543(b) has been part of the EERA since it was enacted and apparently was modeled
after the proviso in National Labor Relations Act (NLRA) section 9(a). 	(The NLRA is
codified at 29 U.S.C, sec. 151, et seq.) The proviso in NLRA section 9(a) reads, in relevant
part as follows:
. . . Provided, that any individual employee or a group of
employees shall have the right at any time to present grievances
to their employer and to have such grievances adjusted, without
45

protects employees who represent themselves individually in their employment relations with
their public school employer.21
The facts in Woodland and the present case are similar. In Woodland, the employee
was terminated because she represented herself in a meeting with her supervisor, during which
she expressed to her supervisor, "you cannot treat me like that." The Board held that her act of
self-representation was not a protected act. (Woodland, proposed dec, at p. 28.)
In the present case, the preponderance of evidence shows that Robinson acted alone in
preparing and submitting the accusatory memorandum addressed to Dodd, dated May 13,
2002. There is no evidence that Robinson took this matter to the Association, or that he
the intervention of the bargaining representative, as long as the
adjustment is not inconsistent with the terms of a collective
bargaining-contract or agreement then in effect: 	Provided
further, that the bargaining representative has been given
opportunity to be present at such adjustment.
The courts find the proviso to be nothing more than an authorization for an employer to
entertain grievances from individual employees without liability for bypassing the exclusive
representative. The federal analysis of the section 9(a) proviso was adopted by the Board in
Chaffey Joint Union High School District (1982) PERB Decision No. 202 (Chaffey) as the
appropriate interpretation of Section 3543. 	Based upon the federal interpretation of section
9(a) of the NLRA as adopted in Chaffey, Section 3543(b) cannot be read to create in the EERA
a protected right of self-representation.
21With the change, EERA thus joins the Higher Education Employer-Employee
Relations Act (HEERA) (Gov. Code sec. 3560, et seq.) in not having a provision specifically
protecting an employee's act of self-representation. 	(See HEERA sec. 3565.) By contrast, the
Meyers-Milias-Brown Act (MMBA) (Gov. Code sec. 3500, et seq.) and the Ralph C. Dills Act
(Dills Act) (Gov. Code sec. 3512, et seq.) both specifically protect the right of public
employees "to represent themselves individually in their employment relations with" public
employers. (MMBA sec. 3502 and Dills Act sec. 3515.)
That portion of Section 3543 pertinent to the present matter reads as follows:
(a) Public school employees shall have the right to form, join,
and participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of
employer-employee relations.
46

represented the Association at the Leadership Team meeting. 	When he spoke out of order at
the Leadership Team meeting, and raised issues concerning the lack of respect shown for his
contributions, he was speaking on his own behalf. 	Thus, his action amounted to an act of self-
representation.
With regard to his participation in the faculty council, even if it were protected activity,
Robinson's copying the May 13, 2002 memorandum to the faculty council would not
necessarily constitute protected conduct, absent other more relevant evidence. 	The faculty
council is not an exclusive employee organization under Section 3543(a). Moreover, Robinson
was unable to obtain the faculty council's approval or ratification of his allegations against
Dodd at the faculty council meeting on May 14, 2002. 	The general feeling of the faculty
council was that he should instead present the issues to the Association.
Robinson's criticism that the administration had failed to implement the Climate
Committee's recommendations was also an act of self-representation. 	The record contains no
convincing evidence to show that the Climate Committee, as a sub-committee of the II/USP
Whole School Reform Committee, qualified as an "employee organizations of [the
employees'] own choosing for the purpose of representation on all matters of employer-
employee relations." (Section 3543(a).) As stated earlier, the Climate Committee's purpose
was to assist in developing an assessment document to identify priorities for programmatic
change. Moreover, the facts that: (1) Dodd had originally selected Robinson to serve on the
Positive School Climate Committee, predecessor of the Climate Committee, in October 2000,
and (2) Robinson became chair when Baker had recommended the appointment of sub-
committee chairs, would defeat most arguments that he was involved with the Climate
Committee in furtherance of protected organizational activities. 	Even assuming the Climate
47

Committee was a qualified employee organization, which it was not, Robinson's effort on its
behalf was no more than self-representation, considering the lack of authorization for his
controversial and accusatory January 31, 2002 minutes.22
CONCLUSION
After considering the totality of the circumstances and applying the standard under
Woodland, I conclude that Robinson was placed on involuntary administrative leave because
he represented himself in the Leadership Team meeting on May 14, 2002. I would conclude
that his act of self-representation was not a protected act. 	I would therefore dismiss his charge
of retaliation against the District.
22On January 17, 2002, Dodd issued a memorandum to Robinson regarding the
"unfinished" work of the Climate Committee. On January 31, 2002, the Climate Committee
held a controversial meeting. Robinson took minutes of the meeting, in which he stated, "It
was also agreed that the climate committee could potentially become the scapegoat in case this
policy . . . fail. 	(Sic.)" The minutes submitted by Robinson did not contain the approved
signatures of the other teachers and staff members who attended the meeting. Most of the
attending members declined to have their discussion during that meeting recorded in written
minutes. Robinson subsequently erased the names of all the attending members. It can
reasonably be inferred that Robinson's controversial and accusatory statements in the minutes
of the January 31 meeting reflected only his recollection of the discussion and his own
interpretation of the other members' opinion.
48

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-2283-E, Oakland Education
Association v. Oakland Unified School District, in which the parties had the right to
participate, it has been found that the Oakland Unified School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5(a) and (b),
when it retaliated against Ronald Robinson (Robinson) because of his participation in conduct
protected by EERA. 	This conduct also denied the Oakland Education Association (OEA) the
right to represent employees in their employment relations with the District.
As a result of this conduct, we have been ordered to post this Notice, and we will:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against Robinson by non-reelecting him for the
2002-2003 school year because of his exercise of protected rights under EERA.
2. 	Denying OEA its right to represent employees in their employment
relations with the District by the above-described conduct.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECUTATE THE POLICIES OF EERA:
1. Rescind the notice of non-reelection issued to Robinson and destroy all
copies thereof.
2. 	Reinstate Robinson to an equivalent position in the District and make
him whole for lost benefits, monetary and otherwise, including back pay, plus interest at the
rate of 7 percent per annum.
Dated: 	OAKLAND UNIFIED SCHOOL DISTRICT
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
OAKLAND EDUCATION ASSOCIATION,
Charging Party,
v.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-2283-E
PROPOSED DECISION
(8/31/04)
Appearances: Beeson, Tayer and Bodine, by Sheila K. Sexton and Thomas Dubberke,
Attorneys, for Oakland Education Association; Liebert Cassidy, by Emi R. Uyehara and
Roger L. Crawford, Attorneys, for Oakland Unified School District.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a teachers organization claims that a probationary high school social
studies teacher who participated in school site governance activities suffered retaliation when
he was non-reelected by the school's principal and placed on administrative leave prior to the
end of the school year.
The Oakland Education Association (Association) initiated this action by filing an
unfair practice charge against Oakland Unified School District (District) on August 21, 2002.
An amended charge was filed on October 15, 2002. On November 6, 2002, following its
investigation of the charge, the general counsel of the Public Employment Relations Board
(PERB or Board) issued a complaint alleging that the District issued a notice of non-reelection
to Ronald Robinson because he exercised rights guaranteed by the Educational Employment
Relations Act (EERA or Act).1 This conduct is alleged to violate section 3543.5(a) and (b) of
The EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated all statutory references are to the Government Code.

the Act.2 On the same date, the general counsel dismissed an allegation that Robinson suffered
a second act of retaliation when he was placed on administrative leave with pay. On
November 26, 2002, the Association appealed the partial dismissal.
On January 7, and March 20, 2003, informal settlement conferences were held, but the
matter was not resolved.
A formal hearing commenced before the undersigned on June 2, 2003, and continued
for 13 non-consecutive days, concluding on December 5, 2003.
On June 20, 2003, the Board reversed the Board agent's dismissal and ordered the
issuance of an amended complaint. 	(Oakland Unified School District (2003) PERB Decision
No. 1529.) On July 7, 2003, the general counsel issued the amended complaint. On July 23,
2003, the District answered the amended complaint, denying all material allegations and
asserting a number of affirmative defenses. 	When the formal hearing resumed on
September 22, 2003, the parties addressed the new allegations.
With the receipt of post-hearing briefs on April 5, 2004, the matter was submitted for
decision.
2 In relevant part, section 3543.5 provides:
It is unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. 	For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
22

FINDINGS OF FACT
The District is a public school employer within the meaning of EERA section
3540. l(k). The Association is an employee organization within the meaning of section
3540.1 (d). Robinson is a public school employee within the meaning of section 3540.1 (j).
Background
Robinson began teaching in the District in the 1998-1999 school year as a substitute
teacher at Oakland Technical High School, holding an emergency credential. His educational
background includes a bachelors degree from Cornell University, two masters degrees (civil
engineering and city planning) from Massachusetts Institute of Technology, and completion of
course work for a doctoral degree (transformative learning) at California Institute for Integral
Studies. His relevant employment history includes high school math teaching for one year
(1996-1997), split between the Menlo-Atherton and Burlingame high schools.
Beginning in the 1999-2000 school year, Robinson assumed a teaching position at
McClymonds High School, filling a full-time, temporary contract position. 	During his first
year at McClymonds, Robinson commenced a credentialing program at California State
University, Hayward (Cal-State Hayward). 	Robinson was offered a second temporary contract
for 2000-2001, and a probationary teacher contract for 2001-2002.
In the 1999-2000 school year, Robinson was assigned five sections of multi-cultural
studies, a ninth grade social studies class. In 2000-2001, he taught three sections of multi-
cultural studies and two sections of eleventh grade United States history. In the fall semester
of 2001-2002, Robinson taught four sections of multi-cultural studies and one U.S. history
section. In the spring semester of that year, Robinson taught two multi-cultural studies
sections, two life skills sections (a companion ninth grade class), and one U.S. history section.
33

Robinson was placed on paid administrative leave on May 17, 2002, and did not
complete the academic year in the classroom. In June 2002, Robinson secured a clear, single-
subject credential with a Cross-Cultural Language and Development (CLAD) certificate.
Based on the March 8, 2002 release from his probationary contract, Robinson did not return for
the 2002-2003 year.
McClymonds is located in and serves West Oakland. Approximately 670 students
attend McClymonds. 30 to 35 teachers are employed there. McClymonds has traditionally
been an academically underperforming school. 	West Oakland is an economically
disadvantaged and racially isolated community. 	78 percent of the student population is
African-American, 12 percent is Hispanic, and 8 percent is Asian. Robinson is African-
American. 	Robinson took up residence in a very poor section of West Oakland (locally
referred to as "The Bottoms") when he began teaching at McClymonds.
The Public School Accountability Act of 1999 was designed to improve academic
performance in California schools by establishing standardized testing as the basis for
measuring performance and setting goals for underperforming schools. 	Using scores from the
SAT-9 tests, an Academic Performance Index (API) is established for each school.
McClymonds had the lowest possible API when it was initially measured (a " 1 , " or the lowest
decile of schools with similar demographics). 	93 percent of McClymonds students scored
below 50 percent on the 2000 SAT-9 tests, 85 percent in language and 88 percent in
mathematics. 	African-American students as a subgroup performed more poorly than the
school-wide figures in all of the testing areas.
In the 1999-2000 school year, McClymonds underwent accreditation review by the
Western Association of Schools and Colleges (WASC). 	That review process provided impetus
for the school engaging in a comprehensive approach to "whole school reform." Various
4

committees composed of faculty and staff took up areas of concern in that process.
Participation in the committees was on a volunteer basis and Robinson volunteered willingly
for committee positions.
A Leadership Team formed during this time. 	It consisted of the department chairs,
administrative staff (the principal and two of the vice principals), and a representative from the
University of California's California Academic Partnership Program (CAPP). 	CAPP is
designed to assist a selected group of underachieving schools by providing resources and
expertise, particularly as it relates to teacher development. Robinson was a member of the
Leadership Team from the outset, even though he was not a department chair.
At the same time as the Public School Accountability Act was passed, the Legislature
established the Immediate Intervention/Underperforming Schools Program (II/USP). As a
consequence of the release of test scores in the fall of 1999, McClymonds was officially
designated an II/USP school. 	The legislation provides that the state superintendent of schools
can impose a number of harsh sanctions if the designated school's test scores do not improve
over time, such as closure, reconstitution of the school and staff, and removal of staff. 	Under
the II/USP, designated schools receive grants to hire an outside evaluator and develop a report
of findings, which is followed by an "action plan" addressing the identified barriers to student
achievement.
1999-2000 School Year
Lynne Haines Dodd transferred from Castlemont High School in East Oakland to
assume the principal position at McClymonds in the 1999-2000 year. It was also Robinson's
first year at McClymonds. Robinson began to view Dodd as narrow-minded in her view on
how to address the student discipline problem. Robinson interpreted Dodd's comments on the
55

subject as blaming the teachers for the problem because they lacked effective classroom
management skills.
In November 1999, Robinson attended a community meeting on education at
McClymonds, where he had occasion to speak with Oakland Mayor Jerry Brown about the
school. 	They discussed the need for student discipline in the classroom. 	(Robinson recalled
that the two related to each other based of their common Jesuit upbringing.) Brown proposed a
no-administrators meeting at McClymonds to encourage full disclosure. Robinson testified
that he sought Dodd's approval for the meeting space, and noted the no-administrators proviso.
Dodd agreed after initially questioning the limitation. These points were disputed by Dodd,
but I credit Robinson, for reasons explained below.
The Mayor Brown meeting occurred in January 2000. During the meeting, participants
identified various student discipline issues. 	They included student fights and "hall-walking."
Hall-walking is the practice of students, who skip class or have dropped out, roaming the halls
in a manner that is disruptive to others intent on participating in the educational program.
Yefel Thiembe, a campus supervisor, expressed that he did not feel safe from certain students.
According to Robinson, Dodd learned of Thiembe's statements and then ridiculed him for
being fearful because he was big and strong. Dodd denied that she ridiculed Thiembe, though,
in a private conversation with him, she did question why he should feel threatened given that
he weighed about 250 pounds.
Dodd chaired the Leadership Team and prepared its agendas. In the 1999-2000 year,
the Leadership Team was focusing on the WASC accreditation process. Immediately after the
Brown meeting, Robinson headed upstairs to a Leadership Team meeting, at which a buffet
dinner was being served. Robinson quotes Dodd as saying, "I'm holding you personally
responsible for everything said in that meeting." Dodd paused, added, in anger, "You
6

shouldn't even be allowed to sit and eat dinner with us," and walked away. Robinson sensed
"there was definitely something going on with [Dodd] in that setting."
Dodd denied admonishing Robinson in this manner. 	She claims she did ask Robinson
as a matter of protocol to notify her of this type of meeting in advance because she had not
received notice prior to the event. As to the credibility disputes here, I credit Robinson's
account because it is inherently more plausible. I doubt that a first-year, temporary-contract
teacher such as Robinson, with no prior history with Dodd, would attempt to convene this type
of meeting without seeking prior approval, and the event was not something that would or did
go unnoticed by the staff.
Sometime prior to the end of the school year, Robinson inquired as to whether his
temporary contract would be renewed for the following year. 	Dodd initially told him not to
worry. Not hearing anything official from the District, Robinson inquired about his status with
the District's human resources department in July 2000. He was told he was not on any
school's list for a contract. 	When Robinson inquired with Dodd about this she responded,
"You, of all people, should know there are no guarantees." Nonetheless, Robinson received a
temporary contract for the 2000-2001 year.
2000-2001 School Year
The 2000-2001 year was significant because Ralph Baker, the II/USP outside evaluator,
who coordinated the production of the report of findings, came on board in December 2000.
Baker facilitated the gathering of information through focus groups and surveys of teachers,
staff, students and community members. 	The report of findings issued in March 2001.
At Baker's direction, various committees were established to assist in this process. An
II/USP Whole School Reform Committee was established. It was separate from, but
essentially parallel to, the Leadership Team. Robinson was a member. Four task forces, or
77

subcommittees of the Whole School Reform Committee, included the School Climate
Committee (which addressed issues of student behavior), Quality Teaching Committee,
Professional Development Committee, and Small Learning Community Committee. 	The sub-
committees' purpose was to assist in developing an assessment document to identify priorities
for programmatic change. The School Climate Committee was a carryover of a previous
school committee called the Positive School Climate Committee. The earlier committee
developed in response to a District-wide task force investigating the high suspension rates of
minority students. Dodd had selected Robinson to be on this committee in October 2000.
Robinson became its chair formally, when Baker recommended that chairs be appointed.
Robinson remained a chair, or co-chair, of this committee until his termination.
Baker distilled the staff input from the Climate Committee. 	The survey findings
coalesced around issues of better disciplinary control of students. 	Particular emphasis was on
establishing control of behavior in the common areas outside of the classroom and
accountability of staff.3 Baker's "summary" section began with the statement:
This data suggests that there needs to be: Better coordination
between teachers and administration in terms of understanding
who is responsible for handling specific discipline problems in
specific settings... [and] [s]tandardized penalties and
enforcement for student non-compliance with expected
behavioral norms that are understood by a l l . . . .
The survey identified top priorities including "procedures for teaching all students
appropriate social behavior in a school-wide curricula (i.e. anger management, violence
prevention)," "procedures for monitoring student behavior (i.e. office referrals, suspensions,
injuries)," "procedures to identify behavioral expectations in Cafeteria, hallways, restr[oo]ms
. . .," "procedures for training staff to use specific setting [support] plans," "procedures for
monitoring the effectiveness of specific setting [support] plans," "agree[ment] about what
behavior problems are handled in classr[oo]ms and offices," "procedures for responding to rule
violations," etc.
8

The report of findings was incorporated into the II/USP action plan, which issued in
June 2001. The action plan provides this statement of "school" (as opposed to District)
"barriers to student success":
Content standards are not being articulated within and across
grade levels in Reading (Literacy), English Language
Development (ELD), and Academic English Development (AED)
for African-American students and Mathematics (especially
Algebra);
Assessment findings are not being used to drive instruction to
improve student learning, mastery and growth on the API;
Not all teachers are using effective classroom management
strategies;
Lack of enforcement, penalties and incentives for students and
staff concerning attendance;
Lack of uniform code of conduct, consequences, enforcement of
student discipline.
The first instance of any counseling or reprimand of Robinson occurred on December 1,
2000. 	Dodd wrote Vice-principal Dr. Norman Thompson a memorandum indicating concerns
about Robinson's use of the films "Menace II Society" and "Sankofa" in his multi-cultural
studies class. "Menace II Society" depicts the story of a young black man, growing up in
South Central Los Angeles, who adopts "street values," lacks positive role models, and
struggles unsuccessfully to recognize alternatives to the lives of those around him. It contains
profanity and violence.4 Sometime prior to December 1, Dodd had overheard the profanity
Roger Ebert reviewed the 1993 movie, comparing it with the more popular "Boyz N
the Hood," and wrote:
If "Boyz N the Hood" was the story of a young man lucky
enough to grow up with parents who care, and who escapes the
dangers of street culture, "Menace II Society" is, tragically, about
many more young men who are not so lucky.
99

while walking the halls and spoke to Robinson about the film. Robinson explained to her that
the film's significance lies in its focus on black-on-black crime, and "values and issues." A
University of Michigan graduate student, speaking at a District staff development meeting in
September 2001, touted "Menace II Society" and "Slam" as two movies excellent for inner-
city youth. One of his most effective lessons was based on "Menace II Society." Dodd did not
dispute this could be so, but claimed that the film would have to be "utilized for a specific
purpose," such as for critical thinking, but not for "just something to watch." She did not see
Robinson at the front of the room where he could pause the film for discussion and some
students were not engaged.
"Sankofa" is a movie of the African diaspora attempting to present a more complex but
"liberating" view than the "Hollywood" depiction of that epoch. It contains a rape scene
involving a slave and her master.5 Dodd also witnessed Robinson showing this film and
questioned Robinson about its relation to course content. Dodd had seen "Sankofa" and
objected to its brutality against blacks (including the rape scene) and its use of profanity.
Robinson indicated that the students would be writing essays about the movie. According to
the memorandum, Thompson was to counsel Robinson not to show any video without prior
(Roger Ebert, Chicago Sun-Times (May 26, 1993 [webversion])
<http://www.suntimes.com/ebert/ebert_reviews/l 993/05/859437.
html> [as of August 16, 2004].)
The movie is rated "R" for strong violence, drug use and language. (Id.)
5 The rape of the slave leads her to a path of resistance and ultimately the killing of the
master who violated her. 	(B. Costantino, E. Sanchez, T. Shariff, Sankofa website
<http://dickinsg.intrasun.tcnj.edu/sankofa/s-scenelog.htm> [as of May 1, 2001].) 	The film's
producer maintains a website describing the film as attempting to correct the Hollywood
depiction of the involuntary African diaspora, by celebrating the resistance efforts of slaves.
"Sankofa" is a renaissance symbol from the Ashanti/Akan people of Ghana signifying looking
toward the past before considering the future, or "understand[ing] why and how we came to be
who we are today." (Mypheduh Films, Inc. website <http://www.sankofa.com/about.shtml>
[as of Aug. 16,2004].)
10

approval from the administration. Dodd, in testimony, stated that only videos on a District-
approved list could be shown without prior approval. No list was actually produced by the
District. Several District witnesses were aware of the policy that "R" movies could only be
shown with the administration's prior approval and/or parental consent slips. 	However,
Richard Charlesworth, the social studies department chair, whom I found largely disinterested
in the outcome of this case and otherwise credible, was unaware of a District-approved list or
any clearly explicated policy on videos. Al Claiborne, a social studies teacher who also
testified for the Association, was unaware of any school policy on videos.
During the 2000-2001 year, Robinson was evaluated by Thompson. Thompson
conducted three classroom observations on consecutive days in January 2001. The
"Certificated Evaluation Observation Form" utilized by the District entails a pre-observation
conference and post-observation conference for each of the formal classroom observations.
Thompson chose to observe Robinson's U.S. history class.
The official form has six teaching standards, two on each page (three pages total), and
an additional three pages for other comments. The observation evaluation form introduced into
evidence for Robinson has only two of the three teaching standards pages. No explanation was
given for this discrepancy. 	For each of the teaching standards, the form lists a set of more
specific criteria for grading. A number grade is to be assigned to each of these criteria, though
not all boxes need be checked each time an observation occurs. The grades are: " 1 " for "does
not meet standards: unsatisfactory"; "2" for "does not meet standards: developing"; " 3 " for
"meets standards"; and "4" is for "exceeds standards."
Although the District also has a summary evaluation form which is to incorporate the
findings from the observations forms (both for an "interim" and "final" evaluation, depending
on which of two boxes is checked), this form was apparently never completed for Robinson in
11

2000-2001. Thus, the January observation report constitutes the only written evaluation of
Robinson for that year.
Thompson rated Robinson as mostly meeting standards. Only five "2" marks out of a
total of 50 total marks were given in the specific criteria. All the rest were "3"s. Thompson
provided notes and constructive criticism on the "2" ratings. Under the category for engaging
students, Thompson noted that Robinson lectured too much on "critical thinking" instead of
actually engaging students in such thinking. 	(Thompson testified that a teacher should not
lecture for more than four or five minutes without engaging students in dialogue.) Under the
category for the classroom environment, Thompson noted that Robinson allowed some
students to walk in late without admonition or apparent disciplinary consequence. 	Thompson
was also critical of Robinson's failure to display more of the students' work in the room.
Lastly, under curriculum planning, he noted that Robinson had used some video material that
might not have been appropriate for the students.6 The negative comments were repeated in
the short summary sections at the end of the form. Robinson chose to enter a disputed version
to the comment that "some" students were not engaged and talked the entire period. Robinson
claimed there was only one student who was not on task.
There is a box for a "summative" rating for each of the six teaching standards. The
form indicates these final ratings must be entered by April. However, no summative ratings
were entered on the 2000-2001 form. For this reason, Dodd's assertion in an e-mail to District
6 Thompson's attempt to expand on this issue at the hearing was nonspecific.
Thompson testified that he had counseled Robinson following Dodd's December 1
memorandum, a claim denied by Robinson. 	Thompson's evaluation comment also noted that
further assessment of the relevance of the video would be required to render final judgment.
Apparently no further analysis was undertaken. 	At some other time, Robinson had volunteered
to Thompson that he had shown the movie "Slam" to his students. Thompson had concerns
about this movie as well.
12

offices at the time of her non-reelection decision that Robinson was not meeting standards in
three of the six standards in 2000-2001 is contradicted by the record.
At the hearing, Thompson stated he had early concerns about Robinson. Discussing his
overall impressions of Robinson, he testified:
My observations were that Mr. Robinson had his own way of
teaching and evaluating students. In many cases, they did not
conform to the norms of the district nor the norms of the school
as it pertains to the curriculum being taught, the materials being
used in support of that curriculum, and the proper evaluating of
students' response to those materials. Where [as] he did work
with the students, the content of such was in my opinion not on
task with what should have been taught with that particular
course.
According to Thompson, Robinson "felt the need to bring students into a contemporary focus
and understanding of the content of what he was teaching, so his use of certain materials he felt
was in keeping with that philosophy." Thompson also testified that Robinson failed to submit
Stull objectives, which are discussed at the beginning of the year as part of the evaluation
process, as well as six-week lesson plans in 2000-2001, despite requests to do so. In addition,
he claimed Robinson failed to turn in a course syllabus for multi-cultural studies that year.
Charlesworth and Claiborne testified that six-week lesson plans, but not the course syllabus
were required. 	Charlesworth added that the administration was not consistent about requiring
either. A reminder note from Thompson to Robinson in January 2001 mentions Robinson's
missing Stull objectives but not the syllabus or lesson plans.
In April 2001, II/USP "commitment sessions" were held for the teachers at
McClymonds as part of the implementation of the action plan. 	The teachers were individually
interviewed by Dodd, Sue Woehrle, Dodd's immediate supervisor (executive director of high
schools), and Baker. The purpose of the meetings was to obtain each teacher's commitment to
implementing the plan. 	If a teacher could not make such a commitment he/she needed to
13

consider a transfer to another school. 	The meetings also allowed the District to assess the
teachers' ability to contribute by ascertaining their strengths, weaknesses and philosophies. In
Dodd's mind, a key to the success of the reform process was for teachers to "discard practices
that were clearly not working for student achievement" and instill in students aspirations for
post-secondary education. To that end, the committee was interested in the teachers' ability
and willingness to develop rigorous lesson plans centered around the standards tested by the
state. Robinson brought Association Executive Director Bruce Colwell to the meeting out of
concern it might facilitate his involuntary transfer.
During his session on April 11, Robinson discussed his desire to teach critical thinking
skills, make his curriculum relevant to the students' own life experiences, connect the past with
the present, and teach African-American students to overcome the "collision of value systems"
they experience making them resistant to learning history. 	Woehrle kept notes indicating that
Robinson was not clear on "differentiated" teaching7 and gave a weak answer on standards.
Around this time, Dodd had expressed to Worhrle concern about Robinson's use of videos.
Woehrle's overall impression was that Robinson was "somewhat philosophic" in his approach.
Dodd recalled Robinson stating he would become a "better team player," on the various teams,
"be it leadership, be it Positive School Climate meetings like that." Colwell testified that
Robinson was eloquent in articulating his commitment to the reform process. Yet he sensed
Differentiated teaching is considered by the teaching profession a component of "best
practices." Essentially it is the concept of recognizing and employing strategies to address the
differing skill levels of students in the classroom. 	The District's own evaluation tool for this
standard cites the following indicators: "scaffolding" (temporary support/ guidance/ assistance
provided to students on new or complex tasks, including providing comprehensible input);
"modeling" (demonstration of skill or strategy (e.g., demonstrating "reading around the word"
to identify context clues)); "visuals" (graphic organizers, pictures, gestures, artifacts, regalia
(e.g., . . . flow charts)); "brainstorming" (students and teachers generate a variety of ideas for a
topic); "checking for understanding" (teachers regularly check for understanding from the
range of students (e.g., thumbs up/ thumbs down, asking for summaries and paraphrases)).
14

some conflict between Robinson and Dodd at this time. I found Colwell's testimony to be
unrehearsed and balanced, and therefore credible.
By memorandum dated April 26, 2001, Dodd notified the human resources office of her
decision not to renew Robinson's temporary contract. 	This was after first telling the District
informally that she wanted to retain him. 	Dodd changed her mind because of her desire to hire
a fully-credentialed social studies teacher and the fact that such teachers were available for
interviews. She was also seeking one to teach advanced placement history. Sometime later, no
such viable candidates surfaced. 	Multi-cultural studies teacher Yetunde Reeves began teaching
at McClymonds on an emergency credential in 2001-2002, followed by an internship credential
in 2002-2003.8
Thompson had recommended that Robinson not be rehired for the 2001-2002 year.
Dodd considered, but ultimately rejected, Thompson's recommendation. Thompson shared
with her concerns about Robinson's failure to differentiate in the classroom, utilize "best
practices," provide sufficient feedback in grading, assign sufficient homework, and refrain
from use of videos unrelated to the curriculum. As to grading, Thompson reported suspicions
because some of Robinson's students got high marks, but had essentially dropped out of other
classes. 	District documents were introduced indicating that instances of the same occurred in
2001-2002. 	Thompson actually began monitoring this situation after he learned that Robinson
had given a deceased student a passing grade. Robinson's explanation that he thought he was
assigning the grade to another student with a similar name did not sit well with Thompson
because the other student had been assigned a grade.
8 The District was attempting to staff only with fully credentialed teachers District-wide
and it was a component of McClymonds' action plan as well. Nevertheless, the District's own
documents indicate that the District relies on temporary contract teachers to a great extent.
15

On April 27, 2001, Robinson wrote out a complaint to Dodd regarding student fights.
After asserting that he had prevented two "large scale melees" from breaking out that day (a
claim Thompson doubted), Robinson focused on his main concern: Thompson's slow response
time to a fight 16 days earlier that resulted in a student being knocked unconscious. Robinson
injured himself while apprehending one of the culprits. 	Robinson had asked two other teachers
to use the school telephone to contact security and Thompson on that occasion. Robinson
asserted that Thompson did not arrive until 20 minutes had passed. Robinson copied the letter
to Colwell.
Thompson testified that he responded by calling Robinson's room but received no
answer. 	He then called another teacher on the same floor and asked that teacher to look
outside his class and report what he saw. That teacher responded that he did not see anything
unusual. 	The District produced a letter to Thompson from the teacher confirming this account.
The letter states that the teacher later discovered that the victim had been dragged into a
classroom, and, when he attempted to contact Thompson, was told that Thompson had already
departed from his office. He later saw Robinson, Thompson, and the victim near an elevator.
Because it is uncorroborated hearsay, I cannot credit the letter's content (i.e., as to what the
teacher observed in the hallway or subsequently).9 Robinson would file a similar written
complaint with Dodd in October 2001 about a student kicking another on the ground and the
failure of the security officer involved to report the matter to the administration.
9 The District suggests that Robinson may have written the complaint one day after his
notification of release to in essence create a trail of protected activity and questions Robinson's
claim that Thompson was slow to respond 16 days earlier, based on the other teacher's account
of what he observed on "April 27 at 11:40 a.m." The contention is not convincing. If
Thompson's delay did occur on April 27, Robinson's assertion that it occurred 16 days earlier
would be inconsequential (even if untrue) because Robinson had no particular complaint at the
earlier time that would constitute protected activity. 	Robinson himself wrote that on the earlier
date Thompson assured Robinson he would follow up "on everything."
16

As the school year drew to a close, Robinson was again concerned about his
employment status at McClymonds. On June 1, Dodd called Robinson into a meeting and
asked him if he was "committed" to the school. Robinson testified that, when he stated he
was, Dodd asked him why he had written the letter about the fights and copied the Association.
She also questioned why he would personally get involved in breaking up fights. Dodds
denied making these statements. Toward the end of the same conversation, Robinson asked
Dodd if she was committed to keeping him. Dodd conceded that she "didn't want to make any
changes." Dodd did not specifically deny this comment. I credit Robinson's account.
Hickory Pit Meeting
By June, 15, 2001, Dodd had notified human resources to rescind the release of
Robinson, subject to documentation of progress toward his credential. 	Dodd believed that
notwithstanding Thompson's reservations, Robinson would continue to develop proficiency if
given the chance, and hopefully become a "better team player." On cross-examination, Dodd
added by way of explaining the "team player" comment that Robinson appeared to have
difficulty implementing a "specific methodology" to deepen students' reading and writing.
Dodd believed that as a result of the II/USP action plan, specifically, the professional
development component, "systems [were] in place to help teachers grow," including Robinson,
and that all teachers would be made "very familiar with differentiated instruction" and the
creation of "rigorous curricula." Dodd testified that before the last day of school, Dodd
delivered each of the returning temporary teachers a tentative assignment for the following
year.
Robinson became concerned in June that he had not received official notification of his
rehire. As a result of his notice of release and Dodd's assurances, Robinson tried to "nip the
problem in the bud." He spoke with Woehrle and human resources about his situation.
17

Woehrle said she would investigate the status of his credential. 	Robinson testified that after he
fulfilled human resources' requirements for documentation of his internship credential, he
contacted Woehrle, who told him she could not guarantee him a position and that then-District
Superintendent Dennis Chaconas was only interested in hiring fully credentialed teachers at
McClymonds. 	Woehrle neither confirmed nor denied these contacts from Robinson. 	Robinson
then contacted Colwell who advised Robinson that he could qualify for a probationary contract
because he had an internship credential. On that basis, Robinson wrote to Chaconas requesting
an assignment, noting his internship credential and other contributions at McClymonds.
When he next heard that McClymonds was holding interviews for teachers, learned that
Chaconas was about to embark on vacation, and failed to get Woehrle to confirm his return to
McClymonds in writing, Robinson wrote a letter to District governing board member Harold
Pendergrass, which he copied to Colwell. Through Chaconas, Woehrle became aware of
Robinson's letters to Chaconas and Pendergrass. Dodd recalls Woehrle contacting her in
reference to the Pendergrass letter on instructions from Chaconas to clear up Robinson's
confusion. 	Woehrle confirmed with Dodd that Dodd had rescinded Robinson's release within
the District's deadline and informed Robinson of that fact. 	Woehrle testified that she
suggested to Dodd that they have a meeting with Robinson.
Dodd made notes of a call with Woehrle dated July 3, 2001, regarding the matter.
Dodd's notes list concerns about Robinson: "classroom management [Dodd testified this
referred to his use of movies], commitment session, Sacramento IIUSP sessions, [and]
scholarship." The list in general referred to Robinson's attempts at "cultural exchange" with
students as well as the need to "revisit" all of the issues raised with him that year. Dodd hoped
the meeting would confirm Robinson's commitment to differentiated teaching and "team
leadership," contrasted with the focus "on his concerns for what he wanted to see happen at the
18

school site as opposed to a collaborative group decision-making process."10 Woehrle, agreeing
with Dodd at the time, noted she had observed Robinson dressed too casually for a scholarship
awards ceremony sponsored by a local church group. At the hearing, Robinson claimed he was
dressed in expensive, if "casual," attire and denied he was wearing jeans.
Woehrle testified that the meeting was primarily to address Robinson's concerns; that
apart from his contract status, Robinson could set the agenda. 	Woehrle "assumed" Robinson
had other concerns as evidenced by the Pendergrass letter, and that it was "almost his call for
what the meeting would be" ~ a characterization I do not find plausible in light of all the
circumstances. For example, the Pendergrass letter only addresses securing a position at
McClymonds. Even if, as Dodd testified, Chaconas suggested a meeting to Woerhrle, or if
Woehrle initially believed she needed to be able to report back to Chaconas that a meeting had
occurred, she could have dispensed with a meeting after speaking with Dodd and learning of
Dodd's timely request for his reinstatement. 	Yet upon learning of Dodd's desire to "revisit"
her concerns about Robinson, Woehrle went ahead. 	I believe ultimately the intent of the
meeting was to elicit some type of commitment from Robinson as a quid pro quo for his return.
This point is corroborated by statements at the meeting itself, described below.
When Woehrle called Robinson to set the meeting, Robinson asked if he was going to
get a contract. 	Robinson recalls Woehrele replying that he would have to meet with them first.
Sensing an "asymmetrical power relationship," Robinson requested the presence of an
Association representative. 	Woehrle responded:
TO Elaborating on this point, Dodd recalled a training session at which Robinson
appeared in Sacramento as a representative of the school and left early, and a summer 2001
Long Beach conference, where Robinson walked in late to the opening session, as a result of
choosing to drive down alone rather than with the group, and came into other sessions late.
This, too, was an example of Robinson's lack of team skills and "marching to his own drum."
Robinson testified that he had car trouble on the way to the Sacramento conference and told
19

Damn it, to hell with the Union. 	I'm sick and tired of teachers
always thinking they need to have a union representative. You're
either going to meet with us or not, but that's what it's going to
take to get the contract.
Robinson consulted with Colwell, who advised Robinson to proceed without him.
Woehrle denied the statements attributed to her. 	She testified she told Robinson that he
did not need representation because no disciplinary action was involved and it was "his
request" for the meeting. I assessed Woehrle to be quick, intelligent and fearless. Her
demeanor and some of her comments suggested that she spoke impulsively at times and could
easily be blunt. Colwell described her as "nice," but "combative," and questioning in the past
of the Association's involvement in matters. I credit Robinson's quote as being accurate.
The meeting occurred on July 6, 2001, at an Oakland restaurant called the Hickory Pit.
It lasted about 30 to 40 minutes, according to unrebutted testimony of Dodd. Robinson
testified that Woehrle opened the pertinent discussion by stating concerns that he was
"breaking the confidence of the McClymonds' family." She began by citing the letter to
Pendergrass. 	Woehrle referred to Robinson as "the weakest link," which Robinson interpreted
as weakest "in terms of maintaining a sense of propriety" with respect to dissemination of
information. 	Robinson recalled the similarity of this discussion with the one he had had with
Dodd regarding the Association and his April 27 complaint about fights. 	So when Woehrle,
without mentioning the Association, stated that Robinson was contacting "outsiders," he asked
specifically if she was referring to the April 27 letter as well. Dodd interjected, "That's right."
Dodd added, "You're not going to do that anymore, are you?" Robinson agreed, knowing
otherwise he would not receive a contract. Robinson viewed this part of the discussion as a
loyalty test.
Dodd that was also the reason for him leaving early, around 3:00 p.m. Robinson denied he was
late to the start of the Long Beach conference.
20

Woehrle denied she directed Robinson not to contact outsiders. Dodd was not asked
specifically to refute that point, but she denied there was any discussion about "union
activities." 	Dodd recalled that the meeting focused on her list of concerns from her pre-
meeting conversation with Woehrle. Reprising Robinson's commitment-session pledge, Dodd
asked if Robinson was still committed to the reform effort. 	Robinson answered he was
committed to that and to West Oakland, at which point, Woehrle raised her concerns about
Robinson's dress at the scholarship awards function, and his use of the term "The Bottoms"
when referring to his neighborhood in West Oakland. 	Dodd interpreted Woehrle's concern
with the phrase as owing to its slang nature and that "street culture" in general, including the
use of profanity, runs counter to encouraging the higher aspirations of students.
I credit Robinson's account with respect to the "weakest link" comment and the
directive not to contact outsiders. While there is a tendency of witnesses to remember points
most relevant to them and Robinson appeared to edit out some matters during the 30-40 minute
meeting, I find that Robinson's account as to the points pertinent to him is internally consistent
and corroborated by Dodd's notes reflecting the concerns about Robinson's self-motivated
agenda for reform and need to recognize the responsibilities of "team leadership." Only Dodd
had seen the April 27 letter copied to the Association, which explains why she interjected her
answer to the question Robinson had directed back to Woehrle.
On July 23, 2001, the District issued Robinson a contract reinstating him at
McClymonds as a probationary teacher for the 2001-2002 year.
2001-2002 School Year
A. 	Napa Retreat
In June 2001, CAPP sponsored a conference in Long Beach, attended by members of
the Leadership Team, including Robinson. The keynote speaker, Dr. Robert Rossi, outlined
21

research he had performed leading him to recommend a professionally staffed "intervention
room" as an effective method of handling student discipline problems. Celeste DuBois, a
French teacher, Leadership Team member, and Climate Committee member, and Dr.
LuPaulette Taylor, chair of the English department, Leadership Team member, and Quality
Teaching Committee member, were among the attendees. At the end of the conference, six
teachers, including Robinson, DuBois, and Taylor met and came to some agreements. These
included, among others, proposals for an intervention room staffed by a professional as well as
a student rewards program for good citizenship.
The Climate Committee continued to meet informally over the summer, as an
outgrowth of the Long Beach conference. 	DuBois recorded a list of recommendations from the
committee in August. Recapitulating the Long Beach "agreements," it included a number of
concrete proposals for addressing the disciplinary problems, specifically emphasizing the need
to discipline hall-walkers. It proposed: (1) a "ladder of consequences" (i.e., a system of
progressive discipline); (2) educational activities that might occur in the intervention room;
and (3) adoption of a "shared vision," incorporating some concepts introduced by Rossi,
including "Ma'at" (seven principles of a moral life) and "A Disciplined Life" (perspectives
from a Chicago charter school).
DuBois testified that faculty and staff were conflicted about how to address the student
discipline problem. 	She believed disruptive students needed to be dealt with. However,
administrators were under pressure to reduce the suspension rate.11 DuBois agreed with
Robinson that the administration favored reliance on teachers' individual classroom
A direct repercussion of high suspension rates is the loss of attendance-driven state
funding. 	Since the formal hearing, local news sources have reported that the District, under the
leadership of state-appointed administrator Randolph Ward, is aggressively seeking to increase
student attendance by criminally prosecuting parents of students who are habitually absent.
(Alex Katz, D.A. takes on truants' parents, Oakland Tribune (Mar. 26, 2004) pp. 1, 13.)
22

management skills to address the problem. DuBois was the last witness produced by the
Association. She had been interviewed by the District as a possible witness. It became clear
from her demeanor (extremely cautious and nervous) and other actions reported of her that she
was striving mightily to remain neutral. I found her credible.
Sensing that the recommendations would not be well received, DuBois spoke with
Geraldine Bradford, Community Assistant (also known as Community Liaison), who happened
to see the list. 	Bradford's duties included monitoring student attendance and dealing with
tardies and truants. Attendance clerk Sam McNeal and Bradford eventually spoke out (at a
faculty meeting in January 2002) about concerns that increased teacher referrals of disciplinary
problems would increase their workload. 	Bradford confirmed to DuBois that the
recommendations would not be well-received.
The Leadership Team developed an agenda for the Napa retreat. Prior to the retreat,
Dodd learned from McNeal and Taylor that Robinson wished to make a presentation about the
recommendations at the retreat and of their concerns that the memorandum contained
inaccuracies. McNeal's complaint was that the summer meetings had not included him and
others, a point acknowledged by DuBois (though not by design). Dodd asked Robinson for a
copy of the recommendations as she was about to leave for Napa.
Robinson testified that, after reviewing the list, Dodd told him, "You have no right to
organize the faculty independent of the Leadership Team." He also quoted Dodd as saying:
You are not to pass this out. I don't want to hear anything about
the intervention room.
Dodd testified that, after reading the list, she instructed Robinson that the retreat was
not an appropriate time to address the matters and that perhaps it could be introduced at a later
time. 	I credit Robinson's version. As will become clear below, Dodd demanded consensus
before proceeding and she did not appear to be much of a risk-taker. 	This, coupled with the
23

reports of the administration's emphasis on individual classroom management solutions,
suggests she had a motive to oppose having the recommendations aired. DuBois read Dodd as
opposing the intervention room. Nina Moore, a director of teacher education and K-12
collaboration at the Office of the President for the University of California, was the CAPP
representative working with McClymonds. 	She attended all of the Leadership Team meetings.
She was a witness for the District, who described her high respect for Dodd, calling Dodd
"exceptional" in terms of effort and "inclusive," perhaps to a fault (referring to Dodd's
unwillingness to cut off discussion and direct an outcome). 	Based largely on Dodd's Hickory
Pit directive to be "more collaborative" and on events transpiring later in 2001-2002 relevant
to Robinson's activities, I deduce that Dodd's style of leadership involved attempting to forge
consensus for major decisions as well as using admonitions to quell dissent. The report of
recommendations was neither distributed nor discussed at the Napa retreat.
B. 	September 18. 2001 Stull Objectives Meeting
As part of the evaluation process, probationary teachers are required to meet with their
evaluator, outline an educational plan for the school year, and come to an agreement on
objectives. Robinson met with Thompson on September 18 for that purpose. Based on
readings and in-service training, Robinson believes that the media plays an important role in
the "culture collision" encountered by black students. Robinson believes in the need to
mediate the heavy influence of media on youth, and in particular the types of images black
students receive, by utilizing such media forms in the classroom as a tool for encouraging their
buy-in to learning. Robinson was one of nine teachers in the District awarded a grant under
the Urban Dreams program to produce a film with students. Robinson's application proposed
a film entitled "Reparations" that would seek to draw parallels between the World War II
internment of Japanese-Americans and the slavery experience of African-Americans.
24

Robinson acknowledged in his 2001-2002 Stull objectives for U.S. history and multi-
cultural studies that differentiated learning was important to the administration. 	At the same
time he was open about emphasizing his priorities, proposing "[d]ifferentiated instruction
based on and correlated to standards - learner centered and culturally congruent pedagogy,"
and his "Sankofa" theme ("specific standards and skills to be emphasized will be the
connection of past to present and the analyzing of contemporary social problems and the
posing of solutions to those problems emphasizing critical thinking skills").
During the meeting, Robinson explained how he planned to use media in his class. He
defined media broadly for Thompson to include "films, videos, music, plays, fashion, slogans,
etc." He discussed films he wished to show, which included "Hurricane," "Remember the
Titans," "Bamboozled," "Sankofa," "American History X," "Menace II Society," and "Slam."
Robinson explained the relevance of these films. According to Robinson, Thompson only
voiced concerns about "Menace II Society" and "Slam." Thompson demanded prior written
parental consent to show "Menace II Society." Robinson chose not to show either "Menace II
Society" or "Slam" during the year.
On direct examination, Thompson claimed that Robinson failed to present him Stull bill
objectives on September 18. He was forced to retract that claim on cross-examination when
shown his April 23, 2002 evaluation form, which marks as satisfied the box for submission of
the objectives. The box for "agreement reached" was also marked. In this regard, Thompson
had written: 	"Mr. Robinson's plan was accepted. . . . " A copy of Robinson's objectives
offered by the Association state under "support requirements," "admin[instration] support of
innovative teaching strategies including non-linear thematic orientation of lessons, various
multimedia including controversial films as discussed." After the retraction, Thompson
nevertheless claimed there was no discussion of the films. I credit Robinson on these points.
25

C. 	Climate Committee Activities
The II/USP action plan called for each of the working committees to develop a plan of
specific measures addressing the issues in the report of findings. To this end the Climate
Committee met throughout the fall of 2001. 	According to Claiborne, a 24-year social studies
teacher (American government and economics), colleague, and lunch-mate of Robinson, he
joined the Climate Committee out of a desire to see real change in the matter of student
discipline. He testified that the committee met two or three times each month in the fall.
Claiborne is a tall man, with a deep baritone voice, who presents himself authoritatively, and
was reputed to be a strict teacher. I found him to be a largely disinterested witness and he
appeared credible to me.
Mark Rader, an 11-year teacher of math and physical sciences, also joined the Climate
Committee and attended meetings during this time. He had previously been invited to the
Long Beach conference by Dodd. Rader, who is white, was a popular teacher, due to his
involvement in after-school activities. He is a former Navy pilot interested in the history of
West Oakland, who chose to purchase a residence there to develop an affinity for his students.
Through his after-school-activities he introduced students to aviation as well as another hobby,
rock-climbing. 	On the witness stand Rader presented himself as voluble, self-assured, and
spontaneous. Like Claiborne, he stood little to gain by supporting Robinson, and I found him
credible. Rader participated in the Climate Committee until his involuntary transfer to another
school mid-year due to a CLAD credentialing issue.
Rader testified that Robinson was the leader and facilitator of the committee, the "one
guy that you knew was going to make sure it worked." He described Robinson as an excellent
facilitator who did not dominate meetings. Nevertheless, some members of the Climate
Committee, such as Kafi Payne, a Spanish teacher, Reeves, and McNeal, preferred placing
26

their energies toward different proposals, such as those for positive incentives for students and
teachers. Reeves and McNeal, both witnesses for the District, chose at a later point to distance
themselves from Robinson as a result of controversies described below.12
During his tenure, Rader complained to Dodd about hall-walkers, whom he described in
the following manner:
Well, pretty much in my time teaching there, there was never a
single day when there weren't, you know, large groups of kids
roaming around the hallways almost every period of every single
day. And it was the same group of kids. And some of the kids
were kids that I had had in my class that had just dropped out of
class and didn't show up anymore and continued to go around the
halls.
Rader was concerned about student fights, student aggressiveness toward staff, lack of respect,
and truancy. He became more vocal in staff meetings during 2001-2002, his second year at
McClymonds, after seeing no progress on the problems (no "organized plan that was effective
with the students"). He recalls at one staff meeting being chastised by Dodd for his complaint
about hall-walkers. 	She accused him of not understanding the culture of black students
because he was white. On other occasions at the beginning of the semester he complained
about over-crowding in his geometry class, and insufficient numbers of chairs. 	Dodd
responded to him by citing Taylor who also had 50 students in one class and telling him to
"muscle up and don't complain." Rader claimed the District's grounds for his transfer — lack
72 In 2001-2002, Reeves co-sponsored and helped implement "Mack Money" (in-kind
credits) rewarding students for good citizenship. Reeves was the school's student activities
director as well. As reflected by events surrounding Robinson's termination, particularly in
minutes of meetings taken by Robinson, but also in statements Dodd attributed to Payne, the
District implies that Robinson tended to dominate meetings and deemphasize work in which he
lacked a strong interest. Payne denied the statement attributed to her by Dodd, testifying that
she believed Robinson's service as chair was fine and that the committee did not stifle her area
of interest. DuBois also vouched for Robinson's honesty in a December 6, 2001,
memorandum to Bradford stating that Robinson took on the task of "organizer and recorder of
what the [Climate] committee and the Leadership team have said they want," "a task which no
one else took on," and that he did not "add or subtract material on his own."
27

of a CLAD credential ~ were specious, because, while he had a clear credential in math, the
two teachers hired to replace him had emergency credentials. Based on his demeanor I find it
quite likely Rader was outspoken and direct when it came to sensitive issues at the school.
CLAD certifies competence to teach limited-English-proficient students. 	Rader
believed that the CLAD issue could have been addressed by transferring those few students he
had to the math teacher who had CLAD. In addition, part of the reason he did not spend his
summer earning the credential was because he enrolled in a masters program at the University
of California, a slot he obtained with the help of Dodd's recommendation. 	Rader opined that,
as it pertained to actual decision-making, Dodd operated on the basis of loyalty: "If you
weren't in her little club or group, you were pretty much on the outside." This was a point to
which Robinson alluded as well. Rader described Dodd as overtly pleasant and friendly, but
duplicitous. Robinson agreed that Dodd was outwardly charming.
The Climate Committee produced a first draft of their report in December 2001. The
report required approval by the Leadership Team, followed by adoption by the entire faculty.
On January 8, 2002, the Leadership Team approved most of the recommendations of the report
and placed it on the January 14, 2002, faculty meeting agenda. Those items set aside were
ones for which additional discussion was required. The list of items adopted included, in order
of listing: (1) attendance policies and staff responsibilities (time limit for taking attendance,
recording of tardies, requirement for documentation of excused/not excused tardies issued to
student by attendance office, definition of "truant," the requirement for intervention of the
community liaison person for excessive absences, and incentive programs for good
attendance); (2) discipline policies and staff responsibilities (requirement on teachers for
classroom management rules and expectations, list of progressive discipline, chart of
"Standardized Interventions and Consequences for Discipline Offenses," and agreement to
28

pursue grant for staffing of an intervention room); (3) student incentives ("Mack Money" for
purchase of T-shirts, sweatshirts, game and dance tickets, and contests); and (4) staff and
student morale. The one notable provision that appears to have been tabled by the Leadership
Team was a set of rules to address hall-walkers under the tardy policy, by requiring violators to
attend the detention room.
A tardy/detention policy had been severed from the package, announced to the school
and community, and implemented on December 5, 2001. This policy required assignment of
detention for the second tardy offense in one day, and possible detention for the second
occurrence in one week. 	It prohibited participation in athletic events until detention was
served.
D. 	Attempted Establishment of the Faculty Council
The collective agreement between the Association and the District provides for the
establishment of a faculty council at each school site. 	This is a representative body of teachers,
elected by the unit members. 	Its primary function is to facilitate site-based decisionmaking,
including approving the allocation of discretionary site funding. 	During the 2001-2002 year,
the McClymonds faculty council was dormant.
Jennifer Ough is an English teacher at McClymonds. 	She is also an Association site
representative, a position that serves as a first-level grievance representative. During the 2001-
2002 year, she served on the Leadership Team and Small Group Learning Committee. 	Ough
testified for the District. 	She offered the opinion that McClymonds is not a "gung-ho union
school." Ough, in her first year as site representative in 2000-2001, tried to drum up interest
for the faculty council, without success.
In December 2001, Dodd announced the availability of funding which could not be
disbursed without a working faculty council. Robinson volunteered to get the ball rolling.
29

According to Robinson, when Dodd gave Robinson the memorandum on funding, Dodd
suggested he give someone else a chance because he was on enough committees. Dodd
testified that Robinson asked her if she wanted him to be chair of the council and she
responded that he should take it up with Ough as site representative; that she, Dodd, was "out
of it." She specifically denied telling Robinson he was on enough committees. I credit
Robinson's account as being more plausible. Robinson would have known the positions on the
committee were voted in by the staff rather than appointed by Dodd. 	Robinson did contact
Ough at Dodd's suggestion. But the council was not constituted until March 2002, and only
after Robinson obtained the necessary paperwork for the elections from the Association and
completed it. Robinson was elected to a position on the council. The first meeting was in late
March or early April.
E. 	2001-2002 Classroom Observations
Thompson conducted two formal observations of Robinson in his eleventh grade U.S.
history class on December 10, and 11, 2001. Thompson entered these dates in the appropriate
blanks on the first page of the standard classroom observation form. 	The form's own language
states:
Completion of interim evaluation by 2 nd Friday in December.
Completion of final evaluation by last working day in April.
The final evaluation is to be prepared on a separate form entitled "Evaluation Report for
Certificated Employees." As opposed to 2000-2001, a final evaluation form for Robinson was
prepared in 2001-2002.
The copy of the classroom observation form entered into evidence shows a date stamp
of January 8, 2002, by the District's human resources office. 	The next three pages set out the
teaching standards and the grading for each observation. As noted above, each standard has a
set of evaluation criteria and there is a "summative rating" for each of the six standards. 	At the
30

top of the column for the summative rating, the form states "Final April Summary Rating."
The individual criteria allow for grades to be entered for up to five observations.
On the second page, Thompson entered all "3"s. There are three "3"s for the first
standard ("engaging and supporting all students in learning"). Two criteria are left blank.
Thompson also entered a " 3 " for the summative rating. As to the second standard on this page
("creating and maintaining effective environments for student learning"), Thompson entered
four "3"s. He left two criteria blank. Again, Thompson entered a summative rating of " 3 " for
the second standard. These individual ratings were all entered after the first observation. The
appended comments following the first observation from Thompson state:
The teacher was able to engage most of the students in
meaningful discussion on issues requiring the use of critical
thinking skills. Some of the students were disengaged and did
not participate.
Robinson chose to enter this response in the space provided:
Students are working toward understanding the standards of the
course relative to the discussions that are taking place in the
classroom....
On the third page, Thompson gave Robinson two "3"s and left three blank under the
standard for "understanding and organizing subject matter for student learning." A summative
rating of " 3 " was entered for this standard. Thompson gave two "3"s, left three blank, and
issued a summative " 3 " for "planning instruction and designing learning experiences for all
students." These ratings issued after the second observation.
The fourth page contains no ratings, individual or summative, for the fifth standard,
"assessing student learning." Thompson entered two "3"s after the first observation and two
"3"s after the second observation under the sixth standard, "developing as a professional
educator." A summative " 3 " was given for the sixth standard. In sum, Thompson gave
Robinson a " 3 " for five out of the possible six summative ratings, with one blank.
31

Thompson's comments following the second observation were:
Teacher is making every effort to make standard base [sic]
learning/teaching the heart of the course.
Robinson responded:
I agree and I am proud of how the students are coming along.
F. 	January 14 Faculty Meeting
Robinson was assigned to present the Climate Committee's recommendation to the full
faculty on January 14. 	Robinson was caught off guard when Dodd told him of a late addition
to the agenda. 	She had directed McNeal, Bradford, and another staff member handling
attendance matters to present an update on the newly implemented tardy/detention policy.
Robinson characterized this implementation as a "precursor to establishing a fully funded
'Intervention Room' for handling discipline, hall walking, tardies and other problems."
Robinson interpreted the McNeal/Bradford report as maligning the teachers for referring too
many students to the detention room. 	Apart from an additional concern from advocates for
athletes who objected to the service of detention during practices and games, DuBois noted
that Bradford and McNeal objected to implementation of the tardy/detention policy because it
increased their workload. 	The attendance staff asserted that the detention room was not
intended as a place to send students for problems other than tardiness. Dodd initially testified
the attendance staff was simply reminding teachers to accurately and timely submit tardy
notices to them, but later acknowledged that they also objected to teachers referring
disciplinary problems other than tardies to the detention room.
Developed by the Climate Committee, the detention room took place in the auditorium
after school, before school, or during lunch. 	The attendance staff along with Assistant
Principal Tami Bell and Thompson staffed this room. 	Additional coverage of the detention
room was assigned to staff on a rotating basis. According to Reeves, with 20 or more students
32

there, it was a hardship, and "[the room] just wasn't happening for McClymonds." In contrast,
the intervention room would have occurred during the school day (thus explaining the need for
funding for staff) and would have been a way to deal with discipline-problem students without
suspending them.
Robinson began his presentation by pointing out that Dodd had approved use of the
detention room for referrals of disciplinary problems other than tardies. 	Dodd acknowledged
to the faculty that Robinson was correct. On redirect examination, she asserted that she added
the caveat that this only applied when she was staffing the detention room, a claim I reject as
implausible.
Because of the added agenda item and because Dodd wanted to press on with the
remaining agenda items, no vote was taken on the committee recommendations. Robinson
believed that a full-faculty vote was not always required to adopt such recommendations. 	The
already implemented tardy/detention policy aside, Robinson believed the faculty approved the
remainder of the recommendations. District witness Bell corroborated this to an extent when
he testified that he assumed at least some portions of the recommendations were effectively
approved for implementation.
Robinson acknowledged that Thompson raised an objection about the sequence of
actions (chart of progressive sanctions) not conforming to District policy. 	The District has a
form for suspension of students that lists which offenses may result in immediate suspension
and which first require intervention steps. 	After the meeting, Robinson and Thompson spoke,
with Robinson questioning why the administration had not raised this objection when it was
before the Leadership Team. He insisted that the administration make those corrections; that
the Climate Committee had concluded its work. Robinson also understood the package of
recommendations would be placed on the faculty meeting agenda for February. 	Dodd testified
33

that Robinson took notes on faculty input and that the matter would be referred back to the
Leadership Team, and returned thereafter to the faculty. 	It never was, as explained below.
Both DuBois and Claiborne were frustrated at what they perceived as the
administration's failure to follow through with implementation of the recommendations to deal
with disruptive students. DuBois believed that it was the Leadership Team, not the Climate
Committee's, responsibility for moving forward with adoption of the recommendations. 	She
was unsure what prevented the Leadership Team from acting. 	Claiborne met with Thompson
and Bell to share his concerns. He claims he got no specific answers. As a result he concluded
that all of the committee's efforts had "gone down the tubes." Claiborne had been involved
with the disciplinary issue for many years at the school. He required students to serve
detention with him personally.
As to the intervention room, Dodd testified that she advised Robinson and DuBois to
write a county probation department grant application for the room, but none was ever written.
DuBois testified that Dodd never encouraged anyone to seek funding for the room and, as
noted above, she believed Dodd was opposed to the idea. Ough concurred with DuBois's
reading of Dodd. 	Reeves recalled that DuBois got an application form for the grant with the
probation department, but believed that Dodd would have had to complete it. 	Bell testified that
an application had to be made to the County Office of Education through the District offices.
Bell acknowledged that Dodd would have had to approve any application, but claims it never
came to that for reasons not made clear to me by his testimony. Minutes from as late as the
March 5, 2002, Climate Committee meeting, submitted by the District, indicate a report that a
grant to the Alameda County probation department could be submitted for staffing of an
intervention room. This contradicted testimony by Bell that the school was too late for the
funding cycle. 	I find that whatever its professed explanations, the administration declined to
34

move forward with the intervention room recommendation and that a substantial motivating
reason for that was its opposition to the room.
G. 	January 15 Silent Sustained Reading Implementation
The Leadership Team had resolved in the fall of 2001 to implement a "silent sustained
reading" (SSR) period. Robinson supported the idea at that time. 	SSR was designed to
encourage students to develop an appreciation and discipline for voluntary reading. Although
some teachers had begun this practice earlier, it was announced that beginning on January 15,
2002, at a designated time all students, regardless of the classroom they were in, were to read
some legitimate reading material they had selected for a 10-to-15-minute period.
During the first official day of the school-wide implementation, Robinson distributed a
"provocative prompt." He did so because he had learned of resistance to the exercise at other
schools through his credentialing program and discovered a fair number of his students came to
class without selected reading material as instructed. The "provocative prompt" read:
First Day SSR, I look around the room and I see students doing SSS,
silent sustained sleeping. 	Reading, focusing on something for even two
minutes seems to cause them untold pain. I have never in my entire life
witnessed anything so pathetic as this. It make me lose all hope as a
teacher. Half students [sic] are not reading, one is taking phone calls
after I told her to shut the phone off. 	Some are just staring off into
space. Others are chomping at the bit to chop it up with anyone about
anything so long as they don't have to read. I gave them a two page
excerpt from a speech by Frederic [sic] Douglass, an ex-slave who taught
himself to read under threat of death, because black folk in the day could
get "killt" if they were caught reading. 	I look at our black folk today
with their $150 sneakers and all the other freedoms they have and it
makes me sick to see these young folks so spoiled with their gold teeth
and cellphones and pagers talking about nothing except some he said she
said shit. They're lost and they don't care. Worse yet, they think they
already know everything already — that they're already adults. "I'm a
grown ass[13] man." Or "I'm a grown ass woman," yet they're scared of
13 Berkeley High School Slang Dictionary (N. Atlantic Books, 2004), page 11, defines
"-ass" as:
suffix/adj., Add emphasis to an adjective. 	"Those are some good-
ass cookies." "That is a bad-ass haircut."
35

silence, or of reading a book. No wonder our people are the laughing
stock of the human race.
The following day, a parent of one of the students in Robinson's multi-cultural studies class
complained to Dodd about the essay Robinson had distributed. Dodd spoke to some of the
students. 	They reported to her that Robinson prepared it at the computer in the classroom
because some students were not reading and some had failed to comply with his directive to
turn off their cell-phones. 	Some students said they were offended by the "laughing stock" and
materialistic references; others thought the essay was "cool." Several staff members also
found the essay offensive to blacks, including Bradford and McNeal, who complained to Dodd.
It appears Robinson had distributed the piece in staff mailboxes.14
Dodd was offended by the piece and informed Robinson to meet regarding the
complaint. Robinson requested the presence of an Association representative. As reflected in
his testimony and a contemporaneous memorandum he wrote to Colwell, Dodd became upset
and angry with Robinson when he would not meet with her immediately because he could not
arrange for Association representation, and that she hung up the telephone on him after he
informed her that it was Thompson who advised him representation would be advisable due to
the seriousness of the matter. Dodd claimed she told Robinson that rescheduling the meeting
would be no problem. I credit Robinson on this point. Colwell was present when Robinson
met with Dodd and Thompson on January 17.
At the January 17 meeting, Robinson explained that he was using the document for
classroom management purposes and that the use of harsh language was a vehicle to get his
students to relate to his plea. He also stated it was part of a lesson plan that included a
T4 Bradford had a grandson attending McClymonds in the eleventh grade. 	She testified
that her grandson brought the essay to her and was upset. 	But Dodd contradicted Bradford's
claimed impetus for her complaint when she testified the complaint came from a parent of a
student in Robinson's ninth grade multi-cultural studies class.
36

Frederick Douglass speech, presumably the one cited in the essay.15 According to Dodd,
Robinson gave conflicting accounts regarding the essay's authorship, stating it was a fictional
piece taken from the internet. 	I credit Dodd's testimony that he was not completely truthful in
his answers regarding authorship.
Addressing Colwell, Dodd stated that as a parent, she, too, would have been appalled.
Colwell neither agreed nor disagreed with her opinion. He agreed to have Robinson first clear
any similar provocative device in the future with the administration. At the conclusion of the
meeting, Robinson offered a hug to Dodd, who refused, stating, "I'm still mad at you."
Robinson's testimony on this point was corroborated by Colwell. Dodd denied she said she
was mad at Robinson. I credit Robinson and Colwell.
As a result of the meeting, Robinson was directed to discuss the matter with the
complaining parent, directed to meet with Thompson regarding lessons in the future, and
confine future lessons to the "context of the subject and content area." Robinson claims he
spoke with the complaining parent, who was understanding after receiving his explanation.
After reporting back to Dodd, Robinson testified that she told him he should have been "man
enough" to meet without the Association.
Sometime in March 2002, Dodd observed Robinson leading his students single-file
through the halls during SSR. He was reading, some in line were reading, and some at the end
of the line were not. Dodd did not speak to Robinson about it, but she assumed this evidenced
his continuing failure to implement SSR.
15 Robinson testified that the Douglass piece was attached to the handout distributed to
the students. The District questions whether it was because neither Dodd nor Thompson had
seen it before the meeting. Robinson produced it after the meeting, according to Thompson
and Colwell. But Dodd testified both pieces as well as a lesson plan explanation were
presented at the meeting. I find that the Douglass speech was passed out because the essay's
contemporaneous reference to it would not otherwise make sense.
37

H. 	January 31 Climate Committee Meeting
On January 17, 2002, Dodd issued a memorandum to Robinson and McNeal regarding
the "unfinished" work of the committee. After noting attendance statistics included with the
memorandum, she requested "all final revisions" of the attendance, tardy/detention plan and
student incentive plan be submitted to assistant principals Bell and Tadd Scott by February 1,
to be followed by presentation to the faculty on February 19. 	She added:
. . . 	I want staff to see a committee that is functioning as a team
and not see members of the committee questioning issues that
should have been discussed and clarified before any presentation
to your colleagues.
It is obvious that even members of your committee are unclear as
to discussions, decisions, and recommendations agreed upon
during your meetings.
Based on the context of the circumstances, I find this statement refers to the attendance staff's
complaints at the January 14 faculty meeting. Dodd also indicated both areas (student
attendance and student incentives) would be "presented" at the February 19 faculty meeting.
On January 24, 2002, a memorandum issued from the District offices notifying
principals to submit recommendations for release of probationary, temporary-contract, and
intern-credentialed teachers. 	The deadline for return of the recommendations was February 4,
2002. The District was obligated to notify released teachers by March 17, 2002.
On January 31, 2002, the Climate Committee held a controversial meeting. Some
members complained that the committee was being set up as a "scapegoat" for failed
implementation of reform around student discipline. 	The matter of Rader's involuntary
transfer came up as a possible incident of retaliation. 	Robinson took minutes of the meeting,
and noted these controversial comments, after Bradford had left. 	McNeal and Reeves did not
agree with these comments. A request was made for signatures. DuBois did not want to sign.
38

Reeves explained to Robinson that she needed to distance herself from such controversy,
owing to her tenuous status.
The minutes began with a summary of the committee's responses to Dodd's concerns,
expressing agreement on specific consequences arising from early problems with
implementation of the tardy/detention policy. 	Robinson recorded the following with respect to
"potential scapegoating," the committee's apparent response to the accusatory tone in Dodd's
January 17 memorandum:
It was also agreed that the climate committee could potentially
become the scapegoat in case this policy or other initiatives fail.
It was also agreed that the task we have before us to transform the
culture and climate of the school is so complex, comprehensive,
and difficult, that the few of us who have committed to this
process have been put in the position of being condemned for not
achieving unrealistic expectations while not receiving the support
we need nor the appreciation we deserve for our efforts.
Furthermore, the fact that only a few people are here for every
meeting and that the membership is very transient due to the busy
schedules that people have and the perceived difficulty of our
task, has made consensus difficult and has made it difficult to
keep everyone informed of every decision, whether by our
committee, or by the Leadership Team, which has changed some
of the recommendations made by the committee.
The January 31 minutes also contained a recounting of Robinson's attempts to clear the air in
response to Bradford angrily returning a note Robinson had posted on the door outside her
office, bearing the statement "Mind your own business." Robinson testified it was intended as
a "do not disturb sign." I do not find Robinson's explanation credible. The more likely reason
for the posting grew out of Bradford's role in causing him to be reprimanded by Dodd for his
SSR provocative prompt. 	I conclude that Robinson's "mind your own business" sign related to
her complaint. Robinson delivered the minutes to Dodd on February 1.
39

I. 	Dodd's Non-reelection Decision
On the same day the January 31 minutes were submitted, Dodd informed the District
that she was non-reelecting Robinson. 	The list included the names of four other certificated
employees.
At the hearing, Dodd first referred to an e-mail dated April 2, 2002, to the District in
reciting the reasons why she chose to release Robinson. The e-mail is a response to a request
for reasons why the five employees were released. As to Robinson, her e-mail states:
2000-01 Evaluation indicated does not meet
standards[/]developing in 3 out of 6 teaching standards.
2001-02 Evaluation (formal - still in progress) indicates meeting
standards.
Informal evaluations indicate lack of student engagement, use of
video's [sic] and/or lecturing for majority lessons [sic].
Use of inappropriate instructional materials.
Instructional practices not aligned with identified best practices
and student outcomes as indicated in the II/USP Comprehensive
School Site Action Plan.
Inconsistent grading policies and attendance procedures.
No consistency between formal and informal classroom
observations[16 ]
The list indicates that the recommendation for each teacher was based on teaching deficiencies
or other cause (e.g., excessive absenteeism).
76 Other than the "Menace II Society" class, and another she observed with Woehrle,
Dodd did not elaborate on deficiencies she personally noted during informal observations.
Dodd testified that a "New Teacher Support Program" mentor teacher informed her Robinson's
classes were not particularly effective during unannounced observations. That teacher did not
testify. 	Thompson testified he did a number of informal observations. 	I found his attempt to
elaborate on his criticisms unconvincing, vaguely repeating the previously cited incidents of
students walking in late without consequence, teaching to only a core of the students, and
Robinson's emphasis of social/political themes.
40

On cross-examination, Dodd led with failure to implement SSR, followed by
continuous showing of movies without seeking administrative approval, and failure to engage
students in a rigorous curriculum focusing on the subject matter of Robinson's courses. In this
portion of her testimony, elaboration on Robinson's failure to implement SSR was weak and
lacking specificity. 	Dodd claimed that Robinson's students "weren't necessarily engaged in
active reading during a specific time of the day," according to some classroom observations
conducted. 	Taylor, a witness for the District, offered some corroboration for Robinson's
apparent failure to teach the U.S. history standards based on queries she made of students they
shared in common. Unlike the students in other classes, his had difficulty explaining what
topics they were studying and some denied learning about the Declaration of Independence and
Constitution. Also, she had occasion as a resource teacher to observe Robinson's classes
briefly and had some negative comments regarding course alignment. Taylor did not claim to
have reported her concerns to Dodd.
The District's governing board adopted Dodd's recommendation on February 27, 2002.
Notice of non-reelection was issued to Robinson on March 8. Robinson requested a meeting
with Dodd to discuss the matter. A meeting was held on March 25, attended by Robinson,
Dodd and Thompson. Dodd made a list of "talking points" to explain her reasons. The list
was similar to the (subsequent) e-mail noted above, but had some items not included in the
later list, such as "students not challenged - ditto sheets and minimal writing and reading,"
"little or no homework assignments," and "majority of classroom instruction is lecturing or
video." The list did not mention the SSR provocative prompt. Robinson recalled that the only
criticisms voiced by Dodd in the meeting were "not teaching to the standards" and "not
sticking to the text." Dodd testified that the lack of homework assignments was based on a
41

parent complaint, directed at several teachers, but that the parent was only dissatisfied with
Robinson's follow-through.
The Association presented Regina Brooks-Day to rebut the criticisms of Dodd.
Brooks-Day, a graduate of McClymonds, was employed by the Gear-up Initiative Program, a
student mentoring program sponsored by Cal-State Hayward. 	She has also been a substitute
teacher in the Hayward Unified School District. Brooks-Day and her partner at McClymonds
shared responsibility for mentoring and tutoring ninth grade students under the Gear-up
program. Brooks-Day's tutoring took place in the classroom two or three days each week. 	She
had the opportunity to observe Robinson's class as well as those of other teachers at
McClymonds.
During the 2001-2002 year, Brooks-Day worked with students in one of Robinson's
multi-cultural studies classes. 	She was impressed with Robinson's willingness to engage
students by encouraging them to speak up in the classroom. 	She especially remembers one
marginalized student who bought into her program largely because he had established a
personal relationship with Robinson. In her view, Robinson communicated his expectations
for students. 	Brooks-Day testified that Robinson did assign homework and that she and others
worked with the students on those assignments. She also mentioned, as a caveat, that it was
often difficult for ninth graders to develop homework habits. 	Some of the work the students
did in Robinson's class was included in personal portfolios the students prepared for her
program.17
17 As evidenced by an II/USP evaluation report, specifically, the section on the ninth-
grade, small learning community initiative, ninth grade is a critical grade for acclimating in-
coming students to academic rigor. The report urges teachers to give them encouragement
while setting high standards, have contact with parents, and be aware of students' life
circumstances. Robinson did write to parents at the beginning of the year to establish a line of
communication.
42

Brooks-Day denied that Robinson showed an excessive number of videos. 	The videos
he did show had a positive impact on her. 	She cited the movie "Remember the Titans," noting
that Robinson directed the students to consider a set of questions and respond to them in
essays. The movie, starring Denzel Washington, recounts the success of an early integrated
college football team in the South and how the team's goals contributed to development of
cross-racial relationships. 	The Association introduced a sampling of student work from
Robinson's multi-cultural studies and U.S. history classes, including the essay assignment for
"Remember the Titans." The assignment called for a five-page composition using 70 of 100
listed vocabulary words. A copy of a final examination from one of Robinson's ninth-grade
students thanked him for being a "challenging teacher."
Robinson's U.S. history course syllabus notes that the course will employ The
-
Americans as the primary textbook, supplemented by articles, essays, other books, internet,
multimedia resources, films and videos. Robinson indicates that for both his U.S. history and
multi-cultural studies classes he will use differentiated teaching practices, defined as including
direct instruction, inquiry, discussion, collaborative learning, research, project-based learning,
multi-media, games and role-playing, debates, and computer and internet-directed learning. A
post-Civil-War reconstruction unit lesson plan of Robinson's identifies the "California State
Academic Standards" designed to be met through the unit.
The administration never voiced any concern to Charlesworth about Robinson failing to
teach the standards prior to his release. Charlesworth noted that ninth grade social studies was
not tied to state standards and that the District had elected multi-cultural studies and life skills
43

to fill the curriculum for that year.18 Charlesworth stated that multi-cultural studies was loose
in structure but its focus was on post-World-War-II times. He understood Robinson's idea of
supplementing the curriculum because "to make this course work for the students at
McClymonds, there needed to be other things . . . supplementing . . . to . . . get them interested
and pull them in." Based on his brief drop-in visits to the classroom (total of 20-25 minutes of
observation) and discussions with Robinson, Charlesworth believed Robinson attempted to
have students more engaged, active, and "creating what they were interested in learning about"
than would be the case in a more "traditional" classroom. Robinson's multi-cultural studies
final examination does support the District's contention that Robinson relied on videos in his
class. Robinson did show more than the average number of videos, but not as many as some
others, according to Charlesworth.
The District introduced a ranking of SAT-9 scores for McClymonds social studies
teachers for the spring of 2002. Robinson rated fourth out of six teachers. 	However the report
also shows he was grouped closer to the top four than the bottom two and closer to the mean
test score than the bottom two.19
18 The state Board of Education has established ninth grade as an elective
year for social studies. There are no state standards for ninth grade. (California
State Board of Education, History-Social Science Content Standards for California
Public Schools. Kindergarten Through Grade Twelve (1998) pp. 41-42
<http://www.ced.ca.gov/re/pn/fd/documents/histsocsci-stnd.pdf> [as of Aug. 16, 2004].)
The website produces a note stating that schools are urged to offer a suitable range of electives.
Charlesworth labeled the life skills class even more nebulous content-wise than multi-cultural
studies.
19 The mean score was 33.8798. Robinson's students tested at 32.6833. The top four
scores were 36.8333, 36.0702 and 33.5147. The bottom two scores were 27.0547 and 20.7556.
At the present time, there is no social studies testing at the ninth grade level. (California
Department of Education, Standardized Testing and Reporting, Test Results Reporting Site,
About STAR <http://www.star.cede.ca.gov/star2003/aboutSTAR.asp> [as of Aug. 16, 2004].)
44

The District conducted a compliance assessment of McClymonds teachers in April
2002, using its own evaluator, Derek Mitchell (equity issues) and vice-principal Scott. The
District introduced the document to show that the social studies department ranked second to
last based on the team's informal classroom observations. But I believe the more pertinent
statistic is Robinson's individual ranking of 20 out of the total of 33 McClymonds teachers
observed. 	Mitchell informed Robinson that only McClymonds' U.S. history classes showed
rises in SAT-9 scores, and that of the three U.S. history teachers, he had the most students.
There was no rebuttal from the District on these points.
The team's evaluation of Robinson's U.S. history class was also introduced, in part to
allow Dodd to note Robinson's complaint about the " 1 " rating he got from Scott for
"communicative instruction" (student-students and student-teacher interaction). Three
observations occurred. Four standards were measured on each occasion. Of the 12 standards
measured, Robinson received three "3"s, eight "2"s, and one " 1 . " His average score was 2.17,
or slightly above average. Notably, Robinson received a " 3 " on each observation for the
standard related to the teacher's "communication of learning objectives and the relation to
standards." Under that category, Mitchell gave a special commendation to Robinson for
"build[ing] connections between past, present, and cultures." Robinson received a "2" on each
occasion for the standard measuring differentiated learning, with the evaluator crediting
Robinson for "regularly checking with students for their understanding from a range of
students." After receiving the " 1 " for "communicative instruction," Robinson's subsequent
grades in that category improved to a "2," with the evaluators noting that Robinson asked
questions with sufficient wait-time for answers, and extended the discussion with follow-up
questions. 	With respect to classroom management, Mitchell's notes indicate that Robinson had
45

addressed Thompson's January 2001 criticism about letting students in late without
admonition.
Sometime in the 2001-2002 year, Robinson ran for a seat on the executive board of the
Association. 	He distributed a flyer in staff mailboxes at McClymonds. 	His platform
emphasized the need to improve teacher morale by dealing with disciplinary polices. He
touted his activities on the Climate Committee. Robinson testified the flyer was posted in late
February or early March 2002, which would have been after Dodd communicated her decision
of non-reelection to the District.
J. 	2001 	-2002 	Year-End 	Evaluation
Thompson testified that, after prompting by Dodd, he conducted two additional
classroom observations on March 5, and April 11, 2002. Rather than utilizing the District's
standard observation form as he had previously, Thompson took personal notes, but he was
unable to produce them for the hearing. Robinson denied that he was observed on these dates.
Thompson claimed he completed a final "evaluation report," dated April 23, 2002,
presented it to Robinson, and discussed it with him. Robinson refused to sign it in
acknowledgement of its issuance. 	Robinson denies he was presented with it. Robinson
testified that he discovered the evaluation form when he inspected his personnel file at the
District's central offices after his charge was filed, in December 2002. It was not in his file
when he inspected it on April 30, 2002. Robinson further testified that the human resources
clerk told him that the document appeared to have been entered in the file improperly, because
it did not bear a date-filed stamp. The District offered no rebuttal on this point.
Thompson assigned Robinson one " 3 " ("meets standards") summative rating for
"engaging and supporting all students in learning." He assigned four "2"s ("does not meet
standards; developing") for all but one of the others, "planning and designing
46

instruction/learning experiences for all students," for which he assigned a " 1 " ("does not meet
standards; unsatisfactory").
Under the comments section, Thompson wrote:
Mr. Robinson seems to have a personal agenda when it comes to
subject matter content. He has the standards correctly posted in
his room but uses personal standards and materials. He also uses
methods of teaching the content that are questionable [sic]. Mr.
Robinson did not comply with specific directions and
recommendation from the principal, Lynn H. Dodd, nor his union
representative regarding the use of specific materials. 	Mr.
Robinson also violated district policy with regards to using
students (filming them) as they responded to questions in
reference to school site policy and procedures. Mr. Robinson
refused to accept a letter from his evaluator regarding this action.
Thompson testified that during the 2001-2002 year, Chaconas directed a change in the
evaluation procedure to require five classroom observations: three formal and two informal.
Dodd interpreted the directive for the two informals as being fulfilled by additional formal
observations as well. It was not clear whether Thompson's observations were informal or
formal. 	The evaluation report suggests they were formal because they were preceded by pre-
observation meetings, which Robinson denied ever occurred. 	If they were formal, one would
have expected to see documentation.
Other inconsistencies concerned me. 	Thompson checked the box "continued
evaluation" as the disposition following the evaluation report, rather than the box for
"dismissal," which would have been the logical mark, given Robinson's March 8 release from
employment. Despite having claimed that he recommended to Dodd that Robinson be released
in February, Thompson denied telling Robinson of that fact as he continued to evaluate him.
Again, his recommendation to Dodd suggests he would have documented the additional
evaluations. 	Thompson's credibility was severely challenged by the abrupt change in the
summative marks he gave on the previous classroom observation form (all "3"s in the "Final
47

April Summary Rating" box) to the "final" (one "3", four "2"s, and a "1"), without any
documentation of the subsequent observations. Thompson's ability to identify his criticisms in
the final evaluation prior to having it presented to him on the witness stand was non-specific
and unconvincing. 	The overall assessment following the final classroom observations that he
initially offered was surprising mild, but also vague:
My overall assessment was that Mr. Robinson had made some
progress and the things we had discussed and evaluated upon his
previous evaluation, but there still needed to be some
improvement in specific areas regarding observing the kinds of
recommendations made by administration as to his teaching
methodologies, the pedagogy that he was using,. . .
Thompson claimed on cross-examination, in defense of the abrupt change in markings, that
Robinson's culturally-based content increased markedly during this time, a claim I also find
unconvincing. He stated:
I believe that Mr. Robinson had something personal he was trying
to get over to the administration or maybe I don't know to whom.
He was absolutely, when observed, was not following anything
close to what he was doing when I was formally going into his
classroom and letting him know I was coming. 	So, it became
clear to me as I indicated there that for some personal reason, he
has an agenda that is different from what should be done and
taught in the classroom.
Given Robinson's SSR counseling and his continuing apprehension over his employment
situation (his non-reelection notice was not issued until March 8), I seriously doubt he would
have gone in this direction. Thompson's comments in this instance suggest he was claiming to
do informal observations, but he never elaborated on instances of these, assuming they were
separate from the scheduled observations.
Also, given that Robinson had entered remarks on his previous observation forms over
relatively minor criticisms, I doubt he would have declined the opportunity to enter his position
with respect to the harshly critical final evaluation form. 	The form indicates that signature
48

does not acknowledge agreement with the evaluation. 	As a form of absence-of-fresh-
complaint evidence, Colwell, who was in constant touch with Robinson during this period of
time, received no call from Robinson about a negative evaluation. I credit Robinson on his
contention that the subsequent observations never occurred and that he was never presented
with the final evaluation.
Thompson visited Robinson's classroom on April 9 while he was showing the movie
"Hurricane," a movie about professional boxer Ruben Carter who was convicted of murder,
fought for, and eventually won his freedom through a new trial. 	Robinson testified that
Thompson observed the class for some time, asked a student a question, left without comment,
and, after the class, complimented Robinson on his employment of the film as a teaching
device. Thompson did not dispute these points, and I credit Robinson on them.
Nevertheless, Thompson issued Robinson two successive memoranda on the subject of
the movie showing. 	The first emphasized the movie's "R" rating and the need for parental
consent slips. The second (apparently a "corrected" version) added that Robinson was under a
requirement to obtain prior approval from an administrator. 	I find it difficult to credit these
memoranda as being sincere. Robinson was open with Thompson at the beginning of the year
that he would be showing controversial films as evidenced by the agreement on Stull
objectives. Robinson had identified "Hurricane" as a movie he intended to show. "Hurricane"
is R-rated. 	(Internet Movie Database <http://www.filmratings.com> [search on movie title] [as
of Aug. 16, 2004].) Thompson only objected to "Menace II Society" and "Slam."20
20 Thompson testified to other instances of post-non-reelection misconduct involving
Robinson's failure to obtain permission slips for filming of students and leaving the school
without permission to attend Good Friday services. 	I decline to make findings on these matters
because of Thompson's credibility problems and their marginal relevance.
49

Math teacher Stanley Heron, an Association witness, credibly testified that he and other
teachers have shown R-rated movies unrelated to curriculum, typically as a reward to students
for attendance on state testing days. He noted the existence of copies of "The Matrix" and
"X-Men" in other classrooms. Heron testified he showed "Anger Management" in his class.
Although, as the District points out, "Anger Management" is not R-rated (PG-13, for "crude
sexual content and language"), Matrix is. (Internet Movie Database
<http://www.filmratings.com> [search on movie title] [as of Aug. 16, 2004].)
K. 	Faculty Council Election of Officers
Ough scheduled an election of officers for the faculty council in the art room at lunch
time in late February or early March 2002. Robinson, DuBois, Heron and two other teachers
convened in the room and waited for Ough. 	Ough never appeared. According to Ough, due to
a mix-up on the meeting location, she, and two other teachers, including Taylor, held the
election for chair and secretary in the hallway. 	Ough claimed it was just outside the art room,
a point I reject as implausible. Robinson testified that he complained to Ough and asked for a
re-vote. Ough did not recall Robinson complaining. As to this credibility dispute, I note that
Ough's attitude toward the proceedings was exceedingly poor. 	Though some of her demeanor
can be attributed to what I judged to be her spontaneous, reflexive, and somewhat quirky
personality, and some of her statements were neutral with respect to Robinson, it was
extremely difficult to assess when she was being sincere and when she was not. 	She showed
contempt for the Association's counsel during cross-examination. When she believed it would
suit her purposes, she was flippant and sarcastic. I credit Robinson's account on this point.
Heron testified that he, too, was upset about the election after discovering it had occurred
elsewhere. 	I believe Ough held the off-site election in order to prevent Robinson from being
elected an officer, fulfilling Dodd's desire that his representative capacities be curtailed.
50

Ough was elected chair and one of the others from her meeting became secretary.
L. 	May 14 Faculty Council and Leadership Team Meetings
Robinson drafted a memorandum to Dodd on May 13, 2002, with a header line reading:
"The Corrosive Impact of the Contentions & Unresolved Issues Between McClymonds'
Leadership Committee and School Climate Committee and Yourself." Copies were directed to
Chaconas, the Leadership Committee, the Climate Committee and the faculty council.
Robinson began by acknowledging Dodd's professional commitment and her authority as the
chief executive of the school. 	Then Robinson accused Dodd of tabling or blocking from the
faculty meetings recommendations from the Climate Committee and Leadership Committee
with which she disagreed. He claimed that the faculty perceived her administration as
operating in "a cliquish and punitive manner.. ." and that "almost all of the faculty have been
walking on eggs in regards to professional contributing to the school committees." Robinson
accused Dodd of singling him out as being a "disloyal enemy," isolating him, and making an
example of him.
Attached to this memorandum was a more detailed memorandum focusing on the failed
implementation of the Climate Committee recommendations, the decline in teacher morale,
and the editing of the January 31 Climate Committee minutes. (During a March 19, 2002,
Climate Committee meeting, just after Robinson announced his non-reelection, McNeal moved
to "correct" Robinson's January 31 minutes.) Of significance here is Robinson's assertion
regarding the balance of the Climate Committee's recommendations, which he claims Dodd
agreed to put back on the faculty meeting agenda, but never did. He noted Baker's admonition
at an April 9, 2002, Leadership Team meeting regarding the "unfinished business" of the
Climate Committee, from which Robinson inferred that Dodd had failed to tell Baker of the
Leadership Team's approval of the Climate Committee's final recommendations in December
51

2001. Robinson noted in the memorandum, and repeated in his testimony, that he had
requested that Dodd place the recommendations on the faculty meeting agenda each successive
month beginning in February, without success.21 Robinson attempted to hold Dodd to an
April 9 promise to place the matter on the May 14 Leadership Team meeting agenda. He
added:
. . . I would like to request that you place the balance of our
proposal on the final faculty agenda, in particular, the
"Intervention Room," because of the lead-time required in
applying for County Probation Department funding.
Robinson brought up the matter of his memorandum beginning with a faculty council
meeting on May 14. Bridget Taylor, a social studies teacher, Small Learning Community
Committee member, and Leadership Team member, and LuPaulette Taylor disagreed with the
"walking on egg shells comment" and did not feel the meeting was an appropriate time or
place to discuss the issue. According to LuPaulette Taylor, Robinson was "very upset," but
not "ranting and raving."
Edna Perkins, a math teacher and leader in the school through her stewardship with
Ough of the Small Learning Community Committee, recalled Robinson being "very
disappointed" that no one supported him. I found Perkins an interesting study. Her demeanor
was relaxed and she appeared to empathize with Robinson and his situation. However, she
also appeared to have bought into notions that Robinson was an elitist, that students felt "he
was not like them," and therefore did not relate to him.
The minutes of Climate Committee in the months of February and March, 2002,
offered by the District, indicate that the committee was addressing issues concerning the need
to recruit volunteers for the detention room. The March 19 minutes, prepared by DuBois, note
McNeal observing that if chronic cutters were suspended, 100 suspensions would occur in a
week. 	He also mentioned that if in-house suspensions did not occur, formal suspensions would
have to occur, but that the school needed to be serious about its sanctions. Robinson is noted
as seconding a motion to grant stipends to teachers staffing the detention room.
52

In a more supportive stance, Payne, corroborating Robinson, testified that the faculty
council agreed to discuss the letter further and proposed that Robinson edit it to make it shorter
and more specific. Payne did not believe Robinson acted inappropriately at any time. 	Heron
agreed with Payne as to the resolution of the meeting. Heron opined that Robinson was
passionate and intense, but never threatening. Bridget Taylor could not recall any discussion
about reformulating the letter. I reject this testimony in favor of Payne and Heron's
recollections. 	Several teachers interpreted Robinson as seeking support to be retained at
McClymonds. 	Some felt uncomfortable with this notion, feeling it was either an inappropriate
topic to be discussed, or believed Robinson failed to substantiate his contentions. Bridget
Taylor believed that some shared her view that Robinson should take his issue to the
Association rather than present it to the faculty council, an impression I do credit.
A Leadership Team meeting occurred later that day. Robinson was present, but came
in late. His letter of complaint was not on the agenda, but he had spoken to Ough about getting
it on the agenda. Even though it was not, Ough broached the issue. In essence, Robinson had
chosen this moment to "be heard": the window for faculty approval of the Climate Committee
recommendations, at least while he was at the school, was closed or closing.
Despite attempts to defer his issues, Robinson persisted. He raised issues concerning
the lack of respect shown for his contributions, both in terms of the reform initiative and the
personal skills he offered, namely, his use of video and technology in the classroom. He
blamed the administration for failing to implement the Climate Committee's recommendations.
This occasioned the most heated discussion because Bell and Robinson argued over
Robinson's complaint that the work of the Climate Committee had been obstructed as a result
of the administration repeatedly requiring the committee to redo some part of it. 	Robinson
recalled that Dodd turned to Bell to ask him to confirm her understanding that the sequence of
53

actions had not been completed. Bell corroborated this point, recalling that Dodd wanted to
know if he had given Robinson the District student suspension form. 	Bell testified that he
handed Robinson the document at the previous Climate Committee meeting.
Robinson testified and produced minutes of the meeting quoting Bell as saying, "We
can take this outside and settle this privately if you'd like," which Robinson interpreted as a
physical threat. Bell testified that he did suggest that the matter be discussed between the two
of them outside of the meeting, but it was because he sensed the tenor of the meeting
degenerating and veering off tangent. 	Bell denied calling Robinson a liar, but did claim that
Robinson called him a liar, when Robinson denied receiving the suspension form. Bell
described Robinson's demeanor as "upset" and "frustrated."
LuPaulette Taylor recalled that Robinson and Bell had "reserved words" for each other.
Ough denied there was any baiting going on. DuBois testified that both Robinson and Bell
called each other liars over the issue of the committee's recommendations. Robinson's own
notes indicate that both of them accused each other of misrepresenting the facts.
Dodd testified that Robinson at various points pounded (his fist) on the table, got up
from his seat, leaned on the table, turned red, and called Bell a liar. Apart from the incident
with Bell, no other witness corroborated these behaviors, and I do not credit them as occurring.
I believe both Robinson and Bell called each other liars. It is unnecessary to resolve any other
credibility disputes.
As noted above, Bell testified that some of the recommendations of the Climate
Committee had been accepted by the faculty at the January 14 meeting, specifically those
involving the incentive/rewards program for student behavior. But Bell believed it was up to
the Climate Committee to rectify the discrepancies between the suspension form and the
sequence of actions. Both Bell and Thompson testified that the committee's recommended
54

sequence of actions conflicted with the District policy by being too severe, and that for the
committee's recommendation to be acceptable, it needed to conform to the grounds for
suspension contained in the District policy.
Robinson, in response, claims he earlier had cited the success of a similar set of
sanctions at Fremont High School, another II/USP school, a point corroborated by DuBois.
DuBois testified:
Mr. Scott and Mr. Bell were administrative members of the
Climate Committee, and part of their charge was to make sure we
were comporting. On the Leadership Team, Dr. Thompson, as
well, and so when the discussion occurred with regard to changes
that were being made to the sequence of action, it was agreed by
all that we had comported to the District's policy and from the
initial steps that came from Fremont where Fremont had also
comported to the very last thing that had been approved by the
Leadership Team.
I credit Robinson and DuBois's view that Bell and Thompson's late objections were
disingenuous. Each had an opportunity to object to the sequence of actions chart at the fall
2001 Leadership Team meetings but failed to do so. While the District's suspension form
segregates types of misconduct for which a suspension is appropriate, with and without
required interventions, the District entered into evidence an inconsistent November 15, 2001,
memorandum from Vice-principal Scott, attaching for review a draft of policies that includes a
section on suspension and due process. There Scott states he began work on the document in
the summer of 2001. 	Scott's suspension section is at odds with the District suspension notice
because Scott lists all types of misconduct on the suspension notice, without indicating that
interventions are required prior to any of the suspensions. 	Scott ends his memorandum stating:
At this point, we are ready to move as a committee to adopt the
document at the next committee meeting so that it may be
brought before the faculty and principal for adoption into the
student handbook. There is a sense of urgency. We would like to
move on this swiftly so that the entire handbook is available for
students and families before the winter break.
55

Furthermore, the District's only evidence of a discrepancy was from Bell who recalled
"defiance of authority" as not having intervention steps prior to suspension. 	However, the
committee's sequence of actions does have two intervention steps prior to suspension and thus
conforms to the District form.
After Robinson left and the Leadership Team meeting adjourned, a group that included
Dodd, LuPaulette Taylor, Bridget Taylor, DuBois, Perkins, Ough, and Moore remained. The
events were sufficiently unnerving to compel the teachers to discuss Robinson's situation.
Moore reflected the views of those attending when she stated that Robinson's efforts to cull
support were going nowhere. Critical comments about his teaching also emerged. Moore
wrote in contemporaneously taken notes that everyone knew that Robinson was not teaching
effectively, but that no one had confronted him or assisted him. 	She noted there was sentiment
for more direct teacher mentoring going forward. 	Some teachers expressed concern for Dodd's
personal safety.
Ough submitted a memorandum to Dodd on May 15, 2002. It stated:
The [Faculty Council] meeting of 5/14 addressed the letter that
Ron Robinson passed out the day before. 	The letter expressed
some concerns that the faculty had some fears of speaking out for
fear of retaliation and were "cliquish." When Ron was asked to
clarify his statements, he couldn't. When the council was asked
for our support, we couldn't. After the discussion, a number of
faculty expressed concern to me over Ron's mental state. 	They
are worried that he is so unstable that he could hurt himself, but
also that he could take out his frustration on the McClymonds
"family" of which he is no longer a part. I believe you will be
that target of his retaliation.
After the Leadership Team meeting, where he demonstrated
moreso [sic] his irrational and delusional state of mind, I feel the
danger that we face is that he realized, or should have realized,
that he does not have support from the faculty. He came to me
the next day to tell me he wanted to give me some notes of his to
be put into the [Faculty Council] minutes. I feel uncomfortable
56

and pressured to include his notes in the minutes, but I won't.
But then what?
Thank you for your attention to this.
Bridget Taylor submitted a memorandum with the following:
On May 14, 2002, I began to notice a change in normal behavior
of one of our faulty members. As a concerned member of the
McClymonds family, I decided to attend the Faculty Council
meeting at lunch, to see what was going on. To my dismay, this
meeting was consumed with addressing a lengthy letter that Ron
Robinson had written and delivered the day before. At that time,
I noticed Ron's aggressive behavior begin to take over. He
seemed very defensive and paranoid when a person tried to
address the issues stated in the letter. It was at this time I noticed
a physical change in his dealings with coworkers. He leaned in
and raised his voice frequently, disagreeing with everything that
was said to him in an effort to gain clarity on the issues stated in
the letter. Later that same day, he attended the leadership
meeting.
At the leadership meeting, he came in seeming to have a set
agenda for the evening, all about Ron. He first began with the
attack on you, stating that you would not allow "his" document
from school climate committee and the group had to explain and
prove to him that that statement was untrue. He seemed to just
get more angry and desperate to get some attention. It seemed
that as the meeting progressed, he became more angry calling
people liars, and stating that he was going to finish what he had
to say, even though he was speaking out of turn, being rude and
inconsiderate of people who were in the room. I noticed through
all of this, his spacing out, not hearing what people had to say,
and having outbursts throughout the meeting. 	It frightened me!
He had the presence of a person on the verge of a breakdown. 	I
actually looked at him during one of his tirades and had a flash of
fear overcome me. I felt as though he might hurt anyone of us at
any time during that meeting, in particular, you. It seemed as
though he wanted one of us to validate him in his quest to crucify
you as an unfair principal and person. I am writing this letter to
you as a warning to keep your eyes open. I think things could
become dangerous. He is looking for someone to be on his side
and because he is not getting the support requested, I am afraid he
may do something irrational for attention. Please be careful, I
have a bad feeling about this situation.
57

Dodd recalled that Taylor was the one voicing the greatest concern about her safety. Perkins
offered a similar, but more sympathetic, memorandum:
I as other faculty members are aware of teacher Ron Robinson's
pending dismissal as he announced it in the [Faculty Council]
meeting on May 14, 2002. It is clear that Ron is going through an
extremely stressful period as he is fighting for his position.
Ron's outward appearance changes during the day from happy,
all is well to frustration and anger, which is understandable, but
there seems to be an edge to his moods that feels unpredictable.
The level of support that he seeks from staff is not forthcoming
and he is unable to identify his part in his problematic situation.
Although Ron is justified in feeling frustrated I am concerned that
he is unprepared for the consequences of what he is about to
experience. The loss of his position may catch him by surprise
and without support for his stressful experience I am concerned
that he may experience long-term negative reactions that will
further limit his ability to rebound successfully. Is there a way to
get Ron some sort of exit counseling as he is making the
transition.
Thank you for attention to this urgent matter.
Ough agreed that Perkins and Bridget Taylor were her closest friends at the school. Perkins
spoke with Ough and Taylor as she drafted her statement. At the hearing, Ough offered that
Robinson was always an intense person, but that his body language and diction changed at this
time. He was louder, sharper, and his posture was "closed up." Perkins reiterated at the
hearing that Robinson looked "very stressed" and that he exhibited mood swings. 	Ough did
not fear for herself, but for Robinson. 	Ough claimed that DuBois told her she was terrified of
Robinson at this time, a point denied by DuBois. DuBois is quoted in Moore's notes as
believing that Robinson was not presenting an objective view of the fate of the Climate
Committee's work. 	DuBois herself appeared to agree that Robinson had crossed the line of
civility.
Dodd left a voicemail for her immediate supervisor Jose Martinez (who had assumed
Woehrle's position during the 2001-2002 year) on the evening of May 14 regarding the threat
58
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to her safety. 	The next morning Martinez directed Dodd to have the teachers put their
statements in writing, and he advised the teachers of the same. Those statements are quoted
above. Dodd confirmed that she asked the teachers to do so. 	Ough and Taylor claimed their
statements were unsolicited, contradicting Dodd's testimony. Perkins also gave that
impression.
After they spoke the next morning, Martinez advised Dodd to contact law enforcement,
and she did. Martinez came to the school site on May 15 and met with faculty members.
Martinez did not testify. 	There was no evidence that Martinez spoke with Robinson.
On May 17, Martinez and Dodd requested that District Labor Relations Analyst
Leonard Bellow initiate the paperwork to place Robinson on paid administrative leave. 	Bellow
paraphrases the allegations against Robinson as:
Teachers are scared of his behavior. He has emotional outbreaks
and the staff feel unsafe around him. 	He received a March 15th
letter and since then he started his bizarre behavior. .. .
Personnel analyst Sharon Mitchell added a note that Martinez had observed Robinson and
concurred that he was a "safety issue." On May 17, Bellow gave Robinson written notice that
he was on leave because of allegations of "unprofessional conduct" and that an investigation
would be conducted. Bellow, whose task it is to investigate the allegations of misconduct,
decided the issue was moot since Robinson would not be returning to the school site before the
end of the school year, or returning the following year. 	The formal investigation never
occurred.
Dodd claimed she played no role in the decision whether to have Robinson placed on
administrative leave, a claim I reject. 	Colwell testified that the District's practices with respect
to paid administrative leaves for purposes of investigating allegations have been vexing,
because, while the District claims there is nothing "disciplinary" about the action, the
59
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employee and Association are powerless to defend against the stigma of the investigation and
inability to effectively challenge the forced removal of the employee from the worksite based
on the low threshold of proof required.
ISSUES
1. Did the District retaliate against Robinson because of his exercise of protected
activities when it issued him a notice of non-reelection?
2. 	Did the District retaliate against Robinson because of his exercise of protected
activities when it placed him on administrative leave on grounds that he was a threat to the
safety of others?
CONCLUSIONS OF LAW
The amended complaint alleges that the District retaliated against Robinson by non-
reelecting him for the 2002-2003 school year and placing him on administrative leave in May
2002. 	These acts are alleged to have occurred "because of Robinson's exercise of activities
that are protected under the EERA.22 Section 3543.5(a) makes such conduct unlawful. 	To
prove this violation, the charging party bears the initial burden of showing evidence that (1) the
employee engaged in protected activity, (2) that the employer knew of the activity, and (3) that
the protected activity was a "motivating factor" in the employer's decision to take adverse
action against the employee. 	(California State University, Hayward (1991) PERB Decision
No. 869-H; Novato Unified School District (1982) PERB Decision No. 210 (Novato').')
Section 3543(a) provides that:
Public school employees shall have the right to form, join, and
participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of
employer-employee relations. . . .
60

Motivation may be proven by either direct or circumstantial evidence, or a combination of
both. (Carlsbad Unified School District (1979) PERB Decision No. 89.)
Types of circumstantial evidence probative of unlawful intent include: (1) timing of the
adverse action (North Sacramento School District (1982) PERB Decision No. 264); (2)
inadequate, inconsistent, or shifting justification for the adverse action (Novato); (3) disparate
treatment of the employee (Regents of the University of California (1984) PERB Decision No.
403-H); (4) departure from standard procedures (Santa Clara Unified School District (1979)
PERB Decision No. 104); (5) cursory investigation (State of California (Department of Parks
and Recreation) (1983) PERB Decision No. 328-S), and (6) pattern of antagonism toward the
union or individuals engaging in protected activity (Cupertino Union Elementary School
District (1986) PERB Decision No. 572).
Once protected activity is established to be a motivating factor, the burden shifts to the
employer to demonstrate that it would have taken the same action even in the absence of the
protected conduct. (Novato; Martori Brothers Distributors v. Agricultural Labor Relations Bd.
(1981) 29 Cal.3d 721, 730 [175 Cal.Rptr. 626].)
These principles apply despite the fact that the Education Code permits the public
school employer's non-reelection of a probationary teacher without cause. 	(Ed. Code, sec.
44929.21; McFarland Unified School District v. Public Employment Relations Bd. (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 the EERA.
(McFarland, at p. 168.)
The Association contends that Robinson's requests for union representation,
participation on faculty committees, and complaints about student fights motivated Dodd to
61

non-reelect him and that the purported justifications given were pretextual. 	The Association
places heavy emphasis on the incongruity between Thompson's positive pre-non-reelection
evaluation and the subsequent attempts to build a case of deficiencies against him. 	Similarly,
it contends the decision to place Robinson on administrative leave was unsupported by any
genuine concerns and instead was yet another retaliatory act in a continuing pattern of such
unlawful conduct.
The District contends that Robinson was terminated for poor classroom performance,
his reliance on too many videos, failure to engage his students in critical thinking, and refusals
to promote SSR. It claims there is no evidence of disparate treatment as to the judgment of
Robinson's teaching compared with others not engaged in protected activity. 	The District
contends that much of Robinson's activity was a personal agenda and therefore not protected.
Even if protected, that activity lost its protected status when Robinson's views conflicted with
the II/USP action plan's mandate to promote student achievement.
As to the issue of protected activity, I find that Robinson's role in organizing the Mayor
Brown meeting, his complaints about student fights, one of which he copied to the Association,
and his use of, and requests for, representation by the Association (commitment session,
Hickory Pit meeting, and SSR counseling session) were protected activities. 	(Barstow Unified
School District (1996) PERB Decision No. 1164, adopting administrative law judge decision
citing Dreis & Krump Mfg. Co. v. NLRB (7 th Cir. 1976) 544 F.2d 320 [93 LRRM 2739]
[individual employee activity directed against a supervisor's performance protected when its
purpose is to further a legitimate interest in the employees' working conditions]; State of
California (Department of Transportation) (1982) PERB Decision No. 257-S [same]; Rio
Hondo Community College District (1982) PERB Decision No. 272 [union representation of a
single individual, because it affects or potentially affects others].) Robinson's assistance
62

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organizing and participation in the faculty council were protected, since the council is a
creature of the contract and intended for collective, site-based decisionmaking. The faculty
council was a potential mechanism for obtaining funds for the intervention room. 	(Barstow
Unified School District, supra, PERB Decision No. 1164 [employee complaint about site
council].) Robinson's participation on the Climate Committee and Leadership Team was also
protected. These committees were organizational vehicles by which changes in matters having
an impact on negotiable matters could be implemented to the benefit of the entire faculty.
Claiborne had concerns about student discipline issues for a long time. Rader developed the
same when he arrived at McClymonds. Both were motivated to join the Climate Committee to
address these issues. (State of California (Department of Developmental Services') (1982)
PERB Decision No. 228-S [tenant organization where housing was a condition of
employment].) PERB also stated in its decision reversing the Board agent's partial dismissal
in this matter that Robinson's activity was protected, characterizing it as being in the nature of
complaints to administrators regarding working conditions. (Oakland Unified School District.
supra, PERB Decision No. 1529, citing Los Angeles Unified School District (1999) PERB
Decision No. 1338; see also Regents of the University of California (1992) PERB Decision
No. 949-H [speaking critically of management in a collective fashion].) There is no dispute
that Dodd had knowledge of Robinson's protected activities or that Robinson suffered adverse
action as a result of his non-reelection and placement on administrative leave.
Non-reelection Decision
I find that Dodd exhibited animus toward Robinson's protected activities as reflected in
her directives, suggestions, and veiled threats, all having the ostensible purpose of
discouraging further protected activity on his part. 	(San Diego Community College District
(1983) PERB Decision No. 368 [threatening remarks following protected speech to governing
63

board]; Woodland Joint Unified School District (1987) PERB Decision No. 628 [supervisor
threatening employees with job loss for protected activity].) The evidence establishes a pattern
of antagonism beginning with comments made regarding the Mayor Brown meeting. 	Dodd's
statements continued with those at the Hickory Pit meeting, prior to the Napa retreat, the SSR
meeting attended by Colwell, those related to the faculty council formation, and finally her
disparagement of the dissension on the Climate Committee. 	Colwell sensed a conflict between
Dodd and Robinson as early as the April 2001 commitment session. Dodd made early
reference to Robinson's failure to be a "team player" at that time in relation to his committee
work. I reject any claim that this label was directed primarily at his classroom teaching. While
such a phrase undoubtedly may refer to qualities deemed highly important in the workplace, it
is commonly a form of disparagement of protected activities. 	(Waterbury Hotel Mgt. LLC
(2001) 333 NLRB 482 [171 LRRM 1348] [termination of employee wearing union button
following comment he was not a "team player" because of it].)
The element of close timing between notable protected activity and the decision to non-
reelect is especially evident in this case. On the same day that Robinson delivered to Dodd the
controversial and accusatory minutes from the January 31 Climate Committee meeting, Dodd
forwarded her recommendation on Robinson to the District offices.
Without delving deeply into the actual merits, I find the District's primary justifications
to be suspect. In examining the District's justifications, it is important to focus on the reasons
articulated at the time of the decision, more so than the witnesses' opinions at the time of the
hearing. According to Robinson, Dodd, at the March 25 meeting, only cited Robinson's "not
teaching to the standards" and "not sticking to the text" (essentially the same deficiency).
Dodd's list included the same noting that Robinson's instructional practices were "not aligned
64

with the school-wide efforts to progressively increase student achievement by creating rigorous
and engaging lessons" as identified in the II/USP action plan.
Weakness in the area of teaching standards was a criticism of the teaching faculty as a
whole according to the II/USP report of findings which issued in March 2001.23 Thompson
appeared to allude to this in his 2000-2001 evaluation of Robinson. However, the only
supporting reference in an otherwise strong evaluation was Robinson's "possible" use of
questionable videos. Perhaps he was also referring to Robinson's use of videos and other
supplementary materials in his multi-cultural studies classes. But in that setting there are no
state standards and no mandated District curriculum. There was no evidence that Robinson,
unlike others, failed to remediate his deficiency in this area after the II/USP action plan was
presented in June 2001. Dodd referred to the II/USP action plan's programs to address this
matter through professional development activities, but there was no evidence that Robinson
was offered assistance in this regard. 	Thompson never suggested that he sought to reconstruct
Robinson's teaching objectives at the start of the 2001-2002 year, but instead blamed
Robinson, falsely, of failing to submit any plan for that year. Moore's May 15, 2002, meeting
notes recount that even as teachers criticized Robinson's teaching they acknowledged he had
deserved more assistance. 	Other examples of this sort of criticism are Thompson's early claim
that Robinson only taught to a core of his students and both his and Dodd's concern about
differentiated teaching. 	These are challenges any beginning teacher might find daunting at
McClymonds. Nevertheless, Robinson was able to articulate an understanding of
differentiated teaching and execute it to some degree in the classroom. 	I find that any attempt
on Thompson's part to claim Robinson was counseled constructively on these matters was
23 In a letter from Rader to Dodd, offered by the District, Rader, an experienced teacher,
admitted in January 2001 not being "fully familiar" with standards-based classroom practice.
65

vague and unconvincing. (North Sacramento School District, supra, PERB Decision No. 264
[pattern of weakly justified reprimands following protected activity].)
The foregoing evidence is sufficient to demonstrate a prima facie case of unlawful
animus. 	I now turn to the question of whether Robinson would have been terminated on the
grounds asserted irrespective of his protected activity.
There were two occasions on which Robinson was counseled for objectionable teaching
practices prior to Dodd's decision not to reelect. The first occurred in December 2000 when
Dodd objected to Robinson's showing of "Menace II Society" and "Sankofa." Although
"Menace II Society" was touted as a good teaching device for inner-city youth, I can
understand a principal's objection to such a movie simply on grounds of the profanity and
violence. The same holds true for "Sankofa." Robinson did not show "Menace II Society"
again. Nor was he again counseled about his use of movies prior to his non-reelection. He
presented to Thompson a list of the movies he intended to show as part of his Stull objectives
for the 2001-2002 year. 	Since the record shows no objection by Thompson to any ones other
than "Menace II Society" and "Slam," neither of which he showed, Robinson was entitled to
assume he had approval to show the others.
Robinson was counseled on his SSR provocative prompt in January 2002. Robinson's
semi-fictional essay could legitimately be criticized as an inappropriate device to motivate
students. But I find that Dodd's reaction was sanctimonious and overly dramatic. The essay
was obviously directed at the students who lacked motivation to engage in the exercise. Based
on the student reports to Dodd, I believe the class understood that the essay was directed at
those who were not taking the exercise seriously as opposed to those who were. Robinson's
use of "profanity" ("grown-ass man" etc.) was mild at worst, and only contemporary slang at
best. The point of "calling out" the youth and their life-styles might raise hackles, as have
66

entertainer Bill Cosby's recent comments on literacy problems in the black community. But
for an administrator who believed that classroom management was the primary responsibility
of the teacher, Dodd demonstrated a particularly narrow and arbitrary view of Robinson's
discretion in choosing to criticize rather than coddle his disrespectful students.24 I believe it
quite likely that Robinson's "provocative" prompt was partly a reaction to his impression that
Dodd was undermining the recommendations of the Climate Committee as reflected in the
January 14 faculty meeting. The "promenade exercise" occurred after Dodd's decision and so
it has no material bearing on this case. There is no substantial evidence supporting Dodd's
claim that Robinson was refusing to implement SSR prior to her decision.
I turn now to the District's articulated reasons for non-reelection. Robinson denied that
Dodd covered all of the "talking points" on her March 25 meeting list. Nevertheless, I will
grant that the list identifies the reasons Dodd was then relying on. 	Condensed somewhat, her
reasons were that Robinson's instructional practices violated the goals of the II/USP action
plan, that he was not conducting a rigorous class (as evidenced by too many videos, too much
lecture, and too little homework, reading and writing), and grading discrepancies (the deceased
24 The McClymonds Youth Engaged in Leadership and Learning group
produced a survey of students and staff which found the disrespectful attitude of
students to be the school's biggest problem. 	(Youth Engaged in Leadership Project,
Hear Us YELL: A New Beginning (2002), pp. 4, 14
<http://www.whatkidscando.org/images/studentwork/YELLReport2.pdf> [as of Aug. 16,
2004].) This report corroborates Robinson's complaints about security. 	(Id at p. 14.) A
preliminary version of the same report was entered into evidence. 	(See also John McWhorter,
Losing the Race: Self-Sabotage in Black America (Free Press, 2000) pp. 145-150, 160-163
[discussion of the anti-education peer pressures within the black community]; Pedro Noguera,
Promoting Safety by Reducing the Gap Between School and Community, In Motion Magazine
(Apr. 28, 1996) [originally published in 1995 Harvard Educational Rev.]
<http://www.inmotionmagazine.com/pedro8.html> [as of Aug. 16, 2004] [former Harvard
Graduate School of Education professor's early 1990s case study of a West Oakland middle
school that considered an intervention room, attempted a culturally relevant curriculum
targeted at disruptive students, acknowledged the futility of suspending students, and debated
public humiliation of students as a form of discipline].)
67

student and high grades to students flunking in other classes). 	I find these reasons
exaggerated, contradicted, and stale.
Before the bulk of Robinson's more controversial protected activities, Thompson, in his
December 2001 observations, agreed that Robinson was making every effort to make
standards-based curriculum the core of his U.S. history class. As noted, the ninth grade course
offerings are not tied to state standards. Despite the fact that Robinson used more than the
usual number of videos in his multi-cultural studies classes, it does not appear they were
merely to entertain students. 	They were tied to Robinson's pedagogical concepts related to
media and youth culture, dealt for the most part with post-World-War-II race relations, and
required essay and critical thinking exercises. The evidence establishes that if Robinson
tended to be unconventional it was with the purposes of developing a bond with his inner-city
youth and opening them up to studying social studies. Charlesworth, who vouched for
Robinson's syllabus, his use of movies, and his non-traditional teaching style, was never
consulted by either Thompson or Dodd. 25 Brooks-Day concluded that Robinson's use of films
was successful in reaching students. A ninth grade student wrote in one of her works that she
found Robinson a challenging teacher.
Grading discrepancies did surface in 2000-2001, but Robinson received only one
inquiry as to the grade given to the deceased student. The additional suspicions were
unsubstantiated. As Robinson testified, and I credit, some students at McClymonds are
selective in attending the classes they like and boycotting those they do not. The excessive
hall-walking is testament to that. If anything, high grades reflect students' positive response to
25 Dodd noted that effective and best teaching practices under the action plan were to be
implemented primarily through the departments, which would have started with Charlesworth.
Under the Beginning Teachers Support and Assessment program, Charlesworth was also
Robinson's designated mentor teacher.
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Robinson's classes and perhaps the success of his more personalized style of teaching. I do not
have difficulty believing that low gross GPA scores for schools like McClymonds reflect poor
attendance as much as in-class deficiencies. Dodd admitted that McClymonds had the lowest
combined GPA of all the District's comprehensive high schools.
Robinson was observed in December 2001 in his U.S. history class and received
summative " 3 " ("meets standards") in each of the five standards for which he was graded (no
grade was given for the sixth). There were no deficiencies noted with respect to teaching the
standards. Robinson received a " 3 " for the sub-categories of establishing and maintaining
standards for student behavior, using instructional time effectively, engaging students in
critical thinking, demonstrating knowledge of subject matter and content, and differentiated
learning. These ratings were corroborated by the Mitchell-led evaluation in April 2002. I note
further that when Dodd sent her e-mail to the District explaining the reasons for releasing
Robinson, she asserted that Robinson was not making satisfactory progress in three of the six
standards in 2000-2001, a clear misreading of Thompson's evaluation for that year. 	In my
view, the events surrounding the complaints of the attendance staff regarding the detention
room at the January 14 faculty meeting and the Climate Committee's January 31 attempt to
defend itself appear to be the real impetus for Dodd's decision.
The pretextual nature of Dodd's decision is cemented for me by the highly unethical
attempt on Thompson's part to manufacture a strongly negative final evaluation, essentially to
create an after-the-fact rationale for Robinson's termination. 	This conduct demonstrates
consciousness of guilt in the strongest terms. 	Thompson's comment included in that
evaluation that Robinson appeared to have a "personal agenda" with regard to curriculum is the
only point on which I believe the District could have sincerely constructed a case for non-
reelection, given that the other criticisms of his teaching were minor or do not withstand
69

scrutiny. 	But Thompson comments in this regard suggest that he was in fact relying on his
contrived view that Robinson abruptly changed the level of his culturally-based curriculum
sometime after his first observations, an assertion I reject. "Personal agenda" strikes me to be
more a reference to Robinson's alleged non-collaborative approach to school reform.
The evidence also establishes for me that Thompson acquiesced in Robinson's
culturally relevant curriculum until Robinson's protected activity became objectionable. 	The
ideas Robinson supported (intervention room, principles for teaching students self-discipline,26
and use of videos raising contemporary issues related to racial disparities) were ones
sanctioned by the District through the CAPP conferences and in-service trainings. I believe
Robinson was, as Thompson and Dodd characterized him in his first year, a new teacher on the
path to becoming proficient in his field.27 While I also believe that Dodd did harbor suspicions
about the quality of Robinson's teaching and that his personal style probably grated on her, I
am convinced that she would not have terminated Robinson, but for the nature and content of
his protected activity. The District has not carried its burden to establish that Dodd would
have terminated Robinson regardless of that protected activity.
Accordingly, I find that the District violated EERA section 3543.5(a) by discriminating
against Robinson as a result of its decision to non-reelect him. 	Setting aside the faculty
committee reform activities which do not directly implicate Association representation,
2 6 R o b i n s o n incorporated R o s s i ' s M a ' a t principles in his lesson plans.
2 7 Citing Bellevue Union Elementary School District (2003) P E R B Decision N o . 1561,
the District claims that a non-reelection decision will be upheld whenever a teacher fails to
achieve a "superior" evaluation. 	I read that decision as limited to the facts of that case, where
the evidence established a pre-existing high standard applied across-the-board to all
probationary teachers. 	No such evidence has been presented in this case.
70

Robinson utilized or requested representation from the Association on a consistent basis and
helped establish the faculty council, which is a creature of the Association's contract.
Therefore, the District's retaliation also violates section 3543.5(b) by denying the Association
the right to represent its members.
Involuntary Administrative Leave
I have already found that the decision to non-reelect Robinson was motivated by
animus toward his protected activities. The decision to place him on administrative leave was
an immediate (and essentially direct) response to his further protected activity: criticism of the
administration for failing to finalize and implement the Climate Committee's
recommendations. 	(Oakland Unified School District, supra, PERB Decision No. 1529
[Robinson's activity protected].) This simplifies somewhat the issues of protected activity and
prima facie evidence of unlawful animus.
The context of the decision does present certain complexities. Dodd was prompted to
contact Martinez, at least in part, because of concerns expressed by Ough, Taylor and Perkins,
and possibly others who stayed following the Leadership Team meeting. Dodd's decision to
contact the District offices was not "unilateral" in that sense. Then there is the question
whether animus on the part of Ough, Taylor and Perkins must be found. Further, the fact that
the District views the leave-for-investigation-purposes to be a preemptive and prophylactic
measure and requires a low threshold of evidence ("reasonable suspicion") to trigger the action
also presents potential issues.
In this context, Dodd claimed that she did not cause the decision to be made. As I have
found however, I do not find that her role was insignificant and I reject her claim that merely
initiating a request for investigation absolves her of wrongdoing. To the contrary, I find that
because the District's threshold is a low one the administrator making the request assumes the
71

critical responsibility for the decision. 	The focus initially must be on the motives of the
administrator making the request.
Martinez did not testify as to what thought processes he went through in making his
decision to initiate the referral to human resources. I find no value in the double hearsay
evidence offered by the District that Martinez also observed Robinson to be a safety issue
when he visited the school site. The circumstances related to his position as the first line of
support for principals and his immediate recommendation to Dodd that she contact law
enforcement strongly suggest that he was essentially a rubber-stamp for Dodd's request.
(Konocti Unified School District (1982) PERB Decision No. 217; County of San Joaquin
(Health Care Services') (2003) PERB Decision No. 1524-M.) They also suggest that whatever
Dodd herself conveyed to him played a significant role in his decision. 	Of all the accounts
given, her description of Robinson's behavior at the Leadership Team meeting was the most
exaggerated. 	Any inferences to be drawn on this point I resolve in favor of the Association
due to the District's failure to call Martinez to the stand.
This exaggerated description of Robinson's mental state is further reflected in
Bellows's casual paraphrasing of the allegations against the teacher as reported to him by
Martinez. The summary states that Robinson has "emotional outbreaks" (plural) and that "he
started his bizarre behavior" following receipt of the March 15 letter. It states that "teachers"
are scared of him. 	The credible evidence establishes that Robinson crossed the line of civility
once, during the Leadership Team meeting. There was no "pattern" of bizarre behavior. I note
that even at the height of tension during the meeting, when Bell and Robinson traded
accusations, District witness LuPaulette Taylor described the two as only having "reserved
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words" for one another.28 Teachers who complained did not express fear for their own
personal safety.
The letters from Ough, Perkins and Taylor fail to convince me that Robinson was a
credible and/or imminent threat of physical harm to Dodd. Perkins's concern that Robinson
was more of a threat to himself does not provide a basis for a forced leave. Based on my
observations of Robinson over the course of thirteen days of hearing, I found him focused and
driven, and thus infer that the range of his moods could be greater than average. The most I
can concede to the credibility of the Ough, Taylor and Perkins letters with respect to actual
outward manifestations on Robinson's part was Perkins's comment that Robinson exhibited
greater mood swings around May 14, attributable in all likelihood both to his disappointment
in the lack of support he received and the formulation of his pre-meditated decision to have his
points aired. 	Taylor and Ough's comments that Robinson was "delusional" and "irrational,"
followed by predictions that he would act out, reflect insubstantial and subjective
characterizations based solely on his behavior on May 14. I understand how Robinson's direct
criticism of the principal may have been highly unnerving to some present. And to the extent
he intended to have the faculty choose sides, he was successful in rallying most of the teachers
to Dodd's side. But in her role as "the sheriff," as Claiborne once referred to her, Dodd was
the decisionmaker who would be expected to rationally consider the actual threat of harm from
Robinson. I believe her decision reflected more animus toward his protected activity than real
fear of safety issues at the school. 	I therefore conclude that Robinson would not have been
placed on administrative leave but for his protected activity.
28 I do not find evidence sufficient to conclude that Robinson's breach of "civility"
caused his conduct at the Leadership Team meeting to lose it protected character. (See
Atlantic Steel Co. (1979) 245 NLRB 814, 816 [102 LRRM 1247] [four-factor test involving
place of discussion, subject matter of discussion, nature of employee's outburst, and whether
outburst was provoked by an employer's unfair practice].)
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Accordingly, I find that the District violated EERA section 3543.5(a) by discriminating
against Robinson by virtue of its decision to place him on administrative leave. This conduct
also violates section 3543.5(b) by denying the Association to represent its members, for the
reasons explained above.
REMEDY
Section 3541.5(c) grants PERB
the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action, including but not limited to the reinstatement
of employees with or without back pay, as will effectuate the
policies of this chapter.
The District has retaliated against Robinson because of his activities protected by the
EERA, in violation of section 3543.5(a), as a result of non-reelecting him for the 2002-2003
school year and placing him on administrative leave in May 2002. It is appropriate to order the
District to rescind the notices of non-reelection and involuntary administrative leave, reinstate
Robinson to his teaching position at McClymonds, and make him whole for lost benefits,
monetary and otherwise, including back pay from the date of his last employment with the
District, and interest at the rate of 7 percent per annum. 	(Rancho Santiago Community College
District (1986) PERB Decision No. 602 [rescission of notice of unprofessional conduct];
McFarland, at p. 169 [reinstatement of probationary teacher].)
As a result of each of the above-described violations, the District has also denied the
Association its right to represent employees in their employment relations with the District in
violation of EERA section 3543.5(b). The appropriate remedy is to cease and desist from such
unlawful conduct.
It is also appropriate that the District be required to post a notice incorporating the
terms of this order. 	The Notice should be signed by an authorized agent of the District
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indicating that it will comply with the terms thereof. 	The Notice shall not be reduced in size.
Posting of such notice will provide employees with notice that the District has acted in an
unlawful manner and is being required to cease and desist from this activity and will comply
with the order. It effectuates the purposes of the EERA that employees be informed of the
resolution of the controversy and will announce the District's readiness to comply with the
ordered remedy. 	(Davis Unified School District (1980) PERB Decision No. 116; see also
Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it has been found that the Oakland Unified School District (District) violated the
Educational Employment Relations Act (EERA or Act), Government Code sections 3543.5(a)
and 3543.5(b), when it retaliated against Ronald Robinson because of his participation in
conduct protected by the EERA. 	This conduct also denied the Oakland Education Association
(Association) the right to represent employees in their employment relations with the District.
Pursuant to Government Code section 3541.5(b), it is hereby ordered that the Oakland Unified
School District (District) and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against Ronald Robinson by non-reelecting him for the
2002-2003 school year and placing him on involuntary administrative leave, because of his
protected conduct under the Act;
2. 	Denying the Association its right to represent employees in their
employment relations with the District by the above-described conduct.
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B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Within ten (10) workdays of service of a final decision in this matter,
rescind the notices of non-reelection and involuntary administrative leave issued to Ronald
Robinson and destroy all copies thereof.
2. 	Within ten (10) workdays of service of a final decision in this matter,
reinstate Ronald Robinson to his social studies teaching position at McClymonds High School
and make him whole for lost benefits, monetary and otherwise, including back pay, plus
interest at the rate of 7 percent per annum.
3. Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations in the District where notices to employees customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that the District will comply with the terms of this
Order. 	Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material.
4. 	Within thirty (30) workdays of service of a final decision in this matter,
notify the San Francisco Regional Director of the Public Employment Relations Board, in
writing, of the steps the employer has taken to comply with the terms of this Order. Continue
to report in writing to the Regional Director periodically thereafter as directed. All reports to
the Regional Director shall be served concurrently on the Charging Party.
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:
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Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 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, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 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, secs. 32300, 32305,
32140, and 32135(c).)
Donn Ginoza
Administrative Law Judge
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