Los Angeles Unified School District (PERB 1532E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS OF LOS ANGELES,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4389-E
PERB Decision No. 1532
June 	23, 	2003
Appearances: Geffner & Bush by Steven K. Ury, Attorney, for United Teachers of
Los Angeles; Jones, Day, Reavis & Pogue by Holger G. Besch, Attorney, for Los Angeles
Unified School District.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by United Teachers of Los Angeles (UTLA) of a Board agent's dismissal
of its unfair practice charge. The charge alleged that the Los Angeles Unified School District
(District) violated section 3543.5(a) and (b) of the Educational Employment Relations Act
(EERA) 1 by retaliating against Jay Winters (Winters). Specifically, UTLA alleges that the
1 EERA is codified at Government Code section 3540 et seq. EERA section 3543.5
states, in pertinent part:
It shall be 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

District refused to rehire Winters as a teacher, because of Winters' participation in union
activities.
After reviewing the record in this matter, including UTLA's appeal and the District's
response, the Board reverses the Board agent's dismissal for the reasons set forth below.
BACKGROUND
Winters was employed as a teacher for the District from 1986 through 1998. Winters
received satisfactory performance evaluations in 1994, 1996 and 1998. During his
employment with the District, Winters was at some point UTLA chapter chair and a member of
the UTLA Board of Directors. In 1998, Winters took a leave of absence from the District to
work for UTLA. Winters later resigned his employment with the District and continued
working for UTLA until 2001. As a UTLA employee, Winters' duties included representing
District employees in grievances against the District. After 1998, Winters' only interaction
with the District was in his capacity as an UTLA employee.
In December 2001 or January 2002, Winters applied for a teaching position with the
District As part of the application process, Winters requested that his former principal,
Phil Saldivar (Saldivar), submit a recommendation/reference to the District. Winters'
performance evaluations for 1994, 1996, and 1998 all appear to have been signed by Saldivar.
As noted above, all three of those evaluations rated Winters' performance as satisfactory.
Winters never saw Saldivar's recommendation/reference letter, because it was sent directly to
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
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the District. UTLA further alleges that sometime after 1998, Saldivar became the staff
relations officer for the District and dealt directly with UTLA grievances.
On February 1, 2002, Winters received a letter from the District rejecting his
employment application. The letter stated that an evaluation committee had reviewed Winters'
application and determined that it did not meet District standards in the following area:
Personal qualifications - based on your references
(quality/recency/appropriateness).
The letter provided no other explanation.
Finally, the charge alleges that Winters is a credentialed teacher while more than one-
third of the District's teachers are not.
BOARD AGENT'S DECISION
UTLA alleges that the District retaliated against Winters in violation of BERA
section 3543.S(a) and (b). The Board agent analyzed UTLA's charge using the familiar
framework set forth in Novato Unified School District (1982) PERB Decision No. 210
(Novato). There was no dispute that Winters had engaged in protected activity and had been
subject to an adverse action. However, the Board agent dismissed the charge on the grounds
that UTLA failed to demonstrate the required nexus.
The Board agent noted that the charge does not allege that the District made any anti-
union statements. The Board agent further noted that the District provided Winters an
explanation of why his application was rejected and that there is no evidence the District's
explanations are inconsistent or contradictory. Finally, the Board agent held that the charge
did not demonstrate that the District departed from established procedures or engaged in
disparate treatment of Winters.
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UTLA argued that it had established a prima face case because the District's rejection
of Winters' employment application is inconsistent with the District's evaluations of Winters.
(Los Angeles Unified School District (2001) PERB Decision No. 1469 (LAUSD); Livingston
Union School District (1992) PERB Decision No. 965 (Livingston).) In the dismissal letter,
the Board agent distinguished the two cases cited by UTLA. The Board agent noted that in
Livingston, the District rejected two probationary teachers with satisfactory evaluations. The
Board explained in Livingston that the employees suffered disparate treatment because only
three other teachers had not gained tenure during the past six years and each of them had
received negative evaluations. The Board agent concluded that here, the charge did not allege
Winters was the only applicant with satisfactory evaluations who was rejected. The Board
agent also distinguished LAUSD by noting that in that case, unlike this case, the employer
departed from established procedures in evaluating the employee; gave the employee
assurances of a new evaluation when she ceased protected activity; and contradicted itself by
justifying the employee's termination by stating the employee's program was in trouble, but
that the employee's work was valuable. Accordingly, the Board agent dismissed UTLA's
charge.
UTLA'S APPEAL
On appeal, UTLA argues that the Board agent refused to accept the "considerable
circumstantial evidence" establishing a nexus between Winters' protected activity and the
District's rejection of his employment application. UTLA argues that the Board agent's
application of the third prong of the Novato standard makes it all but impossible to show an
unlawful refusal to hire without direct evidence of discrimination.
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UTLA claims that in this case, a clear inference of unlawful motivation can be made. It
claims that since Winters left the District with a series of positive evaluations, the only
possible interpretation of the District's actions is that something happened between 1998, when
Winters left the District and 2001 when he reapplied. The only interaction that Winters had
with the District during that period was as a union representative pursuing grievances for
UTLA. UTLA argues the positive evaluations provide ample evidence to draw an inference
that the real reason the District did not hire him is because of his past union activity. UTLA
reiterates the two cases (LAUSD and Livingston) it argued before the Board agent in support
of its position.
UTLA also argues that the reasons given for the District's failure to hire Winters were
vague and ambiguous. Finally, UTLA argues that because the District's application process is
a closed process in which applicants do not have access to the decision making mechanism,
there is simply no way to provide direct evidence regarding the District's actions.
Accordingly, UTLA argues that it is unfair to require it to produce further evidence of
discriminatory intent at this stage of the proceedings.
DISTRICT'S RESPONSE
The District argues that UTLA has provided absolutely no evidence sufficient to
support a prima facie case of discrimination or retaliation. The District argues that despite
being asked by the Board agent, UTLA did not present a shred of direct evidence of anti-union
animus, such as any statements or conduct hostile to Winters' UTLA affiliation; no evidence of
inconsistent explanations for denying the application; no evidence of departure from its
standard procedure in considering Winters' application; and no evidence of disparate treatment
of similarly situated applicants.
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The District further implies that Winters' submission of Saldivar's reference letter was
inappropriate because Winters had not worked for Saldivar in over four years. 	The District
argues that since Winters voluntarily requested that Saldivar write a reference letter, Winters
has only himself to blame if the reference letter fails to meet District criteria. The District
asserts that its letter rejecting Winters' application was not vague, but clearly informed Winters
that his references were not acceptable for reasons of quality, recency, and appropriateness.
DISCUSSION
Nexus
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; Carlsbad Unified School
District (1979) PERB Decision No. 89.) There is no dispute that the charge here satisfies the
first and second prongs of Novato. The only issue in this matter is whether the third prong of
Novato is satisfied.
The third prong of Novato requires that the charging party prove a nexus between the
protected activity and the adverse action. In other words, the charging party must prove that
the employer acted with discriminatory intent. PERB has long recognized that direct evidence
of discriminatory intent 	the proverbial "smoking gun" - is rarely possible. (See Oakdale
Union Elementary School District (1998) PERB Decision No. 1246.) Accordingly, the Board
has held that circumstantial evidence of discriminatory intent may be sufficient to establish the
required nexus.
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In many cases, circumstantial evidence of discrimination will include evidence that the
adverse action occurred in close temporal proximity to the protected activity. (North
Sacramento School District (1982) PERB Decision No. 264 (North Sacramento).) However,
evidence of "timing" is not required in every case. The charging party may establish a prima
facie case based solely on the existence of other factors demonstrating the necessary
connection or "nexus" between the adverse action and the protected conduct. These factors
can include: (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.)
Employer's Inconsistent or Contrary Justifications
UTLA argues that the District's rejection of Winters is inconsistent with the
satisfactory performance evaluations conferred on Winters by the District. This inconsistency
is circumstantial evidence of animus, argues UTLA. The Board agrees. Winters was informed
that his reference letter failed as to "quality." It is only logical to assume that this means
Saldivar did not give Winters a favorable reference. However, the record establishes that
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Saldivar authored all three of Winters' performance evaluations from 1993 to 1998. Each of
these evaluations rated Winters' performance as satisfactory. To the extent the Saldivar's
reference letter was unfavorable to Winters, it is inconsistent with Saldivar's previous
performance evaluations of Winters. Accordingly, the Board finds that the District's
explanation that Winters' reference letter from Saldivar failed as to "quality" is inconsistent
with the District's evaluations of Winters' performance, and thus, is circumstantial evidence
that Winters was not rehired because of his protected activities.
The District rejects this conclusion by arguing that the District's decision was based on
Winters' references, not his performance evaluations. The District asserts that Winters'
performance evaluations were considered separately. However, there is nothing in the record
to support such a contention. Further, this contention does not aid the District since if
Saldivar's reference letter was not based on Winters' performance, what was it based on? The
District does not answer this question. UTLA's answer is that Saldivar's reference must have
been based on his interaction with Winters in his capacity as a union activist.
The District also implies that Winters did not "fare well" in his initial assignment as a
junior high teacher prior to 1994. The District makes this argument solely on the basis that
Winters did not submit any performance evaluations in his charge from when he was a junior
high teacher. The District assumes too much. If the District had evidence to submit, it should
have done so in the record below. Since the District chose not to submit its evidence in the
record, the Board will not entertain attempts by the District to submit evidence in its brief.
(PERB Reg. 32635(b).)2
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. Regulation 32635(b) provides:
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Exaggerated, Vague, or Ambiguous Employer Explanations
UTLA also argues that Winters was provided exaggerated, vague, and/or ambiguous
explanations for his application rejection. The District counters that Winters was plainly told
that his application was rejected because his reference letter failed as to
"quality/recency/appropriateness." The Board agrees with UTLA that the explanation
provided by the District was exaggerated, vague, and/or ambiguous.
The District has provided no explanation to Winters as to how his reference letter failed
as to quality, recency, and/or appropriateness. Saldivar was the last principal that Winters
worked under before he left the District's employment. The record indicates that Winters
worked under Saldivar from 1993 to 1998. Saldivar was also the last principal that Winters
worked under before he left the District's employment. Since Saldivar was Winters' most
recent educational employer, it seems proper to assume that he was the most appropriate
person to submit a reference letter. Thus, the facts appear to contradict any claim that Winters'
reference letter was faulty as to recency and/or appropriateness. At a minimum it appears that
the District's explanation was exaggerated. The Board finds that the District's inadequate
explanation in this matter is further circumstantial evidence that the District acted with
discriminatory animus. This is especially true given that the District could have provided
Winters with more of an explanation but chose not to.
Other Facts Demonstr:iting TJnlawful Motive
As already set forth, the record establishes that Winters received satisfactory
performance evaluations from 1993 until his departure from the District in 1998. All these
(b) Unless good cause is shown, a charging party may not
present on appeal new charge allegations or new supporting
evidence.
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performance evaluations were authored by Saldivar. After Winters left the District he went to
work for UTLA. At some point, Saldivar became a Staff Relations Officer for the District and
played a role in responding to UTLA grievances. In 2001, Winters' application for
reemployment with the District was rejected based on a reference letter from Saldivar.
Under these facts, the Board finds that UTLA has met its burden to establish a prima
facie case of retaliation. Winters did not work for the District after 1998. Since Saldivar was
satisfied with Winters' performance up to 1998, Winters should have received a positive
recommendation from Saldivar. Further, Winters' only interaction with the District after 1998
was in his capacity as a UTLA employee. These facts constitute circumstantial evidence that
Saldivar's reference letter must have been motivated by anti-union animus. The Board holds
that when combined with the District's inadequate and inconsistent explanations, these facts
are sufficient to establish the required nexus under Novato.
Based on the above discussion, the Board reverses the Board agent's dismissal and
remands this case to the General Counsel's office for issuance of a complaint.
ORDER
The unfair practice charge in Case No. LA-CE-4389-E is hereby REMANDED to the
Office of the General Counsel with instructions to issue a complaint in this matter.
Members Whitehead and Neimajoined in this Decision.
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