Los Angeles Unified School District (PERB 2124E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LEONARD
G.
ISENBERG,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5118-E
PERB Decision No. 2124
August 4, 2010
Appearances: Leonard
G.
Isenberg, on his own behalf; Kathleen Collins, Associate General
Counsel, for Los Angeles Unified School District.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(Board) on exceptions filed by Leonard
G.
Isenberg (Isenberg) to a proposed decision
(attached) by an administrative law judge (ALJ). The complaint alleged that the Los Angeles
Unified School District (District) violated the Educational Employment Relations Act (EERA)1
by not selecting Isenberg for a technical services coordinator position in retaliation for his
protected activities. Isenberg alleged that this conduct constituted a violation
of
EERA
section 3543.S(a).
The ALJ found Isenberg failed to establish a nexus between his protected conduct and
the District's refusal to hire him for the position. Accordingly, the complaint was dismissed
for failure to establish a prima facie case of unlawful discrimination.
1 EERA is codified at Government Code section 3540 et seq.

The Board has reviewed the entire record in this matter and finds the proposed decision
well-reasoned, adequately supported by the record and in accordance with applicable law.
Accordingly, the Board hereby adopts the proposed decision as a decision of the Board itself.
ORDER
The complaint and unfair practice charge in Case No. LA-CE-5118-E are hereby
DISMISSED.
Chair Dowdin Calvillo and Member Wesley joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
LEONARD G. ISENBERG,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5118-E
PROPOSED DECISION
(09/02/2008)
Appearances: 	Charging Party Leonard Isenberg, in pro per; Kathleen Collins, Associate
General Counsel, for Los Angeles Unified School District.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
On October 2, 2007, Leonard Isenberg (Isenberg) filed an unfair practice charge with
the Public Employment Relations Board (PERB or Board) alleging that the Los Angeles
Unified School District (District) refused to appoint him to the out-of-class position of
technical advisor in retaliation for his protected activities. 	On December 13, 2007, the General
Counsei of the Board issued a complaint alleging that by the above conduct, the District
violated the Educational Employment Relations Act (EERA) section 3543.5(a).1 In its answer
to the complaint, the District denied any wrongdoing.
An informal settlement conference was held at the Los Angeles office of the PERB on
January 22, 2008, but the matter was not resolved. 	Formal hearing was held before the
undersigned on May 27, 28, 29, and June 11, 2008. At the hearing, with the consent of the
1 The EERA is codified at Government Code section 3540 et seq. 	Section 3543.5 states
in part:
It is unlawful for a public school employer to do any of the following:
(a) ... discriminate or threaten to discriminate against employees ...
because of their exercise of rights guaranteed by this chapter.

parties, a portion
of
paragraph 3
of
the complaint was amended as follows: "by filing a
grievance" was changed to "by filing an alternative grievance procedure."
Upon the filing
of
post-hearing briefs, the matter was submitted for decision on
August 11, 2008.
FINDINGS OF FACT
The District is a public school employer within the meaning
of
EERA section
3540.1 (k). 	Isenberg is a public school employee within the meaning
of
section 3540.1
G)
and
has been a classroom teacher at the District's Central High School (Central) for several years.
United Teachers
of
Los Angeles (UTLA) is a recognized employee organization within the
meaning
of
section 3540.1
(1),
representing a bargaining unit
of
the District's teachers.
UTLA
and the District have been parties to a series
of
collective bargaining agreements, the most
recent
of
which is effective from 2006 until 2009 (Agreement). Article IX-A, "Assignments,"
section 5 .1, provides in relevant part:
b. The site administrator shall request that any eligible candidate
for a dean or coordinator position submit a statement
of
interest.
[Emphasis added.]
c. To be an eligible candidate, a teacher must have permanent status
...
Section 6.0 provides in relevant part:
a. The site administrator shall select one eligible candidate from
among the candidates who submitted a statement
of
interest, to
serve in each available coordinator position. The site
administrator shall then make public the names
of
the candidates
who submitted statements
of
interest, and the name
of
the
candidate selected to serve.
b. Bargaining unit members shall determine, by secret ballot vote
of
a majority
of
those voting
...
either to confirm or not confirm
each coordinator candidate selected by the site administrator
...
c. Post-Election procedures:
2

( 1) If a candidate selected by the site administrator
receives a majority of the votes case (50% + 1), the candidate is
confirmed ....
(2) If the candidate is not confirmed by a majority vote,
the site administrator and chapter chair shall immediately inform
faculty members that the coordinator position is still vacant. If
the non-confirmed candidate received 40% - 50% of the votes,
that candidate and other interested candidates may submit
statements of interest within 24 hours ... The site administrator
and chapter chair shall then seek to mutually agree upon the
coordinator selection from among those candidates who
submitted statements of interest within the time limits above ....
(3) If the administrator and chapter chair do not reach
agreement within a period of three (3) days following submission
of the statements of interest, the selection authority will be
delegated to a two member team from the District/UTLA Dispute
Resolution Panel ... They will make the decision within an
additional period of three (3) days.
In addition to the Agreement, the District also follows a "Selection Process for Out-of-
Classroom Teacher Assignments," which provides that a Staff Selection Committee
(Committee) be responsible for "[e]stablishing selection policies according to current
[Agreement] and procedures specific to the position that include an objective system for rating
the candidates with input recommendations from relevant committees." Under the Selection
Process, the Committee is to form an Interview Team composed of at least three members,
including a UTLA representative or designee, the school principal or designec, the Committee
chair or designee, and "other stakeholder groups."
In May 2007,2 Janet Seary (Seary), Central's principal, announced a vacancy in the
technical advisor position,3 as the incumbent was due to retire in June. Two qualified
candidates applied, Isenberg and Juan Perez (Perez), and both submitted statements of interest.
All dates refer to the year 2007 unless otherwise noted.
3 This position is designated "coordinator."
3

The District had a Committee in place, consisting
of
Seary and approximately twelve
individuals, mostly teachers; they reviewed the backgrounds
of
the two applications and
conducted interviews.4 However, the Committee could not reach consensus on either
candidate; at one point, Camille Solis (Solis), Staff Selection chairperson and Committee
member, told Isenberg that he and Perez "really have no chance for this position." Some
Committee members even wanted to go outside the District to find someone but were finally
convinced that the Agreement prohibited it. According to the Agreement, the decision
was
then left to Seary and the two UTLA chapter chairs, Clinton Woods (Woods) and LauraSlater
(Slater). 	According to Seary, she and Woods originally favored Isenberg, but Slaterconvinced
them otherwise, and they decided to recommend Perez to the faculty. On June
18
the faculty
voted; Perez received 50 percent
of
the vote, and Seary offered him the position. However, on
June 19 Seary became aware that, per the Agreement, Perez needed 50 percent plus one; she
then retracted her offer and on June 20 she notified the faculty that the position was reopened.
Perez and Isenberg reapplied, along with a new candidate, Nestor Albert Vargas (Vargas).
Seary testified that, although she had known Vargas for a couple
of
years, she did not
solicit him to apply and does not know who did. 	At that time, he was a substitute teacher at
Central, and his emergency credential was due to expire on July
1.
5 Seary testified that she did
not know his credential was about to expire but did know that he was slated to be a District
intern as
of
July 7.6 She contacted David Vidaurrazaga (Vidaurrazaga), Staff Relations Field
Director, who told her that "interns have special privileges." She claimed that she therefore
The Committee held two interviews
of
each candidate, because they could not reach a
consensus after the first interviews.
5 Article IX.A.
of
the Agreement requires permanent credentialed teaching status.
6 Solis testified that she knew Vargas was not qualified because he was a substitute, not a
permanent teacher, and that Seary must have known this because Central was trying to"come into
compliance" with the Agreement.
4

believed Vargas was qualified. 	Seary and the two chapter chairs met and unanimously decided
on Vargas. 	Woods testified that he was not influenced by Seary; Slater did not testify. On
June 21, with no faculty vote, he was offered the position and began on July 5.
Isenberg, however, knew Vargas was not qualified as he had only an expiring
emergency credential and was not a permanent teacher. He met with Seary on July 10 to
express his concerns. He also complained to Vidaurrazaga and to Paula Parr (Parr) of UTLA,
both of whom told him that the Dispute Resolution process in the Agreement (see Article
IX.A.6.0.c(3), quoted above) was the appropriate method for resolving the matter and he could
obtain a form from Seary. 	When he asked Seary for a form, she argued that it was not the
appropriate process and he should instead file a grievance, 7 but she eventually gave him the
form, which contained her signature. He filled it out to the best of his ability and sent it by
facsimile transmission to Staff Relations on August 6. He testified that in a conversation with
someone from Staff Relations shortly thereafter, he was told the form was incomplete but they
would process it anyway. 	But on September 5, Susan Masters (Masters) of Staff Relations
returned the form to Seary with a cover memo rejecting it because it was incomplete, e.g., it
did not indicate whether the dispute was resolved or not and it did not include Isenberg's name
as the grievant.
In the meantime, Seary, after her July 10 meeting with Isenberg, sought advice from
Vidaurrazaga, who consulted with UTLA and suggested to Seary that Dispute Resolution
might resolve the matter. Thus, unbeknownst to Isenberg, Seary also submitted a Dispute
Resolution form, indicating that the dispute was resolved as between the principal and the
chapter chairs. Masters testified that she never saw Seary's form, and Vidaurrazaga testified
that he could not recall ever seeing it. Seary testified that she believed the rejection from
Isenberg did not file a grievance because he had no confidence in UTLA' s ability to
successfully resolve it.
5

Masters was to her form, not Isenberg's, and therefore she did not inform Isenberg of the
rejection. In August, Staff Relations informed Seary that Vargas could not accept the
assignment because he did not yet have permanent status, and advised her to reopen the
position again in September, when vacationing faculty returned. On August 17 Seary appeared
before the LEARN Council to request canceling the technical advisor position, but the Council
disagreed. 8 Vargas was allowed to essentially remain in the position until August 20, but
according to Seary, he did not receive the contractual pay differential during this time.
From late July through mid-September Isenberg also lodged several complaints with
the following entities in an attempt to question Vargas's credentials and get him removed from
the position: 	Seary's superiors at the District's Options and Adult Education offices;
California State University Los Angeles (Cal State LA), where Vargas was performing his
internship; and the California Commission on Teacher Credentialing (CTC), each of whom
contacted Seary to find out what was going on. He also had several conversations about
Vargas with UTLA and his fellow teachers, some of whom complained to Seary.
On September 21, Seary met again with Isenberg; she assured him that Vargas was
back in the classroom and the technology advisor position would once again be reopened. 9 She
accused Isenberg of being "despicable" for continuing to complain about Vargas to Cal State
LA, CTC, UTLA, and his fellow teachers, even though he knew Vargas was no longer the
technical advisor. 	Seary testified that she was "frustrated" with Isenberg because she thought
highly of Vargas and his future with the District and was afraid Isenberg was trying to ruin his
career by making false claims and trying to get him removed from his internship program.
8 Central is a "LEARN" school which, inter alia, employs a collaborative decision-making
process in hiring and promoting.
9 Isenberg claimed that he learned of Vargas' removal for the first time at this meeting.
6

According to Isenberg, Seary said that now he would never get the position and she would be
the one to decide. 	Seary denied making these remarks.
Seary once again notified the faculty that the position was open. 10 Isenberg reapplied,
along with Eric Barodte (Barodte), who had been a member of the Committee during the first
selection process in May. There is no evidence as to whether he was solicited to apply by
anyone; he did not testify. Barodte was unanimously selected by Seary and the two chapter
chairs, who at this time were Slater and Michael Newman; Newman also did not testify.
Barodte began in the position on September 24. On December 4 he left the District for another
school district; Seary testified that she did not know of his intention to do this at the time of his
appointment. The current technology advisor is Bob Wayne, chosen by the Committee as a
whole; there is no evidence on the details of his selection.
ISSUE
Did the District refuse to appoint Isenberg to the position of technology advisor because
he filed an alternative grievance procedure or engaged in other protected activities?
CONCLUSIONS OF LAW
To demonstrate a violation of EERA section 3543.S(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 employees because of the exercise of those rights. (Novato Unified School District (1982)
1 Isenberg claimed he never received a copy of Seary' s notice announcing the reopening, but
learned of it from Parr. Parr told him that after reviewing the Agreement more closely, UTLA
changed its view of the Dispute Resolution process, and instead reached an agreement with the
District to remove Vargas and reopen the position.
7

PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's actions in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the 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 that might
demonstrate the employer's unlawful motive. 	(Novato, supra; North Sacramento School
District, supra.)
Here, it is undisputed that Isenberg engaged in protected activities, first when he met
with Seary on July 10 to protest Vargas' appointment, and later when he contacted UTLA and
8

filed the Dispute Resolution form.
11
It is also undisputed that the District knew
of
his
protected activities. Isenberg has therefore satisfied the first two prongs
of
the Novato
requirement illovato, supra), and the District does not disagree.
Evidence
of
adverse action is also required to support a claim
of
discrimination or reprisal
under the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No. 689.) In
determining whether such evidence is established, the Board uses an objective test and will not rely
upon the subjective reactions
of
the employee. (Ibid.) In a later decision, the Board further explained
that:
The test which must be satisfied
is
not whether the employee found the
employer's action to be adverse, but whether a reasonable person under
the same circumstances would consider the action to have an adverse
impact on the employee's employment. 	[Newark Unified School District
(1991) PERB Decision No. 864; emphasis added; footnote omitted.]
In his post-hearing brief, Isenberg argues that in failing to receive the appointment, he was
denied, inter alia, "an additional class period
of
monetary compensation." While there is no
evidence as to the additional amount which could be earned, Seary testified to a "differential"
pay, which Vargas did not receive after it was determined that he was appointed in error.
Further, in its post-hearing brief, the District stated that it "does not dispute that being denied
an assignment can constitute an adverse action." Accordingly, I find that Isenberg suffered an
adverse action.
11
While the District concedes that Isenberg' s July 10 meeting with Seary was protected
activity, his later contacts with her superiors at the District, Cal State LA, the CTC, and even fellow
teachers, are another matter. EERA section 3543(a) guarantees to employees "the right to represent
themselves individually in their employment relations with the public school employer." However,
Isenberg was not trying here to advance his own candidacy, nor could these entities have helped him;
rather, he was trying to get Vargas removed. I do not find that these contacts concerned his own
relationship with the District, and are therefore not protected. (California School Employees
Association (Peterson) (2004) PERB Decision No. 1733 (discussions about matters outside the scope
of representation is not protected).) I do, however, find his contact with UTLA regarding the Dispute
Resolution process to be protected, as that was a direct attempt to have himself appointed instead of
Vargas.
9

However, he has failed to show the required relationship, or nexus, between his
protected activities and his not receiving the appointment. He alleges that Seary violated the
Agreement's selection process in several ways, that she knew all along Vargas was not
qualified, that she deliberately mishandled and withheld information on the Dispute Resolution
process,
12
and that Barodte' s appointment created a conflict
of
interest because
of
his prior
service on the selection committee.
If
any
of
these allegations were true, they might under
other circumstances serve as evidence
of
unlawful motivation. Here, however, the timing is
fatal. Neither the Committee as a whole nor the Seary-Woods-Slater panel wanted to appoint
Isenberg the first time around, when Perez was chosen in mid-June; nor did the panel want to
appoint him the second time around, when Vargas was chosen on June 21. This was before
any protected activity on his part. (Rio Hondo Community College District (1982) PERB
Decision No. 272 (no nexus where employer's decision made prior to employee's protected
activity).)
The only question then
is
whether his later protected activity, beginning with his
meeting with Seary on July 10, was the cause
of
his not getting the position the third time
around, when Barodte was chosen in September. Isenberg contends that Barodte's selection
presents a conflict
of
interest, as he was a member
of
the Committee when Perez was selected.
However, I do not find anything in the Agreement to prevent Barodte's candidacy and do not
see any conflict in it. Nor is there evidence that Barodte was solicited by Seary to apply for the
position. Isenberg also argues that Seary exerted undue influence on the chapter chairs,
evidenced by certain benefits which they enjoyed. However, there is no record evidence that
Slater, Woods, or Newman were granted any benefits by Seary. Isenberg also contends that
1 Isenberg also argues that UTLA's change of mind about the Dispute Resolution process
should be viewed with suspicion. However, there is no evidence that the union was influenced by the
District, and there is no charge pending against it. I do not find this argument relevant to the issues
herein.

her influence
is
shown by her telling him on September
10
that because
of
his contacts with
various entities, including UTLA, he would never get the position and she would be the one to
decide. 	However, even assuming arguendo that she made these remarks, the evidence is to the
contrary: 	Slater, who was a chapter chair when both Perez and Vargas were selected, had
argued Seary out
of
her original support for Isenberg, and there is no reason to believe that
Slater would change her mind after Vargas was removed. Woods testified that when he served
as chapter chair, during the selection for Perez and Vargas, Seary did not influence him; there
is no reason to believe that she later influenced his replacement, Newman, or that Newman
would have favored Isenberg at any time. I therefore cannot conclude that she influenced the
panel to keep Isenberg from the position. Further, as analyzed above, Isenberg's contacts,
directed solely toward an effort to remove Vargas, were not protected.
I therefore find that Isenberg has not satisfied the third prong
of
the Novato standard by
showing that his protected activities were the motivating factor for his not receiving the
appointment; or put another way, that he would have received the appointment "but for" his
protected activities. 	iliovato, supra.) Accordingly, I conclude that the evidence is insufficient
to sustain a prima facie case that the District denied Isenberg the technical advisor position in
retaliation for his protected activities, in violation
of
the EERA.
PROPOSED ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
matter, having found that the District did not violate the EERA section 3543.S(a) by not
appointing Isenberg to the position
of
technology advisor, the complaint and underlying unfair
practice charge in Case No. 	118-E, Isenberg v. Los Angeles Unified School District,
are hereby DISMISSED.
11

Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. 	The
Board's
address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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 during a regular PERB
business day. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government
Code
section 11020(a).) A document is also considered "filed" when received by facsimile
transmission before the close
of
business 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. 	(Cai. 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).)
Ann L. Weinman-
Administrative Law Judge
12