Lake Elsinore Unified School District (PERB 2675E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LORI E. EDWARDS, ET AL.,
Charging Parties, 	Case No. LA-CE-6088-E
v. 	PERB Decision No. 2675
LAKE ELSINORE UNIFIED SCHOOL 	October 17, 2019
DISTRICT,
Respondent.
Appearances: Lori E. Edwards, on her own behalf; David Pickett and Victoria Pickett, on their
own behalf; Law Offices of Donald R. Holben, by Donald Holben and Jack S. Fisher,
Attorneys, for Kim Rosales; Atkinson, Andelson, Loya, Ruud & Romo by Todd M. Robbins,
Attorney, for Lake Elsinore Unified School District.
Before Banks, Shiners, and Krantz, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions to a proposed decision (attached) by an administrative law judge
(ALJ). In the underlying unfair practice charge and complaint, Charging Parties Lori Edwards
(Edwards), Victoria Pickett, David Pickett (collectively “the Picketts”), and Kim Rosales
(Rosales) alleged that their employer, Lake Elsinore Unified School District (District), violated
the Educational Employment Relations Act (EERA)1 by retaliating against them on the basis of
their participation in protected activities.
In the proposed decision, the ALJ dismissed the complaint, concluding that Edwards
and the Picketts failed to establish a prima facie case of retaliation, while Rosales’ prima facie
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

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case was negated by the District’s affirmative defense. Specifically, the ALJ found that the
District’s refusal to place Edwards on a five-year evaluation cycle beginning in the 2015-2016
school year was not objectively adverse because the decision resulted from the District’s
inability to conduct a formal evaluation during the prior school year, and the decision in no
way implied that Edwards’s performance was deficient.
With respect to David Pickett, the ALJ concluded that the District’s informal evaluation
of him, without more, was not an adverse action. As part of this finding, the ALJ distinguished
the facts from precedent, discussed post, in which an employer has subjected an employee to
formal evaluations in consecutive years. With respect to Victoria Pickett, the ALJ concluded
that the District’s decision to permit students to purchase scented pencils as part of a
fundraiser, despite its knowledge of Ms. Pickett’s sensitivity to scents, was not an adverse
action because the decision was not directed against her but applied to all staff generally.
Finally, with respect to Rosales, the ALJ found that although the record evidence
established a prima facie case for retaliation based on the allegation that she was required to
undergo formal evaluations in consecutive years, the District nonetheless successfully proved
its affirmative defense that it would have proceeded in the same fashion regardless of her
protected activity.
The Board has reviewed the entire record in this matter, including the parties’
submissions on exceptions,2 and finds the proposed decision well-reasoned, adequately
2 Edwards did not file exceptions on her own behalf. However, Victoria and David
Pickett filed exceptions to nearly every aspect of the proposed decision, including those
dealing with Edwards’ complaint allegations. To the extent the Picketts’ exceptions conform
to the requirements of PERB Regulation 32300, they simply reassert arguments that the ALJ
adequately addressed, and therefore do not provide a basis for reversal. (Lake Elsinore Unified
School District (2019) PERB Decision No. 2633, pp. 6-7.) Similarly, Rosales’ exceptions, in
sum, simply assert that the District failed to carry its burden to prove that it would have
2

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supported by the record, and in accordance with applicable law. Accordingly, the Board
hereby adopts the proposed decision as the decision of the Board itself, as supplemented by the
following discussion of Charging Parties’ exceptions.3
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The relevant facts are adequately set forth in the proposed decision and are not repeated
in detail here. Rather, we detail only those facts necessary to the resolution of those exceptions
that merit further discussion.
The Charging Parties are longtime, certificated employees of the District and work as
primary school teachers at Lakeland Village School (LVS). All four engaged in protected
activities by participating in various prior PERB charges, as well as serving at various times as
site representatives for the Lake Elsinore Teachers Association (LETA), the exclusive
representative for their bargaining unit. The charge and complaint allege that the District took
various adverse actions against Charging Parties during the 2015-2016 school year because of
these protected activities.
undertaken a second, consecutive evaluation regardless of her protected activities. After
reviewing the extensive record in this case, we disagree with her assertion and believe the ALJ
reached the correct conclusion.
3 On November 8, 2018, Edwards filed a request to withdraw from this case pursuant to
a settlement agreement reached between her and the District. On December 3, 2018, Edwards
filed a “Motion to Review Settlement Agreement Due to EERA Violations and to Compel the
[Respondent] to Lawful [sic] Comply with the Terms and Conditions of the Agreement.”
Under EERA section 3541.5, subdivision (b), the Board “shall not have the authority to
enforce agreements between the parties, and shall not issue a complaint on any charge based on
alleged violation of any agreement that would not also constitute an unfair practice under this
chapter.” Because the Board has no power to enforce the disputed settlement agreement in this
matter, we cannot act on Edwards’ Motion. Further, in light of the concerns raised by the
allegations in her Motion that the District breached the agreement and that some of the terms
of the agreement violated her rights under EERA, the Board denies Edwards’ request to
withdraw from the charge in this case. (See ABC Unified School District (1991) PERB
Decision No. 831b, p. 3 [the Board itself has discretion to grant or deny a withdrawal request].)
3

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Edwards
As noted above, Edwards alleges that the principal of LVS, Nick Powers (Powers),
denied her request to be placed on a five-year formal evaluation cycle. At the time of these
events, Edwards was a kindergarten teacher, who taught half the day and assisted another
teacher for the other half. Powers had planned to evaluate Edwards during the 2014-2015
school year—his first opportunity to do so since becoming principal in the beginning of the
2012-2013 school year—but was unable to do so because of Edwards’ frequent absences in the
winter and spring.4 Consequently, Powers decided to evaluate Edwards sometime in the 2015-
2016 school year.
However, rather than cooperate to schedule the evaluation, Edwards sent an e-mail to
Powers in which she insisted that she be placed on a five year evaluation cycle. Pursuant to
Education Code section 44664, subdivision (a)(3),
Evaluation and assessment of the performance of each
certificated employee shall be made on a continuing basis as
follows: [¶] . . . [¶] at least every five years for personnel with
permanent status who have been employed at least 10 years with
the school district, are highly qualified, . . . and whose previous
evaluation rated the employee as meeting or exceeding standards,
if the evaluator and certificated employee being evaluated agree.
The certificated employee or the evaluator may withdraw consent
at any time.
Powers replied that he would consider placing Edwards on such a cycle and they could discuss
the matter after he completed her formal evaluation for that school year. Shortly thereafter,
Edwards filed this charge. According to Powers, he had informally observed Edwards on
numerous occasions and believed she was an excellent teacher. However, he did not agree to
4 The proposed decision, which we adopt, lays out in extensive detail the difficulties
Powers experienced in his attempts to schedule a formal evaluation.
4

Edwards’ request to be placed on a five-year evaluation cycle because it was his practice never
to grant such a request until he had completed at least one formal evaluation of the teacher.
Rosales
Rosales taught the first grade. During the 2014-2015 school year, Powers accompanied
his supervisor, District Administrator Dr. Alain Guevara (Guevara), on a walkthrough of the
school including Rosales’ classroom, where they discovered that she was showing Disney’s
animated film, Dumbo, to her students. Guevara directed Powers to address the matter with
Rosales. This was the second time Rosales received corrective instruction about the policy
against using movies as a substitute for instruction. Later that year, Powers completed a
formal evaluation of Rosales in which he rated her overall performance to be satisfactory, but
also concluded that she needed improvement in certain areas. This was the first time Rosales
ever received an evaluation with negative ratings. Rosales contacted LETA to challenge the
negative aspects of the evaluation. After she and her union representative met with Powers to
discuss the matter, Powers agreed to reissue the evaluation without the negative ratings.
Before the start of the 2015-2016 school year, Rosales met with Powers to discuss her
teaching and the availability of additional supports and resources. At that meeting, Rosales
volunteered to enter the Peer Assistance and Review (PAR) Program. Typically, school
administrators refer a teacher to the PAR program after he or she receives an unsatisfactory
evaluation. During the conversation, Powers also directed Rosales to refrain from using
movies in the classroom unless she received prior approval from him.
On September 4, 2015, Powers notified Rosales that she would be evaluated again that
school year and requested a time to discuss the matter and to schedule the formal observation.
Rosales responded that she wanted her PAR collaborating teacher to take part in the evaluation
5

events with her. At some point shortly thereafter, Rosales sought assistance from Edwards and
then reached the conclusion that the collective bargaining agreement and Education Code
precluded a consecutive year evaluation. On November 9, 2015, Rosales e-mailed Powers
stating that conclusion and further requesting to be put on a five-year evaluation cycle.
Ultimately, despite Powers’ efforts to schedule the observation, he was unable to complete a
formal evaluation of Rosales that school year.
The Picketts
David Pickett teaches second grade at LVS. During the 2014-2015 school year, Powers
evaluated Mr. Pickett and rated him as meeting the District’s expectations. Among the
evaluative subcategories, Powers indicated that Mr. Pickett needed to improve his performance
in two areas. After Mr. Pickett complained about these two suboptimal ratings, Powers
withdrew the evaluation and issued a new one with satisfactory notations in all subcategories.
At the beginning of the following school year, Powers and a couple other administrators did a
walkthrough of the school, including Mr. Pickett’s classroom. Such conduct was not out of the
ordinary, but it was the first time an administrator had conducted an unannounced visit to his
classroom during the first week of school. Shortly thereafter, Powers met with Mr. Pickett and
his representative, Edwards, to discuss pedagogical strategies for increasing student
engagement. According to all present, the meeting became a little tense after Edwards raised
the subject of Mr. Pickett’s recent evaluation. At some point, Powers raised the possibility of
evaluating Mr. Pickett again, but he stated that he had considered the idea and decided to reject
it. Ultimately, no District official evaluated Mr. Pickett that school year.
Victoria Pickett suffers from asthma, the symptoms of which can be triggered by the
presence of scents like perfume, air fresheners, etc. District officials, including Powers, were
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aware of her condition and made various efforts over the years to accommodate her special
needs. In October 2015, Powers approved the sale of scented pencils, “Smencils,” as part of a
fundraiser for the school. It did not occur to Powers that the Smencils could possibly
exacerbate Ms. Pickett’s asthma. However, Ms. Pickett was concerned about that possibility.
She e-mailed Powers, who in turn spoke with other administrators before instructing Ms.
Pickett to prohibit her students from using the Smencils in her classroom and advising her that
the items did not give off scents when capped. Despite these protective efforts, a former
student of Ms. Pickett approached her during recess and waved an uncapped Smencil under her
nose,5 which caused Ms. Pickett to have a respiratory reaction. Charging Parties allege that
Powers’ decision to approve the sale of these items constituted an adverse action against Ms.
Pickett.
DISCUSSION
The complaint alleges that the District discriminated against the Charging Parties
because of their protected conduct. To establish a prima facie case that an employer has
discriminated or retaliated against an employee in violation of EERA 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 employee’s exercise of those rights; (3) the
employer took adverse action against the employee; and (4) the employer took the adverse
action because of the exercise of those rights. (Novato Unified School District (1982) PERB
Decision No. 210, pp. 6-8.)
5 There is no evidence that the student harbored any malice towards Ms. Pickett or
acted at the District’s direction.
7

Edwards
With respect to the complaint allegations concerning Edwards, the ALJ concluded that
she failed to establish a prima facie case of discrimination because Powers’ decision not to
place her on a five-year cycle was not objectively adverse. PERB uses an objective test to
decide whether an employer’s action is adverse to an employee. (Santa Clara Valley Water
District (2013) PERB Decision No. 2349-M, pp. 28-29.) The question is “whether a
reasonable person under the same circumstances would consider the action to have an adverse
impact on the employee’s employment.” (Jurupa Unified School District (2013) PERB
Decision No. 2309, p. 8 [emphasis added]; Newark Unified School District (1991) PERB
Decision No. 864, pp. 11-12.)
In finding that the denial of Edwards’ request to be placed on a five-year evaluation
cycle was not adverse, the ALJ contrasted this case with the facts in Jurupa Unified School
District (2012) PERB Decision No. 2283 (Jurupa I) and Jurupa Unified School District (2015)
PERB Decision No. 2458 (Jurupa II). In those cases, the Board held that a decision to
evaluate a permanent certificated employee in two consecutive school years was an adverse
action because, under the circumstances, it signaled a performance deficiency.
(Jurupa I, supra, PERB Decision No 2283, pp. 18-19; see also San Diego Community College
District (2019) PERB Decision No. 2625, pp. 6-8 [discussing Jurupa I and Jurupa II] (San
Diego CCD).)
Here, the ALJ concluded that no reasonable teacher would infer that the decision not to
place Edwards on a five-year cycle reflected some deficiency in her qualities as a teacher.
Specifically, it was undisputed that Powers never approved such requests unless and until he
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had the opportunity to evaluate the teacher at least once.6 Since Powers had no such
opportunity with Edwards, his decision was consistent with his practice. (See San Diego CCD,
supra, PERB Decision No. 2625, p. 9 [no adverse action where evidence established a practice
of off-cycle evaluation before granting higher status to adjunct teachers].)
We agree that the facts of this case do not support Edwards’ contention that she
suffered an adverse action. In light of the record evidence, Edwards’ request amounted to one
for special treatment, i.e., Powers would have to suspend his normal practice in order to place
her on a five-year evaluation cycle. Under these circumstances, the District’s decision not to
create an exception but instead to follow its existing practice does not amount to an adverse
action.
Even if Powers’ decision could be considered an objectively adverse action, we would
still find that the District proved it would have denied Edwards’ request regardless of her
protected activities. Indeed, the same evidence of consistent practice that disproves the alleged
adverse nature of the decision proves that it was not taken because of Edwards’ efforts to
vindicate her rights or those of her colleagues. Powers did not treat Edwards any differently
than he treated other bargaining unit members. While Edwards may believe she was denied a
five-year evaluation cycle because of her protected conduct, the record establishes that such
conduct had nothing to do with the decision. On this additional basis, we affirm the proposed
decision’s dismissal of the complaint allegations involving Edwards. (See San Diego CCD,
6 After the close of the record, Edwards attempted to introduce evidence to establish
that Powers sometimes agreed to place teachers on five-year evaluation cycles without having
personally evaluated them before. The ALJ correctly rejected Edwards’ proffered evidence
since she did not file a motion to reopen the record. (Oxnard Union High School District
(2018) PERB Decision No. 2617, p. 3.) On exceptions, Charging Parties again refer to these
rejected exhibits without following the proper procedure for making them part of the
evidentiary record, and thus we, like the ALJ, decline to admit or rely upon them.
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supra, PERB Decision No. 2625, pp. 9-10 [concluding that the district would have evaluated
charging party at the time it did regardless of his protected activities because he was part of a
group of similarly situated instructors evaluated at the same time].)
Rosales
Rosales’ exceptions are similarly without merit. Rosales is the only one of the
Charging Parties to have established a prima facie case. The District’s decision to evaluate her
in consecutive years falls squarely within the ambit of Jurupa I and II, and thus constitutes an
adverse action. Moreover, we find no reason to disturb the ALJ’s finding that this is a mixed
motive case, based on some evidence linking Powers’ decision, in part, to Rosales’ protected
activity. However, we also agree with the ALJ that the District established its affirmative
defense. While Rosales had a contractual right to volunteer for the PAR Program,7 the District
has persuaded us that Powers would have scheduled Rosales for consecutive evaluations even
in the absence of such protected activity, based solely on concerns relating to Powers’
performance. The ALJ correctly weighed the District’s evidence in support of its affirmative
defense against the evidence supporting Rosales’ prima facie case and concluded that Powers
would have followed the same course of action even absent any protected activity. (Los
Angeles Unified School District (2019) PERB Decision No. 2647, p. 21 [discussing proof of an
employer’s affirmative defense].)
7 In finding Rosales engaged in protected activity by volunteering to participate in the
PAR program, the attached proposed decision relies on Jurupa I, supra, PERB Decision
No. 2283. In that case, a teacher engaged in protected activity by filing complaints under the
collective bargaining agreement seeking to enforce the agreement’s evaluation and non-
discrimination provisions. (Id. at p. 16.) Here, Rosales was not attempting to enforce the
collective bargaining agreement but merely exercising a right provided to her under the
agreement. Thus, Oakdale Union Elementary School District (1998) PERB Decision
No. 1246, in which an employee engaged in protected activity by exercising her right under the
agreement to report workplace safety issues, provides more apt support for the proposed
decision’s finding. (Id. at p. 18.)
10

The Picketts
The Picketts’ cases hardly merit a mention. As the ALJ correctly determined, Mr.
Pickett was not subjected to a second, consecutive evaluation, and none of the conduct he
complained of (an informal walkthrough of his classroom during the first week of school and a
routine, constructive conversation with his principal) amounted to anything approaching an
adverse action. Similarly, the record is clear that the District did not approve the sale of
novelty pencils as a fundraiser to interfere with Ms. Pickett’s ability to breathe. Ms. Pickett
did not and cannot prove that the District subjected her to an adverse action under any rational
interpretation of the law. Therefore, the ALJ correctly determined that neither of the Picketts
demonstrated a prima facie case of discrimination.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-6088-E are
DISMISSED.
Members Shiners and Krantz joined in this Decision.
11

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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
LORI E. EDWARDS, DAVID PICKETT,
VICTORIA PICKETT, and KIM ROSALES,
Charging Parties,
v.
LAKE ELSINORE UNIFIED SCHOOL
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-6088-E
PROPOSED DECISION
(March 30, 2018)
Appearances: Lori E. Edwards on behalf of herself, David Pickett, and Victoria Pickett;
Donald R. Holben & Associates by Andrew A. Rosenberry, Attorney, for Kimberly Rosales;
Atkinson, Andelson, Loya, Ruud & Romo by Todd M. Robbins, Attorney, for Lake Elsinore
Unified School District.
Before Valerie Pike Racho, Administrative Law Judge.
INTRODUCTION
Several public school teachers, all of them union representatives, allege in this case that
they suffered retaliation by their public school employer because of their exercise of rights
under the Educational Employment Relations Act (EERA).1 The employer denies any
statutory violation.
PROCEDURAL HISTORY
On November 11, 2015, Charging Parties Lori E. Edwards, David Pickett, Victoria
Pickett, and Kimberly Rosales filed an unfair practice charge with the Public Employment
Relations Board (PERB or Board) against the Lake Elsinore Unified School District (District)
alleging retaliation because of the their protected activities.
1 EERA is codified at Government Code section 3540 et seq.

On January 11, 2016, the District filed a position statement in response to the charge
allegations.
On January 19, 2016, Charging Parties filed a first amended charge.
On February 5, 2016, the District filed a position statement in response to the first
amended charge.
On February 12, 2016, PERB Office of the General Counsel issued a complaint (PERB
complaint) alleging that that the District took various adverse actions against each of the
Charging Parties in response to their EERA-protected activities.
On February 16, and 22, 2016, Charging Parties filed a second amended charge and
third amended charge, respectively. PERB Office of the General Counsel considered these
filings to be motions to amend the PERB complaint.
On March 3, 2016, the District filed its answer, denying all material allegations and
asserting various affirmative defenses.
On March 21, 2016, the District filed opposition to Charging Parties’ motions to amend
the PERB complaint.
On April 1, 2016, Charging Parties filed two motions objecting to and urging rejection
of the District’s opposition to its motions to amend the PERB complaint.
On April 8, 2016, the parties participated in an informal settlement conference with a
PERB agent, but the case did not settle.
On April 11, 2016, PERB Office of the General Counsel dismissed, with prejudice,
Charging Parties’ motions objecting to and urging rejection of the District’s opposition to the
motions to amend the PERB complaint.
2

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On May 17, 2016, PERB Office of the General Counsel issued a letter refusing to join
in Charging Parties’ verbal request to appeal the April 11, 2016 dismissal of Charging Parties’
motions pursuant to PERB Regulation 32200.2
In May and June 2016, both parties filed several other motions as discussed below.
A prehearing conference had been scheduled for May 27, 2016, but was cancelled due
to multiple scheduling conflicts. I informed the parties via e-mail on May 26, 2016, that I
would issue a written ruling on all outstanding motions in the case by the end of July 2016.
On July 29, 2016, I issued a written ruling denying: (1) Charging Parties’ motions to
amend the PERB complaint filed on February 16, and 22, 2016; (2) Charging Parties’ “Motion
to Revoke the Respondent’s Response to Charging Parties’ Motions…and Grant Sanctions”
filed on May 5, 2016; (3) Respondent’s Cross-Motion for “Attorneys’ Fees in the Amount of
$1440.00” filed on May 17, 2016; and (4) Respondent’s “Motion for Bifurcation/Severance of
Issues” regarding Ms. Rosales’s claims filed on June 3, 2016.
Seven days of formal hearing were held between October 3-11, 2016.
After extensions of time were requested and granted, the parties filed closing briefs by
March 3, 2017.3 At that time the matter was submitted for proposed decision.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 Several exhibits that were not introduced into the record during the hearing were
attached to the brief filed by Ms. Edwards. Ms. Edwards did not request to reopen the record
to include additional evidence, nor did she explain her reasons for failing to introduce the
documents during the hearing. Because the District was not provided with the opportunity to
examine witnesses over these documents or to object to their introduction, they have not been
considered herein.
3

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FINDINGS OF FACT
Jurisdiction
The District admits that it is a public school employer within the meaning of EERA
section 3540.1, subdivision (k), and therefore within PERB’s jurisdiction. Charging Parties are
public school employees within the meaning of EERA section 3540.1, subdivision (j).
Background and Undisputed Facts
All of the Charging Parties are permanent employees of the District and work as
kindergarten, first, and second grade teachers at Lakeland Village School (LVS). Teachers are
exclusively represented in their employment relations with the District by the Lake Elsinore
Teachers Association (LETA). At the time of the hearing, in October 2016, Ms. Edwards had
been employed by the District for 13 years. Mr. Pickett had been employed by the District for
30 years. Ms. Pickett had been employed by the District for 19 years, and Ms. Rosales had
been employed by the District for 26 years. Nick Powers had been Principal of LVS since July
2012. Valerie Roark was Co-Principal of LVS through the end of the 2014-2015 school year,
when she retired. After Ms. Roark retired, at the start of the 2015-2016 school year, Cristy
Popp and Felipe Flores began working as administrators at LVS. Each of them held the title,
“Dean of Students.”
On the first day of hearing in this matter, the District and the Charging Parties
stipulated that the following facts alleged in the PERB complaint regarding Charging Parties’
protected activities are true and within the knowledge of the District, and thus, are established:4
4. Kim Rosales exercised rights guaranteed by the Educational
Employment Relations Act as follows:
4 All of the text quoted below is copied verbatim from the PERB complaint, including
the brackets and the text within.
4

(a) At all times relevant herein, Ms. Rosales served as an elected
LETA site representative at LVS.
(b) Since 2010 and continuing, she actively participated in union
activities by “engaging in elections, representing bargaining
unit members’ rights at the site rep council meetings,
investigating grievance issues, filing complaints with the
[D]istrict, meetings with principal (Nick Powers) regarding
bargaining unit members’ employer employee relations, basic
statutory employment rights, and PERB hearings.”
(c) On or about May 20 through June 5, 2015, Ms. Rosales
testified at a PERB hearing in Lori E. Edwards v. Lake
Elsinore Unified School District, PERB Case No. LA-CE-
5908-E.
7. Victoria Pickett exercised rights guaranteed by the
Educational Employment Relations Act as follows:
(a) Since September 1, 2011 and continuing, Ms. Pickett served
as an elected LETA alternative site representative at LVS.
(b) Since 2010 and continuing, she has been an active union
participant by “engaging in elections, representing bargaining
unit members’ rights at the site rep council meetings,
investigating grievance issues, filing complaints with the
[D]istrict, and PERB hearings.”
(c) On or about May 20 through June 5, 2015, Ms. Pickett
testified at a PERB hearing in Lori E. Edwards v. Lake
Elsinore Unified School District, PERB Case No. LA-CE-
5908-E.
10. David Pickett exercised rights guaranteed by the Educational
Employment Relations Act as follows:
(a) Since September 1, 2011 and continuing, Mr. Pickett served
as an elected LETA alternative site representative at LVS.
(b) Since 2010 and continuing, he has been an active union
participant by “engaging in elections, representing bargaining
unit members’ rights at the site rep council meetings,
investigating grievance issues, filing complaints with the
[D]istrict, regarding bargaining unit members’ employer
employee relations, basic statutory employment rights, and a
witness in a PERB hearing. [sic]”
5

(c) In or about May 20 through June 5, 2015, Mr. Pickett testified
at a PERB hearing in Lori E. Edwards v. Lake Elsinore
Unified School District, PERB Case No. LA-CE-5908-E.
14. Lori Edwards exercised rights guaranteed by the Educational
Employment Relations Act as follows:
(a) Since August 10, 2008 and continuing, Ms. Edwards served
as an elected LETA site representative at LVS.
(b) Since 2008 and continuing, Ms. Edwards was also an active
participant in union activities by “engaging in elections,
representing bargaining unit members’ rights at the site rep
council meetings, investigating grievance issues, filing
complaints with the [D]istrict, meetings with principal (Nick
Powers) regarding bargaining unit members’ employer
employee relations, basic statutory employment rights, and
PERB hearings.”
(c) In March 2014, Ms. Edwards filed Lori E. Edwards v. Lake
Elsinore Unified School District, PERB Case No. LA-CE-
5908-E; a PERB complaint was issued on November 6, 2014;
she participated in a PERB informal settlement conference on
January 22, 2015; and she participated in a formal hearing on
May 20-22, and June 5, 2015.
Victoria Pickett
1. 	2012-2013 and 2013-2014 School Years
Ms. Pickett has respiratory allergies and asthma. Scented items are sometimes a trigger
for those conditions. The District has an Administrative Regulation (AR) addressing policies
for indoor air quality (AR 3514). A portion of this AR is regarding common irritants on school
properties (sec. 11). It reads:
Staff and students shall be asked to refrain from bringing
common irritants such as furred or feathered animals, stuffed toys
that may collect dust mites, scented candles, incense or air
fresheners and from using perfume or cologne, scented lotion or
hair spray, nail polish or nail polish remover, or other personal
care products that are not fragrance-free in classrooms or other
enclosed areas or buildings.
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AR 4032 covers procedures for employees to request accommodations for medical
issues and contains an appeal procedure if an employee is not satisfied with the District’s
response. AR 4032 cites the Americans With Disabilities Act (ADA) (42 U.S.C., § 12101 et
seq.) and the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et
seq.), among other laws, as the basis for the procedures. Kip Meyer, District Assistant
Superintendent of Student and Instructional Support Services,5 testified that not all
accommodation issues are handled at the District level. Some issues can be handled locally
between the site administrator and the employee needing accommodation. If the issue cannot
be resolved locally, then a meeting may be held between the employee, site administrator, and
District administrators. Both methods are considered part of the “interactive process” for
determining a reasonable accommodation under the ADA.
In January 2013, Ms. Pickett informed Mr. Powers of her medical conditions by
providing a doctor’s note, which stated:
Victoria Pickett has been under my care for the treatment of
respiratory allergies since 1994.
She has been able to keep her respiratory symptoms under good
control most of the time. Exacerbations have been triggered by
pollutants and by odors. Examples of needless exposure to
odiferous irritants include perfumes, de-odorizing restroom
sprays and plug-ins. These should not be used in the staff
restrooms or the handicapped restrooms.
Her symptoms are sensitive to air quality and temperature. Her
classroom should be well ventilated and at 70 degrees.
Please confer with her on her needs to stay well at work.
5 Dr. Meyer held the position of Assistant Superintendent of Personnel Support
Services between 2006 and 2016.
7

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In May 2013, Ms. Pickett gave another doctor’s note to Mr. Powers. This note said
Ms. Pickett had been recently treated for asthma and that her symptoms are made worse by
being in a certain conference room at school, so that room should be avoided. Ms. Pickett
testified that Mr. Powers did not hold a meeting with her in response to either doctor’s note
and he did not make any announcements to staff about avoiding bring scented items to school.
She did not describe any discussions they had when she gave him those notes, nor did she say
that she asked Mr. Powers to make such an announcement. In April 2014, Ms. Pickett e-
mailed
Mr. Powers about a scented air freshener in the school office triggering her asthma symptoms
and asked for it to be removed. Mr. Powers then confirmed that the item had been removed
from the area. In May 2014, Mr. Powers moved the location of teacher interviews in which
Ms. Pickett was participating to the library because she could not safely be in the conference
room adjacent to his office. Ms. Roark testified about taking a number of actions in response
to Ms. Pickett raising concerns about her medical condition, from ensuring that Ms. Pickett did
not have to attend meetings in a particular conference room to removing scented lotion from a
restroom.
2. 	2014-2015 School Year
There is a substitute teacher, Teacher X,6 who is known for wearing a lot of perfume to
cover her smoking habit. Teacher X was allowed to substitute in Ms. Pickett’s classroom in
late May 2015. Ms. Pickett found out about Teacher X being assigned to her room while she
was home sick on a Wednesday morning. She learned about this from Mr. Pickett who was
present that day at school. Ms. Pickett e-mailed Mr. Powers and Ms. Roark right away, asking
6 The teacher’s name will not be used here to protect privacy.
8

________________________
them to remove Teacher X from her classroom for fear that the lingering odors may trigger an
asthma attack upon her return to work on Friday. Mr. Powers responded to Ms. Pickett that it
was too late to move Teacher X to another room that day, but they would do so the next day.
Teacher X was in fact reassigned the following day. As a result of Teacher X having been in
her classroom, Ms. Pickett could not return to it that Friday and had to call out sick again on
the following Monday. Ms. Pickett let the administrators know that it was because of Teacher
X having been in her room. Mr. Powers responded to Ms. Pickett, stating that if she thought
she had been made sick by an exposure at work, she had the right to file a Workers
Compensation claim. Ms. Pickett did not do so.
On June 3, 2015, Ms. Pickett e-mailed Mr. Powers saying that she thought there was “a
string of items that ought to be dealt with by having an ADA meeting.” She identified those
items as including, keeping her safe when allergens are added to her classroom or common
areas (in spite of the AR’s prohibition); yearly summer cleaning of her classroom carpet
(which needs to occur early so there is time to air out her room before she returns); her
necessary avoidance of the conference room near his office; and the size of her classroom for
easy wheelchair access.7 Mr. Powers responded to her e-mail noting that he would schedule
her carpet cleaning to be done early with the custodial staff. He also stated his intention to
schedule an interactive process meeting. He asked Ms. Pickett to bring a physician’s letter that
stated the nature of the disability/impairment; whether the disability/impairment limits a major
life activity and in what ways; and “verification of what proposed accommodation may be
appropriate.” No interactive process meeting was held after this e-mail exchange.
7 Interactive process meetings were held previously with District officials on the
wheelchair issue.
9

3. 	2015-2016 School Year
a. 	The “Smencils” Fundraiser
On October 1, 2015, Ms. Edwards e-mailed Mr. Powers, copying Ms. Pickett,
requesting that Mr. Powers make an announcement to staff regarding the need to follow the
District’s AR related to indoor air quality. Mr. Powers responded to Ms. Edwards asking if
there was a specific person he could speak with first, because he preferred to begin by
addressing issues with individuals. The record does not reflect whether Ms. Edwards
responded to Mr. Powers.
Sometime in the beginning of October 2015, there was a schoolwide announcement that
the school would be selling a kind of scented pencils called “Smencils” as a fundraising
activity. Mr. Powers testified that the idea for the fundraiser came from sixth grade teacher
Jennifer Maurer and he approved it. On October 8, 2015, Ms. Pickett e-mailed Mr. Powers
saying the sale of scented items on school grounds concerned her, as it may impact her health.
The next day, Mr. Powers responded to Ms. Pickett in relevant part as follows:
I do appreciate your concern regarding the scents of the pencils. I
would like to offer some information and a suggestions [sic] to
help alleviate your concerns. 1. Inform your students, in the
event they purchase a Smencil, that they are not to remove it from
the sealed/capped case they come in. This could be expressed to
both students in your class and in Drama Club. 2. Share this
information with your grade level team as well, in the event a
student(s) from another class should be in your room for any
reason. 3. Ms. Maurer will keep the supply she is selling in her
classroom and the office will not be housing or storing the items,
therefore you will be able to access the office without worry of
Smencil scents.
Mr. Powers testified that when Ms. Maurer suggested selling Smencils, it never
occurred to him that they might cause a problem for Ms. Pickett’s respiratory conditions. He
was familiar with Smencils because his wife, who is a teacher in another school district, sold
10

________________________
them at her school with great success. When Smencils are stored inside of their plastic case
with the cap secured, no scent is detectable. Mr. Powers explained that the decision to store
the product in Ms. Maurer’s classroom rather than in the office was made to help alleviate the
risk for Ms. Pickett. Mr. Powers also contacted then-Certificated Director of Personnel
Support Services Tracy Sepulveda with Ms. Pickett’s concern over the sale of Smencils.8
Ms. Sepulveda testified that when he explained how Smencils were stored, she did not think
there would be any problem for Ms. Pickett.
On October 16, 2015, Ms. Pickett e-mailed Mr. Powers stating that a sibling of one of
her students had brought a Smencil into her classroom, which she ordered removed. She also
noted that a former student of hers brought a Smencil for her to smell while she was collecting
her class from the recess line. Ms. Pickett stated in the e-mail, “[Ms. Edwards] was there and
watched the incident.” Ms. Pickett did not describe in the e-mail that any distressing
symptoms had occurred as a result of the student asking her to smell the Smencil. In their
testimony, both Ms. Edwards and Ms. Pickett testified that as a result of this latter incident,
Ms. Pickett was so overcome by an asthma attack that Ms. Popp had to come in and cover
Ms. Pickett’s class. Ms. Pickett described that the student waved the Smencil under her nose.
She said she had to use her rescue inhaler and that Ms. Edwards called the office to ask for
someone to cover. Ms. Edwards said Ms. Pickett was “gasping for air and in tears.”
Ms. Popp, however, denied that she had any knowledge of that event or that she ever
had to cover Ms. Pickett’s classroom because Ms. Pickett was having an asthma attack.
Ms. Popp denied that she was even aware before the hearing that Ms. Pickett suffers from
asthma. Ms. Popp was only aware that Ms. Pickett has allergies to strong smells. Ms. Popp
8 Part of Ms. Sepulveda’s duties was handling ADA issues.
11

testified to responding to a radio call for coverage for Ms. Pickett on only one occasion.
Ms. Popp covered Ms. Pickett’s class for around eight to ten minutes. When Ms. Pickett
returned to her classroom, Ms. Pickett stated that she had to use a restroom that was far away
because the nearest one had a strong perfume smell. Ms. Popp asked Ms. Pickett if she was
okay and ready to continue teaching, and Ms. Pickett said she was fine.
Mr. Powers responded to Ms. Pickett’s latest e-mail on October 19, 2015. He said that
the sale of Smencils was going to be suspended during the school day. Mr. Powers testified
that this was done to try to further alleviate Ms. Pickett’s concerns. On October 30, 2015,
Ms. Pickett received an e-mail from Ms. Maurer to all staff discussing the sale of Smencils at
the Fall Festival, which is an after-school event. Also around this time, office staff called in
two of Ms. Pickett’s students to give them Smencils as a reward. Ms. Pickett did not raise
these issues with Mr. Powers because she did not think he would do anything about it. Ms.
Pickett did not file a Workers Compensation claim related to the October 16, 2015, or any
other incident related to Smencils. Ms. Pickett has also never utilized the appeal process in AR
4032.
b. 	Interactions With the Deans of Students Involving Teacher X
Ms. Edwards testified about an incident where she witnessed Ms. Pickett having an
asthma attack in the school office on a day when Teacher X was on campus. Ms. Edwards said
that Ms. Popp and Mr. Flores were in the office and she told them that Ms. Pickett was having
breathing difficulty but “both of them just ignored it and just walked away.” Ms. Pickett did
not testify about this event. Mr. Flores denied having such a conversation with Ms. Edwards
or that he ever witnessed Ms. Pickett having an asthma attack in the office on a day when
Teacher X was on campus. He actually had never been informed before the hearing that
12

Ms. Pickett has asthma. He did recall speaking with Ms. Pickett one day in the teacher’s
lounge about Teacher X wearing a lot of perfume and her saying that “the smell was a lot for
her.” Mr. Flores asked Ms. Pickett if there was something he could do, and testified about the
exchange as follows:
She didn’t want to make a big deal about it. I offered to talk to
the person and open a door to the lounge, and she said she didn’t
want a big deal. She said, no, thank you, I don’t want to make a
big deal about it.
Mr. Flores did not observe that Ms. Pickett was in any distress. Ms. Popp was not present.
Ms. Pickett did not confirm or deny Mr. Flores’s account.
Ms. Popp also denied that Ms. Edwards ever told her that Ms. Pickett was having an
asthma attack. She recalled an event when Ms. Pickett was outside the office when Ms. Popp
arrived to work. When she went inside someone told her that Ms. Pickett had complained
about Teacher X’s strong perfume. Ms. Popp could see Ms. Pickett and Ms. Edwards through
a window as they were talking outside. Ms. Pickett did not appear to be in any distress. She
did not talk to either of them. As she was walking into her own office, Ms. Edwards came
inside but she did not hear what Ms. Edwards was saying to anyone.
Evaluation Procedures
1. 	The Collective Bargaining Agreement
LETA and the District are parties to a collective bargaining agreement (CBA) that was
in effect at all times that are relevant to the case. Article 9 covers evaluation procedures. The
following sections of Article 9 are germane to many of the issues presented here:
Section 9.1.1 [in relevant part]
Each unit member will be notified within 20 working days of the
start of their work year who shall be their evaluator.
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Section 9.2
The evaluator shall base the evaluation on the standards listed in
Appendix 6d,[9] instructional goals and objectives, and
information gathered through observation conferences with unit
member, and first hand knowledge of total performance.
Instructional Goals and Objectives are to be completed by each
bargaining unit member within 40 days of the start of the
bargaining unit members’ work year[.]
Section 9.14
Employees who successfully pass their probationary period shall
become permanent employees. Permanent unit members shall be
evaluated at least once every two (2) years[10] and at least every
five (5) years for personnel with permanent status who have been
employed at least ten (10) years with the school district, are
highly qualified, as defined in 20 U.S.C. Sec. 7801, and whose
previous evaluation rated the employee as meeting or exceeding
standards, if the evaluator and certificated employee being
evaluated agree. The certificated employee or the evaluator may
withdraw consent at any time. The evaluation shall be completed
thirty (30) days prior to the unit members’ last contracted day of
the evaluation year.
Section 9.14.1
Any permanent unit member receiving an evaluation report which
includes a Needs Improvement or Unsatisfactory in the overall
evaluation shall be evaluated the following year.
Section 9.15
The evaluator shall meet with the unit member within forty (40)
working days from the start of the bargaining unit member’s
work year to provide a copy of the evaluation criteria, and
provide examples of yearly objectives.
Section 9.16
The evaluation shall include at least one (1) formal observation.
9 The standards in Appendix 6d are: (1) Engaging and Supporting all Students in
Learning; (2) Creating and Maintaining Effective Environments for Student Learning; (3)
Understanding and Organizing Subject Matter for Student Learning; (4) Planning Instruction
and Designing Learning Experiences for All Students; (5) Assessing Student Learning; (6)
Developing as a Professional Educator; and (7) Student Progress Towards the Attainment of
Academic Standards.
10 Unlike permanent employees, probationary employees are evaluated annually.
(Section 9.13.)
14

________________________
Section 9.16.2
The formal written observation shall be mutually arranged at least
two (2) working days in advance of the formal observation. The
formal observation shall be preceded by a pre-conference to
discuss the observation lesson. At that time, a discussion of the
observation lesson will take place.
Section 9.16.4
Informal observations may take place at any time and need not be
pre-conferenced or written.
Section 9.18
When a deficiency is noted on the observation form which may
result in an “unsatisfactory” rating in the unit member’s final
evaluation report, a follow-up observation shall be arranged
between the evaluator and the unit member before the evaluation
is written.
Section 9.19
Prior to thirty (30) working days before the end of a bargaining
unit member’s work year, an evaluation conference will be held
to discuss the results of the evaluation. The evaluator will
provide the unit member with a copy of the evaluation.
Section 9.21
All evaluation reports shall include a notation as to the overall
evaluation.[11] Needs Improvement and Unsatisfactory
evaluations must be based on a minimum of two (2) mutually
arranged formal written observations.
Section 9.23
Informal Observation – Walkthrough
The District and Association agree that informal observations
(walkthroughs) may occur at all sites to gather global
documentation for District Program Compliance (including but
not limited to, PID and ELL programs). Data collected to
11 The “Bargaining Unit Members Evaluation Form” records an employee’s overall
performance as being either: Unsatisfactory (U), Needs Improvement (N), Meets District
Standards (M), or Exceeds District Standards (E). Additionally, the employee is scored in the
seven standards discussed above in footnote 9, as well as in an eighth standard, “Adjunct
Duties.” Each standard contains between two and six subcategories in which the employee is
scored with a U, N, M, or E, for a total of 34 subcategory ratings. Evaluator comments with
“specific suggestions for improvement” are required for U and N ratings. Comments are
encouraged for M and E ratings.
15

document program compliance during such informal observations
shall not include information that can be used to identify the unit
member being observed. Information gathered by informal
observers other than the unit member’s evaluator shall not be
applied to the unit member’s evaluation. Any data collected by
the unit member’s evaluator during an informal observation that
may have a negative impact on the unit member’s evaluation
shall be informally shared with the unit member within five (5)
working days. A summary of the school wide data collected
during informal observations shall be presented to all unit
members at the site.
(Underscore in original; italics added.)
2. 	District and Site Practices
Dr. Meyer testified that when he was Assistant Superintendent of Personnel Support
Services, his staff was responsible for compiling a list of teachers who were due for evaluation
in every school year at each school site. The list for each school site was then distributed to
the site administrator. Dr. Meyer personally reviewed each certificated evaluation before they
were placed in the employee’s personnel file. Dr. Meyer testified that the District sometimes
chooses to evaluate permanent teachers in consecutive years if there is a performance concern,
even if the overall rating for the teacher is Meets District Standards. At times he would contact
a site administrator asking if a consecutive year evaluation should be done, if he noticed
performance concerns had been highlighted in the evaluation. Performance concerns are
reflected by N or U ratings within the subcategories, and/or by written commentary suggesting
the need for improvement. Sometimes the site administrator would contact him asking to
evaluate again. He testified that, in his experience, a consecutive evaluation for a permanent
employee has happened only around 10 times. 	The District introduced several documentary
examples where permanent teachers had been evaluated in consecutive years after receiving an
overall Meets District Standards rating.
16

________________________
Dr. Meyer and LETA President Bill Cavanaugh also testified that the District has
routinely “pushed” a teacher’s scheduled evaluation to the following year where a teacher has
been absent for an extended period of time during the scheduled evaluation period.12 Several
documentary examples of this practice were also introduced.
Mr. Powers testified that he notifies teachers via a group e-mail or individual e-mails
near the beginning of the school year when they are due for evaluation during that year. The e-
mail notes the administrator who will be the teacher’s evaluator. Mr. Powers does not grant
requests for a five year evaluation cycle unless he has personally performed an evaluation of
the teacher making the request. In 2015-2016, Mr. Powers notified teacher Deanna Cook that
she was due for evaluation by Ms. Popp. Ms. Cook responded that she thought there had been
an agreement to place her on a five year plan. Mr. Powers had performed Ms. Cook’s previous
evaluation in 2013-2014. Mr. Powers told Ms. Popp to approve Ms. Cook’s request.
Mr. Powers testified that he has yet to give an overall rating of Exceeds District
Standards on a teacher’s summative evaluation. Mr. Powers generally does not schedule
formal observations of teachers on Wednesdays, because grade level “PLC” meetings,13 where
12 Mr. Cavanaugh was subpoenaed to testify for the District in this case.
Mr. Cavanaugh has also testified as a witness for the District in other PERB cases involving
the Charging Parties and for the District in an arbitration involving Ms. Edwards. The District
introduced an e-mail exchange between Mr. Cavanaugh and Ms. Edwards where Ms. Edwards
expressed her vehement disagreement with certain positions taken by him and other LETA
leadership regarding interpretation of the CBA. Mr. Cavanaugh testified that the reason he
testified in PERB Case No. LA-CE-6082-E involving the Charging Parties was because he
believed that the position taken by the Charging Parties in that case, if successful, would have
been detrimental to the unit as a whole. Charging Parties argue that Mr. Cavanaugh is biased
against them and therefore his testimony should be disregarded. I decline to do that. I found
Mr. Cavanaugh to be a credible witness who answered the questions posed to him directly and
without hesitation. He testified consistently during his direct and cross examinations. His
disagreement with the Charging Parties’ contract interpretations does not show that he is
biased.
13 The acronym was not defined in the record.
17

teachers collaborate over instruction, are held on that day. Permanent teachers’ evaluations are
due at least 30 days before the end of the school year, however, personnel services often wants
them to be submitted a week before that.
David Pickett
1. 	2014-2015 School Year
At some point in or around March 2015, Ms. Edwards notified Mr. Pickett that she
would be requesting that he testify at a PERB hearing during the month of May in Case No.
LA-CE-5908-E. This prompted him to “mention” to an office secretary, sometime in March or
early April, that he would need coverage for his classroom during the hearing, but he was still
unsure of the exact dates of his appearance at the hearing at that time. There is no indication in
the record that Mr. Pickett had any discussion with Mr. Powers about that topic in March or
April 2015.
Mr. Pickett teaches second grade. The 2014-2015 school year was an evaluation year
for Mr. Pickett. Mr. Powers was his evaluator. Mr. Pickett testified that during his 30-year
employment with the District, he has only been evaluated once every two years. The formal
observation was held on March 23, 2015. Mr. Powers and Mr. Pickett met to talk about it on
March 26, 2015. Mr. Powers had prepared a written observation report consisting of five
paragraphs describing the observed lesson. In four of those paragraphs, Mr. Powers made a
suggestion on how to improve teaching techniques relating to what had been observed. For
example, after noting that six to eight students had not participated in a “sing-a-long” activity,
Mr. Powers stated, “[o]ne suggestion would be to have students work in groups prior to the
choral sing[-]a[-]long.”
18

Mr. Pickett received his 2014-2015 evaluation form on or about April 13, 2015. The
overall ranking was Meets District Standards. Out of 34 subcategories, he received 32 M
rankings and two N rankings. The N marks centered on the areas of student engagement and
professional growth. Mr. Powers’s written comments in these areas were, “should seek to
incorporate more interactive strategies for student collaboration and engagement[,]” and
“continue to follow through on professional growth opportunities.” This was the first time that
Mr. Pickett had ever received an N on any subcategory in his summative evaluation. Three
written comments were also included in subcategories rated M, for example, under number 31,
“the teacher works with colleagues to improve professional practice,” Powers noted that Mr.
Pickett “[w]orks in a collaborative manner with the 2nd Grade team.”
Mr. Pickett wrote a written response to the evaluation, noting his belief that several
sections of the CBA evaluation article had not been followed, including sections 9.15, 9.16.2,
and 9.23. According to Mr. Pickett, the N ratings he had received in two subcategories were
inappropriate because he had not been warned in advance that there was any need for
improvement, and consequently there was no time for him to remediate those concerns before
the summative evaluation. He also refused to sign his evaluation. He testified that while he is
always open to training opportunities, he did not understand the reference being made in that
regard because he attended all mandatory training at the beginning of the school year.
Mr. Powers testified that after both Mr. Pickett and Dr. Meyer raised concerns to him
about the evaluation, he decided to destroy it and issue a new one. The new evaluation, dated
April 29, 2015, contained all M ratings in the subcategories. The overall rating was still Meets
District Standards. The comments in the subcategories that had been rated N were slightly
expanded, while the other three comments remained unchanged. The comment referencing
19

seeking out professional growth opportunities added training related to Common Core
instruction. Regarding student engagement, the comment stated,
A recommendation is for Mr. Pickett to seek to incorporate more
interactive strategies for student collaboration and engagement, to
promote inquiry, discussion, and language development
throughout his instruction. This would promote problem solving
and think critically [sic] as Common Core instruction requires.
2. 	2015-2016 School Year
Approximately four days into the new school year, Mr. Powers and a couple of other
administrators entered Mr. Pickett’s classroom, stayed for around five minutes, and left
without speaking to Mr. Pickett. Mr. Pickett testified that this was the first time administrators
had ever come into his classroom during the first week of school. However, Mr. Powers and
Ms. Roark testified about doing frequent informal walkthroughs of every LVS classroom at
least twice per month, and especially at the beginning of the school year. Mr. Pickett
acknowledged during cross examination that Mr. Powers informally walks through and
observes his classroom less than once per month, and that he has seen Mr. Powers do that in
other classrooms as well.
The day before the administrators’ classroom visit, Mr. Pickett had been addressing a
group of teachers in the teachers’ lounge about pre-designating a Kaiser physician as the
employee’s medical provider for worker’s compensation issues. Mr. Powers was in the lounge
and overheard the conversation. Mr. Powers asked Mr. Pickett to send him information about
the topic, which Mr. Pickett later did via e-mail. Mr. Powers testified that the reason he asked
Mr. Pickett to send him information was because his own medical plan is Kaiser and he was
unaware of that option.
20

The same day as the administrator’s classroom visit, Mr. Powers ran into Mr. Pickett
crossing the quad. Mr. Powers told Mr. Pickett he wanted to set a meeting to discuss ways “to
support” Mr. Pickett in the coming year. The word “support” held an undesirable connotation
for Mr. Pickett, as he took it to be referring to the negative comments in his destroyed 2014-
2015 evaluation. This was the first time that an administrator had offered him support after
receiving an overall rating of Meets District Standards in his evaluation. Mr. Pickett e-mailed
Mr. Powers asking for clarification on the reasons for the requested meeting. Mr. Powers
responded that it was to discuss ways for Mr. Powers to offer support in the area of student
collaboration and engagement. Mr. Pickett replied to that e-mail stating that he was glad to
discuss ways to improve his classroom skills and would “even be open to suggestions for
District trainings, or conferences that might be useful.” Mr. Pickett testified that he stated
those things to Mr. Powers just to “cover himself.”
A meeting was held on September 8, 2015, between Mr. Powers and Mr. Pickett.
Ms. Edwards also attended, acting as Mr. Pickett’s representative. According to Ms. Edwards,
Mr. Powers was “aggressive and hostile” during the meeting, and she had to pull him aside to
say that she was not there as a teacher, but as a union representative, and that he needed to
“calm down” and let her represent Mr. Pickett. Ms. Edwards also asked several times for a
copy of Mr. Pickett’s last evaluation, but Mr. Powers did not furnish it, saying she should get it
from Mr. Pickett. Mr. Pickett described the atmosphere of the meeting as “tense and
argumentative.” Mr. Pickett stated that Mr. Powers discussed interactive strategies that Mr.
Powers wanted him to use in the classroom, and that starting the evaluation process again “was
mentioned.” Mr. Powers admitted that the meeting was “a little tense.” According to Mr.
Powers, Ms. Edwards said they believed the purpose of the meeting was to discuss Mr.
21

Pickett’s previous evaluation, which Mr. Powers denied. He testified that he only intended to
discuss support and professional development opportunities with Mr. Pickett and it was
Ms. Edwards who raised the issue of evaluation. Mr. Powers admitted that he said during the
meeting that he had briefly considered evaluating Mr. Pickett again during the 2015-2016
school year, but had “decided against it.”
Mr. Powers testified that Mr. Pickett was not included on the list compiled by personnel
services of employees to be evaluated in 2015-2016. Mr. Powers also did not add Mr.
Pickett’s name to the list. Dr. Meyer said, “I think so,” when he was asked whether he had
discussed with or recommend to Mr. Powers that Mr. Pickett be evaluated that year. Mr.
Pickett admitted that he never received an e-mail from Mr. Powers informing him that he was
to be evaluated in 2015-2016, nor was he told that information verbally. There was no attempt
by Mr. Powers to schedule a time for a formal observation of Mr. Pickett’s classroom during
the 2015-2016 school year and none occurred. Mr. Pickett never received an evaluation
document for that year. After the September 8, 2015 meeting and a follow-up e-mail from Mr.
Powers on September 13, 2015, summarizing the meeting, Mr. Powers had no further
communication with Mr. Pickett about interactive strategies or training opportunities during
the remainder of the school year.
Lori Edwards
1. 	2014-2015 School Year
a. 	Evaluation
Ms. Edwards is a Kindergarten teacher. Her instructional day ends earlier than the
other grades. Ms. Edwards was due for evaluation in the 2014-2015 school year. Ms. Edwards
was notified that Mr. Powers was going to be her evaluator. Mr. Powers had never evaluated
22

________________________
her before. Her immediately previous evaluation had been performed by Ms. Roark in 2012-
2013. Mr. Powers contacted Ms. Edwards on November 3, 2014, requesting to schedule a time
for her formal observation. Ms. Edwards asked that it be scheduled after the holidays and said
she only required him to give her a day or two advanced notice. Mr. Powers agreed, and said
that he would schedule a time with her after Christmas. In addition to Ms. Edwards, Mr.
Powers personally needed to evaluate approximately ten other teachers that year.
School resumed after winter break on January 12, 2015. Between that date and
April 22, 2015, Ms. Edwards was absent from work for a total of 32 days.14 In January and
February, Ms. Edwards missed eight working days. In March and April 2015, Ms. Edwards
14 During cross-examination, Ms. Edwards testified about her attendance during this
period as follows:
Q 	Okay. But you were absent pretty frequently
between January and April, is that correct, of 2015?
A 	I don't consider that I was absent. I consider that
the District would not allow me to work.
MR. ROBBINS: Okay. I'm going to move to
strike as being non-responsive. If you weren't at school, you're
absent.
ADMINISTRATIVE LAW JUDGE RACHO:
Answer the question.
THE WITNESS: I don't agree that if you're not in
school you're absent.
ADMINISTRATIVE LAW JUDGE RACHO: It
doesn't matter whether you agree or disagree. Answer the
question.
THE WITNESS: Could you repeat that.
MR. ROBBINS: Yes.
BY MR. ROBBINS:
Q 	Between January and April of 2015, you were
absent pretty frequently, correct?
MR. PICKETT: Vague and -- Objection.
THE WITNESS: I don't know.
(Emphasis added.) During re-direct examination over the same topic, Ms. Edwards gave this
testimony:
23

________________________
missed a total of 24 working days. Additionally, spring break was March 27 to April 5, 2015.
During March and April, most of her absences were related to her request for an
accommodation for a medical condition, as will be described in more detail below. As noted
previously, permanent teacher evaluations are due no later than 30 working days before the end
of the contractual year. The end of the contractual year was June 5, 2015. Thus, evaluations
needed to be completed around the same time that Ms. Edwards returned to work in April.
Mr. Powers testified that because he and Ms. Edwards had not been able to agree to a
mutually available time to perform her formal observation, there was not enough time for him
to complete her evaluation by the deadline. Mr. Powers advised personnel services that he was
unable to complete Ms. Edwards’s evaluation. He was then instructed by officials from that
office to push Ms. Edwards’s evaluation to the following school year.
b. 	Accommodation Request
Ms. Edwards has arthritis in her thumbs, which causes pain when typing. A doctor’s
note dated January 30, 2015 stated that she should have restricted computer mouse use and
requested a touchscreen instead of a keyboard. An interactive process meeting was held on
February 10, 2015. Ms. Edwards, Mr. Powers, LETA representative Juan Caballero,15 District
“Risk Manager” Geneva Krag,16 and Ms. Sepulveda were present at the meeting. According to
Q 	When you requested of Mr. Powers that you be
observed after the holidays, at that time, did you realize that you
were going to be out in January, February and March for so long?
[¶…¶]
THE WITNESS: No. And I wasn't out that many
days that I couldn't have been evaluated in January, February or
March.
15 Mr. Caballero did not testify.
16 Ms. Krag was retired from the District at the time of the hearing and did not testify.
Her title may not be exact, but it is clear that she was a District official.
24

Ms. Sepulveda, several potential accommodations were discussed, including a different kind of
lock on Ms. Edwards’s door, an electric pencil sharpener, and the use of an iPad.
In late-February 2015, in an e-mail exchange, Ms. Edwards communicated with
Mr. Powers about difficulties she was still having with using her computer because of the
arthritis in her thumbs. The District had provided her with a roller mouse to try to alleviate the
problem, but Ms. Edwards found that it actually caused her to move her hands even more than
the previous equipment. Mr. Powers then suggested that Ms. Edwards try an iPad for
upcoming student testing, and Ms. Edwards agreed, stating, “I will try it. Does it have a
stand[?]” Mr. Powers followed up to see how the iPad was working, and Ms. Edwards
responded that the screen was too small and stated that her doctor had suggested a “full size”
touchscreen. Mr. Powers then responded that he had forwarded that information to Ms. Krag
and Ms. Sepulveda.
A second interactive process meeting was held on March 24, 2015. All of the same
individuals attended, except Ms. Rosales, rather than Mr. Caballero, acted as Ms. Edwards’s
LETA representative. Ms. Edwards testified that, in the previous meeting (February 10), there
was an agreement reached that she would be furnished with a touchscreen computer monitor.
Ms. Edwards testified as follows about Mr. Powers’s assertion to the contrary during the
March 24 meeting:
Mr. Powers told a lie and said that there was no agreement by
Geneva Krag that I would get a touchscreen, that I would be
getting an iPad to test my students and do my work on because an
iPad was a touchscreen. And so, he lied in the meeting.
Ms. Edwards further testified that when she protested that it had already been agreed upon that
she would get a touchscreen computer, Ms. Sepulveda said that one would be ordered for her.
At that point, Mr. Powers “just kind of sunk back in his seat,” and was “as aggressive as he
25

normally is when there is representation for a member in the room[.]” Ms. Rosales gave very
limited testimony about the meeting. When asked whether Mr. Powers was in agreement with
the touchscreen proposal, she stated without elaboration, “No, he was not.” Mr. Powers and
Ms. Sepulveda denied that Mr. Powers expressed any disagreement about Ms. Edwards’s
receiving a touchscreen computer monitor at the March 24, 2015 meeting, or that his demeanor
was aggressive.
2. 	2015-2016 School Year
On September 4, 2015, Mr. Powers notified Ms. Edwards by e-mail that she was to be
evaluated in the coming year and requested to meet with her to discuss her Goals and
Objectives and schedule a time for the formal observation. Ms. Edwards replied the same day,
stating that she would like to be placed on a five year evaluation cycle. To that, Mr. Powers
responded, “We can discuss…the five year cycle during the summation conference.”
Charging Parties filed the instant unfair practice charge on November 23, 2015. In
January 2016, Ms. Edwards e-mailed Mr. Powers stating that she and the other Charging
Parties cannot be evaluated consecutively. Mr. Powers responded to Ms. Edwards in mid-
February, noting that she had not had her own evaluation the previous year and it was therefore
still due. Ms. Edwards then replied that “the District forfeited their right to a two year
evaluation when they failed to follow the law (Ed Code 44662).” Ms. Edwards contended that
under the CBA and the Education Code, since her evaluation was not performed at the two-
year mark, the District’s “only other alternative…is the five year plan.” 	Mr. Powers testified
that, ultimately, he decided to give up on evaluating Ms. Edwards during the 2015-2016 school
year because of the charges filed in this case, stating that he did not want to “muddy those
waters.” Mr. Powers noted that, since coming to LVS, he has had the opportunity to
26

informally observe Ms. Edwards’s teaching 100 or more times. He described her as “an
excellent teacher,” and stated that had he been able to complete her evaluation, he most likely
would have granted her request for a five year evaluation cycle.
Kimberly Rosales
1. 	2012-2013 and 2013-2014 School Years
Ms. Rosales teaches first grade. Ms. Rosales was evaluated by Mr. Powers in the 2012-
2013 school year. At that time, she received an overall rating of Meets District Standards.
Mr. Powers gave Ms. Rosales an E rating in 14 of 34 subcategories, including the subcategory,
“using instructional time effectively.” The rest of the subcategories were rated M. Mr. Powers
testified that she had a very good formal observation. He remembered a well-planned and
well-paced lesson, and noted that she had been working with a peer-to-peer coach that year.
As mentioned earlier, when they were Co-Principals, Ms. Roark and Mr. Powers both
did regular informal walkthroughs of every classroom, regardless of whether the teacher was
due for evaluation. Mr. Powers testified about having concerns after his informal observations
of Ms. Rosales’s classroom in 2013-2014, particularly in the area of planning and scheduling.
Mr. Powers had discussions with Ms. Rosales about these concerns on three or four occasions
that year. Ms. Rosales did not dispute this assertion.
2. 	2014-2015 School Year
Ms. Rosales was again due for evaluation in the 2014-2015 school year. Mr. Powers
was her evaluator. Mr. Powers and Ms. Roark testified about an incident when they were
doing classroom walkthroughs with their supervisor, District administrator Alain Guevara,
when they entered Ms. Rosales’s classroom and she was playing the movie Dumbo (Walt
Disney Productions 1941). Dumbo is not a part of the approved first grade curriculum.
27

According to Ms. Roark, Ms. Rosales seemed nervous and said that the movie was related to a
bullying lesson. Upon leaving, Dr. Guevara told Ms. Roark and Mr. Powers to address the
issue with Ms. Rosales. Mr. Powers and Ms. Roark met with Ms. Rosales after school that
day. According to Ms. Roark, Ms. Rosales hung her head and said “I know I’m not supposed
to show movies.” Ms. Rosales did not dispute Ms. Roark’s testimony on this point and she
admitted to showing a portion of Dumbo during class time during her own testimony.
This was the second time the issue of playing Disney movies in class had been brought
to the attention of the site administrators and Ms. Rosales. The first time was when a parent
complained about this practice and wanted the student to be removed from Ms. Rosales’s
classroom because the parent felt that the student was not being sufficiently challenged.
Mr. Powers investigated the parent complaint by speaking separately with both the parent and
Ms. Rosales about it. When Ms. Rosales was questioned during cross examination about
whether Mr. Powers talked to her about showing the movie Finding Nemo (Pixar Animation
Studios 2003), Ms. Rosales said, “No.” When asked whether she showed that movie during
class time, she said, “I don’t believe I did, but I may have.” During re-direct examination,
Ms. Rosales’s memory improved on this topic. She testified as follows:
And then when we were doing Finding Nemo, we were talking
about the different sea animals. And it was on a Friday
afternoon, and it was kind of, it was a fun Friday kind of a thing.
It was hot, and it was tied to our ocean theme. And so it was
loosely tied to curriculum, but on a Friday afternoon and hot.
Yeah, it was loose. I admit it.
Q 	Did you have a discussion with Mr. Powers about
you showing the Finding Nemo video?
A 	Yes, I did.
In March 2015, Ms. Edwards asked Ms. Rosales to testify at a PERB hearing in May
28

________________________
2015. Ms. Rosales testified that she told the “site administrator” that she would need coverage
in her classroom during the hearing, but she did not say when that was or with whom she
spoke. Mr. Powers testified that he learned Ms. Rosales would be testifying at PERB on May
7 or 8, 2015.
Mr. Powers contacted Ms. Rosales in April 2015 to schedule the formal observation. It
was set up for April 13, 2015. Ms. Rosales sent an e-mail to Mr. Powers with her lesson plan
attached the night before the observation, but they never met beforehand to discuss the lesson.
Mr. Powers provided both the formal observation report and final evaluation form to
Ms. Rosales on the same day that he performed the formal observation—April 13, 2015. The
observation report consisted of seven paragraphs describing the observed lesson. Two of those
paragraphs contained a suggestion for how to keep students on task and with a consistent
schedule. The final evaluation contained an overall rating of Meets District Standards. The
box for “Probationary” status was incorrectly checked.17 Out of 34 subcategories, Mr. Powers
rated Ms. Rosales with an N in four subcategories and a U in the subcategory, “uses
instructional time effectively.” Regarding the latter subcategory, Ms. Rosales had received an
E rating in her previous evaluation. The negatively rated subcategories included written
comments. The rest of the subcategories were rated M and did not contain written comments.
Mr. Powers testified that although Ms. Roark was also doing informal observations of
Ms. Rosales’s classroom during the 2014-2015 school year, the information on the evaluation
was limited to things that he had personally observed.18 This was the first time Ms. Rosales
had received N or U marks on a final evaluation.
17 Mr. Powers testified that it was a typographical error.
18 Ms. Roark testified about concerns that she had during 2014-2015 school year after
informal observations of Ms. Rosales’s classroom, which she shared with Mr. Powers. These
29

________________________
Ms. Rosales contacted LETA President Mr. Cavanaugh for help with her evaluation
process. Mr. Cavanaugh testified that in addition to Ms. Rosales’s evaluation, he had general
concerns about teachers’ evaluations being “overbroad” with too many areas for teachers to
work on in just one or two years. He believes that if it looks like a principal is being too
negative, the evaluation process damages teacher-principal relationships. Mr. Cavanaugh
confirmed that if a teacher was rated E in a particular subcategory, that area would not be one
of the teachers’ Goals and Objectives for the next evaluation cycle. Going from an E to a U in
the same subcategory from one evaluation to the next could indicate an irregularity in the
process, or at least should trigger a second observation before the U was given.
Mr. Cavanaugh first talked to the District superintendent, and later to Mr. Powers, about these
concerns. Mr. Powers told him it “was in the works” regarding changing Ms. Rosales’s
evaluation.
Ms. Rosales e-mailed Mr. Powers requesting a meeting with LETA representation to
discuss the evaluation. A meeting was held on or about April 27, 2015. Mr. Caballero
accompanied Ms. Rosales as her representative. Mr. Powers told Ms. Rosales he wanted her to
have a successful upcoming school year and to look for growth opportunities over the summer.
Mr. Powers also presented her with a new evaluation with M markings in all subcategories.
There were still written comments in the subcategories that had been formerly rated N and U.
Mr. Powers did not destroy the first evaluation in Ms. Rosales’s presence, but her
understanding was that it had been rescinded and replaced by the new one, which would be the
official version for her personnel file.
concerns were mostly related to classroom management, where, as one example, she had
observed students wrestling on the rug while Ms. Rosales was at her computer not attending to
the class.
30

________________________
Dr. Meyer testified that he considered the first evaluation that issued to Ms. Rosales to
have been non-compliant with the CBA evaluation article in several respects, and so he
instructed Mr. Powers to redo it. Mr. Powers similarly testified that Dr. Meyer told him issue a
new evaluation because he had not allowed Ms. Rosales enough time to remediate the negative
ratings on her summative evaluation. Mr. Powers testified that he had general difficulty that
year getting all of the teacher evaluations timely completed.
3. 	2015-2016 School Year
Ms. Rosales was not on the list from personnel services of teachers to be evaluated
during the 2015-2016 school year. Mr. Powers told Dr. Meyer that he wanted to add
Ms. Rosales to the list, because he wanted to make sure that Ms. Rosales was improving in the
areas that he highlighted with written comments on both the destroyed and reissued versions of
her previous evaluation. Dr. Meyer approved the request. Dr. Meyer testified that in his view
the CBA permits consecutive evaluations, even where a permanent unit member has received
an overall Meets District Standards rating, if there are documented performance concerns by N
or U ratings in subcategories or in written commentary. He said that it would not be “the best
practice” for a teacher to have to wait two years to remediate those performance issues.
On August 19, 2015, Mr. Powers e-mailed Ms. Rosales asking to set up a meeting to
“discuss support for this year.” A meeting took place on August 26. Mr. Cavanaugh was
present as Ms. Rosales’s representative. Some events of the meeting are disputed. It is
undisputed that Ms. Rosales volunteered to participate in the Peer Assistance and Review
(PAR) program.19 Ms. Rosales noted that she was transitioning to a new first grade
19 CBA Article 24 covers the PAR program. Teachers are referred to PAR by
administration when they have received an overall Unsatisfactory evaluation. Teachers may
also volunteer to participate in the program. Dr. Meyer testified that volunteers are rare.
31

________________________
curriculum, from “intervention” first grade to regular first grade, and stated that she was
“trying to do too much.” Mr. Powers considered that by Ms. Rosales volunteering to do this,
she was acknowledging her performance decline and was in agreement that she needed to
improve. Both Mr. Powers and Dr. Meyer testified that they considered a teacher voluntarily
participating in PAR to provide adequate basis for evaluating the teacher annually.
According to Ms. Rosales, the meeting turned unpleasant at some point and felt
disciplinary. Mr. Powers was loud, berated her, demanded she go to training and turn in lesson
plans, and slammed his hand down on the table. According to Mr. Powers, the purpose of the
meeting was to follow up on his concerns from the previous year regarding Ms. Rosales’s
performance in the areas of student engagement, planning, organization, lesson pacing, and
showing videos. In contrast to Ms. Rosales’s description, he described the tone of the meeting
as cordial, professional, and comfortable. Mr. Powers said that Ms. Rosales acknowledged
some of her performance issues and seemed “willing and appreciative” of the plans they
discussed. Mr. Powers instructed Ms. Rosales not to show videos during class time without
prior approval. When Ms. Rosales asked if that was a schoolwide policy, Mr. Powers clarified
that it only applied to her. Mr. Cavanaugh described the tenor of the discussion as “going in a
pretty positive direction.” Mr. Cavanaugh testified that Mr. Powers did not become angry,
yell, or slam a fist on the table during the meeting. Ms. Rosales did not tell Mr. Cavanaugh,
either during or after the meeting, that Mr. Powers used intimidating body language or that she
felt intimidated.
In late August and the first few days of September 2015, Ms. Rosales was copied on e-
mails between Ms. Edwards and Mr. Powers, where Ms. Edwards was raising an employment
Improved performance is the goal for voluntary or referred PAR participants. PAR
participants are paired with a collaborating teacher for consultation and advice.
32

concern and alleging contract violations. On September 4, 2015, Mr. Powers e-mailed
Ms. Rosales to inform her that she would be evaluated again this year and requested a time to
discuss her Goals and Objectives and to schedule the formal observation. Ms. Rosales was
having some issues with her District e-mail account around this time. She did not immediately
respond to Mr. Powers. He sent her a few more e-mails requesting to schedule evaluation
events between late-September and early October. On October 16, 2015, Ms. Rosales sent
Mr. Powers a responsive e-mail noting that she wanted her PAR collaborating teacher to take
part with her in the evaluation events. At some point shortly thereafter, Ms. Rosales sought
assistance from Ms. Edwards and then reached the conclusion that the CBA and Education
Code precluded a consecutive year evaluation. On November 9, 2015, Ms. Rosales e-mailed
Mr. Powers stating that conclusion and further requesting to be put on a five year evaluation
cycle. Ms. Edwards was also copied. Ms. Rosales testified that she did not ask Ms. Edwards
for help sooner because she was trying to work things out amicably. In her view, there has
been animosity between Ms. Edwards and Mr. Powers. Ms. Edwards has never hesitated to
confront Mr. Powers over perceived contract violations and her style can be “abrupt.” She also
went to Ms. Edwards because Mr. Cavanaugh was of the opinion that the District had the right
to perform a consecutive evaluation.
Somewhat at odds with the approach taken in attempting to schedule Ms. Edwards’s
evaluation during the same time period, and also after Mr. Powers was aware of the instant
charges, he continued to press for scheduling the formal observation with Ms. Rosales
throughout the fall of 2015 and spring of 2016. Ms. Rosales reiterated her view that the
contract and Education Code precludes her consecutive year evaluation in an e-mail to
33

________________________
Mr. Powers dated February 19, 2016. Ultimately, Mr. Powers never conducted a formal
observation of Ms. Rosales and did not complete an evaluation for her in 2015-2016.
ISSUES20
1. 	Whether the District took adverse action against Ms. Pickett because of her
protected activities by authorizing the sale of Smencils at LVS, despite knowing that exposure
to Smencils was a “problem” for Ms. Pickett’s health.
2. 	Whether the District took adverse action against Mr. Pickett because of his
protected activities by “conducting an informal classroom observation of Mr. Pickett during
the first week of school and subjecting Mr. Pickett to a consecutive formal evaluation process
for the 2015-2016 [school year] by requesting he attend a performance evaluation meeting.”
3. 	Whether the District took adverse action against Ms. Edwards because of her
protected activities by refusing her request to be placed on the five year evaluation program set
forth in CBA Article 9.14.
4. 	Whether the District took adverse action against Ms. Rosales because of her
protected activities by “demanding that Ms. Rosales participate in the formal evaluation
process for the 2015-2016 school year and by advising that additional formal classroom
observations are necessary despite that Ms. Rosales already received a positive performance
evaluation for the 2014-2015 school year on April 28, 2015.”
CONCLUSIONS OF LAW
To demonstrate that an employer discriminated or retaliated against an employee in
violation of EERA section 3543.5, subdivision (a), the charging party must show by a
preponderance of evidence that (1) the employee exercised rights under EERA, (2) the
20 The quoted text below is from the PERB complaint.
34

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, pp. 6-8 (Novato).)
The test for determining whether an action taken by a respondent against an employee
is adverse to the employment interests of that employee is an objective one, and therefore does
not rely on the employee’s subjective reactions to it. (Palo Verde Unified School District
(1988) PERB Decision No. 689, p. 12.) As explained by the Board:
The test which must be satisfied is…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.)
A causal connection between the employee’s protected activity and the respondent’s
adverse action is the critical final element of the charging party’s prima facie case. Evidence
of a respondent’s unlawful motive can be shown by either direct or circumstantial evidence.
When considering circumstantial evidence of unlawful motive, PERB looks to the timing of
the protected conduct relative to the adverse action to provide an inference that the action
occurred because of the employee’s exercise of statutory rights. (California Teachers
Association, Solano Community College Chapter, CTA/NEA (Tsai) (2010) PERB Decision
No. 2096, p. 11. (CTA/NEA (Tsai))) But close timing by itself is not determinative for finding
a violation. (Moreland Elementary School District (1982) PERB Decision No. 227, p. 13.)
Additionally, PERB examines other factors, at least one of which must be present, to
demonstrate the requisite nexus between protected conduct and adverse action. These factors
include: (1) the employer’s disparate treatment of the employee (State of California
35

________________________
(Department of Transportation) (1984) PERB Decision No. 459-S, p. 6 (State of CA); 21 (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, p. 20); (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, p. 15); (4) the
employer’s cursory investigation of the employee’s misconduct (City of Torrance (2008)
PERB Decision No. 1971-M, p. 19; (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, p. 10) or the offering of exaggerated, vague, or ambiguous reasons (McFarland
Unified School District (1990) PERB Decision No. 786, pp. 13-14); (6) employer animosity
towards union activists (Jurupa Community Services District (2007) PERB Decision
No. 1920-M, pp. 15-16;); or (7) any other facts that might demonstrate the employer’s
unlawful motive (North Sacramento School District (1982) PERB Decision No. 264, p. 22).
If the charging party produces sufficient evidence demonstrating a prima facie case, and
therefore establishes an inference of unlawful motivation, the burden shifts to the respondent to
prove that it had an alternative, non-discriminatory reason for the challenged action. The
respondent’s burden includes proving that it, in fact, acted because of this alternative non-
discriminatory reason and not because of the employee’s protected activity. (Palo Verde
Unified School District (2013) PERB Decision No. 2337, p. 31 (Palo Verde).)
21 That case was decided under the Ralph C. Dills Act (Gov. Code, § 3512 et seq.)
When interpreting EERA, it is appropriate for PERB to derive guidance from court and
administrative decisions interpreting the National Labor Relations Act (NLRA) (29 U.S.C. §
151 et seq.) and parallel provisions of California labor relations statutes. (San Diego Teachers
Assn. v. Superior Court (1979) 24 Cal.3d 1, 12-13.)
36

Turning to the facts here, it is undisputed that each of the Charging Parties engaged in
numerous protected activities under EERA during the relevant time periods by serving as
union representatives, in that capacity engaging with management over employment issues,
and participating in PERB processes. Further, the District has admitted knowledge of all of
those activities by the Charging Parties. Thus, the first two elements of the prima facie case
for retaliation under the Novato standard are met for each of them. It must be now be
determined whether any of the Charging Parties suffered actions that can be considered
objectively adverse to their employment interests, and if so, whether those actions were taken
by the employer because of the Charging Parties’ protected conduct.
Adverse Action
1. 	Victoria Pickett
As previously stated, the test for whether there has been an adverse action is whether a
reasonable person in similar circumstances would consider that the action taken by the
employer had a negative impact on the employee’s employment interests. Thus, the Board has
held that the subjective reactions of an employee to an employer’s action are irrelevant to the
Board’s determination of whether the action was adverse to employment. (Woodland Joint
Unified School District (1990) PERB Decision No. 808a, p. 5 (Woodland).) Actual, not
merely speculative, harm to the employment relationship is required to demonstrate adverse
action. (County of Tehama (2010) PERB Decision No. 2122-M, p. 8.)
Changes in working assignments can be found adverse when the change results in less
favorable working conditions, such as a longer commute, less security, and lack of climate
control. (Fresno County Office of Education (2004) PERB Decision No. 1674, pp. 13-14
(Fresno COE).) In that case, two union officers were involuntarily reassigned to new schools.
37

Among the factors that contributed to the Board’s finding that the reassignment was adverse to
the employees’ employment interests were poor environmental conditions in the new work
locations, such as, “inadequate heat in the winter and cooling in the summer, and with
swarming flies and wasps.” (Ibid.) Similarly, in Regents of the University of California
(1998) PERB Decision No. 1263-H (UCSD), an involuntary reassignment that resulted in
negative health impacts for the employee was considered adverse. In that case, the employee
was an animal technician working in research laboratories of the employer who had a known
allergy to rabbits and severe asthma condition, which had been previously accommodated by
the employer by his assignment to a facility that did not house rabbits. (Id., adopting proposed
dec. at p. 15.) 	After engaging in concerted activity, the employee was involuntarily assigned
to new laboratory where he had to care for rabbits on a daily basis. As a result, he had a severe
asthmatic reaction and then was medically separated from employment because he could not
perform the functions of his job. (Id., adopting proposed dec. at p. 27.) The Board agreed with
the Administrative Law Judge (ALJ) that being involuntarily transferred from a work location
that did not require him to work with rabbits to one that did was adverse to his employment
interests. (Id., adopting proposed dec. at p. 52.)
A different result occurred in In Los Angeles Community College District (2011) PERB
Decision No. 2219. There, a counselor at a community college alleged that her transfer to a
new office space left her feeling “lonely, isolated, [and] punished.” (Id., adopting proposed
dec. at p. 4.) The ALJ concluded and the Board agreed that, in the absence of other evidence
showing that the new office was “a bad place to work,” the employee’s subjective feelings
regarding the new space did not meet the standard of showing the employer’s decision to move
her office was adverse to her employment. (Id., adopting proposed dec. at p. 6.)
38

________________________
As a threshold matter, there is some factual dispute here regarding the nature and extent
of Ms. Pickett’s reaction to Smencils. The District points to the testimony of Ms. Popp,
denying that she was called to cover Ms. Pickett’s class due to a Smencil-induced asthma
attack or for any reason other than the one occasion where Ms. Pickett was using a remote
restroom because of a strong perfume smell in the nearer one. Ms. Edwards’s and
Ms. Pickett’s testimony was less believable on this point than the District’s witnesses and
therefore I do not credit them. I found Ms. Edwards to be especially prone to exaggeration
throughout her testimony, as illustrated by her account of Mr. Powers’s statements during her
own interactive process meetings.22 It is very unlikely that, if Ms. Pickett had had an asthmatic
reaction due to a student waving a Smencil under her nose, which caused her to have to use her
rescue inhaler and summon classroom coverage, she would have failed to mention such serious
events in her e-mail to Mr. Powers complaining on the topic that same day. However, an
apparent embellishment regarding the severity of the trouble that the sale of Smencils caused
22 Ms. Edwards’s testimony that Mr. Powers lied about an agreement having been
reached over providing a touchscreen monitor during the first interactive process meeting was
especially unbelievable in light of documentary evidence to the contrary. The e-mail exchanges
between them on the subject after that first meeting clearly show that Mr. Powers suggested
that Ms. Edwards try an iPad, since the new mouse was not working out for her, and
Ms. Edwards readily agreed to try an iPad instead of the mouse. If there already had been an
agreement to provide a touchscreen monitor at the time of that e-mail exchange, I have no
doubt that Ms. Edwards would have brought it up. Thus, her testimony about Mr. Powers
lying about such an agreement in the second interactive process meeting does not have the ring
of truth. Ms. Edwards was also often argumentative during cross examination, even after she
was ordered to answer the question posed to her. Her testimony was sometimes inconsistent
between direct and cross examination. In assessing the credibility of witnesses, PERB looks
for “selective memory on cross examination; evasive, exaggerated, or inconsistent testimony;
inherently unbelievable testimony” as bases for finding a witness to be not credible. (Palo
Verde, supra, PERB Decision No. 2337, p. 29, fn. 16; citations omitted.) For these reasons,
where there is a material factual dispute between the District and Ms. Edwards, the District is
credited.
39

Ms. Pickett is not the most significant problem with this claim. The real problem is that the
District did not take any action against Ms. Pickett.
Mr. Powers provided unrefuted testimony that the proposal for the Smencil fundraiser
came from fellow teacher Ms. Maurer and he approved it without giving any thought at all to
Ms. Pickett. While this may be hard for Ms. Pickett to accept, given that her history of
respiratory allergies and asthma were well documented and known to Mr. Powers, there is no
reason to doubt Mr. Powers’s assertion. While Ms. Pickett’s medical condition is naturally top
of mind for her at all times, it does not automatically follow that Mr. Powers would have been
immediately keyed in to the possibility of an issue for her by the introduction of scented
pencils on campus. The record does not demonstrate that Ms. Pickett was a motivating factor
in Mr. Powers’s decision to approve Ms. Maurer’s proposal to introduce Smencils on campus.
The important factual distinction between this situation and those in the Fresno COE
and UCSD cases is that in those cases the employer took action specifically against the
employees involved by changing their particular assignments. In contrast here, Ms. Pickett
was not the target of any action by the District. Instead, she was merely present, the same as
every other teacher at LVS was, during the period of time that Smencils were being sold.
Indeed, in my review of PERB’s retaliation case law, whether the alleged adverse action
involved was the issuance of discipline, a negative assessment of performance, or an
involuntary change in assignment with less favorable working conditions, I cannot find an
example where the employer took an action that generally affected all employees at a site, but
was found to be an adverse action as to just one of them. This situation, while unfortunate for
Ms. Pickett, simply does not fall neatly under the umbrella of an EERA claim.
40

The bulk of the evidence presented by Ms. Pickett was regarding the alleged
inadequacy of the District’s response to her raising medical concerns over the sale of Smencils
and her exposure to other allergens and irritants in years past. Ms. Pickett pointed out several
instances where Mr. Powers either failed to hold an interactive process meeting or did not
make announcements to staff as she wished he would. There was also conflicting evidence
between Ms. Edwards, Mr. Flores, and Ms. Popp regarding their alleged inadequate handling
of an instance of respiratory distress caused by Ms. Pickett’s contact with Teacher X. The
District’s witnesses provided more plausible testimony on this event and are credited over
Ms. Edwards for the reasons previously discussed. The fact that the District’s failure to handle
Ms. Pickett’s reporting of medical issues to her satisfaction made up the majority of the
evidence further illustrates that PERB is not the appropriate venue for this type of claim. The
adequacy of the District’s response to an employee requesting an accommodation in working
conditions because of a medical condition is the province of agencies or other entities that
enforce the ADA and FEHA. PERB lacks jurisdiction over the enforcement of statutory
schemes other than the collective bargaining laws over which it has been given specific
authority. (City & County of San Francisco (2011) PERB Decision No. 2222-M, adopting
warning ltr., p. 3 [PERB lacks jurisdiction over or enforcement power of the ADA and other
independent statutory schemes].)
Because Ms. Pickett has not met her burden of showing that the District took adverse
action against her, she has failed to state a prima facie case of retaliation and her claims in this
matter must therefore be dismissed.
41

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2. 	David Pickett
The PERB complaint alleges that the District took two adverse actions against
Mr. Pickett. First, by conducting an informal observation of his classroom that occurred
during the first week of school in 2015, and next by requiring him to attend a “performance
evaluation meeting,” which subjected him to a consecutive year evaluation process for 2015-
2016.
PERB has addressed the issue of whether the frequency of evaluations for permanent
teachers indicates an adverse action in two cases involving the same parties. In the first case,
Jurupa Unified School District (2012) PERB Decision No. 2283 (Jurupa I), the Board
concluded because the Education Code requires evaluation of a permanent certificated
employee “at least once every other year,”23 and only when an employee receives an
unsatisfactory evaluation must the employee be annually assessed, that requiring a consecutive
year evaluation where there was not a previous negative one “signals a performance deficiency
requiring remediation[.]” (Id. at pp. 18-19.) 	The Board considered that to be the functional
equivalent of a negative evaluation and thus adverse. (Ibid.) The Board then partially reversed
the dismissal of the charge and remanded the case to the PERB Office of the General Counsel
to issue a complaint. (Id. at p. 32.) After a hearing on the merits, the employer took exception
before the Board to the finding of the ALJ that the consecutive year evaluation in that matter
was an adverse action under the holding of Jurupa I.
The Board in Jurupa Unified School District (2015) PERB Decision No. 2458 (Jurupa
II), rejected the employer’s argument and upheld its previous conclusion regarding the adverse
nature of an off-cycle evaluation, noting that “the default evaluation cycle for permanent
23 Education Code section 44664, subdivision (a)(2).
42

certificated employees who are performing satisfactorily is every two years[,]” under both the
Education Code and the parties’ contract. (Id. at pp. 17-18.) The Board found it significant
that the Education Code enforces a more frequent evaluation cycle only where an employee
has received a negative evaluation (Educ. Code, § 44664, subd. (b)) and concluded that when
Education Code sections 44664 (a)(2) and (b) were read together, these provisions establish a
default cycle of every other year for the evaluation of satisfactorily performing permanent
teachers. (Jurupa II, supra, PERB Decision No. 2458, pp. 15-16.) The Board further
concluded that a more frequent evaluation cycle than that allowed under the Education Code
was a matter reserved for collective bargaining. (Id. at p. 16.) Thus, the Board found that to
require an employee who was performing satisfactorily to undergo more frequent evaluations
than the default cycle was an adverse action. (Ibid.)
In Golden Gate Bridge Highway & Transportation District (2011) PERB
Decision No. 2209-M (Golden Gate), the Board declined to find a heated exchange between an
employee and manager during a non-disciplinary meeting to constitute an adverse action where
there was no evidence that the meeting later resulted in any impact on employment conditions.
(Id., adopting warning ltr. at p. 5.) The determination of whether an alleged action is adverse
is made on a case-by-case basis on the facts presented. (Service Employees International
Union, Local 221 (Gutierrez) (2012) PERB Decision No. 2277-M, p. 9 (SEIU-Gutierrez).) In
SEIU-Gutierrez, an investigation into employee misconduct was not considered adverse action,
because the “investigation” in that case consisted only of one phone call to the investigated
employee, after which the matter was completely dropped later that same day. (Id. at pp. 7-8.)
Turning to the facts here, one alleged action by the District cannot be reasonably
deemed an adverse action, and the other was not demonstrated by the weight of the evidence.
43

Regarding the five-minute informal observation of Mr. Pickett’s classroom during the first
week of school by administrators, no reasonable employee would find such an action to be
adverse to his employment interests. Despite Mr. Pickett’s bare assertion that administrators
had never before observed his classroom during the hectic first week of school, there is ample
evidence in the record that such informal observations are routine and commonplace. Such
visits are also expressly allowed under the CBA evaluation article, whether or not an employee
is due for formal evaluation. If Mr. Pickett was perturbed by the timing of the classroom visit
and subjectively considered it to be adverse to him that is of no consequence to the analysis.
(See Woodland, supra, PERB Decision No. 808a, p. 5.) Actual, not merely speculative, harm
is required for a showing of adverse action. (County of Tehama, supra, PERB Decision
No. 2122-M, p. 8.) There are simply no facts demonstrating any impact by the informal
observation, let alone a negative one, on Mr. Pickett’s employment interests.
Addressing the next allegation, because Mr. Pickett was evaluated in the 2014-2015
school year and received an overall rating of Meets District Standards, if he had been subjected
to a consecutive evaluation the following year, that likely would have been an adverse action
under the holdings of Jurupa I and Jurupa II. However, the record does not demonstrate that
Mr. Pickett was subjected to a formal evaluation process for the 2015-2016 school year.
There is no evidence that Mr. Pickett’s name appeared on the list of employees due for
evaluation that year from personnel services. Mr. Powers also did not request permission from
District administrators to add his name to the list. Mr. Pickett admitted that he was never
notified by Mr. Powers that he was due for evaluation, as required under the CBA, nor was he
formally observed. No summative evaluation was completed for him for 2015-2016. This
allegation appears to rest entirely on the meeting held between Mr. Powers, Mr. Pickett, and
44

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Ms. Edwards on September 8, 2015, in support of the notion that Mr. Pickett was “subjected”
to a formal evaluation process. But the events of this meeting are insufficient to prove that
Mr. Pickett was required to participate in a formal evaluation. Mr. Powers’s terse statement
during the meeting that he had considered evaluating Mr. Pickett again, but had decided
against it, does not reasonably constitute a decision that was adverse to Mr. Pickett’s
employment interests. Similar to the situation in SEIU-Gutierrez, even if adverse action had
been momentarily contemplated by the employer, the matter was promptly dropped without
any negative consequence for Mr. Pickett. Mr. Powers admitted that the tone of the meeting
became tense. However, Mr. Pickett also admitted that he and Mr. Powers never discussed
again the issues raised in the meeting regarding his attending training on Common Core
curriculum. Thus, like the facts in the Golden Gate case, a heated exchange during a non-
disciplinary meeting without any further impact on employment conditions also does not
amount to adverse action in this matter.
Because Mr. Pickett has not met his burden of showing that the District took any action
against him that can be considered objectively adverse to his employment, he has failed to state
a prima facie case of retaliation. Accordingly, Mr. Pickett’s claims in this matter must be
dismissed.
3. 	Lori Edwards
The issue presented in Ms. Edward’s claim in this case is whether an employer’s
refusal to agree to a teacher’s request for a five year evaluation cycle is an adverse action.
This specific issue was not decided by the Board in Jurupa I or Jurupa II.24 In my review of
24 In Jurupa II, supra, PERB Decision No. 2458, the issue of a five year evaluation was
addressed in a limited way by the Board declining to consider the charging party’s request to
modify the remedy to include an order for a five year evaluation cycle because that issue had
45

________________________
PERB’s case law, I did not find any case where the Board has considered such a theory. For
the reasons that follow, I do not believe that the District’s actions toward Ms. Edwards in this
instance can be considered objectively adverse to her employment.
A discussion over the background events in 2014-2015 is necessary for a full
understanding of the conclusion reached here. Ms. Edwards believes that Mr. Powers could
have and should have finished her evaluation in 2014-2015, and lays blame on the District for
her lengthy absence in March and April because she thinks it did not timely handle her request
for a medical accommodation. But what “could have” happened is irrelevant. It is undisputed
that Ms. Edwards asked for her formal observation to occur after the holiday break period. It is
undisputed that Ms. Edwards was then not present at work for 32 days after winter break and
before evaluations were due, and that some of those days off (at least eight days in January and
February, and some in March) were for reasons unrelated to ADA processes. It is undisputed
that spring break also fell during this time period, and that Ms. Edwards’s has a shorter
instructional day than teachers in other grades. All of these facts necessarily limited the
amount of time available to schedule the formal observation. It is also undisputed that
Mr. Powers personally had many other teachers’ evaluations to complete during this same
stretch of time, that he did not schedule formal observations on Wednesdays because of
ongoing site events, and that he was having difficulty getting all evaluations timely scheduled
and completed. Thus, there were many factors that contributed to the District’s failure to
timely complete Ms. Edwards’s evaluation in the 2014-2015 school year, some of them caused
by Ms. Edwards, some by Mr. Powers, and some that were not caused by anyone in particular.
not been litigated during the hearing. (Id. at p. 8.) The Board did not otherwise analyze the
issue presented here regarding whether the failure to agree to a request for five year cycle is an
adverse employment action.
46

But whether there was fault, by either party, in the failure to complete the evaluation on time is
not important. The only relevant fact is the evaluation did not occur.
Ms. Edwards also believes that because administrators failed to complete her evaluation
as scheduled, they have forfeited their right to evaluate her other than on a five year plan.
Ms. Edwards’s beliefs in this regard have no legal support. In Charging Parties’ closing brief,
Ms. Edwards states, “By operation of law Ms. Edwards could never be evaluated on a three (3)
year evaluation cycle. (EC §§ 44644; 44924; 35160) (Articles 9.1; 9.14).” 	It should be noted
that nothing in the express statutory or contractual language cited by Ms. Edwards suggests
that the District “forfeits” its right to evaluate Ms. Edwards in a situation where, due to
unforeseen circumstances, an evaluation is not timely finished. As discussed further below,
this language also does not reasonably imply that an automatic five year cycle is created where
evaluation timelines are delayed. 	Pushing an evaluation to the following year when it was
never started or completed during the scheduled year also does not logically mean that the
employee is being placed on a “three year cycle.” It merely signals that the evaluation was not
completed on time and therefore it still needs to be done. Again, the relevant fact here is that
the evaluation did not happen.
Even though the Board did not address in Jurupa I or Jurupa II whether a refusal to
grant a five year evaluation cycle can be deemed adverse, the rationale from those cases is
informative to deciding the issue. The underpinning of the finding of adverse action by the
Board where a permanent employee, who had been previously rated satisfactory, is evaluated
in consecutive years is that such action either treats a permanent employee like a probationary
one and/or signals a performance deficit. (Jurupa I, supra, PERB Decision No. 2283, pp. 18-
19; Jurupa II, supra, PERB Decision No. 2458, pp. 15-16.) This is so because the Board
47

interpreted subdivisions (a)(1) and (a)(2) of Education Code section 44664, when read
together, as creating a default cycle of every other year for permanent employees’ evaluations;
thus, a more frequent cycle than the default implies deficient performance. (Ibid.) The same
cannot be said of a refusal to grant a request for a less frequent cycle than the two year default
cycle.
The language chosen by the Legislature in Education Code section 44664, subdivision
(a)(3), regarding five year evaluation terms requires, among other things, agreement between a
teacher and an administrator and notes that such agreement may be unilaterally withdrawn by
either party at any time. This same language is also mirrored in the CBA evaluation article at
section 9.14. Since either party may exercise complete discretion over the decision to
withdraw, there can be no “default” five year cycle. Unlike with employees on an annual
evaluation cycle, there is no reasonable inference that employees on a two year cycle have
performance deficiencies. Therefore, management exercising its discretion by declining to
agree to a five year evaluation plan does not necessarily signal any subpar performance by the
employee.
And especially under these facts, no deficient performance is implied by the timing of
Mr. Powers’s refusal. Mr. Powers refused to consider Ms. Edwards’s request until after he had
completed the evaluation that was due. Mr. Powers informed Ms. Edwards that they could
discuss her request for a five year cycle at the summation conference. The conference never
happened, of course, because Ms. Edwards refused to cooperate with her evaluation process in
2015-2016. Mr. Powers testified without contradiction that it is not his practice to approve a
request for a five year plan unless he has personally evaluated an employee previously. This
was also consistent with the way he handled Ms. Cook’s request for a five year plan in 2015-
48

2016, as he had performed that teacher’s evaluation himself in 2013-2014. Mr. Powers had
never before conducted an evaluation of Ms. Edwards.
In Mr. Powers’s own words, Ms. Edwards “is an excellent teacher.” 	Mr. Powers also
testified to his willingness to agree to Ms. Edwards’s request once he has completed her
required evaluation. Thus, it is likely that it would have happened had she simply completed
her evaluation process.
Because Ms. Edwards has not met her burden of showing that the District took any
action against her that can be considered objectively adverse to her employment, she has failed
to state a prima facie case of retaliation. Accordingly, Ms. Edwards’s claims in this matter
must be dismissed.
4. 	Kimberly Rosales
The PERB complaint alleges that the District took adverse action against Ms. Rosales
by requiring her to be formally evaluated in 2015-2016, despite Ms. Rosales having received a
positive performance evaluation the year before. As previously discussed at length, under the
holdings of Jurupa I and Jurupa II, requiring a consecutive year evaluation of a permanent
employee who had previously been rated as meeting required standards signals a performance
deficiency and is therefore an adverse action. A threat to take adverse action can itself be an
adverse action if the threat gives the employee “unequivocal notice that the employer has made a
firm decision to take the threatened action.” (San Diego Unified School District (2017) PERB
Decision No. 2538, p. 7 (San Diego), quoting Trustees of the California State University
(2009) PERB Decision No. 2038-H; EERA, § 3543.5, subd. (a) [“It is unlawful for a public
school employer to… threaten to impose reprisals on employees”].)
49

It is undisputed that Ms. Rosales received a final performance evaluation in 2014-2015
from Mr. Powers with an overall rating of “Meets District Standards,” despite it containing
some written commentary with performance guidance. An overall rating of “Meets District
Standards” is considered a satisfactory evaluation under the Board’s Jurupa decisions. Even
though Mr. Powers ultimately did not complete a formal evaluation of Ms. Rosales the
following year in 2015-2016, he threatened to do so. 	Mr. Powers requested and received
permission from Dr. Meyer to add Ms. Rosales to the list of employees to be evaluated.
Mr. Powers informed Ms. Rosales that she would be required to participate in a formal
evaluation and attempted for several months to schedule a Goals and Objectives meeting and
her formal observation. These actions provided Ms. Rosales with “unequivocal notice” that
the District had decided to evaluate her in consecutive years after she had received a
satisfactory evaluation, which was an adverse action. (San Diego, supra, PERB Decision No.
2538, p. 7; Jurupa I, supra, PERB Decision No. 2238, pp. 18-19; Jurupa II, supra, PERB
Decision No. 2458, pp. 15-16.) Thus, Ms. Rosales has met her burden of showing action by
the District against her that was adverse to her employment interests.
Nexus
As discussed previously, the final, critical element of a Charging Party’s prima facie
case is to show that the employer’s action was unlawfully motivated by the employee’s
protected activities. This can be done with either direct or circumstantial evidence. Here, both
forms of evidence are present.
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1. 	Direct Evidence
Where there is direct evidence, i.e., the respondent’s words or actions reveal that its
adverse action was taken in response to an employee’s protected conduct, resort to
circumstantial evidence of nexus is unnecessary. (Regents of the University of California
(Davis) (2004) PERB Decision No. 1590-H, pp. 7-8 (Davis).) Where an employer stated in its
disciplinary memorandum that it was being issued “in response to” an employee’s letter, which
the Board had determined was protected speech, the Board considered that direct evidence of
unlawful motive. (Alisal Union Elementary School District (1998) PERB Decision No. 1248,
p. 6.) Similarly, in Davis, some employees complained about not receiving premium pay for
working extra shifts, and the employer said that “because of” those complaints, it had no
choice but to lay off those employees. The Board found this to be direct evidence of a nexus
between protected conduct and adverse action. (Davis, supra, PERB Decision No. 1590-H, pp.
7-8.) “[S]eeking individually to enforce provision of a collectively-bargained agreement is a
‘logical continuation of group activity’ and protected under EERA.” (Jurupa I, supra, PERB
Decision No. 2283, p. 16, citations omitted.)
Mr. Powers and Dr. Meyer testified that they ordered a consecutive year evaluation for
Ms. Rosales, in part, because she volunteered to participate in PAR in 2015-2016. PAR
procedures were negotiated between the District and LETA. Thus, under Jurupa I,
Ms. Rosales engaged in protected activity by her decision to participate in the PAR program.25
25 PAR participation was not alleged in the PERB complaint as one of Ms. Rosales’s
protected activities. PERB determines whether to consider instances of protected activity that
were not alleged in the complaint under the same standard that it applies to unalleged
violations, which is as follows:
The Board has authority to review unalleged violations where the
following criteria are met: (1) adequate notice and opportunity to
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Accordingly, Mr. Powers’s and Dr. Meyer’s testimony explaining that they decided to evaluate
Ms. Rosales again, which has been deemed adverse action, because of her protected PAR
participation, shows direct evidence of unlawful motivation.
2. 	Circumstantial Evidence26
The timing between Ms. Rosales’s protected activities of PAR participation, raising
employment concerns along with Ms. Edwards to Mr. Powers, and testimony in a PERB
hearing all occurred within three months of the District’s decision to take adverse action. This
is sufficiently close in time to infer unlawful motivation. (CTA/NEA (Tsai)), supra, PERB
Decision No. 2096, p. 11.)
There were also admitted irregularities in Ms. Rosales’s previous performance
evaluation in 2014-2015. Notably, Mr. Powers admitted that he did not hold a pre-observation
conference with Ms. Rosales as required by CBA section 9.16.2. He also gave her a U rating
defend has been provided the respondent; (2) the acts are
intimately related to the subject matter of the complaint and are
part of the same course of conduct; (3) the unalleged violation
has been fully litigated; and (4) the parties have had the
opportunity to examine and be cross-examined on the issue.
(Lake Elsinore Unified School District (2012) PERB Decision No. 2241, pp. 8-9.) All of those
criteria are met here. It is therefore appropriate to consider Ms. Rosales’s PAR participation as
an additional protected activity.
26 I have reviewed all the nexus arguments that Ms. Rosales raised in her brief, but I
only discuss substantively here the evidence of nexus that I find persuasive. I specifically do
not credit Ms. Rosales’s testimony about the August 26, 2015 meeting between her,
Mr. Powers, and Mr. Cavanaugh, where Ms. Rosales asserted that Mr. Powers behaved
aggressively. The other witnesses’ accounts of the meeting were more plausible and, in
general, Ms. Rosales was not as credible of a witness as either Mr. Powers or Mr. Cavanaugh.
For example, her testimony about showing movies in class was evasive and changed between
cross and redirect. Both Mr. Powers and Mr. Cavanaugh, on the other hand, provided
consistently reliable and believable testimony. Additionally, although Ms. Rosales asserted
that other LVS teachers show movies without consequence “all the time,” no specific examples
were shown that this is done with knowledge of administrators and no other teacher testified
about the practice.
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without a second observation having occurred, which may be contrary to section 9.18. Since
the previous evaluation led to the decision to evaluate her again, departures from established
procedures in that process may indicate unlawful motivation. (Santa Clara Unified School
District, supra, PERB Decision No. 104, p. 20.)
Additionally, Mr. Powers treated Ms. Edwards, who was also on the evaluation list for
2015-2016, differently than Ms. Rosales. In Ms. Edwards’s case, Mr. Powers testified that he
did not press her about scheduling her formal observation because he was aware of the filing of
the instant unfair practice charge and he did not want to “muddy those waters.” Mr. Powers
did not appear to feel as constrained where Ms. Rosales was concerned, having pressed for the
scheduling of the formal observation for several months, and yet she was also pursuing the
unfair practice charge. This shows disparate treatment of Ms. Rosales, which is further
evidence of the District’s unlawful motivation. (State of CA, supra, PERB Decision No. 459-
S, p. 6.)
Ms. Rosales has demonstrated all of the elements of a prima facie case of retaliation.
Accordingly, the burden of proof shifts to the District to show that it would have taken the
same action against Ms. Rosales even in the absence of protected activity.
Burden Shift
Once a charging party has established a prima facie case of retaliation by a
preponderance of the evidence, the burden shifts to the respondent to prove: (1) that it had an
alternative nondiscriminatory reason for the challenged action; and (2) 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, p. 31, citing Novato, supra, PERB
Decision No. 210; Wright Line (1980) 251 NLRB 1083; NLRB v. Transportation Management
53

Corp. (1983) 462 U.S. 393.) Simply presenting a legitimate reason for acting is not enough to
meet the burden. The respondent “must persuade by a preponderance of the evidence that the
same action would have taken place even in the absence of the protected conduct.” (Roure
Bertrand Dupont, Inc. (1984) 271 NLRB 443.)
Where there is evidence that the respondent’s adverse action was motivated by both
lawful and unlawful reasons, “the question becomes whether the [adverse action] would not
have occurred ‘but for’ the protected activity.” (Martori Brothers Distributors v. Agricultural
Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730.) The “but for” test is “an affirmative
defense which the respondent must establish by a preponderance of the evidence.”
(McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.) The Board
in Escondido Union Elementary School District (2009) PERB Decision No. 2019 made the
following points about the approach to the analysis in “mixed motive” cases:
In Novato, supra, PERB adopted the Wright Line, supra, 251
NLRB 1083, “but for” test for mixed motive cases. In Wright
Line, the NLRB made two important points regarding its “but
for” test. First, the NLRB noted that placing the burden on the
employer to prove that the non-discriminative reason actually
motivated the adverse action “represents a recognition of the
practical reality that the employer is the party with the best access
to proof of its motivation.” Second, the NLRB stated that the
goal in a mixed motive case is “to analyze thoroughly and
completely the justification for the [adverse action] presented by
the employer.
(Id. at p. 21; footnotes omitted.)
In assessing the evidence, PERB’s task is to determine whether the respondent’s “true
motivation for taking the adverse action was the employee’s protected activity.” (Regents of
the University of California (2012) PERB Decision No. 2302-H, p. 3, citations omitted
(Regents); see also Los Angeles County Superior Court (2008) PERB Decision No. 1979-C,
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p. 23.) Further, PERB “weighs the respondent’s justifications for the adverse action against
the evidence of the respondent’s retaliatory motive.” (Baker Valley Unified School District
(2008) PERB Decision No. 1993, p. 14.) If PERB determines that a respondent’s action was
not taken for an unlawful reason, it has no authority to also determine whether the action was
otherwise justified or proper. (City of Santa Monica (2011) PERB Decision No. 2211-M,
p. 17.)
Even where there is direct evidence of unlawful motivation, a respondent may prove
that the employee’s protected activity was not the true motivation for its action, which is
sufficient to defeat the prima facie case. (Regents, supra, PERB Decision No. 2302-H, p. 4.)
In that case, although the employer specifically referenced the employee’s protected conduct as
part of its written grounds for termination, there was sufficient evidence of performance
concerns that showed the employer would have taken the same course of action, regardless of
the protected conduct. (Id., adopting proposed dec., p. 33.)
A different result was reached in (State of California (Department of Corrections &
Rehabilitation) (2012) PERB Decision No. 2282-S (Dept. of Corrections & Rehabilitation).)
There, a union steward was disciplined in direct response to so-called unacceptable conduct
during a representational meeting, which the Board found protected. There was no other basis
offered by the employer for the discipline. Thus, the Board found that the employer could not
meet its burden to defeat the prima facie case where the “discipline is seen to arise from, and
only from, [the employee’s] protected conduct.” (Id. at p. 14.)
In Jurupa II, supra, PERB Decision No. 2458, the employer was not able to justify a
consecutive year evaluation of a permanent teacher where it was unable to present persuasive
evidence that it had legitimate performance concerns about the teacher when it ordered the
55

consecutive evaluation. (Id., adopting proposed dec., pp. 45-47.) The employer therefore did
not meet its burden of showing that it acted for reasons unrelated to the employee’s protected
conduct. (Ibid.)
This is a mixed motive case. The District has admitted that it acted, in part, because of
Ms. Rosales’s protected PAR program participation, as Mr. Powers and Dr. Meyer view such
participation as tacit acknowledgment of a performance deficit. However, even though there
was direct evidence of the District’s unlawful motivation, I cannot conclude that “but for”
Ms. Rosales’s protected activity the same action would not have been pursued.
Mr. Powers and Ms. Roark testified credibly to having concerns over Ms. Rosales’s
classroom management and use of instructional time in both the 2013-2014 and 2014-2015
school years. Ms. Rosales did not challenge Mr. Powers’s assertion that, in 2013-2014, he
shared those concerns with her on three or four occasions. The fact that a teacher was rated as
excellent in a subcategory during the previous evaluation cycle, as Ms. Rosales was, does not
preclude an assessment that performance had declined in the same area the following year.
The important fact to note is that Mr. Powers shared his concerns with Ms. Rosales over her
use of instructional time contemporaneous with his informal observations. 	Ms. Rosales also
did not dispute Ms. Roark’s testimony about specific classroom management issues she had
witnessed in 2014-2015. 	Many of these same types of concerns were documented both in
Ms. Rosales’s initial rescinded and final performance evaluations for 2014-2015.
Additionally, Ms. Rosales admitted to showing Disney movies, more than once, during
instructional time and that Mr. Powers had also raised a concern about that with her more than
once. This was also something that had been the subject of a parent complaint against her,
which she admitted she had been informed of by Mr. Powers. Ms. Rosales’s showing of a
56

Disney film during instructional time also had been witnessed and criticized by District official
Dr. Guevara. Ms. Rosales did not dispute Ms. Roark’s testimony that Ms. Rosales said when
confronted about that incident, “I know I’m not supposed to show movies.” Thus, there is
ample evidence that the District had and communicated with Ms. Rosales about performance
concerns before it ordered that she be evaluated again in 2015-2016.
In weighing the evidence of the District’s unlawful motivation against the justifications
it offered for deciding to evaluate her again, the District has shown that it had and acted
because of performance concerns rather than to punish protected activity. Because the weight
of the evidence supports the District’s stated reasons for its action, there is no evidence that
those reasons were a pretext for retaliation. This situation is therefore distinguished from that
in Jurupa II, where the employer in that case was unable to show that it had communicated
about having any performance concerns with the teacher before ordering a consecutive
evaluation. (Id., adopting proposed dec., pp. 45-47.) These facts are also distinguishable from
those in Dept. of Corrections & Rehabilitation, where the employer was unable to show any
reason other than the union steward’s protected conduct for issuing discipline. (Id., adopting
proposed dec., p. 14.) 	Rather, this case is similar to Regents, where despite direct evidence of
unlawful motivation, the employer was able to demonstrate that because of documented
performance concerns, it would have taken the same action even if the employee had not
engaged in protected conduct. (Id., adopting proposed dec., p. 33.)
For all of the above-discussed reasons, the District has proved its defense and therefore
defeated Ms. Rosales’s showing of a prima facie case of retaliation. Accordingly,
Ms. Rosales’s claims in this matter must be dismissed.
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Conclusion
Ms. Pickett, Mr. Pickett, and Ms. Edwards did not show by a preponderance of
evidence that the District took any action against them that could be considered adverse to their
employment interests under an objective standard. And although Ms. Rosales met her
evidentiary burden of stating a prima facie case of retaliation, the District proved its defense
that it had and acted for non-discriminatory reasons when it decided to pursue a consecutive
year evaluation of her performance. Accordingly, all of the Charging Parties’ claims in this
matter fail.
PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire record in this
case, the complaint and underlying unfair practice charge in Case No. LA-CE-6088-E, Lori E.
Edwards, David Pickett, Victoria Pickett, and Kimberly Rosales v. Lake Elsinore Unified
School District, are hereby DISMISSED.
Right to Appeal
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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
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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, § 32300.)
A document is considered “filed” when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd.
(a).) A document is also considered “filed” when received by facsimile transmission before the
close of business together with a Facsimile Transmission Cover Sheet or received by electronic
mail before the close of business, which meets the requirements of PERB Regulation 32135,
subdivision (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, § 32135, subds.
(b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090, 32091 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, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
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