Las Virgenes Unified School District (PERB 1605E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

LAS VIRGENES EDUCATORS ASSOCIATION,
Charging Party, Case No. LA-CE-4228-E

Vv. PERB Decision No. 1605

LAS VIRGENES UNIFIED SCHOOL DISTRICT, February 25, 2004

Respondent.

Appearances: Rothner, Segall & Greenstrone by Glenn Rothner, Attorney, for Las Virgenes
Educators Association; Parham & Rajcic by Jackson E. Parham, Attorney, for Las Virgenes
Unified School District.
Before Baker, Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on exceptions filed by the Las Virgenes Unified School District (District) and cross-exceptions
filed by the Las Virgenes Educators Association (Association) to the proposed decision
(attached) of an administrative law judge (ALJ). The charge alleged that the District violated
the Educational Employment Relations Act (EERA)’ by transferring Lee Shagin (Shagin), an
Association member, because of his protected activities. The ALJ concluded that Shagin’s
transfer was not based on protected activity and dismissed the complaint and underlying
charge.

The Board has reviewed the entire record, including the proposed decision, the

District’s exceptions and the Association’s cross-exceptions. The Board finds the ALJ’s

'EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory reference herein are to the Government Code.

findings of fact to be free of prejudicial error and adopts them as the findings of the Board
itself. The Board declines to adopt the ALJ's conclusions of law. Instead, the Board dismisses
the complaint and underlying charge solely on the grounds discussed below.
DISCUSSION
3543.5(a)	To demonstrate a violation of EERA section 3543.5(a) 2,	, 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.) Once the charging party has established its prima facie case, the burden then shifts to
the employer to show that it would have taken the adverse action even in the absence of the
employee's protected activity. (Novato; Wright Line (1980) 251 NLRB 1083 [105 LRRM
1169].)
Here, the Board finds that even assuming the Association has established a prima facie
case of retaliation, the District has met its burden of establishing an affirmative defense that it
EERA section 3543.5 states, in pertinent part:
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.
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would have transferred Shagin absent any protected activity. District Superintendent, John F.
Fitzpatrick (Fitzpatrick) provided testimony about an extensive history of problems caused by
Shagin's activities which were unrelated to his role as an Association site representation. The
ALJ credited Fitzpatrick's testimony that Shagin's transfer resulted from his unprotected
activities. The Board has no reason to disturb those findings. Thus, the Board finds that the
District would have transferred Shagin even absent any protected activity. Accordingly, the
Board dismisses the complaint for this reason only.
ORDER
The unfair practice charge in Case No. LA-CE-4228-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
W

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
LAS VIRGENES EDUCATORS ASSOCIATION,
Charging Party,
V .
LAS VIRGENES UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4228-E
PROPOSED DECISION
(3/8/02)
Appearances: Rothner, Segall & Greenstone, by Glenn Rothner, Attorney, for Las Virgenes
Educators Association; Parham & Rajcic, by Jackson E. Parham, Attorney, and Mccune &
Harber, by Dana Mccune, Attorney, for Las Virgenes Unified School District.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an educators association alleges that a school district retaliated against an
association site representative, Lee Shagin (Shagin), by transferring him to another school site.
The district denies any retaliation.
The Las Virgenes Educators Association (Association) filed an unfair practice charge
against the Las Virgenes Unified School District (District) on September 26, 2000. The Office
of the General Counsel of the Public Employment Relations Board (PERB) issued a complaint
on October 30, 2000, to which the District filed an answer on November 21, 2000.
On January 17, 2001, PERB held an informal settlement conference, which was
partially successful in settling the case. The PERB complaint originally alleged that the
District retaliated against two site representatives, Shagin and Diane McEvoy (McEvoy), by
transferring both of them away from Calabasas High School (CHS). At the informal

conference, the Association and the District entered into a settlement agreement providing that
McEvoy would return to CHS. The agreement also provided in part:
4. The Association withdraws with prejudice any
allegations concerning Ms. McEvoy contained in the Unfair
Practice Charge and Complaint No. LA-CE-4228-E. The
Association withdraws the grievance concerning Ms. McEvoy
with prejudice.
5. Nothing herein shall be considered as an admission of
any breach of contract, violation of law or any other unlawful
conduct by the District. Further, this Settlement Agreement shall
not be considered as a concession by either party as to the merits
of the PERB charge referenced herein.
6. This Settlement Agreement represents a complete and
final settlement of all disputes concerning Ms. McEvoy arising
out of the above-entitled action.
PERB gave formal notice on January 18, 2001, that the allegations concerning McEvoy had
been withdrawn.
PERB held a formal hearing on the remaining allegations (concerning Shagin)
on May 21-24 and June 4-5, 2001. With the receipt of the final post-hearing brief on
September 19, 2001, the case was submitted for decision.
FINDINGS OF FACT
The District is a public school employer under the Educational Employment Relations
Act (EERA).' The Association is an employee organization and exclusive representative under
EERA, and Shagin is an employee under EERA. Until his allegedly retaliatory transfer in
August 2000, Shagin had taught American Government and European History at CHS for over
20 years.
EERA is codified at Government Code section 3540 and following.
2

On the CHS campus, Shagin had been a big man in every sense of the word. He had
been a popular teacher and an effective Association activist. He had tended to dominate
faculty meetings, and he and his friends (including McEvoy and some other Association
activists) had tended to dominate discussions in the faculty lounge.
Unfortunately, Shagin had also been perceived as a bully, as someone who used his
size, status, eloquence and aggressiveness to attack and intimidate others. Administrators
believed that other teachers remained silent at faculty meetings rather than dare to disagree
with Shagin. Some teachers avoided the faculty lounge in order to avoid a negative
atmosphere that Shagin seemed to generate. Two principals in two years left CHS at least in
part because of that same negative atmosphere.
Article 5 (Grievances) of the most recent collective bargaining agreement between the
Association and the District states in relevant part, at section 5.4.9:
No reprisals of any kind shall be taken by the District or the
Association against the aggrieved person or other participant in
the grievance procedure by reasons of such participation or non-
participation.
The agreement does not otherwise explicitly prohibit retaliation. Article 8 (Transfers) states in
relevant part:
8.3 	District Initiated Transfer
8.3.1 Principal or Supervisor Initiated Transfer
8.3.1.1 	A principal or supervisor may request
the transfer of an employee for
performance reasons by submitting a
written request to the personnel office
[emphasis added].
8.3.1.2 	Prior to making such request for transfer,
the perceived performance problem will
be specifically identified in a timely
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manner; the principal's or supervisor's
recommendations for improvement and
the assistance in recommendation [sic]
shall be given. The employee shall be
given an opportunity to improve.
8.3.2 Transfers due to changes in enrollment, program
changes, school closures and similar occasions.
8.3.2.1 	Whenever changes in enrollment,
program, school closure and/or similar
occurrences necessitate employee
transfers between schools, the criteria of
8.3.2.2 shall apply.
8.3.2.2 Criteria to be applied: . . .
8.3.3 District Office Initiated Transfer:
8.3.3.1 	The District may transfer no more than
2% of the employees in any given year
for reasons other than those contained in
8.3.1 and 8.3.2 [emphasis added]. In no
event shall a District Office initiated
transfer be made for arbitrary or
capricious reasons.
The agreement does not define the term "for performance reasons" as used in section 8.3.1, but
the District's performance evaluation form for teachers includes as an item for evaluation,
"Communications with students, parents and other personnel in a professional and effective
manner." Also, the District's job description for teachers includes as specific duties and
responsibilities, "Demonstrates and promotes constructive relationships with all staff
members" and "with parents and community members," and, "Demonstrates appropriate
language and voice usuage [sic]."
The PERB complaint alleges that "[djuring the 2000-2001 school year" Shagin served
as an Association site representative at CHS. The reference to "2000-2001" is clearly in error,
however, as the relevant school year preceding Shagin's transfer was actually 1999-2000.
4

By his own account, Shagin had served as a site representative at CHS since the early
1980's. During the 1999-2000 school year, there were five site representatives at CHS: three
(including Shagin) were elected specifically as site representatives, and two (including
McEvoy) were elected as Association officers but also served as site representatives. All five
representatives were identified in the District's 1999-2000 employee directory.
The Association asserts that Shagin's involvement as a site representative increased
during the 1998-1999 and 1999-2000 school years, but it bases that assertion solely on
Shagin's own rather vague testimony. Shagin testified, "More and more members of the
faculty seemed to be coming to me to get advice," but he gave no specifics and did not indicate
how the District would be aware of these advisory activities. Shagin also testified that "a
number of people were asking me to sit in on conferences with them, if they met with
administrators," but again he gave no specifics, not even as to the identities of the
administrators involved. There is no evidence Shagin ever participated in the grievance
process in 1998-1999 or 1999-2000.
Most of the specific activity attributed to Shagin as a site representative apparently
occurred prior to the 1999-2000 school year. Shagin testified he played a leading role in a
lengthy dispute about summer school pay, but it appears the issue was successfully resolved
before the start of summer school in 1998. Shagin further testified he was actively involved in
a dispute about taking attendance, but it appears this issue was also resolved during the 1997-
1998 school year.
Shagin also testified he served on the CHS building committee, where he successfully
advocated for more bathrooms, but he could not remember which year that was. He was
appointed to the committee by a principal whose last year at CHS was 1997-1998. Shagin
5

testified that on the committee his "concern was, as a site rep, to address what would be
potential problems that members would raise and had voiced to me about working conditions,
health, safety and so on." It is not clear, however, that Shagin's status as site representative
was the basis for his service on the committee, to which the principal appointed one classified
employee, two teachers, one counselor, the plant manager, two site administrators, one parent
and one student.
There is one issue with which Shagin was unquestionably involved during the 1999-
2000 school year: teacher notification of violent student behavior. Shagin first raised the issue
with CHS Assistant Principal Steve Rosentsweig, who told Shagin he believed that another
assistant principal, Joseph Guidetti (Guidetti), was in charge of such notification. Shagin did
not then raise the issue with Guidetti, however; instead he drafted and sent the following letter
to CHS Principal Susan Allen (Allen):
Dear Susan:
We are writing this letter in our capacity as Las Virgenes
Educators Association building/site representatives. Please
consider it a formal communication.
On behalf of the teachers at CHS, we are again requesting that the
administrator(s) responsible for notifying teachers about any
violent students who are placed in our classes FULFILL THE
REQUIREMENTS OF THE LAW and inform us, in writing, as
soon as possible.
We have been told, by Mr. Rosentsweig, that Mr. Guidetti has the
responsibility of notifying the teachers. We are formally
informing you that, as far as we know, not once in the last year
and a half (Mr. Guidetti's tenure at CHS) has any teacher been
informed of a SINGLE VIOLENT STUDENT in his classes.
This is a direct violation of law and we urge you to intervene and
direct Mr. Guidetti to give this task the highest priority.
SAFETY COMES FIRST!! Other matters that Mr. Guidetti may	FIRST!!!
be involved in during the workday, whether job related or of a
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personal nature (like lifting weights, running laps, etc.) should be
suspended until this critically important task is finished.
Very Truly Yours,
Julie Gardner
Tom Johnsen
Lee Shagin
LVEA Building Representatives
xc: Las Virgenes Educators Association
John Fitzpatrick, Superintendent
Donald Zimring, Deputy Superintendent
Debbie Coleman, Assistant Superintendent
Duffy Clark, Assistant Superintendent
LVUSD Board of Trustees
7
10~	Allen received the letter on March 10, 2000. Presumably, the superintendents and the District
Board received it at about the same time. It does not appear that Shagin sent Guidetti a copy.
At the hearing, Principal Allen testified:
I was very concerned about what seemed to me a non
sequitur as part of the letter inserted into it, that attacked Mr.
Guidetti, that gave false information about Mr. Guidetti, and it
seemed to have really nothing to do with the relevancy of the
issue that was -- the legitimate issue that was being addressed in
the letter.
Allen testified she was specifically concerned about the implicit accusation that Guidetti was
"working out on school time." She knew the accusation was false, but she believed it would
undermine Guidetti's effectiveness as an assistant principal.
Allen responded to the letter with a memo to the three Association representatives. The
memo began:
I am writing in response to the undated letter that I received from
you on March 10, 2000. As the CHS representatives of the
LVEA, I appreciate your concern that teachers be notified about
any violent student[s] who are in their classes.

The memo then responded at some length to the notification concern. It concluded:
There is another section of your letter that I believe is misleading.
You accuse Mr. Guidetti of taking time during his work day to
take care of matters of a "personal nature (like lifting weights,
running laps, etc.)" Like all administrators on this campus, Mr.
Guidetti puts in a tremendous number of hours. He frequently
works a 65-70 hour week. I encourage all administrators,
including myself, to find time to maintain their health and well
being. The fact that Mr. Guidetti stays on our campus to do a
brief workout, after the normal school day, and before he does
evening supervision, I believe is admirable. I only wish I had as
much self-discipline.
Once again, I would like to reiterate my invitation to you to
discuss any concerns that you have regarding our school. Like
you, I strive to make CHS a safe, supportive place for both
students and staff.
As Shagin had done with his letter, Allen sent her memo to the superintendents and the District
Board.
Allen and Guidetti met informally with Site Representative Julie Gardner (Gardner)
about the letter. According to Allen, Gardner said several things in the meeting:
. . . First of all, that she didn't know that the letter was going to
the board, that she thought the letter was just coming to me. She
said that she had edited the version of the letter and crossed out
the statements about Mr. Guidetti, that there had originally been
even more statements about Mr. Guidetti in it. She crossed out
all the statements about Mr. Guidetti. And she wasn't aware that
it had been sent to the board and the Superintendent with those
statements in it.
Gardner sent Allen a memo about the meeting, stating in part:
You started by saying that you were both shocked to have
received this letter since you have always supported a policy of
following proper channels (i.e. parents talk to teachers first before
heading to administration.) This is, by the way, a policy I support
and am grateful for. In response, I explained that Tom Johnsen,
Lee Shagin and I had felt it necessary to put our request in
writing since, as it had been told to me, administration had been
asked three times to provide teacher notification, with no
8

response. At this time, both you and Mr. Guidetti said that you
had never been approached with this issue. Believing I was in the
wrong, I immediately felt remorse for what appeared to be a
breech [sic] in proper channeling and admitted that I had been
acting on information available to me as a teacher who is only on	is
campus part-time.
You then explained that you were more concerned with
statements in the letter that you felt were inaccurate personal
attacks against Mr. Guidetti. I admitted that I had no personal
knowledge of Mr. Guidetti ever lifting weights or running during
school hours and that I, frankly, did not care if he had. At this
point, both you and Mr. Guidetti adamantly denied that he had
ever done this. I then told you that it had been my belief that
references addressing Mr. Guidetti weakened the purpose of the
letter and, for this reason, I had edited out these parenthetical
allusions from the original letter. It was my desire to emphasize
that I had no hidden agenda and to perhaps make amends for my
perceived hastiness in sanctioning the letter. I did not intend my
comments to divide me from the other two representatives or to
undermine my sincere desire to gain teacher notification. After
the meeting ended abruptly at the start of third period, I
mentioned to you that I was unaware that so many people were
going to receive this letter and sincerely hoped that no one
perceived my intentions to be other than sincere.
Allen also met informally with Site Representative Tom Johnsen (Johnsen), who also told her
he had no idea the letter was going to the District Board.
In his testimony, Shagin did not deny that Gardner had edited a draft of the letter and
crossed out all references to Guidetti. He did not explain why he sent the letter in Gardner's
name with the accusation against Guidetti still included. He also did not testify that he had any
actual reason to believe that the accusation against Guidetti was true or relevant. Thus,
although there is no reason to doubt the sincerity of Gardner and Johnsen in raising the
notification issue, it appears that Shagin had his own independent agenda: to attack Guidetti.
This was not the first incident of hostility between Shagin and Guidetti. In fact, the
first real meeting between the two, after Guidetti came to CHS in the fall of 1998, turned into a
9

confrontation that was later investigated by an assistant superintendent. The investigation
summary stated in part:
On November 14, 1998, Assistant Principal Mr. Guidetti reported
in writing that Lee Shagin, a social science teacher at Calabasas
High School, interrupted a student conference in his office the
prior day at about 12:00 p.m. I initiated an investigation on the
reported incident which included interviewing and receiving the
statements of witnesses. The student in the conference reported
that Mr. Shagin did interrupt the conference, complained students
were stealing from his box, and was cussing i.e. using words like
"freakin," "crap," and "damn." She further reported that the
Assistant Principal was silent until the outburst stopped and then
followed Mr. Shagin out of the room.
Donna Welti reported that Mr. Shagin proceeded into the office
when Mr. Guidetti was in the middle of the student conference
without hesitating. She characterized Mr. Shagin's volume as
"shouting." She further related that Mr. Shagin complained about
students and parents in the work room and insisted that the office
staff should do "their own work." She reports that when Mr.
Guidetti followed Mr. Shagin out of the office that Mr. Shagin
told him that he didn't want to discuss the incident. She reported
that there were students in the office during the interchange but
she couldn't remember who.
Shirl Humes reported that Mr. Shagin came to her desk and
alleged that "Kenny" had taken his mail again. She also reported
that later Mr. Shagin said that he didn't want to talk about "it"
and said that he was "tired of this shit." She reported that when
Mr. Shagin entered the work room he called Mr. Guidetti a "little
twit."
Ellen Blackmun was interviewed because she was making copies
in the work room and saw the aftermath of the office incident.
She reported that she heard loud voices and then observed Mr.
Shagin walking away from Mr. Guidetti. She believed Mr.
Guidetti said that Mr. Shagin wasn't to walk away from him and
and Mr. Shagin responded, "Don't point your finger at me." She
didn't hear either swear at the other but said that Mr. Guidetti
may have under his breath when he walked away. She offered
that Shirl Humes may have overhead the incident. Ms. Blackmun
is a second year teacher and while being in a position to hear the
exchange appeared to have little recall for specific words.
10

When asked of the incident, Mr. Shagin denied that he had
shouted although he admitted to having a loud voice which he
must make an effort to control. He admitted to wanting to
emphasize his words because of the urgency of the security
problem with the teacher mail boxes. Mr. Shagin denied having
used words such as "shit" or "damn" or "freaking," but admitted
to using "crap." He denied barging into the office and said he
only spoke after Mr. Guidetti acknowledged that he was standing
in the doorway with "Yes?" He says he only used "shit" in
response to Mr. Guidetti's use of "shit." He says that he was in
the office in his capacity as a union representative.
Based upon the multiple interviews, the admissions of Mr.
Shagin, and written statements which I have received on the
incident in Mr. Guidetti's office and its aftermath, I have
concluded that Mr. Shagin did barge into Mr. Guidetti's office
and interrupted the student conference. He shouted. He
characterized students with disparaging comments such as "damn
students,["] "freakin' student aides." He insisted that office
workers should do their work and students and parents be kept
out of the work area. He slammed a door between attendance and
the work room and refused to respond to Mr. Guidetti's request to
discuss the incident. He reacted to Mr. Guidetti's directive not to
interrupt a student conference again by telling Mr. Guidetti not to
shake his finger at him. He either said, "I'm not going to put up
with this shit or this crap." He admits to using "crap."
[References to attachments omitted.]
In a written response, Shagin rejected the findings of the investigation as
"inaccurate/biased/flawed," but I find that the evidence at hearing supporting those findings
events.	was more credible than Shagin's own testimony about the events.2
As a result of the investigation (which also covered a confrontation between Shagin and
a new female teacher whose political views Shagin found "sexist"), Shagin received a letter of
reprimand and notice of unprofessional conduct, which instructed him in part:
Do not insult, criticize, or degrade other staff members in public
or in private settings where there is a reasonable likelihood that
your comments will be reported to that staff member.
2 On this point, I find the District's Exhibit S to be relevant, to the extent that the after-
acquired statements contained in that exhibit corroborate other evidence.
11

Shagin responded in part, "I am COMPLETELY UNABLE TO UNDERSTAND the
instructions " in the letter of reprimand.	"
Shagin apparently did not follow the instructions either. Guidetti testified:
Students and I had a very close relationship, and often on
a weekly basis they would ask me questions like, you know, what
did you do to Mr. Shagin, boy, he really hates you. Things of that
nature. He was talking about you in class. He didn't mention
your name today, but he showed a video of me wrestling another
student and he played it backwards and forwards and backwards
and forwards, things like that.
Shagin denied he had any control over the wrestling video, which he said was broadcast on an
internal television system, but he did not deny making his hostility toward Guidetti apparent to
his students.
This was not the first reprimand Shagin had received for intemperate conduct. In
January 1998 he received a memo stating in part:
This memo will serve as a reprimand for your conduct during the
passing period from nutrition to period three on December 12,
1997. This reprimand is based on witness reports, Mr. Misel's
written summary, and your written account.
The following is a summary of my understanding of the
incident: The ASB Communication Commissioners were playing
music during the nutrition period over the ASB sound system in
the lower quad area between the gym and S building. The
Commissioner's [sic] were previously directed by Activity
Director Giblin and Assistant Principal Misel to stop the music
during the passing period. The passing bell rang and the music
continued. The Activity Directors were leaving the area and no
administrator was in the immediate area at this time. You felt
many of the students did not hear the bell or chose to stay and
listen to the music. From the perch area at the end of H building
you signaled to the Commissioners to turn off the music. The
music continued playing at which point you walked down the
ramp and through the quad to the sound system.
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When you reached the sound system you asked the student to turn
the music off. You indicate you said "turn it off" other witnesses
reported you said "turn this shit off." At this point you felt your
direction was not followed by the student and attempted to turn
off the sound system by disconnecting the cord. You pulled the
cord/wire hard enough to disconnect a metal plate being held in
place by four metal screws.
One of the Commissioners alleges you shoved him against
the wall. He is the only person alleging you shoved him. Other
witnesses, including the only adult witness, contradict his version
of the incident. While it is possible some contact between you
and the student may have occurred in your attempt to turn off the
system, any contact, if it occurred, was not intentional, violent, or
sufficient to have created injury or harm to the individual.
I do not find fault with your intention to get students
moving to third period. However your actions in turning off the
sound system were not those expected or required of a teacher. I
do not know why you felt it necessary to disable the equipment
the way you did, but such conduct was unacceptable.
In a written response, Shagin accepted this summary of the events as a "reasonably accurate
account," but he still asserted, "In different circumstances my actions would bring PRAISE not
a reprimand."
The PERB complaint also alleges:
On or about August 16, 2000, Respondent [the District], acting
through its agent, Superintendent John F. Fitzpatrick, Ed.D., took
adverse action against Mr. Shagin by involuntarily transferring
him from his position at Calabasas High School to Arthur E.
Wright Middle School.
There is no dispute that the District did take action to transfer Shagin on that date. A letter to
Shagin signed by Superintendent John F. Fitzpatrick (Fitzpatrick) stated in part:
This is to serve as formal notice that, in accordance with the Las
Virgenes Unified School District/Las Virgenes Educators
Association Contract Article 8.3.3 (District Office Initiated
Transfer), you are being transferred from your position at
Calabasas High School to Arthur E. Wright Middle School.
13

The letter gave no reasons for the transfer. A similar letter was sent to McEvoy, transferring
her to Agoura High School.
There is a dispute about whether the action against Shagin was actually adverse. The
District points out that Shagin's new middle school assignment had a shorter teaching day and
fewer adjunct duties. In its post-hearing brief, the Association argues:
Shagin was transferred to Arthur E. Wright Middle
School, despite the fact that in his twenty-seven years of
teaching, he has never held a position other than substitute at a
middle school, and that was almost 30 years ago. Neither of the
-	subjects Shagin has taught - American government and European
history - is offered at the middle school level. [Transcript
citations omitted.]
Shagin's actual testimony on the last point was that European History at the middle school
level "is an entirely different period of history." Shagin filed a grievance seeking "damages"
for the transfer, but neither in the grievance nor at hearing did he specify a basis for damages.
There is also a dispute about why Fitzpatrick acted to transfer Shagin. The PERB
complaint alleges it was because of Shagin's recent activities as a site representative. The
District denies the allegation.
Fitzpatrick testified at hearing about why he acted to transfer Shagin. He denied that
Shagin's Association activities were a factor. He explained his decision as follows:
Well, I think that there was a negative pattern of
environment at the high school. I couldn't keep a Principal at the
school. After Mr. Sutton had left we moved Christianson over
there, who was probably the best Principal we had in the school
district, and at the end of the time he left. He said basically he'd
rather go to Westlake High School as a Spanish teacher and take
a $50,000 cut in pay rather than stay there and be harassed by Mr.
Shagin.
As noted above, the complaint erroneously refers to the 2000-2001 school year, when
it should refer to the 1999-2000 school year.
14

So he was going to quit. I luckily had a position at the
district where I was able to move him to that position. After that,
Susan Allen, who was Assistant Principal, who also was an
outstanding administrator, was put into the principalship.
At the end of her term at that school she had decided that
she was going to leave basically because of Mr. Shagin and his
intimidation and all the problems that they have had at the school
and all the staff issues, kind of an environment, a totally negative
by	environment at the school, people being harassed by Mr. Shagin,
different teachers. And ultimately she decided to leave and she
ultimately got a position with L. A. Unified and she left.
And after looking at all of that, talking with the cabinet,
reviewing issues with [Assistant Superintendent] Mr. Hanke,
taking a look at personnel files, I ultimately made a decision that
it was in the best interests of Calabasas High School to improve
the negative environment. Sometimes you just have a bad mix of
teachers and so I felt like we needed to move Mr. Shagin out of
that school.
I found Fitzpatrick to be a credible witness.
In its post-hearing brief, the Association points out that some of Fitzpatrick's testimony
was inconsistent with statements previously made by the District. On cross-examination,
Fitzpatrick testified that the transfer was motivated by Shagin's unprofessional performance
outside the classroom. This was inconsistent with part of the District's response to Shagin's
grievance, which denied that Shagin was transferred for performance reasons.
I resolve this inconsistency in favor of Fitzpatrick's sworn testimony. The District's
grievance response was not made under oath. Had that response admitted that the transfer was
for performance reasons, the District would have had to grant the grievance, because sections
8.3.3.1 and 8.3.1.1 of the collective bargaining agreement, taken together, precluded a "District
Office Initiated Transfer" for "performance reasons." The District was obviously unwilling to
grant the grievance. It is to Fitzpatrick's credit that he was willing at the hearing to contradict
the District's stated reasons for denying the grievance.
15

The Association argues at some length that Fitzpatrick's decision was tainted by two
messages he received from Principal Allen. The first message, dated June 16, 2000, stated:
I am sorry to inform you that I am considering leaving Calabasas
High School. I felt it was important to notify you now, even
though my future plans are still uncertain, so that we can plan for
an effective transition, should I, indeed, decide to resign. The
rationale that has brought me to this crossroad stems from my
concern over the following issue:
I feel handicapped in providing effective leadership at Calabasas
High School and in making changes that would move us forward
in meeting district goals and improving student achievement. My
ability to provide the type of leadership that Calabasas High
School needs -- whether it is in the areas of course offerings,	--
school safety, or personnel -- is limited, in large measure by the	--
incessant, undermining of my authority by a veteran teacher, Lee
Shagin. The negativity with which Mr. Shagin attacks and
constantly questions my credibility, to both students and staff
members creates an antagonistic work environment that has
impaired my ability to perform professionally and has had a
detrimental affect [sic] on me personally.
In addition, Mr. Shagin has harassed one of my Assistant
Principals, J. Guidetti, which has weakened my administrative
team at the school. I believe Mr. Shagin's attacks on this
excellent administrator are directly related to incidents last year
when Mr. Guidetti challenged Mr. Shagin for inappropriate
behavior. Mr. Guidetti has recently applied for an administrative
position in a neighboring district, because of Mr. Shagin's
ongoing harassment. I have attached a copy of a memo he
recently sent to me.
Mr. Shagin's actions have contributed to creating a detrimental
working relationship between us. Based on his constant criticism
of me, my administrators, or the environment that I am charged
with supervising, I find that I hesitate to interact with him in a
normal manner. Even when I affirmed his teaching success in his
evaluation, but provided him with feedback to improve in two
areas, his reaction was to attack me and deny my credentials for
evaluating him.
I cannot continue to work with Mr. Shagin. His actions, I believe
have impaired his working relationship with me and adversely
16

affected the best interests of the school. I am asking you for
assistance in resolving this situation.
Allen's second message, dated June 30, 2000, stated:
It is with regret that I am submitting my resignation as principal
of Calabasas High School. My life has been enriched in many
ways by my tenure at CHS and the many wonderful people who
work there.
However, there is a small group of teachers at the school who
have created such a hostile work environment that I am no longer
willing to continue in my current position as principal. I am
leaving because of the ongoing harassment of the administration,
by this group which is led by Lee Shagin. This harassment has
taken a variety of forms:
* The deliberate attacks Mr. Shagin made on my administrative
team, especially on Mr. J. Guidetti and me.
* The inaccurate public portrayal of CHS as a dangerous and
violent environment for students and staff members and the
resulting worry that caused staff and parents.
* The frequent dissemination of inaccurate information to
students and staff by Mr. Shagin which hurt or upset people
unnecessarily and which took extensive amounts of time to
correct.
* The constant criticism of administrators and administrative
policies by Mr. Shagin to both staff members and students in his
classroom.
* The manipulation of students by Mr. Shagin as he encouraged
them to protest school policy and disrupt the school environment.
* The inability to move forward with school reform that could
result in improved student achievement, because of the resistance
of Mr. Shagin to any suggestions by administration for change.
The vast majority of the staff of Calabasas High School are
wonderful people. However, they are, for the most part, afraid to
speak out against Mr. Shagin. People who have spoken up in the
past have either stayed and been harassed or, like me, have
chosen to leave the school.
My negative experiences with Mr. Shagin and his small group of
supporters, has not, however, damaged my perspective on the
district as a whole. I want to thank you for the opportunities that
you and the members of the Board of Education of LVUSD have
extended to me over the past three years. Most of my
17

experiences in this district with students, staff, parents, and
especially district administration have been positive and
rewarding.
The Association argues that these two messages disclose "the District's true [unlawful]
motive" for transferring Shagin.
It is actually not clear to what extent Allen's messages may have influenced
Fitzpatrick's transfer decision. As the Association acknowledges, discussions of Shagin's
possible transfer began before Allen's first message. Furthermore, the actual transfer decision
was made in August 2000, more than a month after Allen's resignation. If Fitzpatrick was
inclined to act on the basis of Allen's statements, presumably he would have acted on her first
message, in which she clearly threatened to resign, rather than acting well after she actually did
resign.
It is also unclear to what extent Allen's messages may have referred to Shagin's
protected Association activity. As previously noted, most of the specific activity attributed to
Shagin as a site representative apparently occurred prior to the 1999-2000 school year, when
Allen was principal. Contrary to the Association's implication, Allen's stated concern that
Shagin was "undermining [her] authority" does not establish that Shagin was engaged in some
specific protected activity that Allen found objectionable. At most, one may infer that Allen's
stated concern about "attacks" on Guidetti referred in part to the attack included in Shagin's
letter of March 2000 about teacher notification of violent student behavior.
The Association also argues that Fitzpatrick's decision was tainted by input from James
Christianson (Christianson), a former CHS principal who had become an assistant
superintendent and a member of Fitzpatrick's cabinet. Christianson testified he told the
18

cabinet Shagin was the center of a group of teachers "that certainly had one set of opinions as
to how the school needed to be run." Christianson further testified:
And my opinion was asked as to who were the most vocal in the
group. Mr. Shagin, obviously, is the most vocal. Ms. McEvoy
would be the next most vocal, in my opinion.
Christianson explained that Shagin was the most vocal in opposing change while McEvoy was
the most vocal in supporting Shagin.
As with Allen's messages, it is not clear to what extent Christianson's input may have
referred to protected Association activity by Shagin, or by McEvoy. Having "opinions as to
how the school needed to be run" and "opposing change" are not necessarily related to
Association activity or to matters within the scope of representation under EERA section
3543.2. It is not obvious that Christianson's input can be connected to any specific protected
activity attributable to Shagin or McEvoy as a site representative during the 1998-1999 school
year (when Christianson was principal) or the crucial 1999-2000 school year."
ISSUES
1. Does PERB have jurisdiction?
2. If so, did Shagin engage in protected activity known to the District?
3. If so, did the District take adverse action against Shagin?
4. If so, was the adverse action because of the protected activity?
At hearing, I did permit the Association to put on evidence of McEvoy's involuntary
transfer, because it might indicate District animosity toward Association activists. I overruled
the District's objection that the settlement agreement with regard to McEvoy barred such
evidence. I do not read the agreement that way.
19

CONCLUSIONS OF LAW
Deferral
In its post-hearing brief, the District argues that PERB lacks jurisdiction, on the ground
that this case is subject to deferral to arbitration. EERA section 3541.5(a)(2) states, in
pertinent part, that PERB shall not:
Issue a complaint against conduct also prohibited by the
provisions of the [collective bargaining agreement in effect]
between the parties until the grievance machinery of the
agreement, if it exists and covers the matter at issue, has been
exhausted, either by settlement or binding arbitration.
In Lake Elsinore School District (1987) PERB Decision No. 646 (Lake Elsinore), PERB held
that this section established a jurisdictional rule requiring that a charge be dismissed and
deferred if (1) the grievance machinery of the agreement covers the matter at issue and
culminates in binding arbitration and (2) the conduct complained of in the unfair practice
charge is prohibited by the provisions of the agreement between the parties.
Recently, in State of California (Department of Food and Agriculture) (2002) PERB
Decision No. 1473-S, PERB overruled Lake Elsinore, but even if PERB had not done so, the
standards for deferral would not be met in this case. The parties' agreement prohibits
retaliation only for participation in the grievance procedure. There is no evidence that Shagin
participated in the grievance procedure in 1998-1999 or 1999-2000, and there is no allegation
that he suffered retaliation because of any such participation. PERB has jurisdiction.
Retaliation
To demonstrate retaliation in violation of EERA section 3543.5(a), a charging party
must show (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,
20

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.)
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 (Palo Verde).) In determining whether such evidence is established, PERB
uses an objective test and will not rely upon the subjective reactions of the employee. (Ibid.)
In its post-hearing brief, the District acknowledges that Shagin engaged in "some
protected activity" known to the District, but it disputes the "recency" of such conduct. The
District incorrectly cites Chula Vista Elementary School District (1997) PERB Decision No.
1232 (Chula Vista) for the proposition that holding an office (such as Shagin's position as a
site representative) is not protected activity. Chula Vista is a case about the temporal
proximity of protected activity and adverse action as circumstantial evidence of unlawful
motive; it is not a case that defines protected activity. EERA section 3543 explicitly gives
public school employees "the right to form, join, and participate in the activities of employee
organizations." Holding office as a site representative is an exercise of that right.
The District is correct, however, that the record is "thin" with regard to more specific
protected conduct by Shagin in 1999-2000. The one issue with which Shagin was
unquestionably involved that year was teacher notification of violent student behavior. Shagin
made sure that his involvement with the issue was well known, by sending copies of his March
2000 letter on the issue to four superintendents and the District Board itself. To the extent that
the letter addressed this safety issue, it was protected activity.
21

I do not conclude, however, that the attack on Guidetti that Shagin included in the letter
was protected activity. Even in employee relations at their roughest, there are limits on
protected communication. (See generally Mt. San Antonio Community College District (1982)
PERB Decision No. 224.) While an employee's right to engage in protected conduct permits
some leeway for impulsive behavior, that right must be balanced against the employer's right to
maintain order and respect. (State of California (Department of Corrections) (2001) PERB
Decision No. 1435-S, citing Rio Hondo Community College District (1982) PERB Decision
No. 260.) Shagin's attack on Guidetti was malicious and defamatory, and it happened not in
the heat of the moment but as the apparent result of cool calculation. At the hearing, Shagin
did not defend the attack as factual or relevant. He also did not explain why he included the
attack in a letter sent in Gardner's name, even though Gardner had apparently crossed out the
attack in the draft she saw. Shagin's attack on Guidetti had no apparent legitimate connection
to protected activity, and it merits no protection.
Although there is no dispute that the District took action to transfer Shagin, there is a
dispute about whether that action was actually adverse. In its post-hearing brief, the District
correctly cites Palo Verde for the proposition that an involuntary transfer is not automatically
to be considered adverse. Palo Verde requires that a charging party prove a transfer to be
adverse by an objective standard.
In Newark Unified School District (1991) PERB Decision No. 864 (Newark), PERB
concluded that the charging party had satisfied the Palo Verde standard by proving factors and
circumstances that made a transfer from senior to junior high reasonably appear to be a
negative career move. PERB specifically based its conclusion on the following evidence in
that case:
22

According to District witness Roach, transfers from junior to
senior high were regularly requested by junior high teachers as
career moves. Additionally, the evidence indicated that, during
Bookout's six-year tenure at the junior high, Bookout repeatedly
attempted to transfer to the senior high. Furthermore, the ALJ
reasonably determined that a transfer to the junior high was not
looked upon as a desirable move, as evidenced by the lack of
transfer volunteers from the senior high English department.
It is possible that in the present case the Association could have produced similar evidence, but
the fact is it did not. Shagin filed a grievance seeking "damages" for his transfer, but neither in
the grievance nor at hearing did he specify a basis for damages, nor did he otherwise explain
how the transfer was objectively adverse.
In its post-hearing brief, the Association merely points out that Shagin had not taught
middle school in almost 30 years and that middle school subjects were not the same as the high
school subjects he had been teaching. The implication seems to be that teaching middle school
might require more preparation time from Shagin. In Newark, however, PERB found that a
similar implication did not support a finding of adverse action. The District, in its post-hearing
brief, points out that Shagin's new middle school assignment actually had some objective
advantages: a shorter teaching day and fewer adjunct duties. In its reply brief, the Association
does not respond to this point. On the record before me, I cannot conclude that the Association
has met its burden of proving that Shagin's transfer was adverse by an objective standard.
Furthermore, even if I concluded that Shagin's transfer was objectively adverse, I
would not conclude that the transfer was based on protected activity. As noted above, the
record is rather thin with regard to specific protected conduct by Shagin in 1999-2000 (or, for
that matter, in 1998-1999). In March 2000, Shagin did send Allen his very public letter on
teacher notification of violent student behavior. I have concluded that the letter was protected
activity to the extent it addressed this safety issue, but not to the extent it attacked Guidetti.
23

Ultimately, this case comes down to the following question of fact: was Shagin transferred
because he raised the legitimate teacher notification issue and had a history of raising similar
issues as an Association site representative, or was he transferred because he attacked Guidetti
and had a history of making similar attacks? Based on the record as a whole, as summarized in
the above Findings of Fact, I conclude that the preponderante of the evidence comports with
Fitzpatrick's credible testimony that Shagin's transfer was based not on his protected
Association activity but rather on his unprofessional performance outside the classroom, which
had generated a negative atmosphere at CHS.
PROPOSED ORDER
Based on the foregoing findings of fact and conclusions of law, and the entire record in
this case, it is ordered that the complaint and the underlying unfair practice charge in Case No.
LA-CE-4228-E, Las Virgenes Educators Association v. Las Virgenes Unified School District,
are hereby dismissed.
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 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.)
24

A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than 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).)
THOMAS J. ALLEN	TMOMAS
	AI4'EN
Administrative Law Judge
25