Berkeley Unified School District (PERB 2411E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BRIAN CROWELL,
Charging Party,
v.
BERKELEY UNIFIED SCHOOL DISTRICT,
Res ondent.
Case No. SF-CE-3027-E
PERB Decision No. 2411
February 19, 2015
Appearances: Brian Crowell, on his own behalf; Atkinson, Andelson, Loya, Ruud & Romo
by
Marleen L. Sacks, Attorney, for Berkeley Unified School District.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal
by
Charging Party Brian Crowell (Crowell)
of
the Office
of
the
General Counsel's dismissal
of
his unfair practice. charge. The charge, as amended, alleged
that Respondent Berkeley Unified School District (District) violated the Educational
Employment Relations Act (EERA.)1
by
taking adverse actions against Crowell
in
retaliation
for engaging
in
protected activity. The charge, as amended, alleged that this conduct
constituted a violation
of
EERA section 3453.5, subdivision (a). The Office
of
the General
Counsel dismissed the charge for failure to state a prima facie case.
The Board has reviewed the case file in its entirety in consideration
of
Crowell' s appeal
and the District's opposition thereto. The Board grants the appeal, and hereby reverses the
dismissal
of
the charge and directs the Office
of
the General Counsel to issue a complaint in
accordance with the Board's decision herein.
1 BERA is codified at Govermnent Code section 3540 et seq. All further statutory
references are to the Govermnent Code unless otherwise specified.

THE UNFAIR PRACTICE CHARGE
Since 2007, Crowell has been employed as a high school history teacher in the
Academic Choice learning community at Berkeley High School. Crowell is a member
of
a
bargaining unit represented
by
the Berkeley Federation
of
Teachers (BFT). The District and
BFT operate under the BFT-BUSD Collective Bargaining Agreement (CBA). Crowell has
been an active member ofBFT, serving as a site representative from 2009 to 2013. Other site
representatives during the events in question include Dan Plonsey (Plonsey) and Masha
Albrecht (Albrecht).
Crowell's Complaint regarding the 9th Grade Curriculum
The initial charge alleges that on June 3, 2013, the District issued Crowell a "Notice
of
Unprofessional Conduct and Unsatisfactory Performance" (Notice) in retaliation for filing a
complaint regarding the 9th grade curriculum.
Crowell alleges that he filed a "formal complaint" on February 20, 2013, with Principal
Pascuale Scuderi (Scuderi) regarding the compliance and viability
of
the 9th grade curriculum.2
Crowell alleges that he pursued the curriculum issue "on behalf
of
teachers and [himself] for
the betterment
of
the achievement
of
the ninth grade students." He alleges that two other
teachers had expressed concerns about the curriculum but did not want to pursue the issue,
noting that both were probationary teachers. He also alleges that another, presumably
permanent, teacher "has also broached the issue
of
compliance
of
the ninth grade curriculum
for the past 4 years, and she was also ignored."
Crowell alleges that also on February 20, 2013, as a union representative, he
advocated for another teacher, Christina Mitchell (Mitchell), regarding a dispute with Vice
Principal Vernon Walton (Walton). Mitchell was upset that Walton "publicly admonished" her
during a meeting at which she was not present. As reported by Crowell to the union president,
"[t]his turned out to be a simple miscommunication."
2

No "formal complaint" was provided with the charge.
The
February 20, 2013, date
alleged
in
the charge appears to refer to the following e-mail message sent
by
Crowell to
Scuderi
on
that date:
I
am
planning to file a district complaint regarding the 9th
grade
Human Geography Curriculum. Before I do that I would like to
give you the courtesy
of
meeting with you to resolve the issue.
Below is a copy paste
of
my
email sent
on
December 12th
• Since
I
hadn't
received a response from you, I gathered that you
weren't
interested in the issue. In the context
of
the
"achievement gap" I think the issue is appropriate.
The message includes a copy of, and links to, state standards, and ends
by
incorporating a copy
th
of
a previous message allegedly sent
by
Crowell on December 12, 2012, regarding the 9
grade history curriculum's compliance with state standards and the viability
of
the 9 th grade
history text book.
Crowell alleges that in response to his complaint,
he
received a threat
of
discipline from
Scuderi regarding Crowell's grading practices. Scuderi's e-mail response
of
February 20,
2013, copied to Walton, states, in pertinent part:
To resolve your complaint about the curriculum and standards, I
would propose a meeting between yourself, me, Mr. Walton,
Mr. Sanoff, and perhaps a few other 9 th grade [Academic Choice]
social studies teachers. Our expectations, and your concerns
regarding them, are shared expectations and multiple perspectives
could
be
valuable.
Additionally,
I'm
wondering whether this issue relates at all to the
information shared with me that you were not planning to use the
reader generated
by
AC staff in your classes. While it is our
expectation that the common curriculum is used,
if
your opposition
or objection to the reader is standards-based please elaborate.
Related to the issue you raise I also want to share some
administrative questions related to the course in question. During
a school-wide review
of
Semester 1 grades, by teacher, by course,
etc., the sections
of
the course for which you express concerns
around standards, is a course wherein all students in both sections
that you teach (approximately 50 students) received grades of
"A" with most showing at or close to 100% in Powerschool. This
is obviously an extraordinarily atypical distribution of grades, and
3

brings up several questions for me about expectations and
grading policies
in
this class.
I'd
like to meet with you and Mr. Walton over this issue. It might
help to resend or share your syllabus. As
it
is an expressed
concern we welcome your having union representation present.
?
On February 25, 2013, Crowell, Scuderi, Walton and Plonsey attended a meeting convened to
discuss Crowell's grading practices.
On March
1,
2013, Walton conducted an observation
of
Crowell's class. This was the
third observation
of
Crowell's classroom
by
Walton during the 2012/2013 school year. The
first two observations were conducted on November 6 and December 13, 2012. According to
the Notice, Crowell took issue with one aspect
of
Walton's second observation. Crowell did
not formally challenge the observation and agreed instead to a third evaluation. Crowell
alleges that on March 1, 2013, Crowell informed Walton at 10:31 a.m. that he was not feeling
well and that he might arrange for a substitute teacher and go home. Walton visited Crowell's
classroom at 2:30 p.m. for the third observation during the last period
of
the school day.
Crowell alleges that it is highly unusual for the District to evaluate a teacher who is not feeling
well.
On March 7, 2013, Walton gave Crowell a document entitled "First Letter: Incorrect
Attendance" (Letter). The Letter alleges that Crowell had recorded at least six absent students
as present. The Letter is dated February 20, 2013,3 but was not given to Crowell until 15 days
later. Crowell alleges that he was pulled out
of
the lunch line by Walton on March 7, 2013,
and given the Letter in Walton's office. The Letter advised Crowell that continued submission
of
incorrect attendance taking would result in a formal letter copied to Crowell' s personnel file.
Crowell alleges that, on February 20, 2013, Scuderi ordered an audit of Crowell's
attendance taking.
4

On March 8, 2013, Walton issued and discussed with Crowell his final Summative
Evaluation. Crowell learned that he had received ratings of I (needs improvement) in two
standards, and a rating of U (unsatisfactory) in one standard, i.e., developing as a professional
educator. The U rating was given on account of grading and attendance deficiencies.4 Walton
informed Crowell that he would not refer Crowell to the Berkeley Peer Assistance and Review
Program (BPAR),5 but would place him on an evaluation cycle for the 2013/2014 school year.
Walton also informed Crowell that he needed coaching.
On March 14, 2013, Crowell received a memorandum advising him that he could be
referred to BPAR. On March 22, 2013, Walton met with Crowell, reissued the Summative
Evaluation6 and informed Crowell that he would be referred to BPAR because of the U rating
on the one standard. Crowell refused to sign the evaluation. The Notice states that Crowell
claimed that "this" was "retribution."
On April 29, 2013, Crowell was interviewed by Director of Personnel Services Mary
Butler (Butler) and given an opportunity to respond to the deficiencies described in the Notice.
On May 7, 2013, Crowell's referral to BPAR was finalized. In the charge, as amended,
Crowell alleges that "[a]s a standard practice," a teacher referred to BP AR may not serve as a
union representative.
4 Crowell alleges that he did not receive a copy of the Summative Evaluation shown to
him on March 8, 2013.
5 The District refers teachers with performance deficiencies to BP AR. BP AR is a
remedial two-year program designed to give teachers peer support in correcting their
deficiencies.
6 In addition to the U rating on one standard, Crowell received three ratings of P
(proficient) and two I ratings. The range of ratings includes (from worst to best) U, I, P and D
( distinguished).
5

On June 3, 2013, Crowell received the Notice, and presumably the
91
supporting
exhibits attached thereto.7 Crowell alleges that the Notice was in retaliation for filing the
curriculum complaint and that, prior to filing the complaint, Crowell was
"in
good employment
standing" with the District. He also alleges that no other teachers,with similar issues regarding
grading practices and attendance taking had been subject to discipline. Crowell began an
extended medical leave
of
absence from teaching
on
September 13, 2013.
Crowell's Investigation into BP
AR
The first amended charge alleges Crowell's investigation into BP
AR
as an additional .
reason for the District's retaliation. Crowell alleges that since 2011, he, and other teachers,
had been "actively investigating" BP AR "as
it
related to discrimination, and violations
of
rights
by
[sic] teachers."8 Crowell began his BP
AR
investigation in his union capacity because
of
an "expressed concern
of
other unit members." Crowell alleges that the District had full
knowledge
of
his involvement
in
the BPAR investigation.
7 According to the Notice, Education Code section 44938 authorizes the issuance
of
such notices when a certificated employee's performance falls short. The Notice states that
failure to correct deficiencies described therein within a certain time period will result in
disciplinary action including dismissal. The deficiencies described in the Notice were
characterized and categorized as follows: Fraudulent Tracking
of
Personal Attendance;
Fraudulent Tracking
of
Student Attendance; Fraudulent Student Grading/Assessment; Failure
to Follow Up on Evidence
of
Student Plagiarism; Unsatisfactory Evaluations and Referral to
BP AR; BAMN Presentation to History Classes, Parent Complaint and Subsequent
Insubordination/Dishonesty During Interview; and Directive Issued at April 29, 2013,
Interview, Textbook Dispute, Insubordination, and Improper Interference with District
Investigation/Disciplinary Process. The Notice contained 23 directives believed necessary for
Crowell to comply with in order to overcome the deficiencies. Scuderi signed the Notice. A
copy was placed in Crowell's personnel file.
8 In its second position statement in response to the first amended charge, the District
points out that BFT and the District collectively bargained BP AR and a panel "consisting
of
a
majority of union members" select the individuals placed in BP AR. According to
Article 19 .4.1 of the CBA, the BP AR panel makes recommendations regarding retention and
dismissal of teachers placed in BPAR.
6

On September 13, 2012, Crowell sent an e-mail message to the Berkeley School Board
(School Board), requesting that the offer
of
employment extended
by
the School Board to a
candidate for the superintendent position be rescinded. On October
15
or 16, 2012,9 School
Board Director Josh Daniels (Daniels) responded, stating that the School Board had received
almost 1,000 e-mail messages on the subject, that the individual had withdrawn his candidacy
and was no longer under consideration, and that the School Board will be more inclusive and
transparent when it reinitiates the job search. There is another e-mail message from Daniels to
Crowell, dated October 24, 2012, asking Crowell to meet for coffee.
The e-mail messages attached to the initial charge and first amended charge are not
organized or in chronological order. Nor are they adequately identified or referenced in the
charge. Sometimes the text is hidden or cut and pasted into another message, and sometimes
text is missing from the to/from/subject/date lines. One copy
of
the message sent by Daniels
shows it was sent on October 15, and another on October 16.
Another e-mail message from Crowell regarding the curriculum issue and his negative
performance evaluation states: "I appreciate your previous email, and I hope we can resolve
our differences to make Berkeley High School a world class school. I would like my union
activity to not cloud the perception
ofme
as an intellectual and educator. Despite the many
differences we have had, your leadership at Berkeley High is necessary and extremely
important." Only the last section
of
this message showing Crowell as the signatory is
provided. The first section, including the to/from/subject/date lines, is missing. From the
context
of
the section provided, it appears to have been written to an administrator, perhaps
Scuderi, because it contains a request that the recipient change the U on Crowell's Summative
Evaluation to
Panda
request that the recipient
of
the e-mail message be the one to evaluate
Crowell (instead
of
Walton).
Given the disorganization
of
the e-mail messages attached to the charge, only those
with obvious relevance to the charge allegations have been considered as supporting evidence.
Where attachments to an unfair practice charge are neither properly identified and placed in a
logical order, whether it be chronological or otherwise, nor cross-referenced in the charge
document or narrative statement
of
the charge, they are of limited use to the Office
of
the
General Counsel in the investigation and processing
of
the charge. While the powers
of
the
Board agent include "Assist[ing] the charging party to state in proper form the information
required by [PERB Regulation] 32615" (PERB Reg. 32620, subd. (a)(l)), it is not the Board
agent's responsibility to sift through the charging party's supporting documents and determine
their possible relevance to the charge allegations where it is clear that the charging party has
copied a stack of documents and attached them to the charge without an earnest effort to
eliminate duplicates, place them in a logical order, ensure their authenticity and identify
through labeling and cross-referencing which ones support the various allegations of the
charge. (PERB Regs. are codified at Cal. Code Regs., tit. 8, sec. 31001, et seq.)
7

There are a number of e-mail messages between Crowell and Daniels in late October
and November 2012 attempting to set up a meeting. It appears they had scheduled a meeting
for November 10, 2012, but Crowell cancelled because his father-in-law had been in an
accident. On November 12, 2012, Crowell wrote:
I can essentially work around your schedule. I would like to
discuss the following:
1. 	African American representation in the certificated staff.
2. 	Concern about how BP AR is used. Teachers concern about
possible age discrimination and political retaliation.
3. 	Course Approval as it relates to the African American Studies
Department.
4. 	Relationship between Administration and Classified Staff
Concerns.
5. 	Teacher turnover as it relates to the weakening of the overall
staff.
Crowell does not provide the date his meeting with Daniels ultimately occurred, but does
allege that they met for two hours in relation to his BP AR investigation.
By e-mail dated January 6, 2013, Crowell wrote to co-superintendents Neil Smith
(Smith) and Javetta Cleveland with a formal request for statistical information relating to
BP AR. Crowell's message states:
Greetings Mr. Smith and Ms. Cleveland:
I am writing this note on behalf of some concerned teachers in the
Berkeley Unified School District. We are increasingly concerned
with how BP AR has been used since its inception in BUSD. We
do not feel that the program is working as it was designed, with
the intent of improving teacher pedagogy and practice.
Therefore, we would like the following inforn1ation regarding the
BPAR Program as highlighted in Article 19 of the BFT/BUSD
Contract. We would like the following infonnation:
1. 	The ages of teachers placed into BPAR,
2. 	The ethnicity of teachers placed into BP AR,
3. 	The gender of teachers placed into BPAR,
4. 	The placement on the salary schedule when placed into
BPAR.
8

We understand that names
of
persons placed into BPAR would
be
inappropriate, so we feel the 4 items requested above would be
adequate for our needs. We are strongly committed to constantly
improving our teaching practice and working to improve the
success
of
all students at Berkeley Unified School District.
Regards,
Brian Crowell
AC Co Site Rep
Smith responded by informing Crowell that he had forwarded his request to Delia Ruiz
(Ruiz), assistant superintendent for human resources. 10
On the same day Crowell filed the curriculum complaint, February 20, 2013, District
officials released documents responsive to Crowell's information request,
11
which allegedly
shows
"a
bias towards age and race regarding to [sic] teachers referred to remediation
program." The BP AR documents were sent to Crowell as an attachment to an e-mail message
from Ruiz. Copied on the message were Butler, the union president and one
of
the co-
superintendents. According to the first amended charge, the data shows
"a
bias with teachers
with higher salaries, advanced education, and higher wages."
10
By e-mail
of
January 29, 2013, Crowell forwarded his BPAR information request to
Daniels stating that a "substantial group
of
teachers at BHS are concerned with the validity and
methodology
of
[BPAR]" and further states, "[ o ]n behalf
of
concerned teachers I will continue
my attempts to retrieve this data." Daniels responded by e-mail message
of
February 5, 2013,
thanking Crowell for forwarding his request.
11
In an e-mail exchange between Berkeley citizen Margy Wilkinson (Wilkinson) and
District Public Information Officer Mark Coplan (Coplan), Coplan forwarded to her a
document containing BPAR data. Coplan states that the document was.created in 2013, "but
because it went to the [School] Board in closed session, it never came to my attention until it
was shared with me now." He further states that "there has been some distribution of the
document in the community by someone undergoing the BP AR process." 	Crowell alleges that
he "brows[ed]" through the closed session agendas from 2013 and 2014, and none disclosed
any discussion of BP AR or a BP AR information request in closed session.
9

By
e-mail message
of
February 21, 2013, Albrecht disseminated the BPAR data to 25
lines
of
staff e-mail addresses.
12
The message states:
Dear Teachers,
Brian
just
got the data from the district that shows the age,
ethnicity, and salary schedule placement
of
teachers that have
been put in the [BPAR]. This is a punitive process for tenured
teachers, which
we
have discussed in earlier emails. We wanted
to share the data right away because we were amazed at the
results. A few simple statistics we worked out are: 29%
of
the
teachers are African American or Latino/Latina.	
(:We
don't
know
the overall average for the district, but it is much lower than this.)
76%
of
the teachers are over 50 years old (Again, we
don't
know
the %
of
tenured teachers in the district over 50, but it must be
less than 76%.) Does anyone have any suggestions on where we
should go from here, now that we have this information?
Masha, Brian, Matt Laurel
On February 23, 2013, Crowell wrote to Alhrecht by e-mail that Ira Holsten (Holsten)
13
wanted "the data sample" for the entire District, but thought it was more appropriate for
someone else to make the request.
	By
e-mail the same date, Albrecht sent the following
message to other site representatives:
Hi Phil, Rosa, and Monica,
We have several requests from members to follow up on our data
regarding teachers in BP AR. Specifically, they want to know the
overall data for teachers in the district regarding race and age, the
two factors that stand out in the BP AR data. If we can compare the
sample
of
teachers overall, we are able to do a true test for bias.
12
Crowell alleges that one
of
the e-mail message recipients, Department Chair
of
Academic Choice Matthew Carton (Carton), approached Crowell on February 22, 2013,
yelling and cursing. Crowell alleges that Carton was extremely irate that the BP AR data had
been shared with the Academic Choice teachers. Crowell reported this incident by e-mail
message
of
February 24, 2013, to Daniels, stating that Crowell had been "shaken" by the
experience. 	According to Crowell, Daniels did not respond.
13
Holsten is not identified in the charge docmnents but from the context
of
various
e-mail messages attached to the charge documents appears to be a teacher and union member,
actively involved in the BP AR issue.
10

I'm
writing to you because I thought
of
you three as site reps who
might
be
interested
in
helping us with this. It would
be
useful
if
the next Request for Information came
from
other site reps
besides Brian and myself. As you can imagine, this data has
stirred up some heat and Brian and I are feeling a
bit
weary.
Brian can share the steps for making a Request for Information.
It's
a standard procedure for any rep or group
of
reps to do.
I hope you are having a good weekend.
Masha
On
March 2, 2013, site representative Monica Salvador wrote an e-mail message,
asking why do "some react negatively to sharing the BP
AR
data."
By
e-mail message
of
the
same date, Crowell responded:
The negative responses are attributed
to
the misunderstanding
of
teachers as it relates to BPAR. Some teachers are treated well
by
administration, many others are not. Many
of
our colleagues think
that the administrators should have this kind
of
power, I do not.
Unfortunately the union has participated in this process, and has
therefore weakened the union itself. BHS is the perfect place
of
not
dealing with "gorilla in the room" which often times has to deal with
our work:itlg conditions, support or non support
of
administrators,
political power
of
some parents vs others, teacher delivery
of
content, all these items have to do with how well we perform
in
the classroom, and many times lead a teacher into BP AR.
On 3 occasions
iv'e
[sic] seen blatant contract violations which
should have led to evaluations being thrown out, ended up with
. teachers being railroaded into bpar, and the honest question
of
teaching pedagogy, content knowledge and competence never
being honestly addressed. Iv' e [sic] never seen so much collusion
between the union leadership and district in my 12 years
of
teaching. For many years the bpar panel itself was illegal and in
violation
of
state law.
If
there is a program that supports teachers and improves our
practice
I'm
all for it, but as long as the district is in total control
of
it we have no power. Do teachers want to have power and
jurisdiction over their own economic livelihoods or not? Since
the answer for many
of
our colleagues is "no", that's why we arc
getting the negative responses. The teachers have the power, but
they have decided to cede that power to administration. That as a
front seat observer in this fight is the problem.
11

Crowell alleges that his "working conditions changed in an adverse way
IMMED IATELY after these [BP AR] disclosures." (Unfair practice charge [capitalization in
the original].
DISMISSAL OF THE UNFAIR PRACTICE CHARGE
The Office
of
the General Counsel appropriately dismissed allegations falling outside
the purview
of
PERB's jurisdiction, i.e., allegations that the District violated the California
Education Code and allegations that the District discriminated against teachers on the basis
of
race, age or gender. The Office
of
the General Counsel appropriately analyzed the remaining
allegations under the retaliation test set forth in Novato Unified School District (1982) PERB
Decision No. 210 (Novato). As the Office
of
General Counsel explained, charging party in a
discrimination/retaliation case must show as a prima facie matter protected activity, employer
knowledge, adverse action and nexus.
Regarding protected activity, the Office
of
the General Counsel determined that
Crowell's filing
of
the curriculum complaint was not to enforce rights stated in a collective
bargaining agreement or to jointly prosecute violations
of
workplace rights under Coachella
Valley Unified School District (2013) PERB Decision No. 2342 (Coachella Valley). Nor was
it a logical continuation
of
group activity under Los Angeles Unified School District (2003)
PERB Decision No. 1552 (Los Angeles). The Office
of
the General Counsel acknowledged
that advocacy on behalf
of
a group
of
employees concerning working conditions is protected
activity, but determined that the charge lacks any deta~ls about Crowell's specific conduct
relating to his BPAR investigation such as specific allegations
of
when or how Crowell
brought his concerns to the attention
of
District officials.
The Office
of
the General Counsel determined that Crowell had successfully alleged
only one instance of protected activity, i.e., his advocacy on behalf of Mitchell concerning her
12

dispute with Walton on February 20, 2013 (see, ante, fn. 2), correctly observing, however, that
this instance of protected activity was not alleged to be the cause of the unsatisfactory
performance evaluation or the Notice.
The Office of the General Counsel proceeded to analyze whether the charge establishes
a sufficient nexus, as a prima facie matter, between Crowell's advocacy on behalf of Mitchell
and the later adverse actions. The Office of the General Counsel determined that no nexus
factors were satisfactorily alleged apart from temporal proximity. The Office of the General
Counsel rejected Crowell's assertion that nexus is established by allegations that two teachers
with attendance taking problems were not formally disciplined. As the Office of the General
Counsel observed, Crowell failed to provide specific information about the conduct of these
teachers, and therefore it was impossible to tell whether the District treated Crowell more
harshly than similarly situated individuals, citing State of California (Department of
Transportation) (1984) PERB Decision No. 459-S (Transportation). The Office of the
General Counsel also rejected Crowell's assertion that nexus is established by allegations that
Albrecht had assigned a 90 percent grade to every student on a final examination, but did not
receive any discipline for this conduct. Relying on San Mateo County Office of Education
(2008) PERB Decision No. 1946, the Office of the General Counsel determined that the
District's failure to discipline Albrecht is not evidence of unlawful motivation because Crowell
failed to establish that his conduct and Albrecht's conduct were comparable.
In sum, according to the Office of the General Counsel, the charge establishes one
instance of protected activity and two adverse actions, the unsatisfactory perfonnance
evaluation and the Notice; the charge, however, fails to establish a nexus between these events
as Crowell's examples of disparate treatment lack comparability.
13

CROWELL'S APPEAL
On appeal, Crowell asserts that the Office
of
the General Counsel erred in determining
that the filing
of
the curriculum complaint was not protected activity. Regarding nexus,
Crowell cites Walton's failure to give him the Letter until
15
days after
it
was dated and one
day before presentation
of
the Summative Evaluation. According to Crowell, the timing
of
the
Letter left Crowell no opportunity to clear up the attendance-taking issue prior to it appearing
as a basis for the U on his 1
Summative Evaluation. Crowell also points to the District's reversal
on the BP AR referral as another example
of
nexus. Last, in support
of
his claim
of
disparate
treatment, Crowell asserts that the grading system used by Albrecht is comparable to the
grading system he used. 	Crowell continues to assert that he was singled out on the
attendance-taking issue. Crowell argues that he is being retaliated against because
of
his union
activism.14
THE DISTRICT'S OPPOSITION
The District requests that the appeal be summarily dismissed based on Crowell' s failure
to comply with PERB Regulation 32635 governing the filing
of
appeals. The District asserts
that Crowell simply restates arguments previously made, and attaches multiple documents
without explaining their relevance or indicating whether they are new or old evidence.
According to the District, the appeal fails to identify the page or part
of
the dismissal to which
the appeal is taken or state the grounds and is therefore subject to dismissal.
14
The Board does not consider new allegations or supporting evidence raised for the
first time on appeal without a showing of good cause. Lacking such a showing, the Board
disregarded any such allegations or evidence in Crowell's appeal. (PERB Reg. 32635,
subd. (b).)
14

DISCUSSION
PERB Regulation 32635, subdivision (a), provides that an appeal (1) state the specific
issues
of
procedure, fact, law, or rational to which the appeal is taken, (2) identify the page or
part
of
the dismissal to .which the appeal is taken, and (3) state the grounds for each issue
stated. As the District points out
in
its opposition to the appeal, to satisfy the requirements
of
this regulation, the appeal must sufficiently place the Board and the respondent on notice
of
the
issues on appeal. (State Employees Trades Council (Ventura, et al.) (2009) PERB Decision
No. 2069-H (SETC United); City and County
of
San Francisco (2009) PERB Decision No.
2075..:M.) Although the appeal is not perfect, it specifically takes issue with the Office
of
the
General Counsel's detenninations on the protected activity and nexus elements
of
the Novato
retaliation test. Accordingly, we find that the appeal substantially complies with the regulatory
requirements and sufficiently places the Board and the District on notice
of
the issues on
appeal.
To demonstrate that an employer discriminated or retaliated against an employee
in
violation
ofEERA
section 3543.5, subdivision (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, supra, PERB Decision
No. 210.)
Protected Activity
The first issue is whether Crowell's filing
of
the curriculum complaint is protected
activity under EERA. This issue has not previously been directly presented to or decided by
the Board. One approach would be to differentiate between an employee complaint arising out
of, and based on, professional or academic concerns and an employee complaint arising out of,
and based on, employment-related concerns. Under such an approach, an employee seeking to
15

enforce professional or academic standards would not be engaged in protected activity whereas
an employee seeking to enforce rights stated in a collective bargaining agreement or jointly
pursuing violations
of
workplace rights would be engaged in protected activity. This approach
comports with the principle that PERB does not enforce external laws such as that contained in
Education Code or whistleblower statutes. (Coachella Valley, supra, PERB Decision No.
2342.)
This approach, however, fails to take into consideration language unique to BERA that
suggests a broader definition
of
protected activity when evaluating unfair practice charges
arising
in
the public school arena. In describing the various purposes
of
BERA, the Legislature
!
specifically recognized the right
of
public school employees to
be
represented
by
employee
organizations
of
their own choice
in
both their professional and employment relationships with
public school employers. (BERA, § 3540.) Similar declarations
of
purpose found in other
public sector labor relations statutory schemes administered
by
PERB refer only to the
employment relationship between public employees and their public sector employers. This is
true
of
the Meyers-Milias-Brown
Act(§
3500), the Ralph C. Dills Act(§ 3512) and the Trial
Court Employment Protection and Governance
Act(§
71630).
15
BERA is the only statutory
scheme whose purpose includes an explicit recognition and protection
of
the public employee's
professional relationship with the public sector employer as distinct from, or at least as
encompassed within, the public employee's employment relationship with the public sector
employer.
15
While the Legislature's declaration
of
purpose found in the Higher Education
Employer-Employee Relations Act (HEERA) (§ 3560) also refers only to the employment
relationship, other sections ofHEERA recognize the unique relationship between, and common
interests of, public employers and employees in an educational setting (see, e.g., § 3561,
subd. (b) [joint decisionmaking and consultation between administration and faculty or
academic employees],§ 3562, subd. (q) and (r) [consultation rights over content and conduct
of courses, curricula and research programs].)
16

Consistent with this broader protection, EERA specifically protects the right
of
certificated employees to be afforded
"a
voice in the formulation
of
educational policy."
(EERA, § 3540.) In furtherance
of
this right, the statutory provision defining the "scope
of
representation" under EERA states that "the exclusive representative
of
certificated personnel
has the right to consult on the definition
of
educational objectives, the determination
of
the
content
of
courses and curriculum, and the selection
of
textbooks to the extent those matters
are within the discretion
of
the public school employer under the law." (EERA, § 3543.2,
subd. (a)(3).)
In Rancho Santiago Community College District (1986) PERB Decision No. 602, the
Board considered whether an instructor's speech was protected. The Board stated that the first
inquiry was whether the speech related to matters
of
legitimate concern to the employees as
employees so as to come within the right to participate in the activities
of
an employee
organization for the purpose
of
representation on matters
of
employer-employee relations
under EERA section 3543. The Board concluded that "educational policy and academic
freedom/' amongst other subjects
of
the instructor's speech, were oflegitimate concern to
employees as employees. (Id. at pp. 12-13.)
EERA section 3543, subdivision (a) protects the right
of
public school employees "to
form, join, and participate in the activities
of
employee organizations
of
their own choosing for
the purpose
of
representation on all matters
of
employer-employee relations." The question is
whether Crowell's filing
of
the 9th grade curriculum complaint is
of
legitimate concern to
employees as employees so as to come within the right to participate in the activities
of
an
employee organization for the purpose
of
representation on all matters
of
employer-employee
relations.
17

·Accepting the allegations
of
the charge as true,
16
as is required at this stage
of
the
proceedings, they support a conclusion that Crowell's filing
of
the 9th grade curriculum
complaint is protected activity. Crowell pursued the 9th grade curriculum complaint
"on behalf
of
teachers and [himself! for the betterment
of
the achievement
of
the ninth grade students."
Two probationary teachers had expressed concerns about the curriculum but did not want to
pursue the issue. Another teacher had raised the issue
of
9th grade curriculum compliance and
was ignored. Through Crowell's complaint, Crowell questioned whether the 9th grade
curriculum complied with state standards and raised the issue
of
the viability
of
the 9th grade
history text book.
Scuderi's response to Crowell's complaint has twofold significance to the issue whether
Crowell's filing
of
the curriculum complaint is protected activity. First, in response to
Crowell's complaint, Scuderi proposed to meet, not just
with Crowell, but also with other
9th grade social studies teachers. This provides some limited support for the notion that the
curriculum complaint was pursued
by
Crowell not solely on his own behalf but on behalf
of
other 9
th
grade teachers. Second, Scuderi's response directly links Crowell's curriculum
complaint to Crowell's displeasure with the 9th grade history text book and his grading
policies. In the course
of
making that linkage between the curriculum and Crowell' s grading
policies, Scuderi asks to meet with Crowell and his union representative to discuss Crowell's
grading policies. As we know from the alleged chronology
of
events, Crowell's grading
policies contributed in large part to the unsatisfactory performance evaluation and referral to
BP AR, and the Notice he subsequently received from the District.
6
At this stage
of
the proceedings, we assume that the essential facts alleged in the
unfair practice charge are true. (San Juan Unified School District (1977) EERB Decision
No. 12 [prior to January, 1978, PERB was known as the Educational Employment Relations
Board or EERB]; Trustees
of
the California State University (Sonoma) (2005) PERB Decision
No. 1755.) 	.
18

In sum, EERA protects certificated teachers' right to be represented in their
professional and employment relationship with their public school employer including their
right to have a voice in the formulation
of
educational policy. Crowell pursued the 9
th grade
curriculum complaint on behalf
of
himself and other teachers. (Los Angeles, supra, PERB
Decision No. 1552 [an employee's complaint concerning an issue that impacts employees
generally is protected activity].) Accordingly, the Board concludes that Crowell's filing
of
the
th 	d 	. 	1 	1 . 	. 	d 	. . 	d 	EERA 	.	9 	gra e curr1cu um comp amt
1s
protecte
	act1v1ty
un er 	,
1or	
~	
.
	pnma
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purposes. 17
We now tum to the issue
of
whether Crowell's investigation into BPAR is protected
activity under EERA. As the Office
of
the General Counsel correctly points out, advocacy on
behalf
of
a group
of
employees concerning working conditions is protected activity. The
Office
of
the General Counsel dismissed the BP AR investigation allegations because
of
a lack
of
specificity about Crowell's conduct such as specific allegations
of
when or how Crowell
brought his concerns to the attention
of
District officials. On this point, we take a different
view
of
the factual allegations concerning Crowell's BPAR investigation.
Regarding Crowell's meeting with Daniels, we do not know the exact date
of
the
meeting, but the allegations establish that the meeting occurred sometime after November 12,
2012, and lasted for two hours. Crowell's failure to supply the exact date
of
the meeting is not
fatal to establishing a prima facie case. (National Union
of
Healthcare Workers (2012) PERB
Decision No. 2249-M, p. 15.) Crowell's information request to the co-superintendents
of
January 6, 2013, contains sufficient specificity about Crowell's conduct.
18
The request states
Also, in this case, Crowell' s professional relationship with the District had a direct
impact on his employment relationship with the District. The curriculum and course text book,
depending on their suitability for a particular classroom, bear a relationship to grading policies
and, as we have seen here, perfonnance evaluations and discipline, matters of legitimate
concern to employees as employees.
18
Also, prior to Crowell's meeting with Daniels, Crowell sent Daniels an e-mail
message on November 12, 2012, expressing"[ c]oncern about how BPAR is used."
19

that Crowell is writing on behalf
of
"some concerned teachers" in the District. He signs the
request as "AC [Academic Choice] Co Site Rep." Crowell specifically refers to Article
19
of
the CBA in support
of
the request. (See Jurupa Unified School District (2012) PERB Decision
No. 2283 (Jurupa) [individually seeking to enforce provisions
of
a collectively bargained
agreement is a logical continuation
of
group activity and therefore protected].) The subject
matter concerns the placement
of
teachers
by
administrators into BP AR, a collectively-
bargained remedial program for teachers who have received an unsatisfactory performance
evaluation, a matter
of
legitimate interest to employees as employees. The Board concludes,
therefore, that Crowell's investigation into BPAR is protected activity under BERA, for prima
facie purposes.
Employer Knowledge
The second element
of
the Novato test entails a determination
of
whether the employer
had knowledge
of
Crowell's exercise
of
rights under BERA. To prove the knowledge element
of
the prima facie case, the charging party must establish that the relevant individual or entity
actually knew or was clearly infonned
of
the protected activity. 19
(SETC United, supra, PERB
Decision No. 2069-H.) An employer's knowledge
of
protected activity may be inferred from
circumstantial evidence. (See Los Angeles Community College District (2004) PERB Decision
No. 1668.)
Regarding the curriculum complaint, Scuderi was the recipient
of
Crowell's complaint
and Walton was copied on Scuderi' s response. The unsatisfactory performance evaluation was
In addition, under the subordinate bias liability theory, the unlawful motive
of
a
subordinate supervisorial employee may be imputed to the decision-maker responsible for
authorizing the adverse action against the charging party where: the lower-level official's
recommendation, evaluation or report was motivated by the employee's protected conduct; the
lower-level official intended for his or her conduct to result in an adverse action; and the
lower-level manager's conduct was a motivating factor or proximate causes of the decision to
take adverse action against the employee. (Santa Clara Valley Water District (2013) PERB
Decision No. 2349-M.)
20

given
by
Walton, and the Notice was signed
by
Scuderi. Accordingly, the Board concludes
that the District had knowledge
of
Crowell's filing
of
the 9 th grade curriculum complaint when
its agents issued the unsatisfactory performance evaluation and the Notice.
Regarding the BPAR investigation, Crowell's information request was forwarded to
Assistant Superintendent for Human Resources Ruiz. The BP AR documents responsive to
Crowell's information request were sent to Crowell as an attachment to an e-mail message
from Ruiz. Copied on Ruiz's e-mail message was Director
of
Personnel Services Butler who
interviewed Crowell on April 29, 2013, concerning Crowell's alleged performance
deficiencies. Following Butler's interview
of
Crowell, the District's referral
of
Crowell to
BP AR, which resulted from the unsatisfactory perfonnance evaluation, was finalized on
May 7, 2013, and the Notice was provided to Crowell on June 3, 2013. Crowell alleges the
District had full knowledge
of
his involvement in the BP AR investigation, which is supported
by
these facts. Accordingly, the Board concludes that the District had knowledge
of
Crowell' s
BP AR investigation when its agents issued the unsatisfactory performance evaluation and the
Notice.
Adverse Action
The third element
of
the Novato test entails a determination whether the employer took
adverse action against the employee. In determining whether evidence
of
advers.e action is
established, the Board uses an objective test and will not rely upon the subjective reactions
of
the employee. (Palo Verde Unified School District (1988) PERB Decision No. 689.)
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12, fo. omitted.)
21

Under long-established Board precedent, receipt of an unsatisfactory performance
evaluation is an adverse action for retaliation purposes. (Woodland Joint Unified School
District (1990) PERB Decision No. 808; Jurupa, supra, PERB Decision No. 2283, p. 19.)
The Summative Evaluation, first discussed with Crowell on March 8, 2013, and reissued on
March 22, 2013, contained two I ratings and one U rating. There is no question that the
Summative Evaluation qualifies as an unsatisfactory performance evaluation and therefore
satisfies the adverse action element of the Novato test. In addition, Crowell was placed in
BP AR ostensibly as a result of receiving a U rating on one of the standards. Given the
relationship between unsatisfactory performance evaluations and the BP AR referral process,
we conclude that the District's referral of Crowell to BP AR, whether considered a part of the
performance evaluation process or on its own, also satisfies the adverse action element of the
Novato test.
Turning to the Notice, it informs Crowell that his alleged unprofessional conduct and
unsatisfactory performance are grounds for dismissal and, if not corrected within a specified
time period, will result in disciplinary action, up to and including dismissal. A copy of the
Notice was placed in Crowell's personnel file. Under PERB's objective standard for
evaluating whether the employer's action is adverse, a reasonable person under the same
circumstances would consider the Notice to have an adverse impact on Crowell's employment.
(City of Long Beach (2008)PERB Decision No. 1977-M; Los Angeles Unified School District
(2007) PERB Decision No. 1930 [a counseling memoranda that threatens future disciplinary
action is an adverse action]; Alisa! Union Elementary School District (2000) PERB Decision
No. 1412 [placing a document that could support future discipline in an employee's personnel
file is an adverse action].) The Notice satisfies the adverse action element of the Novato test.
22

Nexus (Unlawful Intent)
. Where direct evidence
of
unlawful intent is presented, it alone establishes the requisite
nexus. (fiegents
of
the University
of
California (UC Davis Medical Center) (2013) PERB
Decision No. 2314-H.) PERB recognizes, however, that direct proof
of
motivation is not often
possible and, thus, unlawful motivation or intent may be established
by
circumstantial
evidence and inferred from the record as a whole. (Palo Verde Unified School District (2013)
PERB Decision No. 2337 (Palo Verde).)
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 (Transportation, supra, 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
(Parks and Recreation)); (4) the employer's cursory investigation
of
the employee's
misconduct (City ofTorrance (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
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; Cupertino
23

Union Elementary School District (1986) PERB Decision No. 572);
or
(7) any other facts that
might demonstrate the employer's unlawful motive (North Sacramento, supra, PERB Decision
No. 264; Novato, supra, PERB Decision No. 210).
Here, Crowell's information request was made on January 6, 2013, and his 9th grade
curriculum complaint was made on February 20, 2013. The Summative Evaluation was first
discussed with Crowell on March 8, 2013, and reissued on March 22, 2013. The BPAR
referral was finalized on
May
7, 2013, and the Notice provided to Crowell on June 3, 2013.
All
of
the events in question occurred within a five-month period
of
time. Based on this
timeline, we conclude that the protected activity occurred in close temporal proximity to the
adverse actions. (North Sacramento, supra, PERB Decision No. 264.)
In addition, we agree with Crowell that the circumstances surrounding his receipt
of
the
Letter and his referral to BP AR support an inference
of
unlawful motive. The Letter, which
addressed attendance taking deficiencies, was not provided to Crowell until 15 days after it
was dated and one day before discussion
of
his Summative Evaluation in which the attendance
taking deficiencies,
fiTst
presented to Crowell in the Letter, were used as a basis for the U
rating. While ordinarily it is for the charging party to establish what the employer's
procedures and standards are before accusing the employer with departing from them, in
this case, it can be presumed that the District's procedures and standards do not contemplate a
15-day delay in delivery. Accordingly, we conclude that Crowell has established a nexus
factor in addition to close temporal proximity in the allegations concerning his receipt
of
the
Letter. (See Santa Clara, supra, PERB Decision No. 104 [the employer's departure from
established procedures and standards].)
Adding to the inference
of
unlawful motivation, initially Walton infonned Crowell
that he would not be referred to BP AR. Six days later, Crowell was then informed that he
24

could be referred to BP AR. Then, eight days later, Crowell was informed that he was referred
to BPAR. Wavering and taking inconsistent positions on a decision as critical to ateacher's
professional standing as this supports an inference
of
unlawful motivation, for prima facie
purposes. (See Parks and Recreation, supra, PERB Decision No. 328-S [the employer's
inconsistent or contradictory justifications for its actions].)
Also, other factual allegations, which likely would not be enough to satisfy the nexus
element standing alone, at least play a contributory role in the analysis. Crowell alleges that it
is unusual to
be
evaluated by an administrator on a day when the administrator knows that the
teacher to be evaluated is not feeling well and thinking about going home. And, yet, Crowell
was given his third evaluation on such a day. In addition, the District asserts that the document
containing the
BP
AR data "went to the [School] Board in closed session." And, yet, the closed
session agendas for 2013 and 2014 did not disclose any closed session discussion ofBPAR or
Crowell's BP AR information request.
Finally, in Scuderi's response to Crowell's filing
of
the 9th grade curriculum complaint,
he raised an issue, i.e., Crowell's grading policies, that could, and did, lead to an unsatisfactory
performance evaluation and pre-disciplinary, counseling memoranda. An employer's
managerial prerogative to raise performance and professional misconduct issues with
employees is beyond doubt. When such issues are raised in immediate response to the exercise
of
protected rights, however, the threat
of
adverse action becomes closely emneshed with the
protected activity to a point not well tolerated by the statutory scheme. (See City
of
Monterey
(2005) PERB Decision No. 1766-M.) While such evidence is not direct evidence
of
unlawful
motivation, it is nonetheless probative on the question
of
unlawful motivation.
In sum, the Board concludes that Crowell has satisfied the nexus element of the Novato
test, for prima facie purposes.
25

CONCLUSION
At the dismissal review stage of these unfair practice proceedings, the Board does not
examine the District's reasons for issuing Crowell the Summative Evaluation or the Notice.
The Board examines only the sufficiency of Crowell's pleadings to determine whether Crowell
has stated a prima facie case ofretaliation. The Board's conclusion that Crowell has done so
means that an unfair practice complaint will issue. If this case proceeds to a formal hearing
after issuance of the complaint, Crowell will have the affirmative burden to prove by a
preponderance of the evidence the factual allegations of his unfair practice charge (PERB
Reg. 32178), and make persuasive legal arguments as to why his proffered evidentiary
showing satisfies his burdens of proof and persuasion.
If Crowell succeeds at proving his prima facie retaliation case at a formal hearing, the
burden will then shift to the District to prove that it would have issued the Summative
Evaluation and the Notice even if Crowell had not engaged in the protected activity.
(Novato, supra, PERB Decision No. 210; Mm:tori Bros. Distributors v. Agricultural Labor
Relations Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line (1980) 251 NLRB 1083.) Thus,
"the question becomes whether the [adverse action] would not have occurred 'but for' the
protected activity." (Martori Bros.) 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 employer must prove that it
had both an alternative non-discriminatory reason for its challenged action, or in this case,
actions, and that it acted because of this alternative non-discriminatory reason and not because of
the employee's protected activity. (Palo Verde, supra, PERB Decision No. 2337.)
26

ORDER
The Board REVERSES the Office of the General Counsel's dismissal in Case
No. SF-CE-3027-E and REMANDS the case to the Office of the General Counsel for issuance
of a complaint consistent with this Decision.
Members Winslow and Banks joined in this Decision.
27