Sacramento City Unified School District (PERB 2129E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO CITY TEACHERS
ASSOCIATION,
Charging Party,
V.
SACRAMENTO CITY UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. SA-CE-2507-E
PERB Decision No. 2129
September 3, 2010
Appearances: 	California Teachers Association by Joseph R. Colton, Staff Counsel, for
Sacramento City Teachers Association; Lozano Smith by Jane Harrington, Attorney, for
Sacramento City Unified School District.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by the Sacramento City Teachers Association (Association)
of a Board agent's dismissal of its unfair practice charge. The charge, as amended, alleged that
the Sacramento City Unified School District (District) violated the Educational Employment
Relations Act (EERA) 1 by removing David Reingold (Reingold) from the District's list of
active substitute teachers because he filed several grievances. The Board agent dismissed the
charge for failure to state a prima facie case of discrimination/retaliation.
The Board has reviewed the dismissal and the record in light of the Association's
appeal, the District's response, and the relevant law. Based on this review, the Board reverses
the dismissal of the unfair practice charge for the reasons discussed below.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

BACKGROUND
At all relevant times, Reingold was employed by the District as a substitute teacher.
Between April 27, 2007 and April 25, 2008, Reingold filed six grievances pursuant to the
collective bargaining agreement (CBA) between the Association and the District, as follows:
April 27, 2007 - #27 (06/07): alleged a violation
of
the CBA's safety provision
when a student hit Reingold in the face while he was trying to enforce the District's cell
phone policy.
May 15, 2007 - #42 (06/07): alleged violation
of
CBA's evaluation provision
because evaluator used un-validated materials.
May 16, 2007 - #43 (06/07) & #44 (06/07): alleged violation
of
CBA's
compensation provision when Reingold was not paid for working through his
preparation period.
March
7,
2008 - #19 (07/08): alleged Reingold was not paid for working
through his preparation period.
April 25, 2008 - #34 (07 /08): alleged Reingold was not paid for working
through his preparation period.
All
of
these grievances were settled favorably to Reingold. On August 21, 2007, the
District settled grievance #42 by agreeing to remove the challenged evaluation from
Reingold's personnel file. 	On January 10, 2008, the District settled grievance #44 by an
agreement that substitute teachers were entitled to preparation periods. Grievances #19, #27
and #43 were settled on October 8, 2008. The settlement agreement provided that the District
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would hold an annual substitute teacher orientation, provide appropriate compensation to
substitutes, and cease compelling substitutes to work through preparation periods.2
On October 17, 2008, Kristi Wynn (Wynn), controller/bookkeeper at Health
Professions High School, completed a Substitute Teacher Evaluation Form for Reingold.
Reingold had accepted an assignment that was to begin at 7:45 a.m. that day, the start
of
the
school's
"0"
period. Reingold did not report for his assignment until 8:35 a.m. 	Wynn reported
that Reingold said he had been told that
"0"
period was outside the regular work day and
therefore he was not required to substitute for that period.3 He claimed that his work day
should only be from 9:30 to 3:30, the regular schedule work day. 	Wynn wrote that her
conversation with Reingold was "cordial."
Later that day, Susan Torngren (Torngren), the high school's office manager, wrote by
hand underneath Wynn's typed report:
I spoke w/ Mr. Reingold @ the end
of
his assignment today &
mentioned this mornings 'confusion.' 	I explained that I was
responsible for the info on subfinder [the District's online
substitute assignment system] & that the time to start was correct
& we needed
him@
that time. I also suggested that
if
he use the
times on the assignment he can't go wrong. Mr. Reingold
assured me he understood the time & it wouldn't happen again.
Neither Wynn nor Torngren checked the box on the form labeled "I request that this
substitute NOT be assigned to this school again this school year for the following reasons:"
The blank lines following that statement were marked NIA and circled.
2 The charge also alleged that the settlement included the District's promise to remove
"a related evaluation" from Reingold's personnel file. 	Because the Association did not provide
copies of the grievances or settlement agreements, we cannot determine whether this refers to
the evaluation that was the subject of grievance #42 or a different evaluation.
3 The record does not reveal who said this to Reingold.
3

On November 13, 2008, the District sent Reingold a letter that stated, in relevant part:
I am writing to inform you that your name has been removed
from our list of active certificated substitutes. [i!] Substitutes in
the Sacramento City Unified School District work on an on-call,
as-needed basis. There are no guarantees or rights to permanent,
regular employment. Under Education Code section 44953,
substitutes may be dismissed at any time at the discretion of the
board.
The letter did not mention the October 17, 2008, tardiness incident or give any reason
for the removal ofReingold's name from the active list. The letter was signed by Lupe Barba
(Barba), Director II, Human Resource Services. The charge alleged that Barba is supervised
by Associate Superintendent of Human Resources Carol Mignone Stephen (Mignone Stephen).
The charge further alleged that Mignone Stephen was the "school district official involved in
processing Reingold's grievances" and that "employees are not removed from the substitute
list without the approval of Carol Mignone Stephen."
After receiving the November 13, 2008 letter, Reingold requested his personnel file
from the District. The charge alleged, "The file does not contain any disciplinary or negative
documents concerning Reinhold [sic]."
Dismissal, Appeal and Response
As noted, the Board agent dismissed the charge for failure to state a prima facie case of
discrimination/retaliation. The Board agent found that Reingold engaged in protected activity
by filing the six grievances and that removal of his name from the active substitute list was an
adverse action. Based on additional facts alleged in the arnended charge, the Board agent
found that the District had knowledge of Reingold's grievances. However, the Board agent
found no nexus between the grievances and the adverse action because: (1) over seven months
elapsed between the filing of Reingold' s last grievance and his removal from the active list;
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and (2) the charge failed to allege any other indicia of unlawful motive. The Board agent also
noted the October 17, 2008 evaluation regarding Reingold's late appearance for his assignment
that day.
On appeal, the Association contends that the charge established the timing element of
unlawful motivation because the District removed Reingold's name from the active list
approximately five weeks after the successful resolution of three of his grievances. The
Association also argues that a nexus was established based on: (1) the District's disparate
treatment of Reingold; (2) the District's failure to offer justification at the time it removed him
from the active list; and (3) the District's exaggerated reason for the removal.
The District responds that the charge failed to establish ongoing protected activity
because it did not allege facts showing that Reingold participated in the settlement of his
grievances. 	As for nexus, the District contends the charge was properly dismissed because:
(1) the Association failed to allege facts showing Reingold was treated differently than other
similarly situated employees; (2) the District is not required to give substitute teachers a
justification for removal from the active list; and (3) the District's justification for removal was
not exaggerated. The District also argues that it would have removed Reingold from the list
based on the October 17, 2008 tardiness incident regardless of his protected activity.
DISCUSSION
To determine whether a charge alleges a prima facie case, the Board agent must assume
that the essential facts alleged in the charge are true. (San Juan Unified School District (1977)
EERB4 Decision No. 12.) It is not the function of the Board agent to judge the merits of the
charging party's dispute. (Lake Tahoe Unified School District (1993) PERB Decision No. 994;
Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board or EERB.
5

Saddleback Community College District (1984) PERB Decision No. 433.) When the Board
agent's investigation "results in receipt
of
conflicting allegations
of
fact or contrary theories
of
law, fair proceedings,
if
not due process, demand that a complaint be issued and the matter be
sent to formal hearing." (Eastside Union School District (1984) PERB Decision No. 466.)
To demonstrate that an employer discriminated or retaliated against an employee in
violation
of
EERA section 3543.5, subdivision (a), the charging party must show that: 	(1) the
employee exercised rights under EERA; (2) the employer had knowledge
of
the exercise
of
those rights; (3) the employer took adverse action against the employee; and (4) the employer
took the adverse action because
of
the employee's exercise
of
those rights. (Novato Unified
School District (1982) PERB Decision No. 210.)
l.
	Reingold's Protected Activity
"The filing and pursuit
of
grievances is an activity protected by the EERA." (Ventura
County Community College District (1999) PERB Decision No. 1323.) We thus agree with the
Board agent that Reingold engaged in protected activity by filing and pursuing to final
resolution the six grievances listed above.
The District argues, however, that the settlement
of
three
of
Reingold's grievances in
October 2008 did not constitute protected activity. According to the District, the charge failed
to establish this conduct was protected because it did not allege that Reingoid personally
participated in the settlement. The District cites no PERB decision, nor have we found one, in
which the Board held that a grievance ceases to be protected activity at any point before the
end of the grievance process, regardless of the extent
of
the grievant employee's participation
the process. On the other hand, PERB has long held that use of union representation 	a
dispute over terms and conditions of employment is a protected activity. (The Regents
of
the
University
of
California (1995) PERB Decision No. 1087-H; Los Angeles Unified School
6

District (1992) PERB Decision No. 957.) Accordingly, we find no merit in the District's
argument.
2.
	The District's Knowledge
of
Reingold' s Protected Activity
Although PERB commonly phrases the legal standard as whether the employer had
knowledge
of
the employee's protected activity, the actual inquiry is whether the individual(s)
who made the ultimate decision to take adverse action against the employee had such
knowledge. (City
of
Modesto (2008) PERB Decision No. 1994-M.) The charge alleged that
Associate Superintendent
of
Human Resources Mignone Stephen both processed Reingold's
grievances and controlled the active substitute list. Assuming as we must that these material
facts are true, we find the charge established the District's knowledge
of
Reingold's protected
activity.
In its position statement in response to the amended charge, the District contended that
Mignone Stephen "is not regularly involved in advising who is added to, or removed from, [the
active substitute] list. These decisions are generally left to lower-level administrators and/or
the Personnel Technician II in the substitute office." As noted, at this stage
of
the proceedings,
PERB cannot resolve conflicting factual allegations. Instead, a material factual conflict such
as this must be resolved based upon evidence presented at a formal hearing. (Eastside Union
School District, supra.)
3. 	Adverse Action
In determining whether the employer's action is adverse to the employee, the Board
uses an objective test and will not rely upon the subjective reactions
of
the employee. 	(Palo
Verde Unified School District (1988) PERB Decision No. 689.) "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
7

impact on the employee's employment." (Newark Unified School District (1991) PERB
Decision No. 864.)
The charge alleged that the District's removal
of
Reingold's name from the active
substitute list was an adverse action. 	According to documents provided by the District, only
teachers on the District's active substitute list may apply for and accept substitute
assignments. 5 Thus, by removing Reingold from the active substitute list, the District
effectively terminated Reingold's employment with the District. 	We find this constitutes a
classic adverse action. (See Regents
of
the University
of
California (Einheber) (1997) PERB
Decision No. 949-H [discharge is adverse action].)
4. 	Nexus
"Unlawful motive is the specific nexus required in the establishment
of
a prima facie
case. . . . Unlawful motive can be established by circumstantial evidence and inferred from the
record as a whole." (Trustees
of
the California State University
v.
Public Employment
Relations Bd. (1992) 6 Cal.App.4th 1107, 1124.) To guide its examination
of
circumstantial
evidence
of
unlawful motive, PERB has developed a set
of
"nexus" factors that may be used to
establish a prima facie case. Although the timing
of
the employer's adverse action 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 nexus between the adverse action and the protected conduct.
(lvforeland 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
5 In evaluating whether an unfair practice charge states a prima facie case, PERB is not
required to ignore facts provided by the respondent and consider only the facts provided by the
charging party. (Service Employees International Union #790 (Adza) (2004) PERB Decision
No. 1632-M.)
8

disparate treatment
of
the employee (State
of
California (Department
of
Transportation)
(1984) PERB Decision No. 459-S); (2) the employer's departure from established procedures
and standards when dealing with the employee (Santa Clara Unified School District (1979)
PERB Decision No. 104); (3) the employer's inconsistent or contradictory justifications for its
actions (State
of
California (Department
of
Parks and Recreation) (1983) PERB Decision
No. 328-S); (4) the employer's cursory investigation
of
the employee's misconduct (City
of
Torrance (2008) PERB Decision No. 1971-M; Coast Community College District (2003)
PERB Decision No. 1560); (5) the employer's failure to offer the employee justification at the
time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or the
offering
of
exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa
Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive. (North Sacramento School District, supra;
Novato Unified School District, supra.)
a.
	Timing
Typically, the closeness in time (or lack thereof) between the employee's protected
activity and the adverse action goes to the strength
of
the inference
of
unlawful motive to be
drawn and is not determinative in itself. (Moreland Elementary School District, supra;
Regents
of
the University
of
California (1998) PERB Decision No. 1263-H; American Thread
Co.
v.
National Labor Relations Bd. (4th Cir. 1980) 631 F.2d 316, 322.)
PERB has found the timing element satisfied when adverse action was taken shortly
after a favorable resolution of the employee's grievance. For example, in Santa Clara Unified
School District (1985) PERB Decision No. 500, the Board found timing where the employer
9

involuntarily reassigned the employee "less than three weeks after he had prevailed on a
grievance challenging his first reassignment." Similarly, the Board in Mountain Empire
Unified School District (1998) PERB Decision No. 1298, found timing when, approximately
three months after it settled a lawsuit by the teachers union, the district involuntarily
transferred a teacher who "had
'a
major impact' on the lawsuit and its resolution."
Here, the District removed Reingold's name from the active substitute list five weeks
after the Association and the District reached a settlement resolving grievances #19, #27 and
#43 in Reingold's favor. 	This proximity in time is sufficient to establish the timing element.
b.
	Disparate Treatment
In its amended charge, the Association alleged: "The charging party is not aware
of
the
District previously removing a substitute from the list as a result
of
only one tardy incident."
The charge provided no factual allegations regarding the treatment
of
any other substitute
teacher who had been late to an assignment. In the absence
of
such allegations, the charge
failed to establish that the District treated Reingold differently than similarly situated
employees. (Madera County Office
of
Education
(l
999) PERB Decision No. 1334;
Santa Clarita Community College District (1996) PERB Decision No. 1178.)
c.
	No Justification/Shifting Justifications
The Association argues in its appeal that the District's failure to give Reingold a reason
for its action at the time he was removed from the active substitute list supports an inference
of
unlawful motive. The charge did not allege that the District was required by law or policy to
give Reingold a specific reason for the action, nor did it allege a past practice by the District of
giving a substitute teacher a reason for removal. Under these circumstances, we find that the
District's failure to give Reingold a reason for his removal from the active substitute list does
not support an inference of unlawful motive.

The Association further contends that the District offered inconsistent or "shifting"
justifications for its action by stating in the November 13, 2008 letter that Reingold was being
removed from the list based on his "at will" employment status and later raising the
October 17, 2008 tardiness incident as justification for the removal. The Board has found
unlawful motivation when the employer offered a different justification for the adverse action
in PERB proceedings than it gave to the employee at the time
of
the action. (Newark Unified
School District, supra; see Jurupa Community Services District, supra [finding retaliation
where reasons for discharge given at PERB hearing were different from those stated in
discharge letter].) Here, the November 13, 2008, letter gave no specific justification for
Reingold's removal from the active substitute list. Thus the District's later justification could
not have "shifted" from its earlier one. Consequently, we cannot draw an inference
of
unlawful motive based on shifting justifications.
d.
	Exaggerated Reasons
The Association also argues that an inference
of
unlawful motive is established by the
District's exaggeration
of
the facts
of
the October 17, 2008 tardiness incident. The charge, as
amended, alleged that Reingold accepted a substitute assignment at Health Professions High
School for that date. Based on his prior experience with that campus, Reingold believed
school did not officially start until after breakfast, which followed the school's "O" period.
When he spoke with Office Manager Torngren at the end
of
the day, he said he thought the
regular teacher input the wrong time into Subfinder, apologized for the mistake, and promised
that in the future he would arrive early to find out if he was needed for "O" period. Reingold
also spoke with Principal Matt Perry and apologized for his late arrival. Based on these
conversations, Reingold believed the issue had been resolved.
11

The amended charge characterized the incident as a misunderstanding as to start time.
This characterization is supported by the October 17, 2008 evaluation written by Wynn and
Torngren, each
of
whom spoke directly with Reingold on the day
of
the incident. This view is
further supported by the fact that neither checked the box on the evaluation form to request that
Reingold not be assigned to that campus again. The District did not counsel, reprimand or
discipline Reingold for his tardiness on October 17, 2008, or at any time during the five weeks
between the incident and his removal from the active substitute list.
Despite its apparent lack
of
concern over the incident at the time it occurred, the
District asserted in its response to the charge that Reingold's tardiness on October 17, 2008,
standing alone, was serious enough to justify his removal from the active substitute list. 	For
example, the District's responsive position statement claimed that Reingold "purposely did not
show up to work on time." Similarly, throughout its response to the appeal the District
characterizes Reingold's tardiness as intentionally defiant behavior. The District's inflation
of
the seriousness
of
the incident suggests the justification is pretextual and that the District is
"attempting to legitimize its decision after the fact." (Novato Unified School District, supra;
San Diego Community College District (1983) PERB Decision No. 368.) We therefore find
that the District's exaggeration
of
the seriousness
of
the October 17, 2008 incident supports an
inference that Reingold's protected activity was a motivating factor in the District's decision to
remove him from the active substitute list.6
It is not appropriate at this stage of the proceedings to determine the District's true
motivation for removing Reingold from the active substitute list. If
the Association establishes
its prima facie case at hearing, the District will have the burden to prove it would have
removed Reingold from the active list even if he had not engaged in protected activity.
(Novato Unified School District, supra; Martori Brothers Distributors
v.
Agricultural Labor
Relations Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line (1980) 251 NLRB 1083.)
12

In sum, we find that the Association's charge, as amended, stated sufficient allegations
to establish a prima facie case
of
retaliation. We also find that the Board agent's investigation
revealed "conflicting allegations
of
fact" on material issues that may be resolved only through
PERB's
formal hearing process. 	For these reasons, we conclude that a complaint must issue in
this case.
ORDER
The Board hereby REVERSES the dismissal
of
the unfair practice charge in Case No.
SA-CE-2507-E and REMANDS this case to the Office
of
the General Counsel for issuance
of
a complaint consistent with this Decision.
Members McKeag and Wesley joined in this Decision.
13