Fallbrook Union Elementary School District (PERB 2171E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
f
FALLBROOK ELEMENTARY TEACHERS
ASSOCIATION,
Charging Party,
V.
FALLBROOK UNION ELEMENTARY SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-5271-E
PERB Decision No. 2171
March
1,
2011
Appearances: 	California Teachers Association by Rosalind D. Wolf, Staff Attorney, for
Fallbrook Elementary Teachers Association; Stutz, Artiano, Shinoff & Holtz by Daniel R.
Shinoff and Michelle
K.
Meek, Attorneys, for Fallbrook Union Elementary School District.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Fallbrook Union Elementary Sc];iool District
(District) to the proposed decision
of
an administrative law judge (ALJ). The ALJ found that
the District violated the Educational Employment Relations Act (EERA)1 by deciding
not
to
reemploy teacher Tabitha Stillman (Stillman) in retaliation for her protected activity as a site
representative for the Fallbrook Elementary Teachers Association (Association).
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

The Board has reviewed the proposed decision and the record in light
of
the District's
exceptions, the Association's opposition to the exceptions, and the relevant law.2 Accordingly,
for the reasons set forth below, the Board reverses the ALJ's proposed decision that the
District unlawfully retaliated against Stillman and dismisses the unfair practice charge. 3
FACTUAL BACKGROUND
Beginning in December 2005, Stillman was employed by the District to teach
second
grade under a series
of
temporary contracts. The initial contract ran from December 2005 to
June 2006. In September 2006, Stillman was offered and accepted a second contract
that ran
through June 2007. In February 2007, the District sent her a letter stating that the "final
day
of
service under your employment contract is June 14, 2007." However, on June 21, 2007,
the
District offered and Stillman accepted a third temporary contract that ran through June 13,
2 The District filed a reply brief to the Association's opposition. The Association then
filed an objection to the District' reply brief, asserting that "the Reply Brief raises no
new
issues, new case law, or new defenses."
PERB regulations do not expressly provide for or preclude the filing
of
reply
or
rebuttal
briefs on appeal. (Los Angeles Unified School District/Los Angeles Community College
District (1984) PERB Decision No. 408.) Consequently, the Board has ruled that it
has
discretion to allow the filing
of
a reply brief.
The parties' respective reply briefs do not provide new analysis. Rather the briefs
simply restate issues previously presented, adding argument and record citations to
bolster
the
arguments. Accordingly, the Board declines to exercise its discretion to consider either brief.
3 The District requested oral argument in this matter. Historically, the Board
has
denied
requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (United Teachers
of Los Angeles (Valadez, et al.) (2001) PERB Decision No. 1453; Monterey County Office
of
Education (1991) PERB Decision No. 913.) Based on the Board's review of the record, all of
the above criteria are met in this case. Therefore, the District's request for oral argument is
denied.
2

2008. 	On March
4,
2008, the District sent Stillman a similar letter stating that the "final day of
service under your employment contract is June 13, 2008."
From August 2007
to
June 2008, Stillman was a junior site representative for the
Association. As a representative, she involved herself in activities including monthly meetings
with Principal Leonard Rodriguez (Rodriguez), delivering "good news" updates at the
Association meetings, and conducting the Association's survey
of
the administration on the
Fallbrook campus during the 2007-2008 school year. Another Association site representative
presented the survey results to Rodriguez. Stillman was not present at that meeting.
In both 2007 and 2008, Rodriguez completed forms ranking the temporary contract
teachers on the Fallbrook campus on a scale
of
1 to 5 to assess experience, evaluation,
professionalism, relations, and overall performance. A ranking
of
4 meant that the teacher was
"highly recommended for reemployment." 	In June 2007, he gave Stillman a 4 for experience,
a 4 for evaluation, a 5 for professionalism, a 5 for relations and a 4 for overall performance.
	In
February 2008, Rodriguez gave Stillman a 3 for experience, a 3 for evaluation, a 4 for
professionalism, a 3 for relations, and a 3 for overall performance, which meant that she was
no longer "highly recommended for reemployment." According to District testimony, without
being "highly recommended for reemployment," a temporary teacher is not likely to be
reemployed by the District.
The District uses an evaluation system to rate its teachers based on four categories,
unsatisfactory, developing, maturing or exemplary. In her evaluations during the 2005-2006,
2006-2007, and 2007-2008 school years, Stillman received all "Maturing" ratings. Retired
District Superintendent Janice Schultz (Schultz) testified that she was concerned about
Stillman's classroom management in early 2006, but in Stillman's 2006-2007 evaluation,
3

Rodriguez commented that Stillman "manages her classroom well." There were no negative
comments in any
of
Stillman's evaluations. Schultz also testified that a rank
of
"Maturing
would be a 4," not a 3.
According to the memorandum
of
understanding (MOU) between the District
and the
Association, the evaluation procedures for temporary teachers is set forth in Article 5.4.5,
which states:
5.4.5.1 Initial Observation. Non-permanent teachers shall be
observed at least once during the first nine (9) weeks
of
service
and twice within the first eighteen (18) weeks
of
service.
5.4.5.2 Post Observation Conference. Each formal observation
conducted pursuant to this section shall be followed by a
conference; except in unusual circumstances, said conference
shall be conducted within five (5) working days
of
the
observation.
5,4,5,3 Observation Report. The non-permanent classroom
teacher shall be provided a written observation report following
each formal observation. The employee shall be timely advised
of
deficiencies and area for improvement. The employee shall be
provided written recommendations for improvement and
assistance. The responsibility for improvement shall rest with the
employee.
Article 5.4.6
of
the MOU provides the deadline governing the evaluation
procedure as follows:
Evaluation Deadline. he evaluation process shall include a
written evaluation, a copy
of
which shall be provided the
employee not later than thirty (30) days before the last school day
of
the school year in which the evaluation is conducted.
According to Stillman, she was observed once during the 2006-07 and once
during
the
2007-08 school year. With regard to the 2007-08 observation, Stillman was observed
in
or
around October 2007. Stillman did not have a post observation conference within five
business days and she did not receive an observation report at least thirty days before
the
end
4

of
the school year. 	Stillman had her post observation conference with Rodriguez on May 21,
2008, for the observation session he conducted in October 2007.
Rodriguez testified that sometime between February
12
and March 15, 2008, he
had
a
meeting with Stillman to inform her that she would not be asked return for the next school
year. 	Rodriquez did not recall the exact date
of
the meeting, where the meeting took place,
how the meeting was scheduled, or what he exactly told her. Stillman testified that no
such
conversation took place. She stated that the first time she understood she would not be
reemployed for the 2008-2009 school year was in May 2008.
When Rodriguez met with Stillman on May 21, 2008, he told Stillman that she would
not be re-employed for the 2008-2009 school year. He also provided her with a copy
of
the
observation report from her October 2007 observation session. Stillman testified at the hearing
that, after she signed the report to acknowledge receipt, Rodriguez said to her, "On a
side
bar,
off the record, I believe that your Union activities have gotten in the way
of
your teaching
objectives this year
....
" In his testimony, Rodriguez denied making the exact statement, but
admitted to making an unsolicited comment to Stillman about her union activities and
the
amount
of
time they were taking, in the context
of
her professional development.
On May 22, 2008, the day after Stillman met with Rodriguez and he informed
her
that
she would not be reemployed, she sent an e-mail to the vice president
of
the Association
describing what Rodriguez said to her, writing in part: 	"As we were almost done, he
said,
'On
a sidebar, I feel that your union responsibilities have taken priority over other things
this
year."'
With Rodriguez's input, the District decided not to reemploy Stillman, and her
employment ended June 13, 2008. Rodriguez and Schultz testified that the District's decision
5

was made in February or March
of
2008. Rodriguez denied that his decision not to recommend
Stillman for reemployment was a result
of
her union activity. On August 20, 2008, the District
hired a new teacher on a temporary contract
to
fill Stillman's position.
DISCUSSION
Jurisdiction
EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing
of
the charge." Generally, the limitations period begins to run once the charging party
knows, or should have known,
of
the conduct underlying the charge. (Gavilan Joint
Community College District (1996) PERB Decision No. 1177.) However, in cases involving
termination
of
employment, the Board has held that the six-month limitations period begins to
run on the actual date
of
the termination. (Regents
of
the University
of
California (2004) PERB
Decision No. 1585-H (Regents).)
On appeal, the District contends that Stillman's charge was untimely filed. 	The District
argues that its March 4, 2008 letter to Stillman, reminding her that her contract ended
on
June 13, 2008, started the six-month limitations period. However, consistent with the
Board's
holding in Regents, the date
of
Stillman's termination
of
employment, June 13, 2008, started
the clock on the six-month limitations period. Stillman filed her charge on November 6, 2008,
which is within the six-month limitations period. Therefore, the charge was timely filed and
jurisdiction is proper.
6

Retaliation
Prima Facie Case
To demonstrate that an employer discriminated or retaliated against an employee
in
violation
ofEERA
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;
(3) the employer took adverse action against the employee; and (4) the employer took
the
action because
of
the exercise
of
those rights. (Novato Unified School District (1982)
PERB
Decision No. 210 (Novato).)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264 (North Sacramento)), it does not, without more, demonstrate
the
necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing
one or more
of
the following additional factors must also be present: (1) the employer's
disparate treatment
of
the employee (State
of
California (Department
of
Transportation)
(1984) PERB Decision No. 459-S); (2) the employer's departure from established procedures
and standards when dealing with the employee (Santa Clara Unified School District
(1979)
PERB Decision No. 104 (Santa Clara)); (3) the employer's inconsistent or contradictory
justifications for its actions (State
of
California (Department
of
Parks and Recreation) ( 1983)
PERB Decision No. 328-S); (4) the employer's cursory investigation
of
the employee's
misconduct (City
of
Torrance (2008) PERB Decision No. 1971-M); Coast Community College
District (2003) PERB Decision No. 1560); (5) the employer's failure to offer the employee
justification at the time it took action ( Oakland Unified School District (2003) PERB Decision
7

No. 1529) or the offering
of
exaggerated, vague, or ambiguous reasons (McFarland Unified
School District (1990) PERB Decision No. 786); (6) employer animosity towards union
activists (Jurupa Community Services District (2007) PERB Decision No. 1920-M (Jurupa));
Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7)
any
other
facts that might demonstrate the employer's unlawful motive. 	(North Sacramento; Novato.)
Protected Activity
Representing members
of
an employee organization and participating in organization
activities constitutes protected activity. (City & County
of
San Francisco (2004) PERB
Decision No. 1664-M.) The District contends that Stil.lman's protected activity was
insufficient to sustain the charge. However, its reliance on Chula Vista Elementary
School
District (1997) PERB Decision No. 123 2, to argue that Stillman merely maintained an
office
in
the Association without participating in representational activities is misplaced. The
evidence
shows that Stillman participated in Association activities while serving as the junior
site
representative. Her activities were on-going and included monthly meetings with Rodriguez,
delivering updates from the principal to members at the Association meetings, and conducting
the Association's survey on the Fallbrook campus. The District, through Rodriguez,
was
aware that Stillman was an Association representative. Accordingly, Stillman served
in
an
Association position and was also engaged in on-going activities on behalf
of
the Association.
Adverse Action
There is no more adverse action than termination. Based on Rodriguez's
recommendation, the District took adverse action by electing to not reemploy her for
the
2008-
2009 academic year.
8

Nexus
To prove its retaliation claim, the Association must meet the Novato standard, by
demonstrating a "nexus" between Stillman's protected activity and the District's adverse
action. 	Because direct evidence
of
discriminatory intent is rarely possible, the Board has held
that "unlawful motive can be established by circumstantial evidence and inferred from
the
record as a whole." (Novato.)
Timing
In the instant case, the timing
of
the adverse action supports an inference
of
unlawful
motive and the finding
of
nexus. Stillman was reemployed in both 2006-2007 and 2007-2008,
but she was not reemployed for the 2008-2009 academic year.
Departure from Established Procedures
As indicated above; an employer's departure from established procedures and standards
when dealing with an employee may support an inference
of
unlawful motivation.
(Santa Clara.) In the instant case, the evaluation procedure in the MOU obligated Rodriguez
to
observe Stillman in the classroom at least once during the first nine weeks
of
the 2007-2008
academic year and twice within the first eighteen weeks
of
the year. Further, each observation
session should have been followed by a conference, to be conducted within five working days
of the observation, and Stillman should have received a written evaluation containing
recommendations for improvement and assistance, to be provided to her no later than thirty
days before the last day of school for that academic year. However, during the 2007-2008
school year, Rodriguez observed Stillman one time, he did not follow the observation session
with a conference within five days of the session, and he did not give Stillman a timely written
evaluation.
9

Based on these facts, we find Rodriguez failed to comply with the evaluation
requirements in the MOU. It is noteworthy, however, that Rodriguez similarly failed to
comply with the evaluation requirements in the MOU when he only observed Stillman one
time during the 2006-07 school year. We find this fact significant because it occurred
prior
to
Stillman's protected conduct. Under these circumstances, it
is
unlikely that Rodriquez'
conduct is the product
of
a discriminatory motive. Accordingly, we find that when an
employer fails to comply with an MOU provision both before the employee engaged
in
protected conduct and after the employee engaged in such conduct, the later failure to comply
with the MOU is not a reliable predictor
of
discriminatory intent. Accordingly, looking at the
record as a whole, we find Rodriguez' failure to comply with the evaluation requirements in
the MOU does not support a finding
of
unlawful motive in this case.
Union Animus
Evidence
of
employer animosity towards union activists also supports an inference
of
unlawful motivation in the nexus analysis. (Jurupa.) In this case, Rodriguez admitted
he
made an unsolicited statement to Stillman about her union activities during the May 21, 2008
meeting. According to Stillman, Rodriguez told her "your Union duties have gotten
in
the
way
of your teaching objectives this year."
This statement, on its face, is a relatively benign statement that does not convey union
animosity. Although the statement appears harmless, it may support a finding of union animus
when coupled with other facts suggesting enmity towards the union. There are, however, no
other such factors in the record. Accordingly, under these circumstances, we find Rodriguez'
statement, standing alone, is insufficient to support an inference of unlawful motivation based
on Rodriguez' animosity towards union activists.
10

Based on the foregoing, we find the Association failed to establish a prima facie case of
retaliation against Stillman, because it failed to establish a nexus between Stillman's protected
activity and the District's decision to not reemploy her for the 2008-2009 academic year. 4
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5271-E are
hereby DISMISSED.
Chair Dowdin Calvillo joined in this Decision.
Member Wesley's dissent begins on page
12.
The record does not establish that the District was required by law or policy
to
give
Stillman a reason for its decision to not reemploy her, or that it had a past practice of doing so
with temporary contract employees. Accordingly, the Board finds that the District's failure to
give Stillman a clear reason for her termination does not support an inference of unlawful
motive. (Sacramento City Unified School District (2010) PERB Decision No. 2129.)
11

WESLEY, Member, dissenting: I disagree with the majority's ruling that the Fallbrook
Elementary Teachers Association (Association) did not establish a prima facie case of
retaliation against Tabitha Stillman (Stillman) by the Fallbrook Union Elementary School
District (District). I dissent for the reasons set forth below.
To state a prima facie case of retaliation, a charging party must establish a connection,
or nexus, between an employee's participation in protected activity and the employer's adverse
action. 	(Novato Unified School District (1982) PERB Decision No. 210 (Novato).)
Departure from Established Procedures
As a basis for finding a nexus, the administrative law judge (ALJ) correctly considered
the District's departure from the standard evaluation process with respect to Stillman. The
employer's departure from established procedures and standards when dealing with the
employee supports an inference of unlawful motivation. (Santa Clara Unified School District
(1979) PERB Decision No. 104.) According to the standard evaluation procedure in the
parties' collective bargaining agreement, Principal Leonard Rodriguez (Rodriguez) should
have observed Stillman in the classroom at least once during the first nine weeks of the 2007-
2008 academic year and twice within the first eighteen weeks of the year. 	Each observation
session should have been followed by a conference, to be conducted within five working days
of the observation, and Stillman should have received a written evaluation containing
recommendations for improvement and assistance, to be provided to her no later than thirty
days before the last day of school for that academic year. 	However, during the 2007-2008
school year, Rodriguez observed Stillman one time, he did not follow the observation session
with a conference within five days of the session, and he did not give Stillman a timely written
evaluation.
12

Approximately six months after the observation session, Rodriguez did provide
Stillman a written evaluation in which she again received a "Maturing" rank. However, the
District's failure to follow the established evaluation procedure goes beyond its failure to
adhere to the timing and frequency requirements for observation and feedback sessions. 	The
collective bargaining agreement in section 5.4.5(3) requires that temporary teachers be "timely
advised of deficiencies and area[s] for improvement." The evidence shows that Stillman never
received negative feedback, was never informed of deficient areas or told to improve in any
way. Based on her positive evaluations, Stillman had no way of knowing she was at risk of not
being reemployed and she was not given the opportunity to improve as required in the
evaluation procedure. 1
Union Animus
Evidence of employer animosity towards union activists also supports an inference of
unlawful motivation in the nexus analysis. (Jurupa Community Services District (2007) PERB
Decision No. 1920-M.) According to the record, Rodriguez admitted he made an unsolicited
statement to Stillman about her union activities during the May 21, 2008 meeting. At the
hearing, the ALJ found credible Stillman's testimony that Rodriguez told her "your Union
duties have gotten in the way of your teaching objectives this year." I agree with the ALJ's
finding that Rodriguez's statement, while not expressing blatant anti-union animosity, does
imply that union activity is inconsistent with professional achievement and further supports the
inference that the District's actions were unlawfully motivated.
1 The District excepted to the ALI' s finding that it departed from established procedure
with respect to Stillman, and argued that the Association did not present evidence that other
teachers were observed more frequently than Stillman. However, the evidence shows that the
District failed to follow the procedures as set out in the collective bargaining agreement.
13

In sum, I find the Association established a prima facie case of retaliation against
Stillman because it demonstrated a nexus between Stillman's protected activity and the
District's decision to not reemploy her for the 2008-2009 academic year based on the timing of
the decision, the District's departure from established procedures and standards in her
evaluation process, and Rodriguez's statement about Stillman's involvement with the
Association.
District's Affirmative Defense
Once the charging party establishes a prima facie case of retaliation, as the Association
has done here, the respondent then bears the burden of proving that it would have taken the
adverse action even if the employee had not engaged in the protected activity. (Novato;
Martori Brothers Distributors v. Agricultural Labor Relations Bd. ( 1981) 29 Cal.3d 721,
729-730 (Martori Brothers); Wright Line (1980) 251 NLRB 1083.) Where, as in the present
case, it appears that the employer's adverse action was motivated by both valid and invalid
reasons, "the question becomes whether the [adverse action] would not have occurred 'but for'
the protected activity." (Martori Brothers.) The "but for" test is an "affirmative defense
which the employer must establish by a preponderance of the evidence." (McPherson v.
Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.)
The District put forth various reasons for its actions, all of which the ALJ characterized
as "dubious." The District claimed that it decided to not reemploy Stillman because she was
an "average" teacher. However, on the District's evaluation form, which utilizes a five
category scale, Stillman was consistently rated as "Maturing" which is the second highest
category possible. There are clear inconsistencies between the District's claim of Stillman's
"average" skill and the evaluations generated over her three years as a teacher for the District.
14

The District's own witnesses provided contradictory testimony that does not support its
position: 	Superintendent Janice Schultz (Superintendent Schultz) testified that in early 2006,
she was concerned about Stillman's classroom management, however, in Stillman's 2006-2007
evaluation Rodriguez specifically noted that Stillman "manages her classroom well." The
evidence shows that Stillman did not receive negative comments or suggestions for
improvement on any of her evaluations during her three years as a teacher for the District.
The District also relied on the ranking forms Rodriguez completed for the temporary
contract teachers in 2007 and 2008. The forms were based on a scale of 1 to 5, and a ranking
of 4 meant that the teacher was "highly recommended for reemployment." In June 2007,
Rodriguez gave Stillman a 4 for experience, a 4 for evaluation, a 5 for professionalism, a 5 for
relations and a 4 for overall performance. Then, in February 2008, Rodriguez gave Stillman a
3 for experience, a 3 for evaluation, a 4 for professionalism, a 3 for relations, and a 3 for
overall performance, which meant that she was no longer "highly recommended for
reemployment." I agree with the ALJ' s statement that, "There is no apparent objective reason
for Rodriguez's change in his assessment of Stillman between June 2007 and February 2008.
Stillman obviously had more experience, not less, by the latter date."
Relating the ranking forms and the evaluations, Superintendent Schultz testified that
according to the District's evaluation procedure, '"Maturing' would be a 4," not a 3. However,
although Stillman received a "Maturing" on her evaluations form all three years, Rodriguez
ranked Stillman as a 3 for the 2007-2008 school year, which meant that she was no longer
"highly recommended for reemployment," and thereby, based on his recommendation,
Stillman was not reemployed by the District. The discrepancies between Stillman's
15

evaluations and rankings are irreconcilable and the District has not met its burden of
persuasion.
Based on the evidence presented, I find that the District has failed to establish a defense
to the retaliation charge. Therefore, I would find that the District unlawfully retaliated against
Stillman for her protected activity.
16