Lake Elsinore Unified School District (PERB 2241E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LAKE ELSINORE TEACHERS ASSOCIATION,
CTA,
Charging Party,
V.
LAKE ELSINORE UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-5235-E
PERB Decision No. 2241
February 27, 2012
Appearances: 	California Teachers Association by Michael Hersh, Staff Attorney, for Lake
Elsinore Teachers Association, CTA; Atkinson, Andelson, Loya, Ruud & Romo by Mark
V-/.
Thompson, Attorney, for Lake Elsinore Unified School District.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the Lake Elsinore Teachers Association, CT A
(Association) to the proposed decision
of
a PERB Administrative Law Judge (ALJ) dismissing
an unfair practice complaint. The complaint and underlying charge alleged that the Lake
Elsinore Unified School District (District) retaliated against a probationary teacher and
member
of
the Association's negotiating team by not re-electing him for employment after he
engaged in protected activity, in violation
of
section 3543.S(a)
of
the Educational Employment
Relations Act (EERA). 1
The Board has reviewed the 	record 	this case. Based upon that review, we
affirm the ALJ' s proposed decision for the reasons set forth below.
1 EERA is codified at Government Code section 3540 et seq.

FACTUAL SUMMARY
Robert "Marty" Chavez (Chavez) was first employed by the District during the 2005
2006 school year.2 He was rehired for the 2006-2007 school year as a probationary special
education teacher at Lake Elsinore High School (School).
During the 2007-2008 school year, while still a probationary employee, Chavez
participated as a member of the Association's negotiating team. His participation was well
known to the District. Both Assistant Superintendent of Personnel Services Kip Meyer
(Meyer) and the principal of the School, Jon Hurst (Hurst), testified that they believed Chavez
had a positive influence on bargaining. Assistant Principal Amy Campbell (Campbell) also
viewed Chavez's union involvement as a positive thing, in that they had a collaborative
relationship in which he would bring potential workplace issues to her attention to give her a
chance to address them.
Former District program specialist Nanette Sherman (Sherman)3 testified by telephone
that she attended a meeting with Executive Director of Special Education Dr. Kathleen Roberts
(Roberts) and others, at which Chavez's Association activities were mentioned. According to
Sherman, someone at that meeting said, "That it was a major concern because Marty would run
straight to the Union with any information or concern he has." Sherman testified that she
thought Roberts made this statement, but she was not sure. Sherman further testified:
Well, I can't quote the exact words, but it was that his
involvement, he was too involved, and I think the first time I ever
became aware of Marty was I had just been hired and it was, like,
two or three weeks before school would start, and he had a
meeting with Dr. Roberts and a couple other people, I think, to go
Chavez was hired on an intern credential while working on his special education
credential, which he completed thereafter.
3 Sherman had resigned from the District in lieu of involuntary demotion for non
performance reasons.
2

over what he felt the collaborative model needed. And I
remember that there was an odd sense that he was, like, stepping
out of his realm because he wasn't the department chair. And
that was before school had even started.
In response to a question as to whether she had "[heard] any talk concerning the fact that
[Chavez] was a new employee in terms of his involvement in the Union," Sherman testified
that she had heard "That it's unwise to get so involved [in the Association] when you're just
starting out." Again, Sherman testified that she "thought" this statement was made by Roberts.
Roberts denied making any of these statements. Roberts testified that, after returning
from a staff meeting at the school, Sherman "came back and said that the teachers at Elsinore
High School are very tired of Mr. Chavez putting barriers in the way of us moving forward,
and we, and the comment was, we wish that he would spend as much time concerned about his
instruction as he is about attending Union activities."
The ALJ credited Roberts' testimony over that of Sherman, finding Sherman's
telephonic testimony to be uncertain and unpersuasive.
During the 2006-2007 school year, following a review of the District's special
education program by federal authorities, the District received at least twenty-one citations
because it was not providing sufficient opportunities for special education students to access
the core curriculum. In addition, the District had been placed in "program improvement"
status due in part to inadequate yearly progress by students with disabilities. As a result of the
federal review, the District was directed to improve its co-teaching program, under which
special education teachers work collaboratively in the same classroom with the regular teacher
on planning, instruction and assessment.
Assistant Principal Campbell was in charge of overseeing the School's special
education department and was Chavez's direct supervisor. In this capacity, and in response to
the negative federal review, Campbell sought to make the special education department more
3

collaborative and for each member of the department to work as a team. In or around May
2007, the Association and the District negotiated a memorandum of understanding entitled the
"Co-Teaching Model MOU" (MOU). The MOU was a single-page document that set forth the
agreement of the Association and the District that "the co-teaching model of service delivery
for special education students may be implemented at all sites" and procedures for
implementing the co-teaching model. Chavez participated in the negotiation of the MOU.
Although Chavez received satisfactory performance reports, the District perceived him
as not being supportive of the co-teaching model. Campbell testified that, although Chavez
performed his co-teaching assignments satisfactorily, he did not want to have those
assignments and instead wanted to teach pull-out classes where he would instruct on his own,
without another teacher, even though he was not qualified to teach pull-out classes. Campbell
further testified that the chairs for the special education department reported that Chavez was
not supportive of the co-teaching model, that he was directly "against what they were working
for," and that he brought "negativity" and embarrassment to the department. Chavez
communicated his displeasure during staff meetings and in e-mail correspondence to the
District.4 Campbell also received complaints from special education department staff that
reflected "a tone of not liking the negativity that was brought to the department, the way it was
dividing us with different agendas and not all going towards the same vision." 	Based upon
these communications and her discussions with Chavez and other staff, Campbell formed the
opinion that Chavez did not believe that the co-teaching model was best for the students.
Roberts also testified that she received reports from staff that Chavez challenged the
co-teaching model. According to Roberts:
The e-mails were not introduced into evidence.
4

It was my observation when I arrived in the District that we had a
lot
of
pull-out
of
students in self-contained classes with teachers
that were not highly qualified. So therefore the co-teaching was
one
of
the best practices that we encouraging all
of
our sites,
including Elsinore High School, to implement
...
as quickly
as
possible.
Roberts further testified that, during a staff development meeting at the District office:
We talked about best practices, talked about co-teaching, and Mr.
Chavez's comment to, and it was a public comment with a lot
of
teachers present, was that he did not feel or agree that co-teaching
should be implemented at this time, it was too soon, general
education teachers were not prepared, and he felt strongly that
that was important to note.
As assistant superintendent
of
personnel services, Meyer is responsible for making
recommendations to the Board
of
Education concerning the non-reelection
of
employees. 	In
making these recommendations, Meyer considers both the employee's performance in
the
classroom as well as the employee's conduct outside the classroom, such as judgment, attitude,
collaborative skills, willingness to collaborate and to be a part
of
the team, and other factors
necessary for success in the teaching profession. Thus, written performance evaluations,
which cover only classroom performance, form only one piece
of
the information used
by
the
District in making re-election decisions. In deciding whether to recommend Chavez for re
election, Meyer spoke to Hurst, Campbell and Roberts. According to Meyer, the common
theme in their comments was that Chavez was deficient in the areas
of
teamwork,
collaboration, and the ability to align himself with the District's mission, goals and objectives.
All recommended that Chavez not be re-elected for the reasons described above.
On February 21, 2008, based upon the recommendations
of
Meyer, Campbell, Roberts,
and Hurst, the District's Board
of
Education took action to non-reelect Chavez for employment
with the District.
5

THE ALJ'S PROPOSED DECISION
The ALJ determined that Chavez engaged in protected activity by participating on the
Association's negotiating team, that Chavez's participation was well known to the District, and
that the District's decision on February 21, 2008 not to reemploy Chavez was an adverse
action. 	The ,A~LJ further determined that, although the protected conduct and the adverse
action were close in time, the Association failed to establish that the decision not to reelect
Chavez was motivated by anti-union animus.
THE ASSOCIATION'S EXCEPTIONS
The Association's primary argument set forth in its exceptions to the ALJ's proposed
decision is that the District's decision was based not upon Chavez's supposed lack of support
for the District's co-teaching model but because he engaged in the protected activity of trying
to enforce the co-teaching MOU he had been instrumental in negotiating. Thus, the
Association argues: ( 1) direct evidence establishes that Chavez was terminated because of his
protected activities; (2) circumstantial evidence establishes sufficient nexus between Chavez's
protected activity and his non-reelection; and (3) the District failed to establish it would have
nonreelected Chavez even if he had not engaged in protected activities.
THE DISTRICT'S RESPONSE
The District argues: 	(1) the Association's statement of exceptions fails to comply with
the requirements of PERB Regulation 32300;5 (2) the bulk of the Association's exceptions are
based upon an unalleged violation that may not be considered on appeal before the Board; and
(3) the ALJ's proposed decision, including its credibility determinations, was correct and
should be upheld.
5 The District's response erroneously refers to "Regulation 3020," which does not exist.
(PERB regs. are codified at Cal. Code Regs., tit. 8, sec. 31001 et seq.)
6

ISSUES
1. 	Does the Association's statement of exceptions comply with PERB
Regulation 32300?
2. 	Are the Association's exceptions based upon an unalleged violation that may
not be considered by the Board?
3. 	Did the Association establish that the District's decision to nonreelect Chavez
was unlawfully motivated by retaliation for Chavez's protected activity?
DISCUSSION
Compliance with PERB Regulation 32300
PERB Regulation 32300 provides:
(a) A party may file with the Board itself an original and five
copies of a statement of exceptions to a Board agent's proposed
decision issued pursuant to Section 32215, and supporting brief,
within 20 days following the date of service of the decision or as
provided in Section 32310. The statement of exceptions and
briefs shall be filed with the Board itself in the headquarters
office. Service and proof of service of the statement and brief
pursuant to Section 32140 are required. The statement of
exceptions or brief shali:
(1) State the specific issues of procedure, fact, law or rationale to
which each exception is taken;
(2) Identify the page or part of the decision to which each
exception is taken;
(3) Designate by page citation or exhibit number the portions of
the record, if any, relied upon for each exception;
(4) State the grounds for each exception.
(b) Reference shall be made in the statement of exceptions only
to matters contained in the record of the case.
(c) An exception not specifically urged shall be waived.
7

The District asserts: "Charging Party has ignored these provisions by filing a narrative
brief, which is, in actuality, a re-hashing of his Post-Hearing Brief. As Charging Party has
failed to comply with Section 3020 [sic], his Statement of Exceptions must be disregarded."
We disagree. The Association's exceptions clearly identify the issues to which exception is
taken, with appropriate page references to the .ALI' s proposed decision and citations to the
record. 	Accordingly, we conclude that it satisfies the requirements of Regulation 32300.
Unalleged Violation
The District asserts that the Association's contention on appeal that Chavez engaged in
protected activity by trying to enforce the co-teaching MOU constitutes a new and previously
unalleged violation that the Board may not consider on appeal. In support of this argument,
the District notes that the complaint issued in this case refers only to Chavez's protected
activity as a member of the Association's negotiating team, but does not refer to the co
teaching MOU, and that the Association never attempted to amend the Complaint. Thus, the
District contends, the Association never put it on notice that it intended to allege protected
activity related to the co-teaching MOU and therefore that it had no opportunity to litigate the
matter.
The Board has the authority to review unalleged violations when the following criteria
are met: (1) adequate notice and opportunity to defend has been provided the respondent;
(2) the acts are intimately related to the subject matter of the complaint and are part of the
same course of conduct; (3) the unalleged violation has been fully litigated; and ( 4) the parties
have had the opportunity to examine and be cross-examined on the issue. (County of Riverside
(2010) PERB Decision No. 2097-M; Fresno County Superior Court (2008) PERB Decision
No. 1942-C (Fresno Superior Court); Tahoe-Truckee Unified School District (1988) PERB
8

Decision No. 668.) The unalleged violation also must have occurred within the applicable
statute of limitations period. (Fresno Superior Court.)
Initially, we note that the facts surrounding the co-teaching MOU do not constitute an
alleged violation of EERA but rather an additional instance ofprotected activity by Chavez.
Thus, the issue is not whether the Board should consider such facts as evidence of an unalleged
violation but rather whether the Board may consider whether the District retaliated against
Chavez for having engaged in additional protected activity not specifically alleged in the
complaint.
The District is correct that neither the charge filed by the Association nor the complaint
issued by the PERB Office of the General Counsel alleged that Chavez engaged in any
protected activity in connection with enforcement of the co-teaching MOU. Instead, the
charge alleges facts only with respect to Chavez's participation on the Association's
bargaining team prior to the beginning of the 2007-2008 school year and that "a number of
issues put the Union bargaining team at loggerheads with the District administration between
October and December 2007." None of the issues identified in the charge related to the co
teaching MOU. The complaint issued by the General Counsel alleged only that, throughout the
2007-2008 academic year, Chavez exercised rights guaranteed by EERA by participating on
the Association's negotiating team.
During the hearing before the ALJ, Chavez testified about concerns he raised regarding
implementation of the co-teaching MOU, the District's "Horne Hospital" program (in which
teachers go to the homes of students who are unable to attend school) and other matters. 	In its
closing brief, the Association argued that the evidence established a nexus between Chavez's
attempts to enforce the terms of the co-teaching MOU and the District's decision to terminate
his employment. In the absence of notice that the Association was basing its case upon this
9

theory, however, the District was not afforded adequate notice and an opportunity to defend
against the unalleged claim that it took adverse action against Chavez for having engaged in
protected activity concerning the enforcement of the co-teaching MOU, as opposed to his
activities as a member of the Association's bargaining team. Therefore, we conclude that the
Association has failed to establish sufficient grounds for consideration of this unalleged basis
for its retaliation claim under the standards set forth in Fresno Superior Court and the
additional authorities cited above. (See City of Clovis (2009) PERB Decision No. 2074-M
[employer was not provided adequate notice and opportunity to litigate issue of whether
union's telephone call constituted "changed circumstances" so as to revive a duty to bargain,
where claim was raised only in post-hearing brief]; Baker Valley Unified School District
(2008) PERB Decision No. 1993 [evidence of union animus alleged for the first time in
charging party's closing brief did not provide employer with adequate notice and opportunity
to defend the allegations at hearing, and thus Board cannot make a finding regarding them].)
Ret::ili::ition
The Association bears the burden of proving the aiiegations of the complaint by a
preponderance of the evidence. (California State University (San Francisco) (1986) PERB
Decision No. 559-H; PERB Reg. 32178.) Preponderance of the evidence has been defined by
the courts as "evidence that has more convincing force than that opposed to it." (Glage v.
Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 324 (Glage).) Preponderance of the
evidence is usually defined in terms of the probability of the truth, or such evidence which,
when weighed against opposing evidence, has the greater probability of truth. (California
Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4 th 1133.) If the
evidence is so evenly balanced that one is unable to say that the evidence on either side
10

preponderates, the finding on that issue must be against the party who has the burden
of
proving it. (Glage at p. 324:)
To establish a prima facie case that an employer retaliated against an employee in
violation
of
EERA section 3543.5, subdivision (a), the charging party must show that: (1) the
employee exercised rights guaranteed by EERA.; (2) the employer had knowledge
of
the
employee's exercise
of
those rights; (3) the employer took an adverse action against the
employee; and (4) the employer took the action because
of
the employee's exercise
of
guaranteed rights. (Novato Unified School District (1982) PERB Decision No. 210 (Novato).)
The statutes administered by PERB, including EERA., regulate specific conduct
by
public employers and employee organizations concerning employer-employee relations.
(Los Angeles Community College District (1979) PERB Order No. Ad-64.) These sfatutes do
not regulate every aspect
of
the public employer's conduct. (Ibid.) Thus, PERB may only
remedy retaliation that was taken because an employee exercised rights guaranteed by one
of
the statutes PERB administers.
It is undisputed that Chavez's participation on the Association's bargaining team
constituted protected activity, that the District had knowledge
of
that activity, and that his non
reelection from employment was an adverse action. Therefore, the only issue before the Board
is whether the District's decision to terminate his employment was unlawfully motivated.6
Unlawful Motivation
"Unlawful motive is the specific nexus required in the establishment
of
a prima facie
case. Direct proof
of
motivation is rarely possible since motivation is a state
of
mind which may
be known only to the actor. Unlawful motive can be established by circumstantial evidence and
In its brief, the District states: "This case is simple because it is limited to the question
of nexus."
11

inferred from the record as a whole." (Trustees of Cal. State Univ. v. Public Employment
Relations Bd. (1992) 6 Cal.App.4th 1107, 1124 (Trustees ofCSU).) 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 (North
Sacramento)), it does not, without more, demonstrate the necessary nexus between the adverse
action and the protected conduct. (Moreland Elementary School District (1982) PERB
Decision No. 227.) PERB has considered the following factors as evidence of unlav1ful
employer motivation: (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 (City of Torrance (2008) PERB Decision.
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) 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; Novato.)
12

Direct Evidence of Unlawful Motivation
The Association asserts that this is one of those rare cases in which direct evidence of
unlawful motivation exists. The Association contends that the District's reasons for non
reelecting Chavez-based upon his lack of support for the co-teaching model-were in fact
based upon his protected activity of trying to get the District to comply with the co-teaching
MOU and raising concerns about its implementation. As discussed above, we do not consider
this unalleged violation. However, even if we were to do so, we would find that the
Association failed to meet its burden of proving direct evidence of unlawful motivation.
Although he was willing to perform his co-teaching duties satisfactorily, he made it clear to
District administrators that he preferred to teach pull-out classes on his own instead. Chavez's
lack of support for the District's vision and commitment to the co-teaching model created a
tone of "negativity" within the special education department. Despite the fact that the District
was under a federal mandate to implement co-teaching, Chavez resisted its implementation.
Under these circumstances, we do not find the District's expressed reasons for non-reelecting
him to constitute direct evidence of unlawful motivation.
The Association also contends that alleged statements made by Roberts-as testified to
by Sherman-constituted direct evidence of anti-union animus and therefore unlawful
motivation. ,As discussed above, the ALJ found Sherman's testimony to be uncertain and
unpersuasive, and found Roberts' denials more credible. It is a well-established principle that
the Board will give deference to ALJ credibility determinations absent evidence to support
overturning such conclusions. (Trustees of the California State University (San Marcos)
(2010) PERB Decision No. 2093-H; see also Anaheim City School District (1984) PERB
Decision No. 364a ("[[T]he Board has determined that it will normally afford deference to
13

administrative law judges' findings of fact involving credibility determinations unless they are
unsupported by the record as a whole."])
The ALJ found Sherman's telephonic testimony on the issue of animosity toward
Chavez's Association activities to be unpersuasive when weighed against the live testimony of
Roberts. The ALJ noted that Sherman's attribution of negative comments to Roberts was
uncertain and that one of those comments - that Chavez "would run straight to the Union with
any information or concern he has" - bore no obvious relation to Chavez's participation in
bargaining or any other protected conduct. In contrast, the ALJ found Roberts' testimony to be
clear, consistent and credible on all points. Having thoroughly reviewed the entire record in this
matter, we conclude the ALJ properly weighed the evidence presented by the parties at hearing,
and find that they are supported by the record as a whole. We therefore affirm the ALJ's
determination that Roberts did not make the statements attributed to her by Sherman.
Circumstantial Evidence of Unlawful Motivation
The Association also asserts that the following "nexus" factors support an inference of
unlawful motivation: 	(1) disparate treatment; (2) departure from established policies and
procedures; and (3) vague and ambiguous reasons. 7
1. 	Disparate Treatment
The Association contends that Chavez was subjected to disparate treatment because
other teachers who were also non-reelected either because their teaching was deficient or
because they were not performing job duties outside the classroom, whereas Chavez's
performance evaluations showed that he met and exceeded the District's performance
expectations. The Association has not established, however, that Chavez was treated
7 The District does not dispute the ALJ' s determination that the protected conduct and
the adverse action were close in time. Therefore, we conclude that the timing element of nexus
has been met in this case. (North Sacramento.)
14

differently from any similarly situated probationary teacher. There is no evidence in the record
to suggest that other probationary teachers who were unsupportive of the District's co-teaching
model were retained. In fact, the record establishes that three other teachers with satisfactory
performance evaluations were also non-reelected. The fact that other teachers with performance
deficiencies were also non-reelected does not establish that Chavez was treated differently.
Accordingly, the Association has not established that Chavez was subjected to disparate
treatment so as to raise an inference of unlawful motivation. (Sacramento City Unified
School District (2010) PERB Decision No. 2129; Madera County Office of Education (1999)
PERB Decision No. 1334; Santa Clarita Community College District (1996) PERB Decision
No. 1178.)
2. 	Departure From Established Policies and Procedures
The Association appears to contend that the District varied from established policies and
procedures by giving Chavez satisfactory performance evaluations and then not reelecting him,
where other employees who were not reelected had unsatisfactory performance. As indicated
above, however, the evidence in the record indicates that other employees with satisfactory
performance evaluations were also not reelected. In addition, Meyer credibly testified that
performance evaluations were not the only source of information used by the District in making
re-election decisions. Therefore, the Association has failed to establish that the District departed
from established policies and procedures in dealing with Chavez.
3. 	Vague and Ambiguous Reasons
The Association contends that the failure of the District to provide Chavez with the
reasons for his non-reelection supports an inference of unlawful motivation. An employer's
failure to give a probationary, "at-will" employee a reason for dismissal does not indicate
unlawful motive in the absence of evidence that the employer was required by law, policy or
15

past practice to do so. (City of Santa Monica) (2011) PERB Decision No. 2211-M; County of
Riverside (2011) PERB Decision No. 2184-M (County of Riverside); Sacramento City Unified
School District (2010) PERB Decision No. 2129; City of Alhambra (2011) PERB Decision
No. 2161-M (City of Alhambra).) Thus, where the employer's practice was not to give a
probationary employee a reason for releasing the employee on probation, the failure to do so
did not support an inference of unlawful motive. (County of Riverside.) Similarly, in this case,
the District's practice was not to provide reasons when notifying probationary employees of a
non-reelection decision, and it was not required by law or policy to do so. 8 (See also City of
Alhambra [release of probationary employee because he "no longer fit into the organization"
does not indicate discriminatory intent, in the absence of evidence that employer was required
by law or policy to provide a reason].) Accordingly, we do not find that the failure to provide
Chavez with the reasons for terminating his probationary employment to be indicative of
unlawful motive.
The issue before the Board is not whether the employer had just cause to discipline or
terminate the employee, but rather whether the true motivation behind the employer's decision
was the employee's exercise of protected activity under EERA. (San Bernardino City Unified
School District (2004) PERB Decision No. 1602.) In this case, we conclude that the
liAssociation has failed to meet its burden of proving, by a preponderance of the evidence, that
Education Code section 44929 .21 allows a school district to non-reelect a
probationary teacher without any showing of cause and without a statement of reasons, so long
as the statutorily required notice is given. (Ed. of Education v. Round Valley Teachers Assn.
(1996) 13 Cal.4 th 269,279; see also McFarland Unified School Dist. v. Public Employment
Relations Ed. (1991) 228 Cal.App.3d 166, 169 [the final determination about rehiring
probationary teachers lies within the discretion of the governing board and that tenure can be
denied for any lawful reason regardless of the sufficiency of the cause].)
16

Chavez's protected activity as a member
of
the Association's negotiating team was the true
motivation for the District's decision to terminate his probationary employment. 9
ORDER
The complaint and underlying unfair practice charge
in
Case No. LA-CE-5235-E are
hereby DISMISSED.
Chair Martinez and Member McKeag joined in this Decision.
Because of the conclusions reached herein, it is unnecessary to address the
Association's third argument that the District failed to establish it would have nonreelected
Chavez even in the absence of his protected activities. (See Trustees
of
CSU at p. 1130 [the
"but for" test is an affirmative defense that the employer must establish by a preponderance of
the evidence].) The burden of proof shifts to the employer once the charging party succeeds in
establishing its prima facie case. (Novato.) For the reasons explained above, the Association
did not meet its burden of proving a prima facie violation and, therefore, the burden never
shifted to the District.
17