Bellevue Union Elementary School District (PERB 1561E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BELLEVUE EDUCATORS ASSOCIATION,
CTA/NEA,
Charging Party,
v .
BELLEVUE UNION ELEMENTARY SCHOOL
DISTRICT,
Respondent.
Case No. SF-CE-2223-E
PERB Decision No. 1561
December 8, 2003
Appearance: California Teachers Association by Ramon E. Romero, Attorney, for Bellevue
Educators Association, CTA/NEA.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Bellevue Educators Association, CTA/NEA (Association)
to a proposed decision (attached) of the administrative law judge (ALJ). The charge alleged
that the Bellevue Union Elementary School District (District) violated the Educational
Employment Relations Act (EERA) ' by retaliating against two second-year probationary
teachers because of their protected activity. Specifically, the charge alleged that the two
second-year probationary teachers were denied permanent status because they participated in a
work-to-contract campaign to protest the status of contract negotiations with the District. The
ALJ found that the Association established a prima facie case of unlawful retaliation.
However, the ALJ eventually dismissed the charge and complaint after finding that the two
EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

teachers would not have been reelected even absent their protected activity because their job
performance was not superior.
After reviewing the entire record in this case, including the proposed decision and the
Association's exceptions, the Board finds the ALJ's findings of fact and conclusions of law to
be free of prejudicial error and adopts them as the decision of the Board itself, subject to the
discussion below.
DISCUSSION
In its exceptions, the Association first argues that the ALJ erred by failing to follow the
Board's precedential decision in Livingston Union School District (1992) PERB Decision
No. 965 (Livingston). Livingston also involved a school district's refusal to rehire two second-
year probationary teachers allegedly because of their protected activity. In Livingston, the
Board concluded that the school district had retaliated against the two teachers because of their
activism on behalf of other teachers. The Association argues that the facts in this case are
indistinguishable from Livingston.
After analyzing all the evidence, the ALJ concluded that although there are similarities,
the facts in Livingston differ substantially from those here. The Board agrees. One key
difference is that in Livingston there was strong evidence that the school district targeted the
two probationary teachers because of their activism. Specifically, the two probationary
teachers in Livingston were immediately admonished and referred to as "bitchers" and
"gripers" when they complained about workplace issues.
In contrast, there is no evidence that the District targeted, or had any motive to target,
Lori Lemke (Lemke) and Debra Bramlett (Bramlett). It is undisputed that all the teachers in
the District, including those on probation, participated in the work-to-contract campaign.
There is no evidence that Lemke and Bramlett were leaders of the protest or especially active
2

in the campaign. The only theory offered by the Association for why Lemke and Bramlett
would be targeted is that the District wanted to retaliate against Kawana Elementary School,
which was the union stronghold. However, the Association presented no evidence to support
this speculative theory and the ALJ properly rejected it.
Despite the fact that there did not appear to be any reason for why the District would
target Lemke and Bramlett, the ALJ nevertheless concluded that the Association had
established a prima facie case of retaliation. The ALJ's finding was based on the District's
unsubstantiated and exaggerated justifications for their non reelection. In reviewing the
record, the Board agrees that the Association has established a prima facie case, but just barely.
Weighing heavily against such a finding is the lack of motive for why Lemke and Bramlett
would be targeted and the fact that most of the probationary teachers were reelected even
though all of them participated in the work-to-contract campaign. The weaker evidence of
unlawful animus is one factor distinguishing this case from Livingston. Accordingly, the
Board agrees with the ALJ that Livingston is not controlling.
The remainder of the Association's exceptions attack the justifications proffered by the
District for the non-reelection of Lemke and Bramlett. The Association vigorously argues that
the District's purported justifications are without merit. Because the District has not
demonstrated good cause for Lemke and Bramlett's non reelection, the Association argues that
an inference of retaliation must be sustained.
The Association's exceptions are unpersuasive because they fail to acknowledge that
tenure can be denied to probationary teachers for any lawful reason regardless of the
sufficiency of the cause. (Education Code sec. 44929.21; Mcfarland Unified School Dist. v.
Public Employment Relations Bd. (1991) 228 Cal.App.3d 166, 169 [279 Cal.Rptr. 26].) The
mere lack of good cause for the non-reelection of Lemke and Bramlett does not, by itself,
3

support an inference of unlawful animus." (Golden Plains Unified School District (2002)
PERB Decision No. 1489.) To the contrary, the District was well within its rights to establish
a policy of granting tenure only to those teachers receiving superior performance ratings, as
opposed to merely satisfactory ones. Based on the record, the Board agrees that the District
had such a policy in effect during the 2000-2001 school year.
Given that the District had a policy of granting tenure only to superior teachers, the
Board agrees with the ALJ that the District met its burden to establish that it would not have
reelected Lemke and Bramlett even absent any protected activity. The record establishes that
Lemke and Bramlett were professionally competent. However, they were not rated superior,
which was the District's standard for reelection. Most important, the record establishes that
the performance ratings assigned to Lemke and Bramlett predate their participation in the
Association's work-to-contract campaign. Given these facts, the Board finds that the District
has met its burden to establish that Lemke and Bramlett would have been non reelected even
absent any protected activities. Accordingly, the charge and complaint in this matter must be
dismissed.
ORDER
The unfair practice charge and complaint in Case No. SF-CE-2223-E is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
However, as the ALJ correctly found, an inference of discrimination may be
supported when an employer offers justifications for an adverse employment action that are
unsubstantiated, inconsistent, contradictory or exaggerated. (See State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S.)

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
BELLEVUE EDUCATORS ASSOCIATION,
CTA/NEA,
Charging Party,
V .
BELLEVUE UNION ELEMENTARY SCHOOL
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-2223-E
PROPOSED DECISION
(12/20/02)
Appearances: California Teachers Association by Ramon Romero, Attorney, for Bellevue
Educators Association, CTA/NEA; School and College Legal Services of California by
Robert Henry, Attorney, for Bellevue Union Elementary School District.
Before Fred D'Orazio, Administrative Law Judge.
PROCEDURAL HISTORY
The Bellevue Educators Association, CTA/NEA (BEA), initiated this action on
August 3, 2001, by filing an unfair practice charge against the Bellevue Union Elementary
School District (District). On August 24, 2001, the Office of General Counsel of the Public
Employment Relations Board (PERB or Board) issued a complaint alleging the District denied
two second year probationary teachers permanent status because of their protected conduct.
Specifically, the complaint alleges that the teachers were denied permanent status because they
participated in a work-to-contract campaign to protest the pace of negotiations with the
District. By this conduct, it is alleged, the District violated the Educational Employment
Relations Act (EERA or Act) section 3543.5(a) and (b).'
EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code. In relevant part, section
3543.5 provides:

In its answer to the complaint, filed on September 12, 2001, the District denied that it
violated the EERA and asserted a number of affirmative defenses. Denials and defenses will
be addressed below, as necessary. A PERB agent conducted a settlement conference on
October 11, 2001, but the matter was not resolved.
On October 31, 2001, the District moved to dismiss the complaint on the ground that
the dispute is covered by a collective bargaining agreement. BEA opposed the motion. On
January 14, 2002, the undersigned denied the motion and the matter proceeded to hearing.
A formal hearing was held on February 6-8, 2002. With the receipt of the final brief on
August 16, 2002, the case was submitted for decision.
FINDINGS OF FACT
Jurisdiction
BEA is an employee organization within the meaning of section 3540.1(d), and the
exclusive representative of an appropriate unit of the District's certificated employees within
the meaning of section 3540.1(e). The District is a public school employer within the meaning
of section 3540.1(k). It is located in Santa Rosa.
The District is comprised of three elementary schools, kindergarten through sixth grade.
There are approximately 1800 students in the District and 120 teachers. The schools are
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
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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Meadowview, Bellevue and Kawana, the school where most of the events at issue here took
place. At Kawana, approximately 85 percent of the student population is under the poverty
level, about half of the students are bilingual and some of the students are known to have
exhibited behavior characteristic of gangs.
The 1999-2000 Evaluations
Lori Lemke (Lemke) and Debra Bramlett (Bramlett), the probationary teachers alleged
to have suffered discrimination because of their protected activities, taught at Kawana during
the 1999-2000 and 2000-2001 school years. Bramlett was a resource specialist for the special
education department, and Lemke taught a combination fourth/fifth grade class. Their
employment was not renewed for the 2001-2002 school year.
Paula Sutherland (Sutherland), the principal at Kawana during the 1999-2000 school
year, evaluated Bramlett and Lemke twice." The evaluations followed meetings with both
teachers to establish goals and objectives and classroom observations. Goals and objectives
and classroom observations are more fully addressed below as necessary.
The first formal classroom observation of Bramlett was on December 15, 1999.
Sutherland's written record of the session contained commendations that ranged from "good
modeling of concept" to "lesson was well organized" to "pacing of the lesson was
appropriate." Sutherland also provided several recommendations to Bramlett. These included,
for example, suggestions that she use a poem or shorter piece of writing (rather than a book) to
practice summarizing; assign students to read with a partner or alone rather than assigning one
"The evaluation form rated teachers in six areas: student progress; student control;
learning environment; personal relations; professional growth; and other duties. Points were
assigned in each area as follows: unsatisfactory (1); needs improvement (2); professionally
competent (3); and superior (4). The evaluations also contained narratives in each area,
evaluator comments and recommendations.
3

student to read to the class; involve the aide more in the reading exercises; assign more
reading; and use charts to discuss material.
The observation was not discussed with Bramlett at that time. Prior to the Christmas
holidays, Bramlett testified, she asked Sutherland for a conference to discuss her work and
Sutherland responded that she had no concerns about Bramlett's performance.
On January 6, 2000, Sutherland evaluated Bramlett for the first time. She rated her
professionally competent in three areas: student progress, student control, and personal
relations. Bramlett was rated superior in professional growth and other duties. Sutherland
commented on the evaluation that Bramlett had a "positive attitude" and was "flexible and
willing to problem solve." The evaluation also included a series of commendations and a list
of recommendations. Sutherland concluded with an overall recommendation that Bramlett
continue "without reservation."
In May of 2000 Bramlett was observed in the classroom by Vice Principal Dawn
Johnson (Johnson). The formal observation is not in the record, but Bramlett testified that it
involved a math lesson and, in her view, went well. Johnson did not testify at the hearing.
By the end of the 1999-2000 school year, however, Sutherland had begun to view
Bramlett's performance in a less favorable light. In an evaluation dated June 29, 2000, she
rated Bramlett professionally competent in four areas: student progress, learning environment,
professional growth and other duties. She rated Bramlett somewhere between professionally
competent and needs improvement, a "2/3" rating, in student control and personal relations.
In the student control area, Sutherland wrote:
It is important that you relate to students in a positive, calm
manner. You need to be respectful of them so that they will
respect you in return. Continue to have high expectations for
students and to implement a consistent proactive behavior
program. Students who have difficulty behaving appropriately
respond well to an established routine.
4

Under personal relations, Sutherland wrote:
Debra, you are a very friendly and outgoing person. However,
you sometimes display a very blunt manner that could be
misinterpreted by adults or more importantly students. Continue
to maintain open, on-going communication with me and with
your new principal. It is not OK to make decisions about your
program, for instance, when to stop services to students, without
consulting with me first. I am always available, either here at the
office or by phone, if you need to speak with me. I also spoke to
you in the past few months about your assertive nature with me. I
try hard to treat staff members in a courtesy [sic] and respectful
manner and I expect to be treated in the same way.
Regarding other duties, Sutherland noted that Bramlett was willing to participate in
schoolwide activities, and that she had "adequately" facilitated student success team meetings
during the past semester. However, she wrote,
. . . It is important to remember that this process calls for a team
approach and that everyone on the team needs to act in a
supportive manner. I have noticed that you, again, can be rather
outspoken at these meetings. This could have a negative effect
on promoting positive parental support.
In a series of recommendations, Sutherland suggested that Bramlett "interact with
students, parents and staff in a positive and supportive manner." She suggested further that
Bramlett "maintain open, on-going communication with me and that you consult with me
before making program decisions." Sutherland also noted that it was "important for [Bramlett]
to use results from on-going assessments to plan effective lessons for all of [her] students."
Sutherland wrote "even though it is important to support students with their classroom
assignments, it is also vital that direct instruction, based on your on-going assessment, happens
on a daily basis both in a group setting and with individual students." Lastly, Sutherland said
Bramlett should continue to implement the techniques and strategies learned during in-service.
At the end of the evaluation, Sutherland recommended that Bramlett continue to the
2000-2001 school year, "with reservation." Sutherland testified, "as the year progressed, I
5

became more concerned . . . especially in the area of relationships with students and with me,
and with staff members. Also, with differentiating curriculum and implementing a program
that met with needs of each individual RSP student."
Bramlett said she was "shocked" when Sutherland presented the evaluation to her at a
conference in June 2000. In response to Bramlett's questions about the evaluation, Sutherland
cited the points outlined above as the basis for her recommendation. Bramlett agreed that
Sutherland offered specific examples to support the evaluation. She responded that she would
correct the deficiencies in the fall.
Sutherland also evaluated Lemke twice during the 1999-2000 school year. The first
evaluation was based in part on a classroom observation on December 15, 1999. Sutherland's
observation notes commend Lemke on several points. For example, Sutherland pointed out
that the lesson was focused and students were attentive and engaged. She noted that Lemke
used good brainstorming techniques to set the lesson, identified students who were "off track"
and got them back to the task at hand, and moved around the room as a classroom management
technique.
On the other hand, Sutherland made several recommendations. She suggested that
Lemke secure the attention of all students before and during the lesson; the longer the lesson
went the more students became disengaged. She indicated that Lemke should establish a
comfortable learning environment, such as the rug or other area. She indicated that
brainstorming went too long. She pointed out that Lemke sometimes did the work for students,
and advised her to let the students do more. Sutherland noted that the lesson went too long and
suggested better pacing. Sutherland pointed out that the aide and the reading teacher were not
involved in the lesson, and suggested they conduct guided reading groups during the period.
6

Despite these written recommendations, Lemke testified that Sutherland did not
communicate to her any concerns about her performance. In fact, Lemke said, she and
Sutherland had a positive relationship.
On January 6, 2000, Sutherland evaluated Lemke for the first time. She rated her
professionally competent in all categories, and the comments in most areas of the evaluation
generally were positive. For example, under student progress, Sutherland noted Lemke's
efforts in implementing a language arts program that meets the needs of each student. She also
noted that Lemke was willing to try new techniques and methods of instruction that benefited
students.
Other comments were less favorable. Under student control, Lemke was rated "3-".
Sutherland wrote: "Continue to implement assertive discipline procedures in your classroom in
a consistent manner. I liked the positive manner in which you interact with students. Students
need to know what is expected of them so that they can respond accordingly." (Underlining in
original.) At the end of the evaluation, Sutherland recommended that Lemke continue
"without reservation."
At some point after the January 2000 evaluation, Sutherland observed Lemke again in a
guided reading class. The formal observation record is not in evidence, but Lemke testified
that the lesson went well. Lemke and Sutherland discussed the observation and Lemke
testified that Sutherland was "very positive."
Sutherland evaluated Lemke again on June 9, 2000. Lemke was rated professionally
competent in all areas, and comments in each category again were generally favorable.
Sutherland noted that Lemke's "instructional program reflects strong personal commitment and
enthusiasm. Continue to maintain open, on-going communication with me. You are a
7

contributing member of our Kawana Staff and the fifth grade team." At the end of the
evaluation, Sutherland again recommended that Lemke continue "without reservation."
Nevertheless, Sutherland testified, by the end of the 1999-2000 school year she had
concerns about Lemke. She testified, "my reservations were in the implementation. Lori had
done, attended workshops, gone to in-services. I wanted to see more of the implementation of
some of the strategies that she had learned in the classroom. I also had some concerns about
classroom management, student discipline." In Sutherland's view, these concerns are reflected
in the written evaluation.
At a meeting to discuss the evaluation, Sutherland said she told Lemke that the
evaluation was generous and she needed to see improvement in the following year. According
to Sutherland, Lemke became "upset emotionally" and began to cry. Sutherland testified, "I
thought that she had potential . . . and if she implemented some of the strategies that she could
possibly do well the following year."
Lemke, on the other hand, testified that she met with Sutherland to discuss the
observation and the evaluation. She said the discussion was "very positive" and Sutherland
"seemed very happy with my work." According to Lemke, Sutherland raised no significant
concern during the discussion.
In addressing this dispute in the testimony, I find it unnecessary to determine whether
Lemke became emotional during the meeting with Sutherland. The central issue here is
whether Sutherland had concerns about Lemke at the end of the 1999-2000 school year, prior
to any protected activity. I find that Sutherland, by the end of the 1999-2000 school year, had
at least two of the key concerns included in her testimony. These issues are reflected in the
written evaluations of Lemke, although not in the strongest wording.
8

First, she testified that she had reservations about Lemke's failure to implement
strategies learned at various workshops and in-service training sessions. In Lemke's January
2000 evaluation, Sutherland rated her "3+" in professional growth and noted that Lemke's
willingness to participate in training and workshops "is of great benefit to your students.
Continue to put into practice in your classroom that which is learned during your in-service
training." In Lemke's June 2000 evaluation, Sutherland noted that "you are willing to
participate in our in-service workshops and to attend workshops that will enhance your
curricular program. Your willingness to learn, grow and add to your language arts program as
you gain additional information about the reading process is of great benefit to you and your
students." However, the rating dropped from "3+" to "3."
Second, Sutherland testified that she had concerns about Lemke's classroom
management. The January 2000 evaluation rated Lemke "3-" under student control and
emphasized that Lemke needed to implement assertive discipline procedures in your classroom
in a consistent manner so that students know what is expected of them. In the June 2000
evaluation, Lemke showed slight improvement. She was rated "3" under student control, but
Sutherland noted that she should continue to use assertive discipline procedures in a consistent
manner, set high expectations for students, and to monitor their behavior.
The Work-to-Contract Campaign
As the 2000-2001 school year began, BEA and the District were locked in a difficult set
of negotiations. This was not the first time the parties had bargained to impasse. Over the past
decade, the bargaining relationship between the District and BEA had been a contentious one.
In the early 1990s, the parties reached agreement on contracts only after mediation. In 1995,
the District hired a negotiator to replace Superintendent Armando Flores (Flores) as chief
negotiator and the negotiations continued into 1996. In September 1996, the BEA
9

implemented a highly publicized work-to-contract campaign that lasted approximately six
weeks before an agreement was reached. The 1996-97 negotiations carried into the next
school year and agreement was reached only after a factfinder issued his report.
Throughout this period, Flores testified, the District had a "good" bargaining
relationship with BEA. Although the parties were locked in an adversarial process, Flores
explained, he did not believe they were "antagonistic and angry." However, he conceded it
was "not a positive" relationship and he was critical of the work-to-contract campaign.
The most recent round of negotiations began in February 2000, and the 2000-2001
school year began without a contract. BEA requested that PERB certify an impasse and at the
same time began another work-to-contract campaign. PERB certified the impasse in October
2000, and the parties went to mediation as the campaign continued. The campaign affected
many activities, but not the professional services teachers were required to provide by
contract." As Flores testified, "I was saddened by the fact that those services were not extended
to children, yet I reconciled that with the fact that the teachers were providing full professional
services and doing their job." Nonetheless, Flores described the work-to-contract campaign as
"probably not a good thing." The campaign continued until a new agreement was ratified on
February 22, 2001, prior to a scheduled factfinding proceeding.
There is no dispute that the work-to-contract campaign was heavily promoted and
monitored on a daily basis by BEA. Articles about the campaign appeared in local
newspapers, the activity was brought to governing board meetings, and BEA picketed schools.
As a result of the work-to-contract campaign, teachers refused to perform many
duties. These were beyond those duties required by the expired collective bargaining
agreement and included, among other things, participation in activities such as astronomy
night, chess club, committees, field trips, coaching sports teams, meetings, science fair, student
council, and the student study team. The impact of the campaign was obvious in other ways.
For example, when a meeting between the faculty and the principal reached the allotted
contractual time, teachers departed en masse even though the meeting was not over.
10

It was well known by District administrators and principals that BEA sponsored the campaign
and all teachers in the three District schools participated. This included Bramlett and Lemke.
There similarly is little dispute that Lemke and Bramlett worked extra hours while at
Kawana prior to the work-to-contract campaign. During the 1999-2000, for example, they
participated in the student study team after school." The student study team did not meet early
in the 2000-2001 school year. After some discussion, meetings resumed in January 2001,
during the day rather than after school. Bramlett continued her participation, but Lemke did
not.
In addition, it is well known that teachers at Kawana have been among the most active
in BEA through the years and in the most recent work-to-contract activity. Out of
approximately 30-35 current teachers at Kawana, eight have been active in the BEA over the
past nine years as officers and/or negotiators. Flores agreed that Kawana is the "union
stronghold" in the District.
The 2000-2001 School Year
Prior to the start of the 2000-2001 school year Sutherland became the District's
curriculum coordinator and Nancy Rogers-Zegarra (Rogers-Zegarra) took over as principal at
Kawana. Rogers-Zegarra was not a popular choice among the faculty, nor was she a stranger
to the Kawana staff. Her work as a consultant for the Sonoma County Office of Education had
brought her into contact with Kawana teachers. According to Steven Thiele (Thiele), a teacher
at Kawana who served as BEA past president and chief negotiator, teachers at Kawana did not
like Rogers-Zegarra. He said her reputation among teachers was such that many found her
very "condescending and hard to work with" and "irritating." Basically, he said, teachers
# The student study team is designed to assist students who experience academic or
other difficulties. Typically, teachers meet with students and parents to identify problems and
establish a program of assistance. Meetings are held once or twice a week.
11

"didn't like her." Rogers-Zegarra was a friend of Sutherland, and, according to Thiele, many
teachers disliked Sutherland as well.
According to District policy, a hiring panel that includes faculty members plays a role
in hiring principals. Thiele testified that before the panel had begun the search for
Sutherland's replacement, faculty members learned that Rogers-Zegarra already had been
selected. He said, "it seemed like this was a done deal before the democratic process had
happened." BEA demanded a meeting with the District to voice complaints about the decision
to hire Rogers-Zegarra and the manner in which it was carried out. The situation became so
heated that a school psychologist was selected to act as an intermediary between the faculty
and Rogers-Zegarra as the school year began. By March 2001, the situation had not improved
and BEA requested another meeting with Flores to discuss the situation. Thiele testified that
BEA hoped the District would "let her go," but that didn't happen.
Meanwhile, as the 2000-2001 school year commenced, Bramlett's early encounters
with Rogers-Zegarra were not positive ones. Bramlett testified that she encountered Rogers-
Zegarra on the first day of school and introduced herself. She said Rogers-Zegarra responded,
"I've heard about you." Bramlett's "perception" was that Rogers-Zegarra's comment "might
have been negative."
About two weeks later, in September, Rogers-Zegarra entered Bramlett's classroom and
asked for a list of students in the student study program and a list of resource students.
According to Rogers-Zegarra, Bramlett "yelled at [her], and then she started to cry." Rogers-
Zegarra described Bramlett's response as an "outburst" which showed a lack of respect in front
of students. Rogers-Zegarra also testified that when she questioned Bramlett about her
conduct, Bramlett said, "you know all about me and who I am." Rogers-Zegarra said she
responded that she did not know Bramlett, she hadn't reviewed her personnel file, she hadn't
12

spoken to Sutherland about her, she was surprised at her inappropriate reaction, and she needed
to use a "polite voice."
In her testimony, Bramlett flatly denied shouting at Rogers-Zegarra, asserting that
Rogers-Zegarra's testimony is "totally false." According to Bramlett, she told Rogers-Zegarra
that she had been instructed by the director of special education not to provide the list until it
was complete, but she gave Rogers-Zegarra the list she requested anyway.
I find it unlikely that a probationary teacher such as Bramlett, upon being approached in
her classroom by a new principal early in the school year, would respond to a simple request
for a list of students with an "outburst" and tears. Also, Sutherland described Bramlett as
"brusque." Bramlett concedes that she "can be direct and that can sometimes be
misunderstood." And, as more fully discussed below, Rogers-Zegarra has demonstrated a
tendency to exaggerate Bramlett's behavior as overly aggressive. Given these factors, I
conclude that Bramlett most likely responded to Roger-Zegarra in a direct manner, explaining
that the director of special education had instructed her not to provide the list until it was
complete, and Rogers-Zegarra misconstrued her response as an outburst.
The incident prompted Rogers-Zegarra to initiate a discussion with Sutherland about
Bramlett. Sutherland told Rogers-Zegarra that she didn't have "open communication" with
Bramlett during the prior school year and her "voice tone" was not as positive as it could have
been. Sutherland also told Rogers-Zegarra that Bramlett could be intimidating or brusque, and
she suggested that Rogers-Zegarra review Bramlett's file to determine if progress was being
made on recommendations from the previous year.
During the same conversation, Sutherland related concerns about Lemke and suggested
that Rogers-Zegarra review her personnel file as well to determine if progress was being made.
According to Rogers-Zegarra, Sutherland said Lemke needed to move around the classroom,
13

engage students, differentiate the instruction and "tailor the learning" to her combination class.
Sutherland also told Rogers-Zegarra that she had concerns about Lemke's classroom
management and her lack of ability to discipline students. Sutherland described Lemke to
Rogers-Zegarra as "very emotional."
On December 11, 2000, after Bramlett had submitted her goals and objectives for the
school year, Rogers-Zegarra observed her conducting a guided reading lesson. In the formal
observation report, Rogers-Zegarra commended Bramlett in several areas. For example, she
wrote that the lesson was well organized, students were interested and engaged, and Bramlett
encouraged student participation.
Rogers-Zegarra also made several recommendations. For example, she wrote that
Bramlett should use techniques to help students identify important points of the story; help
students to understand the need to select only important facts for their summaries; use
techniques to help students follow the reading; encourage students to read more; follow
standardized instructions to help students understand the difference between a main idea and
supporting details; provide more feedback so students understand what they got right and what
they need to correct; and divide the reading into smaller groups to help with pacing of the
lesson.
Shortly after the December 11 observation, Rogers-Zegarra and Bramlett met to discuss
the observation. Bramlett testified that she received the commendations and recommendations
and generally was pleased with the meeting.
On February 9, 2001, Bramlett received her first formal evaluation from Rogers-
Zegarra. She was rated professionally competent in four areas: student progress, student
control, learning environment, and other duties. She was rated somewhere between
professionally competent and needs improvement in personal relations, a "2/3" score. The
14

evaluation contained several positive statements about Bramlett's performance. However,
Rogers-Zegarra suggested ways for Bramlett to improve. Under student progress, Rogers-
Zegarra wrote:
It is also important that your plans are well thought out and that
meaningful activities are implemented for more than one group at
a time in your room. It is also important to provide more specific
feedback to help students know how they are progressing. It is
important that you use results from on-going assessments to plan
effective lessons for all of your students.
Under personal relations, Rogers-Zegarra wrote:
Debra, you can be a very affable person. On several occasions,
however, you have displayed a brusque manner toward me,
students and staff members. Continue to maintain open, on-going
communications with me and other staff members.
At the end of the evaluation, Rogers-Zegarra wrote, "Recommend Non-Continuation."
Bramlett was surprised at the recommendation because, she testified, at no time had Rogers-
Zegarra criticized her performance.
Rogers-Zegarra and Bramlett met to discuss the evaluation. Bernadette Jones (Jones)
accompanied Bramlett during the meeting. Bramlett's testimony and Jones' notes of the
meeting establish that Rogers-Zegarra said her "recommendation had nothing to do with the
evaluation. You're not a good partnership with the District." Bramlett asked what would
make a good partnership, and Rogers-Zegarra responded, "attitude, I didn't feel you were
professional with some of your decisions." Jones' notes also state that Rogers-Zegarra told
Bramlett the District "needs someone who supports the school totally."
At the hearing, Rogers-Zegarra testified at some length about the basis for her
recommendation. She said that she was meeting with a parent about the need to transfer
students from Kawana to Bellevue to balance enrollment. The student wanted to remain at
Kawana. Rogers-Zegarra said Bramlett entered the meeting and "advocated for the side of the
15

parent, and why the parent should stay at the school instead of being transferred." In Rogers-
Zegarra's opinion, Bramlett's conduct "wasn't helpful." Hence, at the meeting with Jones,
Rogers-Zegarra informed Bramlett that she wanted someone who supports the school totally.
In addition, Rogers-Zegarra testified that she was concerned about Bramlett's tone of
voice when addressing parents in the student study team meetings. Rogers-Zegarra said she
observed Bramlett on occasion addressing Hispanic parents in a student study team meeting by
their first name and speaking to them in a "condescending tone." Although none of the parents
from the study team meetings lodged complaints about Bramlett, Rogers-Zegarra concluded
that Bramlett's manner of communicating with them was inappropriate based on her personal
observation of the parents at the meetings in question.
Rogers-Zegarra also testified that she received numerous complaints about Bramlett
from parents, staff and students. Aside from the two incidents discussed immediately below,
Rogers-Zegarra identified no specific complaint received prior to the time she made the
decision to recommend that Bramlett not be reelected.
In the first incident, Rogers-Zegarra claimed that Bramlett "intimidated" a secretary by
raising her voice in connection with a truancy matter. According to Rogers-Zegarra, the
secretary reported the incident to her in tears. Bramlett disputed Rogers-Zegarra's testimony.
She testified that she did not intimidate a secretary, and, in fact, has no knowledge of the
incident whatsoever. Bramlett testified "I can be direct and that can sometimes be
misunderstood, but I've never had a cause for any I'll say bad words between teachers, I've
never experienced that." She also testified that Rogers-Zegarra never mentioned this incident
to her, and she heard of it for the first time at the hearing.
I credit Bramlett's testimony regarding this incident. If such an emotional incident
occurred as described by Rogers-Zegarra, it seems likely that she would have at least
16

mentioned it to Bramlett. Rogers-Zegarra's failure to do so or to even identify the complaining
secretary at hearing severely undercuts her testimony.
Another complaint described by Rogers-Zegarra involved Sherry Gregory (Gregory), a
counselor. Rogers-Zegarra testified that in November 2000 Gregory informed her that
Bramlett had spoken to an intern counselor in a "threatening" and "intimidating" manner,
while addressing a student in the presence of other students. According to Rogers-Zegarra,
Gregory reported that "her counselors were wondering what to do, because [Bramlett] was
acting unprofessionally with the counselors." Rogers-Zegarra said she "probably didn't" speak
to Bramlett about the incident directly, but she told the faculty on numerous occasions "not to
talk about children in front of children."
Gregory did not testify at the hearing, but the parties stipulated that if called as a
witness Gregory would testify as follows.
I have weekly meetings with Nancy Rogers-Zegarra regarding
current issues effecting the counseling program at Kawana
School. Since I am there just part-time, it is important that I am
briefed about the latest events so that we in the counseling
department can respond in a timely and appropriate manner. I
also inform Nancy of any critical situations or concerns that I
might have along with a generalized assessment of how some
students are progressing.
During one of these meetings last year, I mentioned a situation
that involved Debra Bramlett, an interning counselor and a
student in the counseling program. The counselor had arrived at
our weekly supervision meeting visibly upset. When I inquired
about the upset she explained why she was feeling this way. My
impression was that she had gone to Ms. Bramlett's classroom
to get the student for his counseling appointment. It appeared
that the student had been quite problematic that day during class.
Ms. Bramlett appeared tired and frustrated. As the counselor was
exiting with the student, Ms. Bramlett began talking about his
behavior in front of the student and loud enough so others in the
room could also hear. This included recommendations for what
needed to be worked on in counseling. The counselor thought
Ms. Bramlett's behavior was inappropriate and unprofessional.
She felt it was embarrassing for the student and made her work in
17

counseling with him more difficult. I do not recall that the
counselor brought up the subject again.
The parties also stipulated that, if called as a witness, Gregory would testify that she
"specifically denies" using the words "loud," "intimidating," or "threatening" when reporting
the incident described above to Rogers-Zegarra. According to Bramlett, the Gregory incident
was another complaint that was not communicated to her at the time it occurred.
The evaluation process involving Lemke proceeded along a similar path. On
October 13, 2000, Rogers-Zegarra met with Lemke to develop her goals and objectives for
the 2000-2001 school year, and on December 11, 2000, Rogers-Zegarra conducted a formal
observation of Lemke in the classroom. The formal observation record, prepared by Rogers-
Zegarra and presented to Lemke in a meeting, commends Lemke in several areas: the students
were engaged and the lesson was organized; Lemke used a technique to activate the students'
prior knowledge of the subject matter; Lemke had revised the lesson plan and handouts after a
pre-observation conference with Rogers-Zegarra; and Lemke used an overhead projector
effectively.
However, Rogers-Zegarra listed several recommendations. She suggested that Lemke
call on different students rather than permit only a few students to offer answers. She
suggested that Lemke encourage students to become independent learners by referring to their
own directions rather than reading them with her. She suggested that Lemke check with
students after they have been told to stop work. And she suggested that Lemke give more
specific feedback to students, praise students more, and ask students to check their work to
identify errors.
On February 8, 2001, Rogers-Zegarra evaluated Lemke for the first time. She rated
Lemke professionally competent in five areas: student progress, student control, learning
environment, personal relations and professional growth. Lemke was rated as needs
18

improvement in other duties. Lemke's evaluation contains many generally positive statements.
However, Rogers-Zegarra included several recommendations for improvement.
Regarding student progress, she wrote, "try to use assessments more to inform your
instruction and try to engage the student in more meaningful activities." Regarding student
control, Rogers-Zegarra wrote, "continue to implement assertive discipline procedures in your
classroom in a consistent manner. Continue to maintain high behavior standards. Students
seem to know what is expected of them and respond accordingly." Regarding the learning
environment, Rogers-Zegarra suggested that Lemke "try to display more student work in your
classroom so students feel more ownership in the room," and "try to use graphic organizers etc.
to help students become more independent learners." Regarding personal relations, Rogers-
Zegarra wrote, "again, I want to remind you that it is important to maintain open, on-going
communication with me regarding all aspects of your program. I am always available to
answer questions and to discuss any part of the curriculum or a particular student." And,
regarding other duties, Lemke received a needs improvement rating. Rogers-Zegarra noted
that Lemke takes part in school-wide activities, and recommended that she "continue to
support school-wide activities and programs. School wide activities are important in building
a positive school climate."
The evaluation concluded: "Do not recommend Continuation." Lemke said she was
"completely shocked" when she saw the evaluation. She testified that she was particularly
surprised at the rating under other duties because she had participated in many activities, such
as the student study team.
At the hearing, Rogers-Zegarra was questioned at length about specific concerns she
had regarding Lemke's performance. According to Rogers-Zegarra, Lemke's class had
multiple levels of learning abilities. However, she said Lemke called on only a few students
19

during class; she taught from the front of the class; she did not change her presentation to
accommodate the various levels; she did not correct student mistakes in a math class; her
teaching was more "activity-based" and not "focused to standards;" and she didn't use the
District's "multiple measures to inform instruction." Rogers-Zegarra also reiterated that
Lemke's classroom lacked discipline, and she questioned Lemke's judgement in failing to
timely report a death threat by a student after being directed to watch the student carefully.
In response, Lemke testified that Rogers-Zegarra, throughout the 2000-2001 school
year, never referred to the goals or objectives mentioned above, did not give her time to meet
the goals and objectives, and never expressed concern about her performance prior to the
hearing. In fact, as to the concerns reflected in Rogers-Zegarra's testimony, Lemke testified
that she first time she heard them was at the hearing in this matter.
In addition, Lemke vigorously disputed the concerns stated by Rogers-Zegarra and
Sutherland. She said she understood the curriculum and aligned the District standards with the
curriculum in math, language arts and social studies and presented them to Rogers-Zegarra.
Lemke said in-service training led her to a better understanding of math standards set by
teachers at Kawana, and all fifth grade classes were taught in the same way. She said teachers
at Kawana consulted among themselves in language arts and assigned students a Revolutionary
War report involving social studies and language arts. Lemke said teachers worked together to
obtain materials to help students prepare the report in accordance with District standards.
Regarding the criticism that she did not "differentiate" her instruction, Lemke testified that she
used a balanced language arts program that included anthology and guided reading, she used
books geared to individual reading levels, she used a writing program that was geared to
individual student levels, and she said she is trained in teaching to individual strengths.
20

Lemke disputed the assertion that she did not correct students in class, Lemke testified
that she circulated in the classroom, gave students feedback and made sure students understood
the lesson before proceeding. She said she used an overhead projector, gave each student
written directions, posted directions on the board, and instructed the students to follow along
on their sheet. Lemke agreed only with Rogers-Zegarra's testimony that she called on only a
few students during the class, conceding that she was nervous about the observation and tended
to focus on a few students.
Regarding the failure to report the death threat, Lemke testified that sometime in the
early fall Rogers-Zegarra directed her to "watch" the particular student closely, but she did not
tell her why. Rogers-Zegarra was aware that the student had made a death threat against
another student, but she kept that information from Lemke because she claimed it was
"confidential." On February 9, 2001, after Lemke received her evaluation and
recommendation for nonreelection, a student informed Lemke that she had received a death
threat that day. Lemke immediately removed the student who had made the threat from the
room. Lemke could not contact Rogers-Zegarra that day for reasons unrelated to the incident.
Before Lemke could speak to Rogers-Zegarra about the incident, the threatened student's
mother on, February 10, sent Rogers-Zegarra a complaint letter.
Eventually, Lemke and Rogers-Zegarra met to discuss the evaluation. In explaining her
decision to not recommend continuation, Rogers-Zegarra said Lemke had problems with
Sutherland during the previous year, and she was "not a good match for the District." Lemke
pressed Rogers-Zegarra on what it meant to be a good match, but got no answer that satisfied
her. Lemke left the meeting without signing her evaluation.
Meanwhile, Rogers-Zegarra's recommendation not to reelect Bramlett and Lemke was
submitted to Flores well before the February 2001 evaluations were issued. On January 11,
21

2001, she submitted the written recommendation to Flores, and he presented it to the District's
governing board for a vote in February. In doing so, Flores said he followed Sutherland's and
Rogers-Zegarra's recommendations that Lemke and Bramlett did not have the potential to be
"superior or exceptional" teachers. The formal recommendation not to reelect Lemke and
Bramlett was not the first time Flores became aware of concerns about their performance. The
matter had been a topic of on-going discussions at the superintendent's cabinet meetings
beginning in late fall 2000.
The Cabinet Meetings
The superintendent's cabinet is made up of the superintendent, principals at the three
schools, a vice-principal and the director of curriculum. The cabinet meets weekly. Flores
placed a great deal of importance on a "collaborative process" to monitor the progress of
probationary teachers, and the topic frequently was discussed at these meetings. According to
Flores, written evaluations are only one part of the decision to reelect a probationary teacher,
and other factors such as the judgment of the principal are given weight. He said the District's
practice is not to tell teachers the reasons they are not reelected. Flores instructs principals to
tell teachers only that they were not a "good match" with the District, "so that if they left our
district to go to another district, they would not have, quote, a bad record behind them."
Rogers-Zegarra and Sutherland testified that Flores asked about the status of all
probationary teachers every week in cabinet meetings. "He asked me specifically," Rogers-
Zegarra said, "In your opinion, are these excellent teachers. Because our school district is
trying to improve and have quality and excellent teachers, and this is the time where you
decide what kind of people you have in your district."
At cabinet meetings in November and December 2001, Rogers-Zegarra raised concerns
about Lemke's performance in areas such as knowledge of curriculum, sequence for lesson
22

planning, and unsatisfactory classroom management. Sutherland expressed similar concerns
during the same meetings. Flores testified that Rogers-Zegarra reported, in essence, that
Lemke was "just satisfactory, and from her perspective would not go beyond the satisfactory to
the superior or the exceptional."
At the same meetings, Rogers-Zegarra voiced concerns about Bramlett. According to
Flores, the concerns were based largely on Bramlett's attitude toward students, parents and the
administration. Specifically, he said Roger-Zegarra reported that Bramlett tended to be
"argumentative," and this was a "real impediment to a working relationship." Evaluations
issued by Sutherland to Bramlett the previous year reflected the same concern. Flores said he
agreed with Rogers-Zegarra's perspective that Bramlett would not become a "superior" or
"exceptional' teacher, and "if we don't have a strong, cooperative collegial relationship in the
second year of probationary service, then it's likely not to continue, not to change in the
future."
Statements by Jan Ferrin
On February 20, 2001, the governing board voted to not reelect Lemke, Bramlett and
Alice Fitzwater (Fitzwater), another probationary teacher who has not challenged the decision.
The meeting was well attended by teachers in a show of support for Bramlett and Lemke.
After the meeting, board member Jan Ferrin (Ferrin) was approached in the parking lot by
Heidi Kreklau (Kreklau) and Brenda Young (Young), both teachers at Kawana who believed
the District's decision not to reelect Bramlett and Lemke was unfair. Kreklau testified that she
knew Ferrin would not give her the specific reasons for the board's action, so she asked him if
Lemke and Bramlett were not reelected for the same or for different reasons. Kreklau testified,
"so he told me it was for the same reason, and I don't remember the segue, I don't remember if
I asked for more or if he offered more, but he said that it was too bad that it was during a work-
23

to-contract year, it didn't give them an opportunity to show the extra things that they could do,
to show that they were good teachers or excellent teachers." Kreklau also testified that Ferrin
"made an analogy between the district and companies he's run, as the head of companies, and
he was talking about that as the head of company you have to trust the people you put into
certain positions, that you have to trust their judgments on recommendations and things like
that."
Later in the conversation, Kreklau testified, Ferrin "used the word dedicated teachers to
talk about people who were able to stay late and do the extra things, that that's what showed
what a dedicated teacher was."
Young testified at the hearing and generally corroborated Kreklau's testimony.
According to Young, after an exchange of pleasantries, "the topic of work-to-contract came up,
and I think - - I don't know how it segued. I do know that - - I remember Jan had said that it
was unfortunate, it was too bad that the work-to-contract had happened, it had hurt the two
teachers involved, that they didn't have the chance to really see them being dedicated within
their classrooms."
Ferrin's testimony about the meeting in the parking lot varies somewhat from that given
by Kreklau and Young. He testified that the governing board's decision was based on an
"evaluation and recommendation point." In other words, he said, the principal had evaluated
Lemke and Bramlett and recommendations were made on that basis. Asked by District counsel
about the impact of the work-to-contract campaign on the decision not to reelect Bramlett and
Lemke, Ferrin responded, "I think we spoke to the various conditions that all the teachers were
working under, in regards to that, but I don't think that that had any impact on - and I was
pretty clear on that when I spoke with [Kreklau], that it had no impact on our decision-making
process." Asked by District counsel if he made a comment to Kreklau that Lemke and
24

Bramlett were not dedicated teachers, Ferrin first said, "I don't remember saying that." Later
Ferrin said "I believe the discussion [at the governing board meeting] was whether the teachers
would be a match for the district, and that's what we were focused on." Asked if there was any
discussion at the governing board meeting about whether the teachers would be dedicated,
Ferrin responded, "there may have been discussion of that."
Based on the testimony set forth immediately above, considered in the context of the
overall record, I make the following findings.
I credit the testimony of Kreklau and Young to the extent that Ferrin said the governing
board meeting included a discussion of the work-to-contract campaign. They testified credibly
on this topic and their testimony was consistent. Also, Ferrin's testimony is not inconsistent
with that of Kreklau and Young. He said that we, presumably governing board members,
spoke to the various conditions that all teachers worked under that year. It is reasonable to
infer in the context of this record that Ferrin's comment was a reference to the common
conditions created by the work-to-contract campaign.
I also credit Kreklau's and Young's testimony to the extent Ferrin said it was
unfortunate that the reelection decisions took place in a work-to-contract year, and Young's
testimony that Ferrin said the work-to-contract campaign "hurt the two teachers involved, that
they didn't have the chance to really see them being dedicated within their classrooms."
Again, they testified credibly on this point and their testimony was consistent. However, their
testimony in this regard cannot be construed as a statement by Ferrin that applies to the
governing board. At most, their testimony establishes only that Ferrin made the comment
attributed to him during the discussion in the parking lot.
Further, Kreklau testified that Ferrin "used the word dedicated teachers" to describe
teachers who "stay late and do the extra things." Ferrin did not deny making comments about
25

whether Lemke or Bramlett were dedicated teachers. Rather, he said, "I don't remember
saying that." Later, Ferrin said that there "may" have been discussion of this topic at the
governing board meeting. Because Kreklau recalled the conversation on this point with more
clarity, I find that Ferrin made a comment in the parking lot to the effect that dedicated
teachers perform extra services.
I also credit Ferrin's testimony that he told Kreklau and Young that the nonreelection
decision was based on the evaluation and recommendation of the principal and that he was
"pretty clear" that the work-to-contract campaign had no impact on the decision. Kreklau and
Young did not directly dispute Ferrin's testimony on this point. And Ferrin's testimony is
supported by Kreklau's testimony about Ferrin's analogy regarding the need to trust
recommendations of lower level employees. This suggests that he told Kreklau that the board
accepted the recommendation of Rogers-Zegarra as presented by Flores.
Pattern of Reelecting Probationary Teachers
Prior to 1999, it was unusual for the District to reject a probationary teacher. In recent
years, however, it has not been unusual for the District to reject probationary teachers or to
request that they resign. In 1997-1998, one of 15 probationary teachers was not reelected. In
1998-1999, three of 12 probationary teachers were not reelected. In 1999-2000, all seven
probationary teachers were reelected.
During the 2000-2001 school year the District employed 23 probationary teachers, ten
of which were second-year probationary teachers. The increase in the number of probationary
teachers in this school year was in part due to increased enrollment in the District. All
probationary teachers participated in the work-to-contract campaign. Three were not reelected
for the 2001-2002 school year: Lemke, Bramlett and Fitzwater. As noted earlier, Fitzwater
taught at Meadowview and has not challenged the District's decision to not reelect her.
26

All second-year probationary teachers who were reelected for the 2001-2002 school
year had evaluations higher than those of Lemke and Bramlett. In fact, with one exception, all
probationary teachers who were reelected had substantially higher evaluations than Bramlett
and Lemke.
As noted earlier, Bramlett was rated professionally competent in five areas and
somewhere between professionally competent and needs improvement in one. Lemke was
rated professionally competent in five areas and needs improvement in one. By contrast, Gina
Cantarutti was rated superior in all areas. Josh Dies was rated superior in four areas and
professionally competent in two. Carrie Cormire was rated superior in five areas and
professionally competent in one. Tiffany Kampmann was rated superior in four areas and
professionally competent in two. Steve Maldonado was rated superior in all areas. Roger Kim
was rated superior in three areas and professionally competent in three. Even Fitzwater, who
was not reelected, received a slightly better evaluation that Lemke and Bramlett. She was
rated professionally competent in all areas.
Margaret Close (Close) was the only probationary teacher at Kawana who was
reelected, and she received evaluations similar to those of Bramlett and Lemke. In her first
evaluation during the 1999-2000 school year Sutherland rated Close as professionally
competent in four areas and needs improvement in two. In the evaluation, Sutherland
recommended that Close continue "with reservations." By the end of the 1999-2000 school
year, Close's evaluation had improved. She was rated professionally competent in five areas
and needs improvement in one. Sutherland recommended that Close continue with "some
reservations." In her first evaluation during the 2000-2001 school year, issued in December
2000, Rogers-Zegarra rated Close professionally competent in all areas. Rogers-Zegarra
recommended that Close continue with "some reservations."
27

Flores testified that Close was discussed at the cabinet meetings in November and
December 2000. Despite the similarity between Close's evaluations and the evaluations of
Lemke and Bramlett, Rogers-Zegarra recommended that Close be reelected for the 2001-2002
school year. By November 2000, Rogers-Zegarra testified, Close had demonstrated growth as
a teacher and that she has the potential to be an excellent teacher. Sutherland participated in
the discussions about Close. She testified that "my reservations were the implementation of
the program, and it sounded like she was implementing many of the strategies, and had sought
to ask for some guidance from the principal and from others, and had made changes in her
program, yes. And I did agree."
Although Close's evaluations were similar to those of Lemke and Bramlett, Flores
testified, "the mitigating circumstance was the judgment of the principal, does this individual
have the potential of being a superior teacher, and the principal indicated that that person had
the potential." "It's a judgment call," according to Flores, and the call went in favor of Close.
Close lives in the District, and her children attended Bellevue school. She had been
active as a temporary aide in her children's classroom, in various committees, and in the Parent
Teacher Association (PTA). Close did her student teaching in the District and was described
in testimony as having made a mid-career switch to teaching. Flores has known Close for
13 years, and he encouraged her to apply for a position in the District. Also, Close and Ferrin
have been friends since the mid-1990s when they were active in the PTA. Flores testified that
he has had a good relationship with the PTA and the organization has honored him with awards
over the years.
In contrast, Lemke and Bramlett do not live in the District, and they did not know
Flores before the District hired them. At the time she became principal at Kawana, Rogers-
Zegarra did not know Close, Bramlett or Lemke.
28

ISSUE
Was Bramlett or Lemke denied permanent status by the District because of their
protected activity, in violation of section 3543.5(a)?
CONCLUSIONS OF LAW
Section 3543 grants public school employees the right to "form, join and participate in
the activities of employee organizations of their own choosing for the purpose of
representation on all matter of employer-employee relations." Section 3543.5(a) makes it
unlawful for a public school employer to retaliate or discriminate against employees for their
exercise of protected conduct.
To demonstrate a violation of EERA section 3543.5(a), the charging party must show
that: (1) the employee exercised rights under EERA; (2) the employer had knowledge of the
exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210, p. 6 (Novato).)
Unlawful motivation is essential to establish a prima facie case of discrimination. In
the absence of direct evidence, an inference of unlawful motivation may be drawn from the
record as a whole, as supported by circumstantial evidence. (Ibid.) In Novato and a number of
subsequent cases, it has been recognized that a variety of circumstances may justify an
inference of unlawful motive on the part of the employer. (See e.g., Oakdale Union
Elementary School District (1998) PERB Decision No. 1246, p. 15; North Sacramento School
District (1982) PERB Decision No. 264, pp. 9-11.)
29

Once an unlawful motive is established, the burden shifts to the employer to establish
that it would have taken the action complained of even in the absence of protected activities.
(Novato at p, 14; Martori Brothers Distributors v. Agricultural Labor Relations Board (1981)
29 Cal.3d 721, 730 [175 Cal.Rptr. 626] (Martori).) The employer's action should not be
deemed an unfair practice unless the Board determines that "but for" the employee's protected
conduct she would have received permanent status. (Ibid.)
These principles have been applied where, as here, it is alleged that a probationary
teacher has been denied permanent status because of her protected activity. (Mcfarland
Unified School District (1990) PERB Decision No. 786, affirmed Mcfarland Unified School
District v. Public Employment Relations Board (1991) 228 Cal.App.3d 166 [11 Cal.Rptr.2d
405] (McFarland).) The District's power to deny tenure to a probationary employee for any
lawful reason does not insulate its decision from PERB scrutiny when an unfair practice
complaint alleges that the decision was made in retaliation for protected conduct. (Mcfarland
at p. 168.)
BEA first argues that Lemke and Bramlett participated in the work-to-contract
campaign, conduct protected by EERA, and that Flores and Rogers-Zegarra knew of their
participation. BEA argues further that it has experienced "strained labor relations" in
negotiations with Flores over many years, and the hiring of an independent negotiator did not
improve the situation. In fact, BEA asserts, the situation deteriorated such that BEA entered
into a work-to-contract campaign in the 2000-2001 school year that curtailed a number of
activities like the student study team, tutoring and faculty planning sessions. BEA argues that
the curtailment of these activities, in turn, led to lower test scores and a loss of performance-
based income and awards, especially at Kawana.
30

In a series of arguments related to disparate treatment, BEA contends that the District
identified Kawana as a "trouble spot" and targeted Lemke and Bramlett for retaliation. BEA
contends that Close had virtually identical evaluations as Lemke and Bramlett, but was
retained because of her prior connections to Flores, Ferrin and the District in general. The
District's claim that it hires only "superior" or "potentially superior" teachers rests on an
"amorphous and speculative" standard, BEA continues, and therefore is suspect. Moreover,
BEA contends, the evaluations of Lemke and Bramlett are couched in "double-speak" and
"euphemisms" that are further evidence of disparate treatment when compared with the
evaluations given Close. As a final disparate treatment argument, BEA asserts that the
District's record of seldom nonreelecting probationary teachers undercuts its claim that it
promotes only superior or potentially superior teachers. BEA argues that in the three years
from 1997 to 1999, no probationary teachers were nonreelected, and during Flores' 21-year
tenure as superintendent only one or two probationary teachers have been rejected in the
second year.
BEA next argues that the District has offered unjustified and unsubstantiated reasons
for the nonreelection of Lemke and Bramlett. BEA points out that the incident involving the
death threat occurred after the decision to recommend nonreelection for Lemke and thus could
have played no part in the decision itself. Regarding relationships with parents and the alleged
parental complaints about Bramlett, BEA asserts that no specific complaint was cited; Rogers-
Zegarra's own testimony indicates that other teachers called Hispanic parents by their first
names in student study meetings; no parent ever complained personally; Rogers-Zegarra never
attempted to ascertain precisely what she perceived to be the parents' reaction; and any
31

response by parents in the student study meetings is as attributable to the sensitive subject
matter of such meetings as it is to addressing parents by their first names.
In addition, BEA continues, there is no evidence to support the claim that Bramlett
intimidated a secretary and made her cry, and Bramlett has credibly denied the incident ever
occurred. Regarding the incident involving counselors, Gregory denied having used terms
such as "loud," "intimidating," or "threatening" to describe Bramlett's conduct. BEA points
out, Rogers-Zegarra never brought the incident to Bramlett's attention, nor did she ever
investigate it.
Lastly, BEA contends that it is no coincidence that this case arose at the school Flores
agreed was a union stronghold. With no recourse to retaliate against the union's leadership,
the District selected two vulnerable probationary teachers to vent its anger over the work-to-
contract campaign. BEA concludes, "through Lemke and Bramlett, the District could exercise
its union animus and send a clear message both to the BEA and to future probationary teachers
that concerted activity will have dire consequences, that going along with BEA will get you
fired."
In response, the District argues that BEA has failed to establish a critical element of the
Novato test, a nexus between the protected conduct and the nonreelection decisions. The
District argues that the timing of the nonreelection decisions does not support an inference of
unlawful motive because timing is dictated by an Education Code requirement that decisions
regarding probationary teachers must be made by March 15. The District also disputes BEA's
claim of disparate treatment, arguing that all 23 probationary teachers participated in the work-
to-contract campaign along with all permanent teachers; and the record is silent as to evidence
showing any retaliatory motive for singling out Bramlett and Lemke. Lacking protected
conduct unique to Lemke and Bramlett, the District continues, BEA relies on "nuances" in
32

evaluation comments in an attempt to overcome its right to not reelect a probationary teacher
for any or no reason. But Sutherland had reservations as to both Bramlett and Lemke in the
1999-2000 school year when there was no job action. Thus, there has been no inconsistent or
contradictory justification for the nonreelection decisions.
The District next contends that the number of probationary teachers who were not
reelected in 2001 is consistent with prior years and any perceived increase simply reflects the
larger probationary class, not retaliation for protected activity. The District concedes that the
bargaining relationship here has been marked by "negotiation strife," but Flores testified
without rebuttal that there has never been a grievance filed against him; prior to the instant
case, there has never been an unfair practice charge filed against the District; and there has
never been a grievance that reached arbitration. Thus, the overall record cannot support the
claim of widespread anti-union animus advanced by BEA.
In the District's view, Ferrin's comments in the parking lot about the nonreelection
decision deserve no weight when compared to the District's legitimate prerogatives to not
reelect probationary teachers. Even assuming Kreklau's testimony is credited over that of
Ferrin, the District argues, it does not include a reference to the content of the board's
deliberations and it falls short of demonstrating retaliation for protected conduct.
Lastly, the District argues that the retention of Close does not suggest an unlawful
motive, nor is it material to the issues presented here. Close's hiring was consistent with the
District's practice of hiring its student teachers, she was evaluated under the same procedures
used to evaluate Lemke and Bramlett, and she received a more favorable evaluation. Under
these circumstances, retention of Close hardly shows disparate treatment, especially since she
33

too participated in the work-to-contract campaign. In sum, the District concludes, BEA has
failed to meet its burden: "suppositions and inferences cannot trump the evidentiary record."'s
Drawing a distinction between "discretionary" and "mandatory" duties, PERB has held
that a refusal to perform purely voluntary duties is protected conduct, while the refusal to
perform normally required or assigned duties is not. (See Palos Verdes Peninsula Unified
School District (1982) PERB Decision No. 195 (Palos Verdes); Modesto City Schools (1983)
PERB Decision No. 291 (Modesto); Los Angeles Unified School District (1990) PERB
Decision No. 803 (Los Angeles).) Hence, in work-to-contract cases, the inquiry focuses on
whether the activities which were not performed are voluntary or required. In support of its
claim of protected conduct, BEA presented evidence that teachers performed duties required
by the contract, while refusing to perform duties not covered by the agreement. Neither at the
hearing nor in its brief, has the District contested BEA's assertion that the duties in question
were not required or that the work-to-contract campaign was protected conduct under PERB
precedent. Accordingly, I conclude that teachers who participated in the campaign engaged in
protected activity.
It likewise is not disputed that Flores and Rogers-Zegarra at all relevant times were
aware of the work-to-contract campaign. While Flores may have had no specific knowledge of
conduct by Lemke and Bramlett, he was aware that all teachers participated. Similarly,
Rogers-Zegarra knew that all teachers participated in the campaign, including Lemke and
The District points out in its brief that Lemke and Bramlett previously had been
released from employment in other school districts as probationary (Lemke) and temporary
(Bramlett) teachers prior to being hired by the District. Although the District concedes that
evidence of prior employment is not dispositive of the issues herein, it argues nevertheless that
such evidence be considered insofar as the District should not be penalized for making the
same decisions as was made by other districts. I find that the experiences of Lemke and
Bramlett in other districts has little probative value regarding the issues presented in this case
and therefore the evidence relating to their employment in those districts will not be
considered.
34

Bramlett. Therefore, I find that the District was aware of the campaign at the time of the
decisions to deny Lemke and Bramlett permanent status.
Having established that Lemke and Bramlett engaged in protected conduct known to
District representatives and that they were not reelected as permanent teachers, BEA must next
show evidence of an unlawful motive as a nexus between the protected conduct and the
District's adverse employment decisions. Unlawful motive may be established by direct or
circumstantial evidence and inferred from the record as a whole. (Novato at p. 6; Newark
Unified School District (1991) PERB Decision No. 864, p. 14 (Newark).) For the following
reasons, I conclude that the record contains sufficient evidence to support the inference that
Rogers-Zegarra harbored an unlawful motive as a result of the work-to-contract campaign.
Reasons cited by Rogers-Zegarra in support of her nonreelection recommendation
involved matters that were raised for the first time at the hearing. For example, Rogers-
Zegarra testified about numerous parental complaints against Bramlett. Yet she did not discuss
them with Bramlett or even bring them to her attention. Nor could Rogers-Zegarra identify a
single parental complaint at hearing. Also, Rogers-Zegarra did not investigate the incident
reported by Gregory or even inform Bramlett that Gregory had lodged the complaint.
Accordingly, I find that Rogers-Zegarra's handling of these incidents constitute evidence from
which an unlawful motive may be inferred. (See e.g., Livingston Union School District (1992)
PERB Decision No. 965, at p. 4 (Livingston).)
Rogers-Zegarra testified that one reason for the recommendation to deny Lemke
permanent status was her failure to report a death threat by a student. The evidence is that
Rogers-Zegarra in November 2000 directed Lemke to monitor the student, the threat was made
on or about February 9, 2001, and Lemke reported it as soon as possible. There was nothing
Lemke could have done to prevent the threat. It is clear, moreover, that the threat was not
35

made until after Rogers-Zegarra's decision (in early January 2001) to recommend
nonreelection for Lemke. Thus, Rogers-Zegarra could not have relied on the incident in
making her recommendation. The failure to report the death threat is unjustified as a reason
for the recommendation to deny Lemke permanent status. Offering unsubstantiated reasons to
support an adverse employment decision is evidence from which an unlawful motive may be
inferred. (See e.g., Newark at p. 17.)
Rogers-Zegarra testimony that Bramlett was loud, overly emotional and intimidating
does not withstand scrutiny as a justification for the recommendation to deny her permanent
status. I have already discredited Rogers-Zegarra's testimony that Bramlett intimidated a
secretary in connection with a truancy matter, and her testimony about Bramlett's alleged
outburst during an encounter in Bramlett's classroom early in the year. The stipulation that
Gregory would deny using words like "intimidating" or "loud" or "threatening" to describe
Bramlett's conduct in the counselor incident is consistent with this finding. There is a
significant difference between communicating in a direct or blunt manner and intimidating or
threatening fellow employees or others. While Bramlett concedes she may be direct and
therefore misunderstood on occasion, I find that Rogers-Zegarra's testimony that she is loud,
overly emotional or intimidating is exaggerated and thus supports an inference of unlawful
motive. (See e.g., Novato at pp. 13-14.)
Although Rogers-Zegarra was not the person who made the final decision to deny
Bramlett and Lemke permanent status, her recommendation was accepted by Flores, who
passed it on the to the board for final approval. The factors noted above support the inference
that Rogers-Zegarra harbored an unlawful animus against Lemke and Bramlett for their
protected conduct. And it was Rogers-Zegarra who recommended that Lemke and Bramlett be
denied reelection. Unlawful animus may be imputed to high management officials where, even
36

innocently, they rely on inaccurate and biased information of lower level management
officials. (See e.g., State of California (Department of Parks and Recreation) (1983) PERB
Decision No. 328-S, p. 16; State of California (Department of Corrections) (2001) PERB
Decision No. 1435-S, adopting proposed decision of administrative law judge at p. 32.)
Therefore, I find that the animus harbored by Rogers-Zegarra seeped into the reelection
process.
Based on the foregoing, I conclude that BEA has established a prima facie case. Under
Novato, the burden now shifts to the District to establish that it would not have reelected
Lemke and Bramlett even if they had not participated in the work-to-contract campaign.
(McFarland at p. 168.)
Although evidence of unlawful motive exists, the mere presence of such animus is not
determinative. As the Board and the courts have held in mixed motive cases, when an
employee suffers an adverse action because of a combination of valid business reasons and
reasons based on unlawful animus, the question becomes whether the action would not have
occurred "but for" the protected activity. (See Martori at p. 729-730; Novato at p. 20.) For the
following reasons, I find that Bramlett and Lemke would not have been reelected even if they
had engaged in no protected conduct.
The theory advanced by BEA is that the District singled out Kawana as a trouble spot
and targeted Bramlett and Lemke for nonreelection to retaliate against the union's leadership
and deliver a message that getting involved with BEA "will get you fired." In support of this
argument, BEA points to evidence that a group of teachers at Kawana have been active in BEA
over the years in contentious negotiations with Flores, in a work-to-contract campaign in 1996,
and in the most recent campaign. At the hearing, Flores was questioned at length about the
parties' bargaining history and his role as a central figure in the process. To prevail on its
37

theory, therefore, BEA must establish that Flores harbored an unlawful animus and that he
targeted Lemke and Bramlett as an act of retaliation.
Even if Flores believed Kawana was a "union stronghold," the evidence falls short of
establishing that the District unlawfully retaliated against BEA through Lemke and Bramlett.
It may be true that the parties had a strained relationship over the years, and Flores was at the
center of it as a result of his role as superintendent and negotiator. He conceded that the
parties were locked in an adversarial process that was not positive, he was critical of the work-
to-contract campaign, and he was "saddened" by the fact that services were not being extended
to children during the campaign. On the other hand, he said he did not believe the parties were
"antagonistic and angry," and he reconciled his criticism of the campaign with the fact that the
teachers were providing full professional service and doing their job.
These are not comments that establish an unlawful motive. They are mere statements of
opinion, including Flores' criticism of the work-to-contract campaign. A superintendent can
hardly be expected to endorse such action and need not remain neutral, even in the face of
protected conduct. An employer is permitted to hold and express its views on employment-
related matters without violating EERA, provided the statements do not contain a threat of
reprisal or force. (Rio Hondo Community College District (1980) PERB Decision No. 128, pp.
18-20.) Under this standard, PERB has found that an employer representative's comments that
collective bargaining is a "shame" and that he did not like the "adversary climate" which
collective bargaining created were permissible expressions of opinion. (Regents of the
University of California (1983) PERB Decision No. 366-H, p. 11.)
Further, although negotiations between BEA and the District may have been
contentious over the years, the parties always resolved their differences in the end. Evidence
that the District may have engaged in hard bargaining and pushed negotiations to mediation or
38

factfinding is unremarkable. Indeed, the Act envisions use of such third party intervention
when negotiations stall. In this regard, it is noteworthy that throughout the 1990's BEA has
never filed an unfair practice charge against the District, nor has any grievance been taken to
arbitration.
Therefore, I conclude that evidence of past negotiations, Flores' role in the bargaining
process, and his opinion of the BEA-District relationship do not support BEA's theory that the
District retaliated against the BEA leadership at Kawana by targeting Lemke and Bramlett. As
more fully discussed below, this is especially true in light of evidence that Lemke and Bramlett
engaged in the same protected conduct as every other teacher in the District and admittedly
were not particularly active in BEA affairs.
The comments made by Ferrin after the February 20, 2001, board meeting do not
compel a different conclusion. A discussion about whether to grant teachers permanent status
cannot realistically be held in a vacuum. As Flores testified, such decisions are not made
solely on the basis of written evaluations, and much is left to the judgment of the principal. It
therefore would not be unusual or inappropriate for deliberations to include a discussion about
whether teachers under consideration are dedicated teachers. Nor would it be unusual or
inappropriate for the discussion to include the conditions under which the teachers worked
during the years in question. For example, whether teachers refused to perform required duties
would be a legitimate topic of discussions. The line between the refusal to perform purely
voluntary duties, which is protected, and the refusal to perform normally required or assigned
duties, which is not protected, is often blurred. (See e.g. Palos Verdes at pp. 10-13; Modesto at
pp. 15-25; Los Angeles at pp. 3-5.) The governing board would not violate the Act merely by
discussing the conditions under which employees worked as part of its deliberations.
39

Granted, a discussion of protected conduct in the context of reelection decisions would
render the decisions themselves unlawful if the evidence supported the conclusion that
decisions ultimately were made because of the protected conduct. But that is not what
happened here. I have credited Ferrin's testimony that, although the conditions under which
Lemke and Bramlett were discussed, the decisions to not reelect Lemke and Bramlett were not
influenced by the work-to-contract campaign. Rather, Ferrin testified, they were based on
Lemke's and Bramlett's performance, Rogers-Zegarra's recommendation, and the conclusion
that the teachers were not a good match with the District.
Even if Ferrin made the statements attributed to him by Kreklau and Young, they would
not tip the scale in favor of BEA. I have credited the teachers testimony to the effect that
Ferrin said it was unfortunate that the reelection decisions occurred in a work-to-contract year
and the campaign "hurt the two teachers involved, that they didn't have the chance to really see
them being dedicated within their classrooms." However, as more fully discussed below, the
opposite is true. Rogers-Zegarra's recommendations were based primarily on classroom
performance and other factors that have nothing to do with performing extra duties. While
Ferrin may have formed the opinion that the campaign worked to the disadvantage of Bramlett
and Lemke, the evidence is otherwise. Therefore, when considered against the evidence
supporting the District's decision, Ferrin's statements do not compel a finding that but for their
protected conduct, Lemke and Bramlett would have been reelected by the governing board.
A key factor here is that the District employed twenty-three probationary teachers in
2000-2001, and Lemke and Bramlett were among a group of only three who were not
reelected. While it is true that an employer may violate the Act by retaliationg against certain
employees for protected conduct, even where the employer does not retaliate against all
employees who engage in such conduct, there must be some basis to find that those who
40

suffered the retaliation were targeted because of their protected conduct. (See e.g. State of
California (Department of Transportation) (1984) PERB Decision No. 459-S, p. 7.) The record
herein contains insufficient evidence to support such a finding.
There is no evidence of protected conduct that is unique to Lemke and Bramlett. In
2000-2001, all 23 probationary teachers participated in the work-to-contract campaign. Of
these, 13 were first year probationary teachers who were advanced to the second year of
probationary status, and there is no evidence of retaliation against them. Of the 10 second-year
probationers, only three were not reelected. And one of the three has made no claim that she
was denied permanent status because of her protected activity.
Nor is the number of second-year probationary teachers not reelected or asked to resign
in lieu of nonreelection in 2000-2001 substantially inconsistent with the practice over at least
the past four years, a period when the number of probationary teachers increased due to
growing enrollment. In 1997-1998, one of fifteen probationary teachers was asked to resign.
In 1998-1999, three of twelve were asked to resign. In 1999-2000, the District had only seven
probationary teachers, and all were reelected. In the year in question, 2000-2001, three of ten
were not reelected. Based on these statistics, it cannot be concluded that the number of
teachers not reelected in 2000-2001 departed markedly from the pattern established since the
1997-1998 school year.
BEA's contention that the District deviated from its practice of reelecting most
probationary teachers prior to 1997 is not persuasive. While evidence of the pattern of
nonreelection decisions is not irrelevant as a general rule, absent more specific evidence such
as the number of probationary teachers employed in a given school year, the number of
teachers not reelected, evaluations of teachers, and reasons for nonreelection, it is difficult to
41

credit BEA's argument. This is especially true where evidence of the pattern during recent
years points in the other direction.
The evaluations issued to the 10 second-year probationary teachers establish that
Lemke and Bramlett, while rated as professionally competent teachers, nonetheless ranked at
the bottom of the list. In fact, with one exception, all probationary teachers who were reelected
received substantially higher ratings than Lemke and Bramlett. These evaluations need not be
repeated in detail here. Suffice it to say that many of the teachers received "superior" ratings
in several areas. Except for two superior ratings given Bramlett in her first evaluation during
the 1999-2000 school year, she and Lemke received no such ratings. It bears repeating that
even Fitzwater, the teacher who was not reelected and chose not to challenge the decision,
received a slightly better evaluation than Bramlett and Lemke.
It is true that Close received an evaluation that is very similar to the evaluations
received by Bramlett and Lemke, yet she was reelected. But even Close's most recent
evaluation is slightly better than those of Lemke and Bramlett. Close was rated professionally
competent in all areas, while Bramlett and Lemke were rated professionally competent in all
but one area: Bramlett received a "2/3" rating in "personal relations," and Lemke received a
*2+" rating in "other duties." While these evaluations admittedly are similar, Close had the
edge. Also, her reelection was consistent with the District's practice of hiring its student
teachers, and, unlike Lemke and Bramlett, Roger-Zegarra made the determination that Close
had the potential to become a superior teacher.
BEA argues that, despite Close's participation in the work-to-contract campaign, she
was "virtually untouchable" because of her ties to the District, friendship with Flores, and
connection with Ferrin through the PTA. If Close was treated differently and reelected for
these reasons, it might support the conclusion that the District favored her because of her
42

connections. But it does not follow that favoring Close for these reasons is evidence of
retaliation against Lemke and Bramlett. Such favoritism, moreover, does not violate the Act.
(See e.g., Moreland Elementary School District (1982) PERB Decision No. 227, p. 15
["Disciplinary action may be without just cause where it is based on any of a host of improper
or unlawful considerations which bear no relation to matters contemplated by EERA and which
this Board is therefore without power to remedy."].)
In addition, Rogers-Zegarra and Sutherland had concerns about the performance of
Bramlett and Lemke that pre-dated the work-to-contract campaign. While Rogers-Zegarra
exaggerated Bramlett's tendency to be loud and intimidating, it is clear that she could be blunt
or brusque in her communications. This issue was sufficiently noteworthy for Sutherland to
make it part of Bramlett's evaluation the previous year, before the work-to-contract campaign.
Thus, in reference to Bramlett's participation in the student study team meetings, Sutherland
wrote in June 2000 "that this process calls for a team approach and that everyone on the team
needs to act in a supportive manner. I have noticed that you, again, can be rather outspoken at
these meetings. This could have a negative effect on promoting positive parental support."
The same evaluation indicated that students or parents could misinterpret Bramlett's blunt
manner. A similar concern was present in the following school year when Rogers-Zegarra
witnessed Bramlett address parents in what she described as a condescending manner. And the
concern is documented in Bramlett's February 2001 evaluation.
Rogers-Zegarra also concluded that Bramlett did not support her or at least "wasn't
helpful" when the need to transfer students to another school was discussed in a meeting with a
parent. And while Gregory may not have described Bramlett as loud, intimidating or
threatening, the fact remains that she complained of an incident where Bramlett discussed
43

recommendations to deal with a student's behavior problems in the presence of other students,
correctly describing it as unprofessional and inappropriate.
It was for these reasons that Rogers-Zegarra, with input from Sutherland, concluded
that Bramlett had a questionable attitude, was unprofessional in some of her decisions, and
didn't support the school totally. As a result, Rogers-Zegarra told Bramlett during a meeting to
discuss the February 2001 evaluation that, the evaluation aside, she was not a good match with
District.
Regarding Bramlett's classroom performance, by the end of the 1999-2000 school year,
Sutherland had developed reservations about whether she should continue. The ratings in
Bramlett's evaluation were lower, and Sutherland expressly noted her reservation in the
evaluation. Again, this occurred before Bramlett participated in any protected conduct.
Sutherland testified, "as the year progressed, I became more concerned . . . especially in the
area of relationships with students and with me, and with staff members. Also, with
differentiating curriculum and implementing a program that met with needs of each individual
RSP student." Sutherland's opinion was carried into the following year. She told Rogers-
Zegarra very early in the 2000-2001 school year, before any impact of the work-to-contract
campaign reasonably could have been felt, that she should observe Bramlett to determine if
recommendations from the prior year were being met.
The December 2000 observation of Bramlett's performance in the classroom, made at
or about the time Rogers-Zegarra was formulating her reelection recommendation, was not an
overwhelming success for Bramlett. While there were reasons for Rogers-Zegarra to commend
Bramlett, there also were several recommendations for improvement. Among other things,
Rogers-Zegarra suggested Bramlett assist students in identifying important points of a story,
follow the reading, encourage students to read more, and follow standardized instructions.
44

Further, in Bramlett's February 2001 evaluation, Rogers-Zegarra wrote that "it is also
important that your plans are well thought out and that meaningful activities are implemented
for more than one group at a time in your room. It is also important to provide more specific
feedback to help students to know how they are progressing. It is important that you use
results from on-going assessments to plan effective lesson plans for all of your students."
It is noteworthy that Sutherland raised similar issues in her June 2000 evaluation of
Bramlett, prior to the work-to-contract campaign. Sutherland wrote that Bramlett should
`continue to use on-going assessment to inform your instruction. The implementation of
guided reading, for instance, could be of real benefit to children. It is also important that your
plans are well thought out and that meaningful activities are implemented for more than one
group at a time in your room." In a series of recommendations attached to the evaluation,
Sutherland suggested that Bramlett interact with students, parents and staff in a "positive and
supportive manner." She suggested that Bramlett communicate with her openly "before
making program decisions." She noted that Bramlett should use the results from on-going
assessments to "plan effective lessons for all of [her] students." She said, "it is vital that direct
instruction, based on your on-going assessment, happens on a daily basis both in a group
setting and with individual students." Lastly, Sutherland said Bramlett should continue to
implement the techniques and strategies learned during in-service training.
I agree with BEA's assessment that some of Sutherland's and Rogers-Zegarra's
evaluation comments were less than clear directives and for that reason may be subject to
criticism, but in substance Bramlett's 1999-2000 and 2000-2001 evaluations are substantially
consistent. They indicate that Bramlett was professionally competent, but she was not
outstanding in any area.
45

The record similarly supports the conclusion that Lemke was a professionally
competent teacher rather than an outstanding teacher. A main concern, documented in the
evaluations, was that Lemke's classroom lacked discipline. Sutherland's January 2000
evaluation of Lemke assigns her a "3" rating in student control and states: "Continue to
implement assertive discipline in your classroom in a consistent manner. I liked the positive
manner in which you interact with students. Students need to know what is expected of them
so that they can respond accordingly." (Underlining in original.) Lemke's June 2000
evaluation in the same area again assigns a "3" rating and contains a similar comment: "it is
important to have high expectations for students and to monitor behavior." The same concern
carried over to the 2000-2001 school year. Assigning Lemke a "3-" rating under student
control in the February 2001 evaluation, Rogers-Zegarra stated: "continue to implement
assertive discipline procedures in your classroom in a consistent manner. Continue to maintain
high behavior standards. Students seem to know what is expected of them and respond
accordingly." Rogers-Zegarra's comment suggests that Lemke may have improved slightly in
this area. However, it is substantially consistent with Sutherland's evaluation and reflects no
more than professional competence.
The record also indicates that Lemke's classroom performance was rated no higher than
professionally competent. Rogers-Zegarra's comments after observing Lemke's class in
December 2000 suggest that she needed to involve more students in the class, encourage
students to become independent learners, and give more feedback to students. She reiterated
these concerns at the hearing in support of her recommendation for nonreelection, noting that
Lemke called on only a few students during the class, taught from the front of the class, and
did not change her presentation to accommodate the various levels of learning ability in the
group. Lemke's February 2001 evaluation reflects a similar theme; that is, Lemke should "try
46

to maintain a focus on presenting a well-balanced program that meets grade level standards for
each student and make sure students read and write on a daily basis. Try to use assessments
more to inform your instruction and try to engage the student in more meaningful activities."
Observations of this type were not new. Sutherland's comments after she observed
Lemke's class in December 1999 evidence a similar assessment. For example, she too
suggested that Lemke needed to involve students by gaining their attention so that they remain
engaged, noting that the longer the lesson went the more students became disengaged. She
pointed out that Lemke sometimes did the work for students, and advised her to let the students
do more. Sutherland said the lesson went too long and suggested better pacing. Sutherland
observed that the aide and the reading teacher were not involved in the lesson, and suggested
they conduct guided reading groups during the period. And Sutherland's January 2000
evaluation of Lemke in the area of student progress documents her opinion. It indicates that
Lemke should focus on presenting a well-balanced program that meets grade level standards.
And in both evaluations during the 1999-2000 school year, Sutherland rated Lemke no higher
than professionally competent in student progress.
Lemke conceded that she may have called on only a few students during the class
observed by Rogers-Zegarra. However, she vigorously disputed other assertions related to her
interaction with students. She testified, for example, that she circulated around the room
during the observation by Rogers-Zegarra, gave specific instructions, and used an overhead
projector as a teaching aide. Nonetheless, it is difficult to conclude on this record that Lemke's
performance was above that of a competent teacher or that Rogers-Zegarra's evaluation of her
work was motivated solely by a desire to retaliate against BEA or Lemke because of the work-
to-contract campaign. It cannot be overlooked that Sutherland evaluated her in a similar
47

manner twice during the prior school year, well before the work-to-contract campaign
commenced.
Despite the concerns discussed above, it is clear from the overall record that Lemke and
Bramlett were not unsatisfactory teachers. They were professionally competent, but the
District chose to set the standard for reelection at a higher level. Relying primarily on
Livingston, BEA argues that Lemke and Bramlett were never informed of the standard to
which they would be held and thus it is pretextual. In that case, a school district defended its
decision to not reelect two probationary teachers because they did not demonstrate the
potential for excellence. There was no evidence explaining what standards the teachers failed
to meet, nor were the teachers informed that satisfactory performance would result in rejection.
The Board adopted the proposed decision of an administrative law judge that the alleged
failure to demonstrate excellence as a reason for nonreelection was pretextual.
There are some similarities between Livingston and this case, but there are also
significant differences. The probationary teachers in Livingston engaged in several acts of
protected conduct that put them directly at odds with the principal. Indeed, the principal
referred to a faction of the faculty which included the probationary teachers as "bitchers" or
"gripers," a district official commended the principal for the way she dealt with the
"malcontents," and the principal indicated who the teachers associated with was more
important than their performance. In contrast, Lemke and Bramlett engaged in no protected
conduct, which set them apart from other teachers. All teachers in this case engaged in
precisely the same conduct; thirteen first-year probationary teachers and seven second-year
teachers participated in the same conduct and were rehired. And there is no evidence of labels
attached to Lemke and Bramlett such as "bitcher" or "griper."
48

In addition, the decision in Livingston was made in the context of a substantially
different evidentiary record as far as performance is concerned. The administrative law judge
found that the teachers' actual evaluations did not fall short of the standard required by the
district for reelection. Primary reasons for the nonreelection decisions were not well
documented in the evaluations and observation reports. In some areas where the teachers were
criticized, they received ratings such as exceeding expectations or meeting district standards.
The only teachers in the previous six years who had not received tenure were rated "needs
improvement" or "unsatisfactory." Adopting the conclusion of the administrative law judge,
the Board found that the teachers satisfied the standard set by the district: "there is no evidence
that these two employees were only marginally satisfactory or otherwise weak when measured
against the policy of excellence." (Livingston at p. 5.)
In contrast, Lemke and Bramlett did not meet the District's standard. Both Sutherland
and Rogers-Zegarra evaluated them as professionally competent. Reasons cited by the District
in support of the nonreelection decisions are documented in the observation reports,
evaluations and testimony. Except for Close, every probationary teacher reelected in the
2000-2001 school year was rated substantially higher than Lemke and Bramlett. And the
decisions to not reelect Lemke and Bramlett were not a departure from past practice.
Plainly, the circumstances underlying the Board's decision in Livingston are different
from the record in this matter. While the failure to make the reelection standard absolutely
clear may suggest an unlawful motive that leads to a finding that a nonreelection decision is
truly pretextual, those circumstances are not present here. Thus, I find that Livingston does not
compel a finding that the District violated the EERA when it decided to nonreelect Lemke and
Bramlett.
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Accordingly, it is concluded that BEA has not shown that but for their participation in
the work-to-contract campaign Lemke and Bramlett would have been reelected.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SF-CE-2223-E,
Bellevue Educators Association, CTA/NEA v. Bellevue Union Elementary 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.)
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
50

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).)
FRED D' ORAZIO
Administrative Law Judge
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