PERB Decision No. 1469E•Los Angeles Unified School District (PERB 1469E)
Los Angeles Unified School District (PERB 1469E)
PERB Decision No. 1469ECalperb29.11.2001
Gesamter Gesetzestext
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD UNITED TEACHERS OF LOS ANGELES, Charging Party, V. LOS ANGELES UNIFIED SCHOOL DISTRICT, Respondent. Case No. LA-CE-4066-E PERB Decision No. 1469 November 29, 2001 Appearances: Geffner & Bush by Steven K. Ury, Attorney, for United Teachers of Los Angeles; Office of the General Counsel by Gregory L. McNair, Attorney, for Los Angeles Unified School District. Before Amador, Baker and Whitehead, Members. DECISION BAKER, Member: This case is before the Public Employment Relations Board (PERB or Board) on exceptions filed by the Los Angeles Unified School District (District) to the proposed decision (attached) of a PERB administrative law judge (ALJ). The ALJ found that the District violated section 3543.5 (a) and (b) the Educational Employment Relations Act (EERA) 1 by causing Carol Conner (Conner), an employee of LA's BEST,2 to be terminated from her employment because of her protected activities. 1 EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all statutory references herein are to the Government Code. Section 3543.5 provides, in pertinent part: It shall be unlawful for a public school employer to do any of the following:
After reviewing the entire record in this matter, including the ALJ's proposed decision, the statement of exceptions filed by the District, the response filed by the United Teachers of Los Angeles (UTLA), the hearing transcript and exhibits, and the briefs of the parties, the Board hereby affirms the ALJ's proposed decision and adopts it as the decision of the Board itself. 3 The Board writes separately to address the District's exceptions to the remedy and the allegation that ALJ Al Link (Link) was biased. DISCUSSION Included in the District's exceptions to the proposed decision of the ALJ is an exception to the proposed remedy and an allegation that the ALJ was biased against the District. EXCEPTIONS TO THE REMEDY The District argues that the proposed decision's award requires "a public school employer to pay the employee of a private entity back pay and future pay until the employee decides she wants to work for the private employer." The District argues that the award is (a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise ofrights guaranteed by this chapter. For purposes of this subdivision, "employee" includes an applicant for employment or reemployment. (b) Deny to employee organizations rights guaranteed to them by this chapter. 2 LA's BEST is an after school enrichment program for certain District students. BEST is an acronym for Better Educated Students for Tomorrow. 3 The ALJ found that the District and LA's BEST are neither a single nor a joint employer, but are two separate employers and that PERB has no jurisdiction over LA's BEST. (Proposed Dec., pp. 62-68.) This conclusion of law was not excepted to by either party therefore that portion of the decision is not before the Board and is not a part of the Board's decision in this case. 2
therefore excessive, speculative, punitive, and would require the District to make a gift of public funds. The District urges that if any remedy should be imposed, it should be limited to a cease and desist order. The District also suggests that the postingorder is inappropriate. Gift of Public Funds The District argues "[t]here is no evidence that Ms. Conner would have kept her job as a Site Coordinator for any material length of time beyond the date she was terminated." The simple answer is no one will ever know how long she would have worked for LA's BEST because the District caused her to be terminated. The District placed no evidence in the record suggesting Conner would not have continued working, therefore the remedy is not speculative and the District must live with its actions. The District's argument that the remedy calls for a gift of public funds is made without support and is without merit. Offer of Employment The District claims it made an offer of reemployment to Conner the day she was terminated and Conner turned it down. This claim is made to extinguish the District's liability for Connor's wages. A review of the PERB hearing transcript reveals that Debe Loxton (Loxton), then a program director for LA's BEST, testified on direct examination as follows (questions are by the District's Counsel except as noted): Q At the November 13 meeting, was Ms. Conner offered a different position at LA's BEST? A Yes. Q What position was she offered? A It wasn't a position specifically stated, it was that we would try to make accommodations for her within the LA's BEST program. 3
Q Was she interested in that? A No. ADMINISTRATIVE LAW JUDGE LINK: So she actually wasn't offered a position, she was offered your good will as far as trying to get her another position. THE WITNESS: We said we would find her something within the organization. ADMINISTRATIVE LAW JUDGE LINK: You would or you would try? THE WITNESS: We would. ADMINISTRATIVE LAW JUDGE LINK: Okay. (R.T., vol. II, pp. 163 - 164.) Further on this point, LA's BEST Chief Executive Officer Carla Sanger (Sanger) testified that Conner was "advised that there would be other positions if she were interested" but that "[t]here was not a specific offer of one position." (R.T., vol. III, pp. 160-161.) Conner's testimony regarding the November 13 meeting appears to indicate she was only given the choice to resign or be terminated. (R.T., vol. I, p. 147, lines 15-25.) Even though the ALJ has held that when the testimony of Conner conflicts with either Loxton or Sanger, Conner's testimony is credited, it is not necessary to make a credibility determination on this issue. A reading of the testimony of Loxton and Sanger in a light most favorable to the District does not support the District's assertion that it made an offer of employment to Conner. Further, following the November 13, 1998 meeting, Conner received a document from Loxton with a regards line: "Notice of Termination of Employment as of 11/20/98." (Charging Party Exh. 35.) The notice of termination reflects that at the November 13 meeting Conner was given the opportunity to resign from her position or be terminated from the LA's BEST 4
assignment she held as site coordinator on November 20, 1998. The notice of termination states that, "Since you have expressed no interest in resigning, we will expect your last day with the program will be on November 20th ." While it is not a certainty that a legitimate offer of continued employment would be reflected in this document if it were actually made, the fact that it is not reflected in the document, nor anywhere else in writing, is significant. When this fact is combined with the less than firm testimony of Loxton and Sanger, the Board does not find an offer of employment was made to Conner by LA's BEST. Front Pay Following the finding that an offer of employment was not made, we turn to the appropriate remedy. Frontpay is a monetary award for loss of anticipated future earnings had the employee not been subject to unlawful discrimination. There is a large volume of "frontpay" caselaw which has developed under Title VII, Section 706(g) of the Civil Rights Act of 1964. The remedial power language of Section 706(g) closely tracks Section 10( c) of the National Labor Relations Act (NLRA). Section lO(c) authorizes the National Labor Relations Board (NLRB) to issue an order requiring a respondent who has committed an unfair labor practice to "cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay." In applying Section lO(c), the NLRB had consistently made awards of what it called "backpay" up to the date the employee was reinstated, even if such event occurred after judgment (citations omitted). (Pollard v. E.I. du Pont de Nemours & Company (2001) _US_ [121 S.Ct. 1946] (Pollard).) The Board's statutory authority under EERA includes the ability to investigate unfair practice charges and "take any action and make any determinations in respect of these charges 5
or alleged violations as the board deems necessary to effectuate the policies of this chapter." (EERA sec. 3541.3(i).) This broad remedial power is parallel to the remedial power given to the NLRB and the remedial power in Title VII of the Civil Rights Act of 1964. For that reason, reliance on federal precedent regarding "frontpay" emanating from both the NLRA and Title VII of the Civil Rights Act of 1964 is appropriate. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608,617 [116 Cal.Rptr. 507].) The standard remedy for a discriminatory discharge is reinstatement. Reinstatement best effectuates the purposes and policies of the EERA because it restores the status quo prior to the unlawful action. As an order of reinstatement by the District is not an available remedy in this case, a frontpay award in lieu ofreinstatement is appropriate. (See Maxfield v. Sinclair International (3d Cir. 1985) 766 F.2d 788, 796 [38 Fair Empl. Prac. Cas. (BNA) 442].) An award of frontpay is remedial, not punitive, and is well within the Board's statutory authority. (See EERA sec. 3541.3(i).) Frontpay is "the salary that an employee would have received had he or she not been subject to unlawful discrimination of his employer, subject to the employee's mitigating his or her damages." (Hudson v. Reno (6 th Cir. 1997) 130 F.3d 1193, 1203 [75 Fair Empl. Prac, Cas. (BNA) 1001].) (Abrogated on different grounds by Pollard (121 S. Ct. 1946).); Downes v. Volkswagen of America, Inc. (ih Cir. 1994); 41 F.3d 1132, 1141 [69 Fair Empl. Prac. Cas. (BNA) 11].) Duty to Mitigate The District argues that the proposed remedy calls for the District to pay Conner future pay and benefits in perpetuity. This argument against the remedy is without merit. The District's argument fails to consider that implicit in the Board's order in this case is a duty for Conner to mitigate her damages. In Fresno County Office of Education (1996) 6
PERB Decision No. 1171, the Board adopted the NLRB burden of proof in the mitigation context. Implicit in the adoption of the NLRB's burden of proof standard is the fact that mitigation is an element of this Board's orders. The proposed order in this case, which is adopted as the order of the Board, calls for payments to continue to Conner until either LA's BEST or a successor organization ceases to exist, Conner terminates her employment relationship with the District, or "she secures substantially equivalent employment." While it may be difficult for Connor to find substantially equivalent employment, Conner has a duty to look for such employment. The duty to mitigate is the check which prevents the Board's order from becoming a windfall to Connor. If a controversy arises over mitigation or any other aspect of the remedy, a compliance proceeding is the proper forum to air the controversy. The District can argue that its liability should be extinguished and may present facts to support its claim in a compliance proceeding. Posting Order The District argues that the posting requirement is inappropriate because Conner is the only person affected. While it could be possible to limit the posting to either the Hillcrest site or to school sites with an LA's BEST program, it is appropriate to post the notice on a unit wide basis. If a Board decision does not limit the posting requirement, the notice is to be posted on a unit-wide basis. (Trustees of the California State University (1988) PERB Order No. Ad-174-H.) In this case the activity found to be unlawful was the District's retaliation for an employees' protected activity. Other unit employees and District personnel would naturally be concerned to know that the employer's actions in this case have been found unlawful. 7
Despite a direct effect on only one employee, the posting provides guidance and canprevent the recurrence of the prohibited conduct on a unit-wide basis, therefore District wide posting is appropriate in the context of this multi-campus school district. (See Los Angeles Unified School District (1988) PERB Decision No. 659; The Regents of the University of California (1990) PERB Decision No. 826-H.) ALLEGATION OF BIAS The District claims that the outcome of the proposed decision and many of the ALJ's findings were tainted by bias. The District also founds its claim of bias "upon actions taken and statements made by the ALJ at the hearing which are reflected in the hearing transcript." (District's exceptions, p. 49.) Specifically, the District objected to three statements by the ALJ and to the fact that after two and one-half days of hearing, he contacted PERB ALJ, Jim Tamm (Tamm), the PERB agent that conducted the settlement conference in this case. First, on the second day of hearing, after hearing from only two witnesses, Conner and Loxton, Loxton testified to the neutrality of a September 17, 1998 meeting. During the ALJ's questioning of Loxton, he stated, "I really don't think that was, you know, it was thatneutral in September." (R.T., vol. II, p. 217, lines 25-26.) Second, during a question to Sanger, the ALJ said, "All I know is, you know, if there's - - if the fur is flying, if there's something that isn't right, something that doesn't add up, and this doesn't add up, then why." (R.T., vol. III; p. 213, lines 18-21.) Third, while Carole Gentry testified under cross examination, following her response, the ALJ stated, "I think that answer is incredulous." (R.T., vol. V; p. 73, lines 5-6.) 8
The District claims that the above statements "and other statements in the record"4 clearly reflect the ALJ's bias against the District and LA's BEST. The Board has held that "unless a judge makes statements indicating a clear predisposition against a party, no bias or prejudice is established." (Gonzales Union High School District (1985) PERB Decision No. 480.) As pointed out by UTLA in its response to the District's statement of exceptions, the District does not offer a shred of evidence showing the ALJ formed any opinion or conclusion which was not based upon the evidence before him. None of the above described statements or actions meet the PERB standard for finding bias or prejudice. Each "opinion" described above was arrived at after or in response to hearing evidence on the topic. It appears from the record that ALJ Link contacted ALJ Tamm without notice to either party. The District characterized this conduct as an "ex parte communication." It appears from the record that ALJ Link contacted ALJ Tamm to assess ALJ Tamm's availability to continue settlement discussions. There is no evidence in the record that any other matter was discussed in this phone conversation. The Board finds this conversation was not a prohibited "ex parte communication." ALJ Link informed the parties that it was in all of their interests to settle the case, but did suggest it was in LA's BEST's interest "primarily" to settle. (R.T., vol. III, pp. 55-64.) As 4While the Board has reviewed the entire record in this matter and did not observe any statements demonstrating bias, the Board nevertheless declines the District's implicit suggestion that the Board comb the record for other statements in the record which demonstrate the ALJ's bias. It is the burden of the excepting party to state specific issues of procedure, fact, law or rationale to which exception is taken and to adequately identify such. (PERB Regulation 32300; PERB regs. are found at Cal. Code Regs., tit. 8, sec. 31001 et seq. and available on PERB's Web site at www.perb.ca.gov.) 9
the Board properly urges voluntary settlements that are in the best interests of EERA , the Board does not find ALJ Link's urging the parties, and LA's BEST, to settle is an indicator of bias or prejudice. The dissent in this case appears to be based upon the mistaken premise that the Board's decision has extended the Board's jurisdiction to cover the actions of LA's BEST or employees of LA's BEST. It does not. This is a case where the District has retaliated against its own employee. The District is clearly an employer within the Board's jurisdiction and Conner is clearly an employee within that jurisdiction. The ALJ cited, and the Board agrees with, the ample authority supporting the proposition that an employer can be held liable for its agent's acts that have an effect outside of the District. (Rim of the World Unified School District (1986) PERB Order No. Ad-161, Inglewood Teachers Assn. v. Public Employment Relations Bd. (1991) 227 Cal.App.3d 767 [278 Cal.Rptr. 228]; see also, Springfield Manner (1989) 295 NLRB 17 [133 LRRM 1105]; International Shipping Assn. (1990) 297 NLRB 1059 [134 LRRM 1035]. ORDER It is found that the Los Angeles Unified School District (District) violated the Educational Employment Relations Act (EERA), Government Code section 3543.5(a) and (b) by causing Carol Conner (Conner) to be terminated from her employment as a site coordinator at the District's Better Educated Students for Tomorrow (LA's Best) program. Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the District, its administrators and representatives shall: A. CEASE AND DESIST FROM:
1. Influencing LA's BEST to terminate Conner, its site coordinator, at Hillcrest Elementary School (Hillcrest). 2. Denying to the United Teachers of Los Angeles (UTLA) the right to communicate with its members through its elected officials, without fear of retaliation. B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EERA: 1. Using its good offices to attempt to cause LA's BEST to reinstate Conner to her position as Hillcrest's site coordinator. 2. Pay to Conner, upon demand, the salary she lost as a result of her unlawful termination. Such retroactive salary award shall include interest at the rate of 7 percent per annum. 3. Make Conner whole, upon demand, for any other losses, such as benefits, seniority credit(s), leave credit(s) for example, and reasonably expected overtime salary opportunities she may have suffered as a result of the District's unlawful action. 4. Pay to Conner, upon demand, should it not be able to prevail upon LA's BEST to reinstate her to her previous Hillcrest site coordinator position, or a comparable position with LA's BEST that is acceptable to Conner, an amount equal to what she would have earned had she not been unlawfully terminated. These payments shall continue until either LA's BEST or any successor organization ceases to exist, Conner terminates her employment relationship with the District, or she secures substantially equivalent employment. 5. Within ten (10) workdays of this decision becoming final, post at all work locations where notices to bargaining unit members customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of 11
the District, indicating that the District will comply with the terms of this Order. Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any other material. 6. Make written notification of the actions taken to comply with this Order to the San Francisco Regional Director of the Public Employment Relations Board in accordance with the director's instructions. Continue to report, in writing, to the regional director thereafter as directed. All reports to the regional director shall be concurrently served on UTLA. It is further Ordered that all remaining aspects of the charge and complaint are hereby DISMISSED. Member Whitehead joined in this Decision. Member Amador's dissent begins on page 13. 12
AMADOR, Member, dissenting: I respectfully dissent from the majority's holding that the Los Angeles Unified School District (District) violated the Educational Employment Relations Act (EERA) by "influencing" LA's BEST to terminate Carol Conner (Conner). I would dismiss this unfair practice charge on any one of several grounds. First, the charge challenges conduct of a third-party employer, LA's BEST, an entity which, as the administrative law judge found, is outside the reach of the Public Employment Relations Board's (PERB or Board) jurisdiction. No exceptions were filed to this finding. Second, Conner, as an employee of LA's BEST, is not an "employee" eligible for protection under EERA section 3540.l(i) or 3543.S(a).1 Third, Conner arguably lacks standing to file an unfair practice charge, since in order for a person to have standing to file an unfair practice charge, that person must have been an employee at the time the unfair practice occurred. A person's status as an employee is to be examined at the time that the alleged unlawful conduct occurred. (California Union of Safety Employees (Trevisanut) (1993) PERB Decision No. 1029-S, at p. 9.) (See also, Fremont 1 EERA section 3540. l(j) states: (i) "Public school employee" or "employee" means any person employed by any public school employer except persons elected by popular vote, persons appointed by the Governor of this state, management employees, and confidential employees. EERA section 3543.S(a) states, in pertinent part: It shall be unlawful for a public school employer to do any of the following: (a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter. For 13
Union High School District (1987) PERB Decision No. 651; district teachers were not employees under the EERA while they were working as summer school teachers for a separate entity (the University of LaVerne), even though they were using district facilities and materials and teaching district students, as the teachers received compensation from, were considered for employment and selected by, and were supervised by La Verne, not the district.) Fourth, I would dismiss this charge on the grounds that United Teachers of Los Angeles has failed to prove a prima facie case of retaliation. Here, the adverse action is the allegedly unlawful termination of Conner, an LA's BEST employee, by LA's BEST. It was not the District that terminated Conner; in fact, there is no evidence to indicate that the District had the legal power or authority to terminate any person's employment with LA's BEST, any more than the District would have the power to terminate any type of outside employment of a District employee. As an example, I am confident that the Board would not hesitate to dismiss an unfair practice charge which asserted that "the District got me fired from my part-time job at Macy's." Even if the facts clearly showed that the District actually "influenced" Macy's to terminate an employee, the charge would be promptly dismissed because the cause of action does not lie under the EERA. Clearly, the Board lacks jurisdiction over Macy's, an entity that does not meet the statutory definition of "public school employer." Furthermore, such a charge would be dismissed because it failed to identify an adverse action committed against a public school employee by a public school employer. The status of LA's BEST in the instant unfair practice charge is akin to that of Macy's in this example, and dismissal is appropriate. purposes of this subdivision, "employee" includes an applicant for employment or reemployment. 14
As a final note, a reading of the remedy gives an indication of the difficulty in righting an alleged wrong perpetrated by an entity outside the scope of the Board's statutory jurisdiction. The Board lacks the power to make Conner whole because the District lacks the power to compel LA's BEST to undo the termination. Because of this fact, the Board can only seek to compel a third party employer to do something by using the District as a tool. In fashioning a remedy, the Board is forced to resort to somewhat awkward phrasing because of the limitations on its remedial power in this fact pattern. For example, the order requires the District to "cease and desist from influencing LA's BEST to terminate Carol Conner" [a somewhat meaningless remedy, since she has already been terminated] and to "use its good offices to attempt to cause LA's BEST to reinstate Conner to her position" with LA's BEST. If the District is "not able to prevail upon LA's BEST" to reinstate Conner, the Board attempts to make Conner whole by ordering payment of money damages for a period of time which appears very difficult to ascertain. Finally, as a matter of policy, it is inappropriate to find a violation on the theory that the District "influenced" a non-EERA employer to terminate a non-EERA employee because such a ruling improperly injects the Board into the labor relations of third parties. 15
APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE PUBLIC EMPLOYMENT RELATIONS BOARD An Agency of the State of California After a hearing in Unfair Practice Case No. LA-CE-4066, United Teachers of Los Angeles v. Los Angeles Unified School District, in which all parties had the right to participate, it has been found that the Los Angeles Unified School District (District) violated the Educational Employment Relations Act (EERA), Government Code section 3543.S(a) and (b). The District violated EERA by causing Carol Conner (Conner) to be terminated from her employment as a site coordinator at the District's Better Educated Students for Tomorrow (LA's Best) program. As a result of this conduct, we have been ordered to post this Notice and we will: A. CEASE AND DESIST FROM: 1. Influencing LA's BEST to terminate Conner, its site coordinator, at Hillcrest Elementary School (Hillcrest). 2. Denying to the United Teachers of Los Angeles the right to communicate with its members through its elected officials, without fear of retaliation. B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EERA: 1. Using its good offices to attempt to cause LA's BEST to reinstate Conner to her position as Hillcrest's site coordinator. 2. Pay to Conner, upon demand, the salary she lost as a result of her unlawful termination. Such retroactive salary award shall include interest at the rate of 7 percent per annum. 3. Make Conner whole, upon demand, for any other losses, such as benefits, seniority credit(s), leave credit(s) for example, and reasonably expected overtime salary opportunities she may have suffered as a result of the District's unlawful action. 4. Pay to Conner, upon demand, should it not be able to prevail upon LA's BEST to reinstate her to her previous Hillcrest site coordinator position, or a comparable position with LA's BEST that is acceptable to Conner, an amount equal to what she would
have earned had she not been unlawfully terminated. These payments shall continue until either LA's BEST or a successor organization ceases to exist, Conner terminates her employment relationship with the District, or she secures substantially equivalent employment. Dated: LOS ANGELES UNIFIED SCHOOL DISTRICT By: Authorized Agent THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY (30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE REDUCED IN SIZE, DEFACED, ALTERED, OR COVERED WITH ANY OTHER MATERIAL. 2
STATE OF CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD UNITED TEACHERS OF LOS ANGELES, ) ) Charging Party, ) ) V. ) ) LOS ANGELES UNIFIED SCHOOL DISTRICT, ) ) _____________________Respondent. ) ) Unfair Practice Charge No. LA-CE-4066 PROPOSED DECISION (9/13/2000) Appearance: Geffner & Bush, by Steven K. Ury, Attorney, for United Teachers of Los Angeles; Gregory L. McNair, Staff Counsel, for Los Angeles Unified School District. Before Allen R. Link, Administrative Law Judge. PROCEDURAL HISTORY On May 19, 1999, the United Teachers of Los Angeles (UTLA) filed an unfair practice charge with the Public Employment Relations Board (PERB or Board) against the Los Angeles Unified School District (District or LAUSD). The charge alleged violations of the Educational Employment Relations Act (EERA or Act) 1 On August 6, 1999, the Office of the General Counsel of PERB, after an investigation of the charge, issued a complaint alleging violations of subdivisions (a) and (b) of section 3543.5. 2 1All section references, unless otherwise noted, are to the Government Code. EERA is codified at section 3540 et seq. 2Subdivisions (a) and (b) of section 3543.5 state: It shall be unlawful for any public school employer to do any of the following:
On August 26, 1999, the respondent answered the complaint denying all material allegations and propounding various affirmative defenses. An informal conference was held on October 4, 1999, in an unsuccessful attempt to reach a voluntary settlement. Six days of formal hearing were held before the undersigned on February 14, 15, 16, 17, May 11 and 12, 2000. With the filing of briefs by each side, 3 the matter was submitted on August 22, 2000. INTRODUCTION Since 1989, or before, Carol Conner (Conner) has been a LAUSD elementary teacher assigned to Hillcrest Drive Elementary School (Hillcrest). She was also, for at least five school years, 1993-96 and 1998-2000, her site UTLA representative. In addition to her teaching assignment, she had been employed as the Hillcrest site coordinator for LA's BEST program for nine years. This program is an after-school enrichment program for LAUSD students who have been identified as being at a higher risk of getting involved in gangs, drugs and violence. (a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter. (b) Deny to employee organizations rights guaranteed to them by this chapter. 3 In addition to those of the parties, an Amicus Curiae brief was filed by Riordan and McKinzie, by William Erner, Attorney, on behalf of LA's BEST. BEST is an acronym for Better Educated Students for Tomorrow. 2
In her role as UTLA's site representative, Conner became involved in a number of conflicts with Carole Gentry (Gentry), Hillcrest's principal. In November 1998, Conner was terminated from her duties as LA's BEST site coordinator. She alleges such termination was the result of her protected activities on behalf of UTLA. LAUSD contends that it and LA's BEST are two separate organizations. Therefore, it insists, that Conner's termination from LA's BEST has nothing to do with LAUSD. It further contends that PERB lacks jurisdiction over LA's BEST; therefore, as this case concerns allegations against that organization, it should be dismissed. FINDINGS OF FACT The parties stipulated, and it is therefore found, that UTLA is both an employee organization and an exclusive representative, and LAUSD is a public school employer, within the meaning of the EERA. I. Conner's UTLA Involvement At the beginning of the 1993-94 school year, Conner became Hillcrest's UTLA chapter chair. Starting in 1995, she was involved various UTLA activities, including the monitoring of Hillcrest's LEARN4 program and the maintenance of the bilingual master plan. Gentry became aware that Conner was the school's UTLA chapter chair during this period. 4 LEARN is an acronym for a LAUSD project that selects specific schools and attempts to promote sharing of decision- making among all staff members. 3
A. Conner Files PERB Charge Against LAUSD In late August 1996, Conner filed a PERB charge against LAUSD, alleging that it had retaliated against her, when in March and April of 1996 (1) Gentry (a) punitively transferred her to a non-teaching position and (b) kept her from renewing her mentor teacher position, and (2) a LAUSD official suggested she give up her UTLA chapter chair position, ostensibly to avoid further conflict with Gentry. On March 4, 1996, Gentry and Conner, along with other Hillcrest staff, attended a LEARN seminar to improve intra-school communication. In response to comments by the moderator and other staff members, Conner said that it was problems in the area of poor communications that caused postal employees5 to walk into their offices and start shooting. Gentry perceived this comment as threatening and, shortly thereafter, called LAUSD's staff relations office. She spoke to Yvonne Chavez, who told her to: (1) write a memorandum describing the incident; (2) tell Conner she would be transferred to the cluster area office; 6 and (3) call the District police to the campus, in case Conner resisted these instructions. Shortly thereafter, Conner was given a memo that told her to report to the cluster office, and 5The prior week a prominent news story told of a postal employee who walked into his office and shot a number of fellow employees. 6A cluster area is a District sub unit, supervised by an administrator called a cluster leader. In this case, Dr. Daniel Lawson (Lawson) is the cluster leader who has direct line authority over Hillcrest, along with a number of other LAUSD schools. 4
according to Gentry, the policeman "walked her out" of the school. The next day, Gentry submitted an incident report describing Conner's statement. Attached to her report were six statements by various persons who were present when Conner spoke. All of the accompanying statements support Gentry's position that Conner's statement was threatening. In the same general time frame, a "petition and Letters from Teachers," were also submitted. The petition expressed the employees' unified support for Conner with regard to this incident and decried what it believed was Gentry's unjustified reaction to it. The petition was signed by 29 teachers, one parent volunteer, and two special education personnel, all of whom were present when Conner made her statements. There were also eleven letters describing Conner's statement, and the writers' reaction thereto. The petition and letters uniformly agreed that Conner's comments were not a threat of any sort. Ten days after the incident, on March 14, 1996, Lawson, Gentry, Conner, a UTLA representative, and a member of LAUSD's staff relations office met in Lawson's office. At the end of this meeting, Lawson returned Conner to her Hillcrest classroom the next day, but he strongly suggested she give up her UTLA chapter chair. At the formal hearing in this case, Gentry denied that her actions were retaliatory. She claimed that she transferred Conner because she mentioned the post office shootings at a 5
meeting.
There
was
also
evidence
that
Conner,
along with
other
Hillcrest
staff
employees, had
gone
to
a
shooting
range
to
practice
marksmanship.
Conner
stated that
she
went
to
the
range
one
time.
Gentry
suggested
this
shooting
range
evidence,
somehow,
gave
her
fears
about
Conner's
comments
greater
credibility.
Gentry
explained
that
she
failed
to
renominate
Conner
as
a
mentor
teacher,
because she
did
not
think
she
was
"that strong
a
teacher."
However,
during
that
period,
Conner
received
an
outstanding teaching evaluation,
and
Gentry
had
previously given
her
enthusiastic
nominations
for
the
mentor
teaching
position.
In
addition,
Hillcrest's
vice
principal
supported Conner's
mentor
teaching
renomination.
The
PERB
case
was
eventually
settled
by
written
agreement,
signed
by
the
parties
on
July
10
and 15, 1997, which
stated, in
pertinent part:
1. Within
30
days
following
receipt
of theexecuted
copy
of
this letter,
the
Los
Angeles
Unified
School
District will
pay
to
Ms.
Carol
Conner
the
sum
of
$2,500.00 and
restore to
regular
pay
six
days
of her
illness
leave
balance with the
District
taken
March 6, 7,
8, 11,
12
and 13, 1996.
6.
The
parties
agree
that
any
future
recommendations
regarding
Ms.
Conner's
performance
at Hillcrest
Elementary School
("Hillcrest") will
be prepared
by
either
a
Vice
Principal at Hillcrest or the ClusterLeader for the group of schools that includes
Hillcrest. In addition,
any
future
employment
inquiries
from
prospectiveemployers regarding
Ms.
Conner's performance
at Hillcrest
must be handled by a
Vice
6Principal at Hillcrest or the Cluster Leader for the group of schools that includes Hillcrest. Conner, who signed the settlement agreement, understood paragraph 6 to mean that Gentry "would no longer be handling any of my job performances at Hillcrest or doing any recommendations regarding my future employment II Gentry, on the other hand, said that her understanding of the settlement agreement was that it only limited her participation in mentor teacher recommendations for Conner. However, Gentry could not remember doing any regular teaching evaluations of Conner after the settlement agreement was executed. B. Conner Resigns as Hillcrest UTLA Chair Shortly after her conversation with Lawson and the execution of the settlement agreement, Conner resigned as Hillcrest's UTLA chapter chair, effective June 30, 1996. C. Conner Resumes Hillcrest UTLA Activity On February 4, 1998, Conner and another Hillcrest teacher wrote a letter to District Superintendent Ruben Zacarias, alleging several deficiencies in a number of specific educational areas at Hillcrest. The letter stated that they were "concerned about the decline in the quality of the educational program being offered to our students." A copy of the letter was sent to Gentry, who acknowledged receiving it. In April, the superintendent responded, noting that Gentry had been asked to respond in writing to Conner's allegations. 7
In July 1998, Conner again became Hillcrest's UTLA chair; Gentry became aware of this action. In this position, Conner distributed a newsletter dealing with class size reduction 7 and its relation to school budgets. On the side of this newsletter she wrote that fourth and fifth grade teachers should request copies of the budget and meet to discuss how school money was being spent. She placed copies of this newsletter in the teachers' mailboxes in Hillcrest's main office, next to Gentry's office. In the second week of September 1998, Conner approached Gentry to discuss several issues. She told Gentry that Hillcrest's classes were too full, and teachers did not have enough supplies for the children in their classes. She suggested that Gentry alleviate these circumstances. Gentry told Conner that her suggested changes were not going to happen. On September 14, Conner followed up her comments with a note to Gentry, which requested a meeting. On or about September 11, Conner met with Hillcrest's fourth and fifth grade teachers to discuss the overcrowding issue. The teachers determined that they needed more budgetary information. After the meeting, Conner went to the school office and requested 7 Conner was aware that the District prohibited grades K through third from having more than 20 students. However, all of these classes at Hillcrest had between 21 and 24 students. In addition, substitutes were often not available, so when a teacher was absent, the remaining teachers were assigned a proportionate share of the absent teacher's students. 8
the total budget from the office manager. During this period, Gentry knew that Conner was having meetings with the teachers. D. Conner's Post-Termination UTLA Activity After her November 1998 LA's BEST termination, Conner continued her UTLA activities. On January 17, 1999, she, along with UTLA representative James Duffy (Duffy), filed a Uniform Complaint Procedure form with LAUSD's Office of Specially Funded Programs, alleging funding discrepancies at Hillcrest. LAUSD responded on June 9, 1999, stating that "some of the allegations regarding [fiscal] irregularities have been substantiated," i.e., contrary to District regulations, $300,000 had been spent without the knowledge or approval of the School Site Council. In May 1999, Gentry announced she would resign as Hillcrest principal, effective June 30, 1999. In her testimony at the formal hearing in this case, Gentry denied any wrongdoing. E. LAUSD's May 1999 Discipline of Conner On May 12, 1999, Conner received notice she would be disciplined, in her LAUSD teacher role, for alleged irregularities in proctoring the Stanford Nine standardized test. On June 3, she was charged with reading test instructions from the wrong booklet and not adhering to proper time limits. As punishment for her allegedly improper actions, Conner was given (1) a notice of unsatisfactory acts, (2) a ten-day suspension, and (3) a transfer away from Hillcrest. Gentry was technically still the principal at Hillcrest at that time, although she had not been present at Hillcrest after 9
December 16, 1998, as she was on medical leave. Her resignation became effective May 30, 1999. Conner grieved the discipline. The case went to arbitration. After LAUSD completed its case-in-chief, it withdrew its charges, thereby rescinding all of its disciplinary actions. II. LAUSD/LA's BEST Relationship LA's BEST program operates exclusively at LAUSD schools. All of its students are District students. The program is incorporated as a nonprofit public benefit corporation and is a tax exempt organization under section 50l(c) (3) of the United States Internal Revenue Code. It receives financing from many sources, including federal, state and local grants, as well as private donors. It receives no operating funds from LAUSD, although it does receive a large amount of non-monetary or in- kind, support from the District. These LAUSD in-kind services include free office space, free use of school facilities and free use of payroll and personnel services. LA's BEST'S President and Chief Executive Officer (CEO) Carla Sanger (Sanger), who works out of the mayor's office, is responsible for the general administration of the agency. Chief Operating Officer Debe Loxton (Loxton), who works out of LAUSD's headquarters, is responsible for the daily management of its various after-school sites. Loxton was formerly a LAUSD employee in its Youth Service Department. She reports to Sanger and is 10
responsible for all of the school site employees, including traveling supervisors-playground (TSPs) and site coordinators. Sanger insists that LAUSD is completely separate from LA's BEST; however, she admits they are often partners. She admits many of the services of LAUSD are provided "in kind to LA's BEST." She claims that LA's BEST has its own insurance and bank accounts. However, it was determined that much of this "separateness" was only applicable to its administrative staff in the mayor's office, not to the TSPs or the school site personnel. LA's BEST liability insurance does not cover on-site staff, students or third parties. They are covered by LAUSD insurance policies, although LA's BEST does reimburse LAUSD for its workers' compensation claims. Sanger justified this policy by stating that the students are LAUSD students, even when they are LA's BEST program participants. She contends this is a part of the LAUSD/LA's BEST partnership. LA's BEST has neither a personnel nor an accounting department, although it does employ one accountant. These services are provided by LAUSD. LA's BEST does reimburse LAUSD for janitorial services at its school sites. Unlike Sanger and her staff at the Los Angeles mayor's office, Loxton and her staff are paid by LAUSD payroll checks. The vans used by Loxton's office are owned by LAUSD, but purchased with LA's BEST grant funds. The computers used in its corporate headquarters in the mayor's office were purchased by 11
LA's BEST, but are owned by the City of Los Angeles. LA's BEST pays no rent for its District office space. A state funding application for 1998-99 states that 11 [a]ll LA's BEST staff are LAUSD employees qualified by the LAUSD." During the 1997-98 school year, all TSPs were also employed by LAUSD, although one site coordinator was not a LAUSD employee. LA's BEST employees receive the same salaries as comparable District employees in its youth services classifications, i.e., classifications of site coordinator, TSPs, and activities consultant. In addition to maintaining an interrelationship wit LA's BEST salaries, LAUSD limits the number of hours that LA's BEST staff are permitted to work each week. When asked about this hourly limit, Loxton explained that LAUSD had a limit on th total number of hours its personnel in any class code could work in a week. As LA's BEST employees utilized this same class code they fell under this same restriction. She believes this is a Fair Labor Standards Act (FLSA) limitation. h e , When reminded that there are, ostensibly, two separate employers involved, and therefore the FLSA limitation would not apply, she continued to reference LAUSD's class code system as justification for the limitation. Loxton admits that her site employees are paid the same as comparable LAUSD employees, but claims that this occurs because LA's BEST chooses to do so. Loxton did not know whether LA's BEST employees received the same health and retirement benefits as LAUSD employees. 12
The LA's BEST letter of agreement (employment contract) requires all of its employees to "follow all L.A.U.S.D. policies and procedures." This document's letterhead suggests LA's BEST is a part of LAUSD's student auxiliary services branch. Almost all of the official information given to LA's BEST site employees is printed on forms which include the words, "Los Angeles Unified School District," at the top, above "LA's BEST." Each school's LA's BEST program is supervised by a site coordinator, who develops, designs and implements his/her site- specific program. These site coordinators are supervised by TSPs, who report to Loxton. III. Hillcrest's LA's BEST Program Gentry hired Conner as the Hillcrest coordinator at the program's inception in 1989. The program's attendance has fluctuated between 150 and 175 students. When Conner started her LA's BEST duties, she did not have to submit her fingerprints or a W-2 form. She did have to fill out an "additional assignments" form required of all LAUSD employees who take on extra District assignments. She also signed a "Site Coordinator Letter of Agreement" listing twenty-four conditions of employment. Among these conditions was: 24. I understand my unclassified assignment is day-to-day, temporary, part-time, and as- needed employment. Conner, and her staff, prepared time cards, had them approved by Gentry, and gave them to Hillcrest's office manager. The LA's BEST staff is paid with LAUSD paychecks, which 13
identifies them by their LAUSD employee identification numbers. For both her LA's BEST and LAUSD jobs, Conner was paid every four weeks, with separate LAUSD paychecks that she obtained from the Hillcrest office manager. At the end of the year, Conner received one W-2 from LAUSD, which combined her income from both jobs. As a site coordinator, Conner was paid $15.00 per hour, amounting to an annual salary of approximately $15,000. She received LA's BEST salary raises at the same time and in the same percentages as those she received from LAUSD for her duties as a teacher. LAUSD principals are an integral part of each site's LA's BEST program. Site coordinators are required to work closely with them. 8 The school principal coordinates all LA's BEST plans and must approve all written correspondence, i.e., letters to parents, etc. In addition, the principal is responsible for reporting on the site's progress. Gentry exercised hiring power over Hillcrest's program, and on the occasions in which she refused to approve a new employee, that person was not hired. Principals must sign off on numerous, routine LA's BEST paperwork, including employee time sheets. The requirement of a principal's approval covers such mundane items 8LA's BEST site coordinator duty statement, in pertinent part, states such employee Coordinates and plans the LA's BEST program in conjunction with the LA's BEST office and the school site administrator. [Emphasis added.] 14
as co-educational soccer rosters and excursion requests. Loxton stated that it was an LA's BEST objective for the principal to have "mutuality of agreement" with it. At Hillcrest, Conner worked closely with Gentry. They consulted regarding the program, staff and the use of supplies. Gentry monitored, observed and occasionally took notes on Hillcrest's LA's BEST program. Essentially, her role with regard to the LA's BEST program was the same as her role during the regular school day. After Conner's termination, it was Gentry, not an LA's BEST administrator, who sent her a note asking for the return of LA's BEST supplies and equipment. IV. Conner's LA's BEST Annual Evaluations Each year, site coordinators are evaluated by their TSPs. These evaluations are then sent to Loxton for review. Sanger also reviews them. The evaluations are divided into three sections. The first includes thirty-five separate categories, such as attendance, work quality, work habits, relations to others, etc. In each category the site coordinator is rated as being in "Compliance" or "Non Compliance." The second section requires the TSP to give the coordinator a rating of "Below Standard," "Meets Standards" or "Exceeds Standard" in ten categories. The third section, entitled "Overall work performance," provides an area in which the TSP may insert general comments regarding the employee's performance. 15
A. 1994-95 School Year At the end of the 1994-95 school year, Conner received an evaluation from her TSP, Eugene Hernandez (Hernandez), which showed her in compliance in all 35 categories9 in the first section. In the second, her ratings showed she exceeded standards in nine of ten categories and met the standard in the tenth. In the third "Comments" section, the supervisor inserted a statement that Conner provides a "well-balanced program" with "an environment that is motivating for your students." B. 1995-96 School Year There was considerable conflict with regard to this evaluation. Both Conner and Hernandez agree that at an early July 1996 meeting at the El Chollo restaurant, Conner was given a written evaluation. The evaluation that Conner states she was given was designated Exhibit 23. She further states that Hernandez said nothing about its being a draft or that she would receive another evaluation at a later date. Hernandez, on the other hand, states that at the restaurant he did not give Conner Exhibit 23, but rather a different evaluation, which was designated Exhibit C. He contends that Exhibit 23 was only a preliminary draft. 90n the form there are 35 actual categories in the first section. However, at times Hernandez, and later his successor, failed to place check marks on all of the available category spaces. Whether this failure was due to inapplicability or inadvertence is unknown. The compilation of ratings reported in this proposed decision reflects actual check marks and not merely available spaces. 16
Exhibit 23, Conner's evaluation exhibit, has a full "Eugene S. Hernandez" signature on it, with a date of June 14, 1996. Exhibit C, Hernandez' evaluation exhibit, has a full ''Eugene S. Hernandez" signature on it, with a date of June 1, 1996. Hernandez states that he never gave Conner his draft evaluation. Conner states that she was never given, nor, prior to the formal hearing, had she ever seen what Hernandez now insists is his final document. 1. Conner's Proffered Evaluation Exhibit 23, although still positive, is somewhat less favorable than her prior year's evaluation. It states that Conner was out of compliance in two of the twenty-nine applicable categories. These two categories were "Attends all trainings and staff development meetings" and "Compiles and submits all paperwork in a timely manner II Her ratings in six of the categories in the second section were lowered from "Exceeds Standard" to "Meets Standards," which gave her a final total of seven "Meets Standards" and three "Exceeds Standard." In the third section, Hernandez stated that Conner does a good job in supervising, safety and maintenance. He also stated that she needs to get her reports in on time. At the end of the last page, below the signature, he inserted the following: There needs to be a wider variety of activities for students that are cognitive appropriate. 17
2. Hernandez' Proffered Evaluation Exhibit C, in the first section, lists Conner as being in compliance in twenty-seven of twenty-eight applicable categories; the one noncompliance category is entitled, "Compiles and submits all paperwork in a timely manner." In the second section, she was rated as "Meets Standards" in six areas and "Exceeds Standard" in three areas and "Below Standards" in one area. The area in which she received this low rating was "Developmentally Appropriate Activities and Programs." In her evaluation for the previous year, 1994-95, she received an "Exceeds Standard" in this category. In the third section, Hernandez commented on the necessity of her submitting reports in a timely manner and added: An interactionist, constructivist theoretical framework needs to be adopted. This approach emphasizes that children grow and learn through interactions with other students. When students are fully involved, they learn more and build more complex concepts and ideas through enriched experiences. There was also a general statement regarding what constitutes an effective LA's BEST program. It is difficult to tell if this statement was meant to be a criticism of Conner's program or a "boilerplate" statement for all site coordinators under his supervision. The entire statement was as follows: To be effective, LA's BEST programs must be designed to meet the needs and interests of the children the program serves. There is a need for positive interpersonal interactions, staff members need to be aware of the tone of voice, facial expression, and body language they employ. Conversations with children 18
contribute a great deal toward the students' growth. Hernandez admits that Conner's performance did not change between the preparation of his draft and final evaluations. Rather, he claims that he changed the evaluation based on his site visitation notes. He states he reviewed these notes before revising the evaluation. However, after Hernandez completed his testimony, LAUSD, pursuant to a UTLA request, produced all of his Hillcrest visitation slips. Although there were three slips dated from 1995-96, none of these included any comments suggesting Conner or her program were in any way deficient. The only comments were (1) "students clustered to be picked up" July 6, 1995, (2) "observed various activities" -- July 31, 1995, and (3) "Personnel roster due" -- August 4, 1995. Hernandez did not resume the stand to explain, or even discuss, the absence of the visitation notes that he claimed were so instrumental in lowering Conner's evaluation. Conner refused to sign whichever evaluation Hernandez gave her at the El Chollo restaurant and appealed to Loxton and Sanger for a reconsideration of his evaluation. C. Hernandez' Letter of Recommendation for Conner In January 1997, Hernandez wrote Conner a letter of recommendation stating that during the time he worked with her, "she constantly demonstrated the traits of an exemplary scholar and an outstanding teacher." 19
D. 1996-97 School Year This evaluation, prepared by Hernandez, showed compliance in all thirty-five applicable areas, but with a "minus" before the check mark in the area relating to "Compiles and submits all paperwork in a timely manner to the LA's BEST office." In the second section of the evaluation, Hernandez rated her as exceeding standards in eight of the ten areas and meeting standards in the other two. Hernandez' comments regarding her "Overall work performance" were equally positive. One comment dealt directly with an issue he raised the previous year. He said: 3) Continue to implement developmentally appropriate school-age child care programs. When asked if he made a preliminary draft of this evaluation, Hernandez said that he does not recall. He does not keep copies of his preliminary drafts. E. 1997 Hillcrest Parent Survey In October 1997 parents responded to the annual LA's BEST survey about Hillcrest's program. Question 6 asked them to rate "the overall effectiveness of the LA's BEST Program" on a scale of one to five, with five being the highest. Out of thirty-eight relevant responses, twenty-three gave the program a five, one marked the space between five and four, six gave it a four and eight gave it a three. 20
In June 1998, Conner received an evaluation covering the period from March to June, from her new supervisor, Gilberto Samuel (Samuel) . 10 Hernandez was transferred elsewhere in March 1998. In the first section, he rated her as in "Compliance" in all thirty-five categories. In the second section, Samuel told Conner that she F. 1997-98 School Year was above "Meets Standards." However, because he had been her supervisor for such a short time (he made only five previous visits to Hillcrest), he could not rate her as exceeding standards. Therefore, he placed his check marks in between the "Meets Standards" and "Exceeds Standard" in all ten rating boxes. Samuel included the following narrative at the bottom of the evaluation: Ms. Conner provides the student population at Hillcrest with a program that has a wide variety of activities and programs that encourage self selection and student choice which results in positive experience and enriched learning activities for all students at Hillcrest Drive LA's BEST Program. [Emphasis added.] G. 1998 Hillcrest Parent Survey In October 1998, the parents responded to the annual LA's BEST survey about Hillcrest's program. Question 11 of the evaluation asked them to put a check mark in a series of "Yes" or "No" boxes as to whether, as a result of the program, their child had improved in seven specified areas. Of the sixteen parents who responded to this question, thirteen reported that their 10 Samuel had been a LA's BEST TSP for five years prior to having Hillcrest added to his assignment. 21
child had improved in every category, one reported improvement in six of the seven, and two checked "Yes" in only one box. There were no check marks in any of the "No" boxes. Positive comments on the evaluations included: "Keep up the good work;" "Great Program--Parents couldn't survive without it/children depend [on] it too;" "I am very pleased with the L.A. BEST program;" "We appreciate the controle [sic] and motivating qualities this program has to offer our children;" and "Great Program." There were no negative comments. V. LA's BEST's Actions Regarding Conner A. 1996 Sanger/Loxton Hillcrest Visit On June 4, 1996, Sanger and Loxton came to Hillcrest. The evidence was conflicting as to why they came. Sanger said they came because there were concerns about the progrctm expressed by: . a volunteer that we had sent to work there, concerns were expressed by individuals who had observed the program, and concerns were expressed by our staff who were there tosupervise the program. [Ill In his opening argument, LAUSD's counsel stated that Sanger and Loxton met with Conner to discuss the problems Hernandez' noted in Conner's 1995-96 evaluation. 12 As there are two such evaluations in evidence, this statement must be evaluated in light of each of them. 11 Neither the volunteer, nor the "observing individuals" were ever identified. 12 There was no evidence of any direct communication, written or spoken, between Hernandez and either Loxton or Sanger during this time, with regard to this or any other subject. 22
If Hernandez is correct and his final evaluation was signed on Saturday, June 1, he must have sent it to Loxton on Monday, June 3. She read it and forwarded it to Sanger the same day and then the two of them decided to visit Hillcrest the next day. If Conner is correct and Hernandez' evaluation was not signed until June 14, Sanger and Loxton, on June 4, were responding to an evaluation that had not yet been prepared, or at least finalized with Hernandez' signature. While they were there, they just walked around with Conner, observing the program. Sanger reduced her observations to writing. 1. Sanger's Written Observation Sanger's observations, in their textual entirety, are as follows: The children's groups are well organized;snack distribution proceeds orderly and quickly. Several children interviewed reported how much staff care about them; and they generally like the program. Major Concerns: Children can become bored if the same activities are offered repeatedlv. Children's needs often change as their home situation, health, developmental level or perceptions change. To meet the needs of the varied ages, personalities, background and preferences of kids in LA's BEST, it is critical to present a variety of activities and materials every day. There seems to be a reluctance by staff tovary the presentation of activities to children based on the response that "this is what the children want." There seems to be a reluctance by staff to arrange materials in 23
advance so that children have access to a variety of equipment and materials for play. To meet the needs of the varied ages, personalities, background and preferences of kids in LA's BEST, it is critical to present a variety of activities and materials. The amount of discipline required is often directly proportionate to the depth of the program and variety of activities available for the child. More observed interactions between adults and children were about discipline than any other content area-across age gr. [sic] Children and staff need to be able to identify reasons tpr [sic] behaving in ways a teacher thinks is appropriate. What is the reason for single file? What is the reason for no talking? What is the reason for heads down? Do these reasons make sense in the after school environment? Why? There seems to be a lack of understanding by site coordinator that children at Hillcrest come from no greater poverty, no greater dysfunctional families, and have no greater emotional needs than children from other LA's BEST sites. This seems to have been held as an excuse for the need for such tight controls and such limited offerings to the children. Repeated visits of administrative staff have reported few varieties of experiences other than those imposed by LA's BEST administration. [Emphasis in original.] Sanger admitted that she never discussed any of these concerns with Conner and that she never went to Hillcrest to investigate the answers to any of her questions. She described these questions as "a talk piece for, . Operations staff about how to approach the issues that were of concern." She states that she relies on her operations staff for the answers to those questions. 24
B. July 1996 Letter from Sanger to Conner On July 26, 1996, shortly after Conner resigned her Hillcrest UTLA chair, in response to her request for a new 1995-96 evaluation, Sanger, Loxton and Hernandez wrote her a letter. They said that she would receive a reevaluation of her program, based on longer and more in-depth observations. They also stated: Your work has been indeed valuable to the children of LA's BEST and as said in our meeting of July 25, no one finds fault with your efforts. You have probably given as many hours to supporting this program as any of the LA's BEST staff. She was also told that LA's BEST board members, supervisors, activities consultants and administrative staff would be regularly observing her program. However, there were no additional observers during that school year; nor was there another evaluation of the program until the one regularly scheduled for June 1997. C. Gentry's Contact With LA's BEST Administration In late August or early September 1998, two months after Conner resumed her position as Hillcrest's UTLA chair, Gentry called Loxton and Sanger. She told them that she had "serious concerns" about Conner's program and she "needed for them to come out and take a look at the program." She said that she "elicited their help . II When asked why she made that call, she said: A Because the program had steadily declined, and I had so many complaints I had some serious concerns about the safety of the 25
children and the fact that they need to have a variety of activities because of the low test scores. ADMINISTRATIVE LAW JUDGE LINK: The test scores had to do with -- their academic test scores connected with Hillcrest. But there are no scores connected with LA 1 s BEST, are there? THE WITNESS: No, this had to do with them having activities that would enhance their (Hillcrest) test scores. [Emphasis added.] D. September 1, 1998, Meeting of Gentry, Sanger and Loxton On September 1, 1998, Gentry met with Loxton and Sanger13 in her Hillcrest office. Gentry insists that even though the meeting was about Hillcrest's LA's BEST program, "we discussed the program, not particularly Carol Conner as a person, but the program. 11 On this subject she was asked: Q Did you mention Carol Conner's name in the entire meeting" A I didn't. I don't know whether they did, I don't remember. We talked about the program, how it was being run, but not about Carol Conner. [14i Later that same day, Loxton called Conner and told her that Gentry had called, stating she (Gentry) was concerned with the 13 Sanger, even after repeated questioning by UTLA's attorney, stated that did she not remember meeting with Gentry at Hillcrest. She stated that the meeting on September 17 was the first time she remembered meeting with Gentry and Loxton. 14Gentry also said Sanger came to her Hillcrest off ice in September 1996 to discuss concerns she had about the effectiveness and quality of Conner's program. Gentry said that Sanger told her that if the program did not improve she was going to replace Conner. 26
depth of the program. Loxton said they were going to send the director of staff development, Eric Gurowitz (Gurowitz), to observe her program. Conner told Loxton that she needed support from LA's BEST administration. Loxton said she was giving that support by letting her (Conner) know about Gentry's concerns. Conner told Loxton that LA's BEST should not be getting involved in the (UTLA) conflicts she was having with Gentry. Loxton said they were already involved. Conner stated that Loxton suggested she apply for another job with LA's BEST. Conner declined to do so. Loxton did not remember any discussion about another position. Sanger stated that she sent Gurowitz to Hillcrest because she was getting verbal reports that were in conflict with the written evaluations Conner was receiving. There was no testimony or documentary evidence proffered regarding anyone, other than Gentry, communicating with Sanger about the Hillcrest program. 1. Gurowitz' Hillcrest Visits Pursuant to Sanger's direction, Gurowitz paid three visits to Hillcrest in September, the first of which was the day after the Sanger/Loxton/Gentry meeting. With regard to these visits, he testified that he felt the program lacked variety. The cover letter to Sanger and Loxton that accompanied his site visit, in pertinent part, is as follows: Overall, this site lacks theprogrammatic depth that characterizes otherLA's BEST sites. Children are well behaved and generally well supervised, but there is very little academic reinforcement. Additionally, there is not much evidence of 27
programming that focuses on building cognitive skills, boosting self esteem, or developing critical thinking. It strikes me that the expectations of the children's abilities to focus and develop are too low. I want to emphasize that I spent a total of about six hours at the site, and my observations are mostly anecdotal. I would be happy to provide a more detailed and comprehensive analysis if needed. He was not asked to provide any additional analysis. Conner was given neither his cover memorandum nor any of his three written site observations until after she was terminated--and then only as a result of UTLA making a demand for them. E. September Meeting of Gentry/Sanger/Loxton/Conner Gentry asked Conner to attend a September 17 meeting with her, Sanger and Loxton. The meeting took place at Hillcrest, at 11 a.m., during a school day. Gentry had someone cover Conner's classes. Norm Saatjian (Saatjian), a UTLA representative, also attended the meeting on Conner's behalf. At the meeting, Gentry15 told Conner that she called the meeting because she had "concerns" about the program which she felt used to be good, but was now declining. Gentry also said it used to offer more programs. Conner asked what programs had been deleted. Gentry said, "sewing." Conner stated that sewing had been offered only for a brief period, but not for six years. Sanger said that her written observations after her 1996 visit (1) the program was too structured; (2) the were still valid: 15At this meeting no one objected to Gentry's being involved in a meeting with Conner in a role as a supervisor or an evaluator. 28
homework room was too quiet; and (3) the children should be allowed to lay on the floor. Loxton testified that Conner was told of three problems: (1) lack of quality--too much lag time; (2) lack of depth; and (3) a "certain harshness" from the staff when speaking to the students. Sanger believed that these problems had existed since at least June 1996, when she visited Hillcrest's program and wrote her memorandum about it. Most of the discussion at this meeting was vague, but there were a few specific topics discussed. Sanger criticized the program's drill team leader and said she should be fired. She also told Conner that her entire staff had to attend a LA's BEST staff all-day development meeting on the following Saturday. Saatjian asked them to put their complaints in writing. Sanger said they did not have to provide such a document and they were not going to do so. Sanger claimed she told Conner that she was on probation. In fact, in her testimony, Sanger called it a "probationary status" meeting. Sanger even went so far as to explain that certain "expectations" had been communicated to Conner prior to that meeting. There were no details given as to whom, where or when such 11 expectations II had been communicated. Neither Loxton nor Gentry said anything about "expectations" having been communicated at any time prior to this meeting. Conner insists that no statement regarding probation was made at that meeting. Loxton states that Conner was given a month to improve the 29
quality of the program. Conner denies such a statement was made. Sanger admits she did not give Conner a probation form, even though LA's BEST has such a form. This form explains to the employee the supervisor's areas of concern and/or noncompliance. It also clearly puts the employee on notice that "failure to comply" or correct the inappropriate action, "will result in the immediate termination" of his/her employment. Loxton admits she told Conner that if she would leave Hillcrest, she (Loxton) would find something for her within LA's BEST. Conner was not willing to leave. F. Post-meeting Changes in Hillcrest's Program After the meeting, Conner attempted to follow Sanger 1 s directions. She spoke to her staff about being less structured, letting the students talk more, and being more lenient. In addition, the drill team leader was fired. Her staff, with the exception of two people, attended the Saturday meeting. After this September 17 meeting, many of Conner's staff left LA's BEST employment. There was no evidence proffered as to why they terminated such employment. Conner replaced them with teachers and teaching assistants from Hillcrest. 30
G. LA 1 s BEST Increased Scrutiny 1. Gentry After the September 17 meeting, Gentry increased her observation of the program. On September 27, she entered several LA 1 s BEST classrooms and asked the children what they were doing. She had never previously entered those classrooms. 2. Samuel a. Samuel 1 s June to Mid-September Site Visits Conner 1 s TSP, Samuel, states that he began visiting Hillcrest more frequently. During Conner 1 s site coordinator tenure, she received an average of one TSP visit per month. Between the completion of his June 1998 performance evaluation and September 21, Samuel states he prepared and submitted "probably more than ten visitation slips 1116 on which he listed areas of concern and observations on Hillcrest 1 s program. He claimed that he forwarded these slips to Loxton 1 s office, but after receiving a specific UTLA request for them, LA's BEST was unable to produce them. There were some Hillcrest slips produced, but they were prepared by Hernandez and dated from 16A visitation slip is a five by eight inch card on which a TSP inserts "[a]reas of concern, what you observe, any comments, needs." Samuel stated that minor problems are not the subject of visitation slips. These are just discussed with the site coordinator. The slips are used only for major problems. An examination of the fourteen Hillcrest slips entered into evidence, to the contrary, shows that they are used for routine observations. Most of the slips included little more than an acknowledgement of the TSP 1 s noting the various tasks being performed by students and staff while he was at the site. 31
September 21, 1994 to August 12, 1997. Loxton said that "there are some missing cards for the period of time that Gilberto Samuel supervised the site." Samuel did not prepare an evaluation using these visitation slips. This was strictly a period of observation. Samuel states that these written visitation slips were supposed to be attached to his evaluation. The evidence is unclear as to which evaluation he was referring, the annual one he prepared in June 1998 or the Site Evaluation Report he prepared in October. b. Samuel's September 21 to October 21 Visits Samuel claimed that from September 21 to October 21 he visited Hillcrest three times per week and on each visit stayed from 3:00 to at least 6:00 p.m., the complete duration of each day's program. As there are twenty-three school days during this period, he had to have spent 13 or 14 three-hour periods at Hillcrest. He contends the LA's BEST activities consultant assigned to him, Karen James (James) accompanied him" [b]etween four and five times. 1117 He also states that he spoke to Conner at the end of each visit. c. Conner's Recollection of Visit Frequency Conner does not believe Samuel was at Hillcrest anywhere near that amount of time. Conner remembers his visiting Hillcrest only three times between September 17 and her 17James said she went to Hillcrest once or twice by herself and twice with Samuel. 32
termination. The first visit lasted approximately one hour and consisted of his waiting for, speaking to, and terminating the drill team leader. The second was in early October. He spent a little less than an hour on campus that time. On his third trip, Samuel was joined by James. They spent approximately twenty minutes on campus. d. Williams Recollection of Visit Frequency Hillcrest LA's BEST staffer Elnora Williams (Williams) only recalls Samuel visiting once or twice during this period, and staying "about 30 minutes or so." She was a classroom teacher for LA's BEST, so from her classroom she would not have been in a position to observe all visitors to the site. However, if he spent thirteen or fourteen three-hour periods at Hillcrest, it is difficult to believe that Williams and the rest of the staff would not have been aware of his presence. e. Samuel's Site Evaluation Report After his September/October visits, Samuel wrote a Site Evaluation Report based on his visits. In that report he listed (1) areas of concern, (2) observations, (3) suggestions, and (4) recommendations. His areas of concern are * Too much death (sic) time in between activities. * Too many fights during LA' s BEST PROGRAM. r18 1 * Lack of communication between program staff and site coordinator. 18Al though they disagree as to frequency, both Samuel and Conner admit that fights do occur on school, and therefore, LA's BEST, campuses. 33
* Lack of interaction between some staff member [sic] and students. * Students to staff ratio. * Differences in program objectives. Samuel, in his "Observations" section, described examples of each of his areas of concern. In addition, he said that the "staff seems to lack organization or/and lacks motivation." In this section, he commented favorably on Conner having implemented his recommendation to replace 60 to 70 percent of her staff. He also stated the majority of the staff complied with his request to increase their interaction with the students. However, he also stated that he recommended Hillcrest's staff visit other LA's BEST sites and that Conner disagreed, citing lack of transportation and believing that she could do a better job of training her own staff. The last paragraph of his "suggestions" section is as follows: The T.P.S. asked the site coordinator, Ms. Conner, to put a side [sic] her personal objectives on the best strategies of implementation to manage the LA's BEST PROGRAM from an administrator perspective and she was advised to adhere to the already established program goals and objectives that has [sic] used, by the current LA's BEST administrators. In the opinion of the T.P.S. changes are necessary at Hillcrest LA's BEST PROGRAM in order for the program to close the gap which exist [sic] between the site and other programs. It is the T.S.P. opinion that the difference in strategies of implementation that exist between the site coordinator, Ms. Conner and the LA's BEST administrators is the major source of the problem that Hillcrest program is having. [Emphasis added.] 34
When testifying in the formal hearing, Samuel did not explain what he meant by "difference in strategies of implementation that exist." His recommendations were: It is the T.P.S. opinion that if the site coordinator does not changes [sic] her strategy views of the program implementation, the Hillcrest LA's BEST PROGRAM would continue to have the same problem. The LA's BEST administration should consider otherpossible solutions, should Ms. Corner [sic] decides [sic] to stay with her current program objectives. Program administrator may want to consider naming a co- coordinator/replacing Ms. Conner with a new site coordinator or any other possible solutions that comes out of a meeting betweenLA's BEST program administrators and school's principal. [Emphasis added.] Samuel did not explain what Conner's "current program objectives" were. Nor did he explain, if the ultimate object was to improve Hillcrest's program, why Conner would not have been an essential participant in any meeting between LA's BEST and Gentry. f. Conflict Between June and October Reports Samuel was asked why these observations contrasted so sharply with his earlier evaluation. He said that it was because with these observations, he was able to take a more in-depth look at the program, and, therefore, was able to get a better picture of the entire program. 35
g. Loxton's Receipt of Samuel's Report Loxton accepted Samuel's report, but never showed it to Conner or asked her to respond to it. In her testimony in the formal hearing, Loxton admitted she did not know how many days Samuel spent at Hillcrest, or the length of each visit. She also admits she never gave Samuel's report to Conner until after she was terminated, and then only after UTLA requested it. 3. James James said she observed Hillcrest's LA's BEST program three to four times when Conner was the site coordinator, once or twice by herself and twice with Samuel. When asked to describe problems she observed, she answered: A Too many children assigned to one adult,children fighting with each other and staff not being aware of it. Children needing help with their homework and not being able to get the assistance because there were not enough adults to give them assistance that they needed. Lack of variety of enrichment; attendance, in terms of the numbers that were supposed to be at the site at certain times. Q Of students or of staff? A Students Q You mean, they just didn't have enoug kids? h A Yeah. Both Samuel and Conner told James that Conner's job was in jeopardy. 36
H. Additional LA's BEST Monitoring 1. Staff Documented Observations In addition to these increased site visits, members of Sanger's immediate staff monitored Conner at various District meetings and documented their concerns about her. At a September 26 staff meeting, four employees reported their criticisms of Conner to Sanger. After Sanger added her comments, she, or her assistant, summarized these comments into one report. 19 Sanger insists she did not ask the staff members to prepare and submit these comments about Conner. Rather, she insists, that the staff said that Conner was difficult to work with. When asked who said this she said, "[f]rom staff members at I can't recall exact meetings and times and places." Because of this alleged personality trait, Sanger said there was a reluctance to discuss these improprieties with her face-to-face. Therefore, they all sent their complaints to Sanger. Although the other staff members were not directed to observe Conner, Sanger does admit to asking Berenice Garcia (Garcia), regional recreation director, to observe Conner at an 19 The comments included ( 1) when at tending a staff meeting Conner asked for the name tags for all of her staff, when "In reality two were missing," (2) "Constant talking to staff during speech", (3) "Hillcrest staff making point to speak to presenter after keynote," (4) Conner "closing eyes during individual activity of leadership training. Not on task," (5) "Constantly identifying what she already knew," (6) "Extremely verbal during Bain presentation-not adding new information, rather validating speaker per her experience," (7) "Interaction at level less meaningful than all others observed," and (8) 11 [T]alking to staff and getting parents to pick up children before 6:00 p.m." 37
October 3 science inservice meeting. This admission was made necessary as Garcia states in her report: During the course of the second session, Carla Sanger, CEO and President of LA's BEST, asked that I observe Site Coordinator Carol Conner. Garcia continues with the substance of her Sanger-directed observation, as follows: At the time of the observation, Carol Conner was sitting in the Science Manual Workshopi workshop explaining the contents of the manual and information on planning science fairs. I was instructed to identify the materials/paperwork that Carol Conner was doing while in the workshop. I identified it as Hillcrest's monthly CDD report, and reported this information to Carla Sanger. Carla Sanger's administrative decision was not to interrupt Carol Conner's behavior and document her actions. At this point, I removed myself from the scene. These reports were not part of the regular evaluation process for site coordinators. Among those employees who took notes on Conner for Sanger were Operations Director Anna Rosenberg (Rosenberg), Administrative Assistant Sharon Yarbrough (Yarbrough), Gurowitz, James and Garcia. It was not a regular part of Rosenberg's, Yarbrough's, or Garcia's job to evaluate site coordinators. 2. Conner's Comments Regarding Monitoring Reports a. Name Tags The allegation that she asked for all of her name tags was perceived by Sanger, and her reporting subordinate, as an attempt to cover-up the fact that two staffers were missing. Conner states that she merely went to the sign-in desk and identified 38
herself as being from Hillcrest. She was given all of her school's name tags. She returned two of them, stating that one person was not coming ass/he had to attend a funeral and another had not shown up at the designated time and place for transport to the meeting. Later, it was determined that this absent employee was stopped by the police and had her vehicle impounded due to its expired license registration. b. Paperwork Conner admitted she was doing paperwork, but insisted that other participants were also doing paperwork, reading and completing assignments. No one at the meeting spoke to her about her completing paperwork. VI. Conner's LA's BEST Termination A. November 13, 1998, Meeting On November 13, 1998, Sanger, Loxton and Gentry again met with Conner, who was accompanied by Duffy. The meeting began in Gentry's office, but Duffy pointed out that the prior PERB settlement agreement prohibited Gentry from evaluating Conner's job performance. At that point, the meeting was moved, without Gentry, to Conner's classroom. 20 Loxton told Conner that she would be terminated as of November 20. Sanger, in her testimony, stated that the termination decision was made by herself, Loxton, Samuel, James and Gentry. Loxton told Conner that the wDespite Gentry's testimony that she believed the settlement only applied to mentor teacher evaluations, there is no evidence that Gentry or anyone else objected to her being excluded from this termination meeting. 39
termination decision was based on reports and observations from a variety of LA's BEST personnel. When Duffy asked Loxton to produce this documentation, Loxton refused. Loxton said Conner was an employee-at-will. Conner asked for a letter documenting the things they told her during the meeting. In response to this request, Loxton sent her a November 13, 1998, memo entitled "Notice of Termination of Employment as of 11/20/98." The memo stated that at the September 17 meeting, Conner had been told to improve in the following areas: o Seeing to it that staff understand the goals of LA's BEST by ensuring children's use of a variety of materials, equipment and supplies and the scheduling of a variety of activities for children to selfselect o Demonstrating leadership and staff motivation by, for example, maximizing staff planning time at a staff development day o Identifying and recommending staff for specific content areas to improve the depth of the program Conner insisted that at the September 17 meeting she was not given any of these three directions. The memo further alleged that Conner had not "accomplished what is necessary to make sufficient changes to improve the quality" of the program. For this reason, Loxton wrote: I am in agreement with therecommendations of Hillcrest Drive Principal,your direct supervisor, Gilberto Samual[sic], the director of staff development, EricGurowitz and the President & CEO of LA's 40
BEST, Carla Sanger, that new leadership must be identified to ensure the quality of the program for children at Hillcrest Drive LA's BEST program. [Emphasis added.] Sanger insisted Gentry did not request that she terminate Conner's site coordinator employment. She also stated that she (Sanger) was unaware Conner was a UTLA representative. 1. James James testified that she was aware of one other LA's BEST site coordinator who had been on probation with similar problems. This occurred at one of her assigned schools. In that case, the probation period lasted approximately three semesters. Due to her participation in district-wide staff meetings as an activities consultant, she was aware of other programs throughout the District that were under heightened disciplinary scrutiny. Although her memory of these events was not precise, she believed that this heightened scrutiny lasted approximately three semesters before the issue was resolved by the site coordinator being replaced or the problems being resolved. She spent approximately two and one-half years attending such staff meetings. B. Post Termination Parent Petition When he learned Conner was to be terminated, one of Hillcrest's LA's BEST staff members, William Celestine, Jr., who is also a Hillcrest teacher, circulated a petition among parents protesting her dismissal. Three hundred and one signatures were gathered at the program's sign-out location. Although these signatures were not independently verified, one hundred and 41
twenty-one were accompanied by telephone numbers and forty-six others included addresses, which would facilitate such verification. C. UTLA's Request for Termination Documentation On May 14, 1999, UTLA officials Terry Skotnes and Duffy sent Loxton a request for" [a]ll written materials" from Hillcrest site visits from July 1, 1998 through October 31, 1998 and all "other documents written" by Hillcrest "(staff, parents, students, administrators, etc.) relevant to Ms. Conner's last L.A. BEST Performance Evaluation." The only LA's BEST documents received by UTLA, in response, were three reports: (1) Sanger's June 4, 1996, report, (2) Gurowitz' September 2, 11 and 14, 1998, site visit observations, but not his cover letter, and (3) Samuel's October 1998 site evaluation report. Conner had not seen any of these documents before Loxton produced them for UTLA at the hearing. D. Additional Circumstances in Support of Termination Sanger insists she had long-standing doubts about Conner and her program. She claims she had "concerns" about the program ever since 1996 and that the "program quality" had suff for that long. LAUSD points to an additional series of circumstances that it believes supports LA's BEST's decision to terminate Conner: 42
1. Gentry's 1994-1995 Concerns Gentry said she first began to be concerned about the program in 1994-95. She described her concerns as follows: Q And what was it that you perceived that you considered a decline in the program? A It did not appear to be as well organized. Children were running all over the yard unsupervised. There were many more injuries, parent complaints. That's about it. And the lack of a structured program where they had activities, the lack of a variety of activities in the classroom. ( [Emphasis added.) 2. Sanger's 1997 Concerns Sanger stated that her concerns about the Hillcrest program continued into 1997, but she admitted she did not observe Conner's program that year. Rather, she claimed that her 1997 concern was based on one complaint from one parent. This single complaint focused not on Conner but on one of her teaching assistants. Despite this one complaint, Sanger admitted that in 1997 she knew that parents at Hillcrest generally approved of Conner's performance as site coordinator. 3. Conner's Pattern of Lateness Sanger also claimed that Conner exhibited a "pattern of lateness" in coming to meet and submitt documents. She complained, in particular, that Conner was often late to staff development meetings. However, these meetings took place on school days at 3:30 p.m. at the District headquarters in downtown Los Angeles. Conner did not complete her teaching duties until 3:08 p.m. and 43
then it was a forty to forty-five minute drive to the District office. In addition, it often took up to twenty minutes to find a parking place. 4. Sanger Acknowledgment of Gentry/Conner Conflict Sanger said that Conner told her that she and Gentry did not get along. Sanger advised Conner to go to another school. She did not talk to Gentry about her attitude toward Conner. However, Gentry told Sanger, a long time ago, that she should appoint a co-site coordinator because Conner had emotional problems and was not up to having the responsibility of the job on a full-time basis. E. Explanation of Evaluation/Termination Inconsistencies Loxton admitted she could not account for Conner's termination after such glowing evaluations, offering only that "[m]aybe something changed for her." Sanger, near the end of her testimony, was asked to examine Conner's last four LA's BEST annual performance reports (school years 1994-98) After this examination, she admitted they were exemplary. When asked why Conner's annual evaluations were diamet cally opposed to the evidence she received from her operations staff Sanger answered: THE WITNESS: My explanation is that we had a lot of tightening up to do with our practices and supervision and that we have a staff that has taken corrective actions that, I would agree with you, there look to be inconsistencies; however, I look to June '96 to the evaluation which, by the way, for me represents a shift. 44
I believe that Carol Conner was an exemplary employee until '96, and I believe something changed. I wasn't privy to everything that happened, but I know something changed. And I believe that change, Carol Conner and I have talked about informally, and there was a change. I believe there was a disconnect from what I know to be her background and experience and what was reflected in the program. The program suffered, the program quality as of 1996 was of concern. That concern was not reflected in the evaluations appropriately, and I believe LA's BEST is at fault for that if, in fact, these evaluations were not discussed appropriately with Ms. Conner. THE WITNESS: I am suggesting to you that based on many conversations -- not one, not a few -- from people who have been at the site, there were serious concerns about the quality of the program and what was happening for children. VII. Credibility Determinations A. Hillcrest UTLA/LAUSD Conflicts There is absolutely no doubt, that for an extended period of time, Gentry and Conner were engaged in an ideological, as well as a personal, battle over the manner in which Hillcrest was being run. Conner, on behalf of UTLA in her representation of the employees, was attempting to effect certain changes. Gentry, on behalf of LAUSD, defended the manner in which she was running the school and resisted those changes. A conflict between a school site administrator and a site union chair is hardly an unusual circumstance; however, this 45
particular conflict was taken to extraordinary lengths. In order to make knowledgeable credibility determinations, it is necessary to understand the underlying motivations of the parties. This Gentry/Conner, LAUSD/UTLA conflict manifested itself in a number of incidents. Three of these incidents are discussed below. 1. Frustrated Postal Employee Comment Gentry attempted to use Conner's comment to exact punitive action against her. The Hillcrest faculty lined up behind their respective champions, with six insisting Gentry was right, and 29 supporting Conner. There was insufficient evidence presented at the formal hearing in this case to support a finding as to which side was "correct." However, LAUSD's ultimate action clearly favored Conner. She was reinstated to her Hillcrest teaching position, had six days of sick leave restored, was awarded $2,500, and had Gentry removed from the preparation of any of her future evaluations. There is little doubt that this District action humiliated Gentry. 2. Hillcrest's Alleged Fiscal Improprieties Conner's initiation of a LAUSD investigation into Hillcrest SIP spending provides evidentiary support that the battle between Conner and Gentry was ongoing, even after Gentry was no longer on campus. Although chronologically post-termination, this evidence bears on Gentry's motivation and, therefore, her credibility at the formal hearing in this case. 46
3. Improper Testing Allegations Shortly after Conner initiated the above described investigation, she was accused of giving a state-wide test to her students in an improper manner. Although this accusation was made after Conner's LA's BEST termination, it did occur prior to the formal hearing in this case. Therefore, it has a potential impact on the motivation, and consequently, the credibility of witnesses at the formal hearing in this case. As a result of this accusation, LAUSD decided Conner was to be suspended for ten days, transferred from Hillcrest and given a notice of unsatisfactory acts. It is difficult to understand why a transfer would be a proper response to an improper test-giving allegation, unless LAUSD had an interest in separating her from the other teachers at Hillcrest. The only other reason that comes to mind would be that Gentry, although not physically in charge of Hillcrest, still was able to exert some influence in an attempt to "punish" her antagonist. A transfer from Hillcrest would amount to an ultimate "victory" for Gentry over Conner. As in the first incident, there was insufficient evidence proffered at the formal hearing to support a finding as to whether the charges and punishment were justified. However, once again, it is possible to rely on LAUSD's own actions to provide this justification. After LAUSD completed its case-in-chief, with its witnesses undergoing cross-examination by Conner's attorneys, it withdrew the allegations and negated all proposed 47
punishments. Even if Gentry was not involved in the prosecution or the quantum of the charges, it was undoubtedly irritating for her to see Conner escape punishment for a second time. B. Gentry The evidence presented a series of circumstances in which Gentry's testimony was in conflict with other evidence, both documentary and testimonial. Some of these circumstances are set forth below. 1. Gentry said that she failed to renominate Conner for mentor teacher status, insisting that Conner was ''not that strong a teacher." However, during that same period Conner received an outstanding teacher evaluation and Gentry's vice- principal supported the mentor teacher renomination. This conflict provides an example of lack of credibility on the part of Gentry. 2. Gentry called Sanger and Loxton in September 1998 to complain about Hillcrest's LA 1 s BEST program. At that meeting she insists that they never discussed Conner, only her program. There was no doubt that the two women were antagonists. Gentry would have PERB believe that two months after Conner resumed her UTLA chair, she (Gentry) complained about Conner's program and never discussed Conner herself. This testimony lacks the most basic level of credibility. 3. When asked, in September 1998, why she elicited Sanger and Loxton's help, Gentry explained she "had so many complaints I had some serious concerns about the safety of the 48
children." She also stated that she called for help because the students ''need to have a variety of activities because of the low (Hillcrest) test scores." (a) The persons registering these "many complaints" were never identified, but it is unlikely it was any of the children's parents. They overwhelmingly supported Conner, as evidenced by the 1997 and 1998 parental evaluations and the petition to have her termination overturned. If Gentry's "many complaints" comment had any validity at all, and if they had come from parents, there would have been some negative comments included in those evaluations. In essence, Gentry insists she had "many complaints," but none of these parents said anything negative, even though given two official anonymous opportunities to do so. If the "complaints" were from persons other than parents, they were not identified by either name or category, i.e., teacher, custodian, administrator, neighbor, etc. Gentry's testimony in this regard is not credible. (b) If there was any validity to the "safety of the children" issue, there could have been some justification for a quasi-emergency call to LA's BEST administration for immediate action. However, there was neither statistical nor testimonial evidence proffered at the hearing that Hillcrest was any less safe than any other LA's BEST site. (c) In essence, Gentry is saying that she asked Sanger and Loxton to come to Hillcrest to examine the program, after nine years with Conner at the helm, because it was not 49
providing sufficient assistance to Hillcrest's test scores. This contention is improbable. This evidence dictates a finding that her entire explanation for her call to Sanger and Loxton is insufficiently credible to be given any weight. 4. Gentry said that she was concerned about Conner's program in 1994-95 because "children were running all over the yard unsupervised," "parent complaints" and "many more injuries." The issues of parent complaints and safety have already been discussed. With regard to the "unsupervised" children, this testimony was in direct contradiction to that of Sanger, in 1996, insisted the program was too structured. She deplored Conner's insistence on "single files," having a "no talking" rule, and requiring "heads down. " She also stated that "children's groups are well organized; snack distribution proceeds orderly and quickly." To the extent that Gentry insists Conner was at fault for being too lenient, she is direct conflict with Sanger who insists Conner is at fault for being too structured. These two administrators were the primary architects of Conner's eventual termination. The fact that they express diametrically opposite views as to what she was doing wrong attacks both of their testimonial credibilities, as well as dictates a finding that a serious credibility gap exists with regard to why Conner's LA's BEST employment was terminated. 50
5. Gentry said that Sanger came to her office in September 1996 and said that if the program did not improve she was going to replace Conner. Sanger testified before Gentry. During her testimony she said nothing about having made such a statement. LAUSD's primary defense to the instant charge is that Conner's termination was justified as her program had been deficient for over two years. Therefore, it is inconceivable that both LAUSD'S attorney and Sanger would have forgotten to introduce this alleged 1996 comment into evidence when Sanger was on the stand. Therefore, this unsubstantiated statement by Gentry is not credited and is another example of Gentry's lack of credibility. Summation Due to all of the above, it is found that when Gentry's testimony is in conflict with that of Conner, it is Conner's that will be credited. C. Sanger The evidence presented a series of circumstances in which Sanger's testimony was in conflict with other evidence, both documentary and testimonial. Some of these circumstances are set forth below. 1. When asked why she went to Hillcrest in June 1996 and wrote an observation report, 21 she said concerns were 21 It must be noted that this observation is the only contemporaneous documentation that permits LA's BEST to contend Conner was doing a poor job for twenty-six months prior to her termination. If the objectivity of this document is tainted or discounted, due to Gentry being its genesis, LA's BEST's entire 51
expressed by (1) "a volunteer that we had sent to work there," (2) "individuals who had observed the program," and (3) "staff who were there to supervise the program." The volunteer "who was sent to work there," was never identified. Nor do we know if this person was sent to observe or to work and just happened to comment on whats/he saw. The 11 individuals who had observed the program" were also not identified. Given six days of hearing and the variety of people "observing" Conner and her staff, it is difficult to believe that neither the volunteer nor the "individual observers" were asked to testify or prepare written declarations on such observations. LA's BEST's "staff who were there to supervise the program" consisted of TSP Hernandez who prepared two evaluations of Conner within a week or two of Sanger's visit. If his two evaluations are added together, Hernandez found Conner to (1) be in compliance in everything but attending staff meetings and submitting paperwork on time, (2) "exceed standards" in 6 areas, "meets standards" in 13 areas, and be "below standard" in the area of "Developmentally Appropriate Activities and Programs," and (3) need a wider variety of cognitively appropriate activities. In addition, he added some rather universal statements of what constitutes a good after-school program. "24 months of concerns" argument fails. If this argument fails, the only support for the termination is (1) two months of subjectively documented, potentially serious, failures to conform, and (2) a Sanger-directed surreptitious assembling of "complaints" about Conner. 52
These evaluation(s), in toto, would not seem to call for a personal visit from the CEO of the district-wide program. This would seem to be especially true as Hernandez did not sign one of these evaluations until June 1, four days before Sanger's visit, and the other was not signed until June 14, ten days after her visit. The only other possible supervisory input would have come from Hernandez' visitation slips. However, these slips contained no negative comments about either Conner or the Hillcrest program. There was no evidence of any conversation between Hernandez and either Loxton or Sanger during this period. There was a total lack of evidence in support of "concerns" having been "expressed" by the unidentified "volunteer" or "individuals who had observed." Due to this, plus Hernandez' nonexistent negative documentation, it must be found that Sanger came to Hillcrest for a reason other than the one she expressed. This evidence supports finding a lack of credibility on her part. 2. After Sanger prepared her June 4, 1996, written observations, setting forth various problems she believed Conner was experiencing at Hillcrest, she never discussed her report with Conner, nor was there any evidence that she directed any of her staff to do so. If Conner was terminated, as LA's BEST insists, in an arms length manner, solely because she was an ineffective site coordinator, Sanger, or someone at her direction, should have shown her this observation. s would 53
have enabled her to modify her program to bring it into compliance with LA 1 s BEST 1 s expectations. Sanger justified her inaction by insisting it was just a "talk piece for, . Operations staff" on how to approach the issues. That may be true, but if it was serious enough to be used to support her eventual termination, it was serious enough to be discussed with her. Sanger 1 s failure to show and/or discuss her 1996 observation with Conner conflicts with her contention that Conner was terminated only because of deficiencies in her program. This demonstrates a lack of credibility. 3. Sanger said she sent Gurowitz to Hillcrest because she was getting verbal reports that were in conflict with the written evaluations Conner was receiving. The source of these verbal reports was not identified. There was no evidence proffered regarding anyone other than Gentry communicating with Sanger about the Hillcrest program. As this hearing concerned, to a large extent, Gentry's influence on LA 1 s BEST decision- making procedures, Sanger's failure to either admit that it was Gentry or to otherwise identify who gave her such reports was a crucial omission. This omission is an example of a lack of credibility. 4. Sanger's failure to show and/or to discuss Gurowitz' report with Conner conflicts with her contention that Conner was terminated only because of deficienc sin her program. This is an example of a lack of credibility. 54
5. Sanger 1 s insistence that Conner 1 s program was deficient due to excessive structure was in direct conflict with Gentry 1 s claims that the children were running rampant. (See VII.B.4, p. 50, for a further analysis of this point.) As stated above, these circumstances lend support to a finding that a serious credibility gap exists concerning the reason Conner's LA 1 s BEST employment was terminated. Therefore, this evidence supports finding a lack of credibility on Sanger 1 s part. 6. Sanger claimed that she told Conner at the September 17 meeting that she was on probation. Conner denied such a statement was made. Sanger admitted no probation form was filled out and/or presented to Conner. Sanger even went so far as to describe the meeting as a "probationary status" meeting, which would suggest that Conner had been on probation even prior to this meeting. The only support for this "prior" probationary status was Sanger's statement that certain "expectations" had been communicated to Conner prior to that meeting. The person who communicated such expectations was not identified; nor were the circumstances under which such communication was effected described. Sanger's assertion that specified events occurred with a concomitant failure to provide evidence in support of such assertion, in conjunction with her failure to prepare and transmit an organizational probationary form, support finding a lack of credibility. 55
7. At the September 26 staff meeting, various staff members monitored and reported their observations of Conner 1 s behavior. These reports were compiled and used to support Conner 1 s termination. Sanger insists that she did not ask the staff members to prepare or submit such reports. However, she does admit to asking Garcia to secretly walk over to Conner, look over her shoulder, see what she was doing, and report what she saw to Sanger. Garcia's subsequent report was attached to the other staff reports. It does not take an in-depth examination of these documented staff comments to support a finding that none of them would have initially been made, much less committed to writing, had Sanger not asked for such information. Her denial of directing her staff to make such observations and subsequent reports strongly supports a finding of a lack of credibility on Sanger's part. 8. Sanger initially claimed that her 1996 concerns about the Hillcrest program continued into 1997. However, upon cross-examination it was learned that these concerns were based on one complaint from one parent about one of Conner's teaching assistants. This attempt to use an inc that had little or nothing to do with Conner to perpetuate her own contention that Conner's program was deficient for two prior years, is an example of lack of credibility. 9. Sanger claimed that 11 there were statements that expressed that [Conner] was very difficult to work with." She 56
could not remember who made the statements or when they were made. She used these "statements" to justify the staff members' surreptitious note-taking of Conner's behavior, stating that they were afraid to confront her about her doing paperwork during the meeting. These negative comments, allegedly made by unidentified person(s) with no credible supporting documentation, are in the same genre as the secret Hillcrest volunteer, and the unnamed individual observers. Due to the lack of evidence to support this "difficult to work with" comment, it must be found that Sanger made the statement for a reason other than the one she expressed. This provides one more example of evidence that supports a finding of lack of credibility on the part of Sanger. 10. LAUSD insisted, in its opening statement, throughout the hearing and in its closing brief that it is entirely separate from LA's BEST. In fact, it insists that PERE has no jurisdiction over the matter because of this separateness. However, when discussing Conner's termination, Sanger states that the ultimate decision was made by her, Loxton, Samuel, James and Gentry. If LAUSD had nothing to do with Conner's LA's BEST termination, why is Sanger citing Gentry as being one of the termination decision-makers? In addition, the evidence shows that Gentry told Conner that she (Gentry) called the September 17 meeting because of concerns she had about the program. Sanger acquiesced in Gentry's control of the meeting. If Gentry had nothing to do with a LA's BEST 57
termination, why was Sanger permitting Gentry to call a meeting to discuss her concerns with the LA's BEST program? It is understandable that Gentry would attend, and even be involved, in a peripheral manner. However, permitting her to actually call the meeting to discuss her concerns, is diametrically opposed to LAUSD's contention the two organizations were separate and LAUSD personnel had no influence on LA's BEST's employment policies. These incongruities are examples of a lack of credibility on Sanger's part. Summation Due to all of the above, it is found that when Sanger's testimony is in conflict with that of Conner, it is Conner's that will be credited. D. Loxton The evidence presented a series of conflicts between Loxton's testimony and other evidence, both documentary and testimonial. Some of these conflicts are set forth below. 1. Loxton called Conner shortly after the September 1, 1998, meeting to tell her that Gentry had called about Hillcrest's program. Conner stated that Loxton suggested that she apply for another job with LA's BEST. Loxton states that she does not remember any discussion about another position. Logically, this should have been a very stressful phone call for Loxton. If LAUSD's contentions are correct, Conner was doing a horrible job and Sanger and Loxton were going to have to do something about it. On the other hand, if UTLA's contentions are 58
correct, Gentry was pressuring them to get rid of Conner because she was a UTLA thorn in her side at Hillcrest. In either case, Loxton had to be very aware of what she was saying and the manner in which she said it. If her testimony had been that she did not suggest Conner apply for a different LA 1 s BEST position, it would have been more credible than her statement that she did not remember any discussion about another position. The offering of an alternative LA 1 s BEST position would not be surprising: Loxton admitted that later, at the September 17, 1998, meeting, she told Conner that she would provide such a position, if she (Conner) resigned her Hillcrest position. However, Loxton 1 s testimony that she does not remember whether she even discussed this matter with Conner is not credited. 2. Loxton 1 s failure to show and/or to discuss with Conner the reports from Sanger, Gurowitz, or Samuel directly contradicts her contention that Conner was terminated purely because of deficiencies in her program. This evidence supports a finding of a lack of credibility on the part of Loxton. (See VI.C.2 and 4, pp. 53-54, for further analysis.) 3. LAUSD insisted in its opening statement, throughout the hearing and in its briefs, that it is entirely separate from LA's BEST, and that the District had nothing to do with Conner's termination. In fact, it insists that due to such separateness 1 PERB has no jurisdiction over this matter. However, Loxton's November 13, 1998, "Notice of Termination" letter to Conner stated that, "I am in agreement with the 59
recommendations of Hillcrest Drive Principal, . that new leadership must be identified . " Loxton' s use of Gentry's recommendations to support Conner's dismissal is in conflict with LAUSD's contentions it is not involved in LA's BEST's employment decisions. This is an example of lack of credibility on Loxton's part. 4. When asked about the conflict between Conner's termination and her exemplary 1994-98 evaluations, Loxton stated only that" [m]aybe something changed for her." The LA' s BEST staff spent over two months finding and documenting each and every Conner flaw, both real and perceived. In the face of this effort, testimony that dismisses nine years of employment and four years of documented positive evaluations with such a comment is another example of a lack of credibility on the part of Loxton. Summation Due to all of the above, it is found that when Loxton's testimony is in conflict with that of Conner, it is Conner's that will be credited. E. Hernandez The evidence presented a circumstance in which Hernandez' testimony was internally inconsistent. This circumstance is discussed below. Hernandez' testimony with regard to the two 1995-96 evaluations was confusing, at best, and incredible, at worst. His "final" evaluation was dated earlier than his draft. He 60
insisted that he never gave his draft to Conner, and yet it was that document that she offered into evidence. He affixed his full signature to both evaluations. He insisted that he lowered his evaluation ratings due to his visitation slips. And yet the only chronologically appropriate visitation slips produced by LAUSD, after the completion of Hernandez' testimony, contained comments that proved nothing other than he visited Hillcrest on the specified dates. His failure to return to the stand to explain the absence of negative comments on his visitation slips added to the incongruity of his testimony. This internal inconsistency in Hernandez' testimony supports a finding that it should not be given any credibility. Summation Due to the above example, it is found that when Hernandez' testimony is in conflict with that of Conner, it is Conner's that will be credited. ISSUES 1. Are LAUSD and LA's BEST a single employer, or in the alternative, joint employers? 2. Did LAUSD, through its agent, Gentry, cause Conner to be terminated from her LA's BEST employment because of her protected activities, thereby violating subdivisions (a) or (b) of section 3543.5? 61
CONCLUSIONS OF LAW ISSUE NO. 1 Charging party contends that the operations of LAUSD and LA's BEST are so interwoven, they are a single employer, or in the alternative, they are joint employers. Single Employer In support of its "single employer" argument, it cites Blumfield Theaters (1979) 240 NLRB 206 [100 LRRM 1229], enforced without opinion (9th Cir. 1980) 626 F.2d 865 [106 LRRM 2869]. In that case, the National Labor Relations Board (NLRB) cited Radio & Television Broadcast Technicians Local Union 1264, IBEW v. Broadcast Service of Mobile, Inc. (1965) 380 U.S. 255 [58 LRRM 2545] (Broadcast Service), in which the Supreme Court held that in determining whether enterprises constitute a single employer, the controlling criteria are: ( 1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership. In Hvdrolines, Inc. and TNT Hvdrolines, Inc. and Local 333, United Marine Division, International Longshoreman's Association, AFL-CIO (1991) 305 NLRB 416 [138 LRRM 1363] (Hvdrolines), the NLRB held that No one of the four criteria is controlling nor need all be present to warrant a single- employer finding. The Board has stressed that the first three criteria are more critical than common ownership, with particular emphasis on whether control of labor relations is centralized, as these tend to show "operational integration." [Citation.] "[S] ingle employer status depends on all the circumstances of the case 62
and is characterized by absence of an 'arm's length relationship found among unintegrated companies.' 11 [Citation; fns. omitted.] There is little doubt that LAUSD and LA's BEST's operations have an extensive interrelationship of operations. Some examples of these are: 1. LA's BEST using LAUSD headquarters without paying rent. 2. School principal intricately involved in LA's BEST program. 3. LA's BEST personnel driving LAUSD vehicles, with exempt license plates, even though vehicles purchased with LA's BEST funds. 4. LAUSD performing all bookkeeping functions for LA's BEST, with the exception of one accountant. 5. LAUSD performing all personnel management functions for LA's BEST. 6. No separate new hiring procedures, i.e., no new W-2, fingerprint submission, etc. 7. LA's BEST's use of LAUSD's insurance for all of its operations, other than personnel located in mayor's office. 8. Integrated payroll procedures: a. Use of LAUSD employee numbers as means of identification of LA's BEST employees. b. Disbursal of one W-2 form for moneys earned from both organizations. c. FLSA restrictions applied to total hours worked for both organizations. 63
9. LAUSD site administrator has control over hiring of new employees. 10. LAUSD site administrator has control over such things as soccer rosters and field trip requisitions. 11. LAUSD is LA's BEST'S only client. 12. Requirement that LA's BEST employees adhere to all LAUSD rules and regulations. 13. Common salary structure, including increases. 14. With one exception, all site level supervisory personnel, i.e., site supervisors and TSPs, work for both organizations. With regard to the centralized control of labor relations, the evidence in this case showed that: 1. Each LAUSD site principal has to approve the hiring of any new LA's BEST employee. 2. Gentry called a September 17, 1998, meeting to discuss with Sanger, Loxton and Conner deficiencies she perceived in Hillcrest's LA's BEST program. 3. Gentry was one of the persons that made the decision to terminate Conner's LA's BEST employment. In addition, PERE has issued a decision the relationship between LAUSD and LA's BEST. In Los Angeles Unified School District (1995) PERB Decision No. 1129 (LAUSD (Davis)), the Board held that the principal of Alta Loma Elementary School terminated the LA's BEST employment relationship of an employee at her school. 64
There do not seem to be any issues regarding common management, other than at the site level, which has been described above in the discussion, supra, regarding the centralized control of labor relations criteria. Nor does there seem to be any issue with regard to common ownership as LA's BEST is a private corporation and LAUSD is a public institution. Joint Employers With regard to LAUSD and LA's BEST being held to be joint employers, United Public Employees, Local 790, SEIU, AFL-CIO v. PERB (1989) 213 Cal.App.3d 1119 [262 Cal.Rptr. 158] (United Public Employees, overturned a PERB decision holding that the City and County of San Francisco (City) was the sole employer of specified classified employees working at the San Francisco Community College District (SFCCD). The court held that the City and SFCCD were joint employers of the employees, stating that the . Union will continue to bargain with the District over those matters in which the District exerts authority and control, and with the City over the areas within its purview. The court in United Public Employees described great detail, and relied to a large extent, on the manner in which the City and SFCCD divided the community college's personnel procedures, hiring practices, payroll responsibilities and grievance procedures. Each entity had a clearly defined role that was described and memorialized in written memoranda. 65
In The Regents of the University of California (1999) PERB Order No. Ad-293-H (Regents), on p. 12, the Board held that . applicable case law argues againstgranting the motion to amend on a joint employer theory. As a private nonprofitcorporation USHC falls under the jurisdiction of the National Labor Relations Act (NLRA), even though some interrelationship with UC may exist. (Management Training Corporation (1995) 317 NLRB 1355, 1358, fn. 16 [149 LRRM 1313] .) In continued, at p. 13: Also relevant here is PERB case law holding that PERB will not exercise jurisdiction over entities that do not fall within the definition of employer under HEERA.l 221 Because USHC is a private entity that does not fall within the definition of employer under HEERA. . PERB may not exercise jurisdiction over USHC or its employees. (Fresno Unified School District (1979) PERB Decision No. 82, at p. 5) Subdivision (k) of section 3540.1, defines a "public school employer" or "employer," for purposes of the EERA, as follows: . means the governing board of a school district, a school district, a county board of education, a county superintendent of schools, or a charter school that declared itself a public school employer pursuant to subdivision (b) of Section 47611.5 of theEducation Code. 22HEERA is an acronym for the Higher Education Employer- Employee Relations Act, see Government Code, Title I, Division 4, Chapter 12 (commencing with section 3560 et seq.) 66
Summary In order for PERB to assert jurisdiction over LAUSD and LA's BEST as a single employer, LA's BEST would have to fall within the above definition of an "employer." It meets none of the criteria of such definition. Therefore, PERB cannot assert jurisdiction on a single employer basis. Even as a joint employer, there are difficulties with PERB's asserting jurisdiction. Regents states that PERB cannot assert jurisdiction over a private corporation as it falls outside of EERA's definition of an employer. However, United Public Employees states that it is possible to assert PERB's jurisdiction in a private/public partnership. However, in order to do so there has to be a clearly defined line between the two organizations with regard to labor relations. This line would have to clearly describe the rights and responsibilities of each organization. This would enable PERB to understand what part of LA's BEST's operations fell within the definition of a public school employer and what did not. In the absence of such a line, it is not possible to conclude that PERB may assert jurisdiction over LA's BEST or any zation that does not meet the definition in subdivision (k) of section 3540.1. In the instant case, the labor relations responsibilities of the two organizations have no formal overlap at the institutional level. However, at the site level the LAUSD principal has labor 67
relations responsibilities, i.e., the right to absolute veto over hiring decisions and some undefined input into termination decisions. (See LAUSD (Davis) and Sanger's testimony regarding Gentry's part in LA's BEST's termination of Conner.) However, this interrelationship is insufficient to bring LAUSD and LA's BEST within the scope of the holding in United Public Employee. Due to the above, it is concluded that the two organizations are neither a single nor a joint employer, but are two separate employers. PERB, therefore, has no jurisdiction over LA's BEST. However, this conclusion is not dispositive of the case. LAUSD may be held responsible for the acts of its agents, even though the "harm" occasioned by the employee is incurred outside the ambit of the District's usual authority. Parameters of LAUSD's Responsibility for Gentry's Actions In Rim of the World Unified School District (1986) PERB Order No. Ad-161 (Rim of the World), the Board discussed, at length, whether a school official could be held to have committed an unfair labor practice by filing a lawsuit against school employees. Although the case centered on other issues, the analysis made it clear that an employer could be held liable for its agent(s)' acts that had an effect outside of the parameters of the District. In Inglewood Teachers Assn v. Public Employment Relations Board (1991) 227 Cal.App.3d 767 [278 Cal.Rptr. 228], the District Court of Appeal discussed at length, the same question presented 68
by Rim of the World. Its analysis, although decided on other grounds, clearly assumed that an employer could be held liable for its agent's acts that had an effect outside the parameters of the District. In HS Healthcare, Inc. d/b/a/ Springfield Manner et al. (1989) 295 NLRB 17 [133 LRRM 1105], an employer was found to have called other nursing homes in the area and explained that it had fired a specified employee for union organizing. This action prevented the employee from obtaining employment in this field in the area. The employer was ordered to reinstate the employee with back pay. In International Shipping Association (1990) 297 NLRB 1059 [134 LRRM 1035], an employer was also found to have directed a successor employer to decline to hire specified employees, due to protected activities. The NLRB's order directed the employer to . make them whole for any losses of earnings and other benefits suffered as a result of the discrimination against them from the date of the refusal to employ them in early December 1987 to the date they secure substantially equivalent employment with interest. [Emphasis added.] ISSUE NO. 2: Did LAUSD, through its agent, Gentry, cause Conner to be terminated from her LA's BEST employment, because of her protected activities, thereby violat subdivision (a) or (b) of section 3543.5? PERB has long held that principals are agents of their districts. (See Santa Clara Unified School District (1979) PERB Decision No. 104, California State University (CFA) (1990) PERB Decision No. 793-H.) In this case there would no question of 69
such agency as Gentry was interacting with Sanger's organization in compliance with the duties delegated to her by LAUSD. Applicable Test The Board, in Carlsbad Unified School District (1979) PERB Decision No. 89 (Carlsbad), set forth the following test for alleged violations of an employer's duty regarding discrimination against or interference with employees: 1. A single test shall be applicable in all instances in which violations of section 3543.5(a) are alleged; 2. Where the charging party establishes that the employer's conduct tends to or does result in some harm to employee rights granted under the EERA, a prima facie case shall be deemed to exist; 3. Where the harm to the employees' rights is slight, and the employer offers justification based on operational necessity,the competing interest of the employer and the rights of the employees will be balanced and the charge resolved accordingly; 4. Where the harm is inherently destructive of employee rights, the employer's conduct will be excused only on proof that it was occasioned by circumstances beyond theemployer's control and that no alternative course of action was available; 5. Irrespective of the foregoing, a charge will be sustained where it is shown that the employer would not have engaged thecomplained-of conduct but for an unlawful motivation, purpose or intent. [Emphasis added.] In Novato Unified School District (1982) PERB Decision No. 210 (Novato), the Board set forth the test for retaliation or discrimination in light of the National Labor Relations Board (NLRB) decision in Wright Line, Inc. (1980) 251 NLRB 1083 [105 70
LRRM 1169] enforced in part (1st Cir. 1981) 662 F.2d 899 [108 LRRM 2513] Under Novato, unlawful motivation must be proven in order to find a violation. In both cases, a nexus or connection must be demonstrated between the employer's conduct and the exercise of a protected right, resulting in harm or potential harm to that right. In order to establish a prima facie case, charging party must first prove that the subject employee engaged in protected activity. 23 Next, it must prove that the person(s) who made the decision that resulted in the harm were aware of such protected activity. Proving the existence of unlawful motivation can be difficult. PERB acknowledged that when it stated the following in Carlsbad, at page 11: Unlawful motivation, purpose or intent is essentially a state of mind, a subjective condition generally known only to the charged party. Direct and affirmative proof is not always available or possible. However, following generally accepted legal principles the presence of such unlawful motivation, purpose or intent may be established by inference from the entire record. [Fn. omitted.] In addition, the Board in Novato set forth examples of the types of circumstances to be examined in a determination of 23 Section 3543 grants public school employees: . the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations. 71
whether union animus is present and a motivating factor in the employer's action(s). These circumstances are: (1) the presence of any disparate treatment of charging party; (2) the proximity of time between the participation in protected activity and the adverse action; (3) any inconsistent, contradictory or vague explanation of the employer's action(s); (4) any departure from established procedures or standards; and (5) any inadequate investigation. (See also Baldwin Park Unified School District (1982) PERB Decision No. 221.) Explanatory Comments 1. The facts in this case are both varied and voluminous. In addition, many of the determining issues in this case have already been set forth twice, once in the initial findings of fact, and again in the credibility determinations at the conclusion of those findings. Therefore, when possible in the following analysis, specific events will be incorporated by reference to page and outline designation, rather than by a reiteration of the previous text. 2. In this case, most of the actors are not employees of LAUSD. Irrespective of this employment distinction, if the eventual harm was created by the acts of its agent, the District is still liable for such harm. In examining the types of circumstances set forth in Novato, the purpose of the analysis must be twofold. First it must be determined whether unlawful motivation was the underlying reason for the harm, i.e., Conner's termination. 72
Second, it must be determined whether the District's agent was the source of that unlawful motivation. Each of these elements may be established by inference from the entire record. The District, in its defense, propounds two primary contentions. First, it insists that the two organizations are separate entities and therefore, PERB has no primary jurisdiction over LA's BEST. In this area, it has been concluded it was correct and it prevailed. See holding, supra, i.e., the two organizations were neither a single employer nor joint employers. Its second contention is that Conner's program at Hillcrest was so deficient that LA's BEST, in an arms-length manner, was justified in terminating her employment. It called numerous after-school expert witnesses who provided testimony in support of this contention. UTLA attempted to counter this contention with evidence that such alleged deficiencies were (1) insufficiently documented, (2) very subjective, (3) supported by inconsistent evidence, and (4) manifested for a relatively short period of time. This last deficiency was a crucial element in UTLA's case, in that it contended that Conner's alleged deficiencies did not justify LA's BEST's swift termination. UTLA insists that these four factors, acting in concert, prove that LA's BEST had insufficient justification to terminate Conner in November 1998. It further contends this lack of termination justification supports an inference of unlawful motivation. 73
As Conner was not involved in any protected activities vis- a-vis LA's BEST, UTLA contends that the genesis of such unlawful motivation came from LAUSD's agent, Gentry. It was her unlawful motivation that caused Sanger and her organization to terminate Conner. Analysis There is no doubt that Conner engaged in protect activities. Her tenure as Hillcrest's UTLA chapter chair, the PERB charge she filed, plus the various discussions she had with Gentry on behalf of her fellow teachers provides this element. (See I.A and C, pp. 4-9.) Gentry admitted knowing of Conner's UTLA chair status. She also was aware of the PERB unfair practice charge and its eventual outcome. Therefore, the remaining element is whether Conner's termination was the result of these protected activities. Presence of Disparate Treatment of Charging Party 1. LA's BEST observations and reporting of Conner activities at staff meetings. (See facts and analysis at V.H.1 and 2, pp. 37-39, as well as VII.C.7, pp. 56.) These types of trivial compla s are neither noticed nor reported unless the supervisor requests them. The very fact that they were requested, made and memorialized shows that Conner was treated in a disparate manner. It also is an example of a departure from established procedures. A supervisor using employees to spy on an a fellow employee in order to support a termination is hardly 74
an established personnel practice. This is especially true as the "reportable offenses" were de minimus. This behavior supports an inference of unlawful motivation. 2. Gentry's failure to renominate Conner for mentor teacher status. (See facts and analysis at I.A, pp. 4-7, as well as VII.B.1, p. 48.) This failure to renominate in the face of uncontested evidence to the contrary shows that Conner was treated in a disparate manner. This supports an inference of unlawful motivation. 3. Sanger and Loxton's failure to provide negative program information from Sanger (June 1996), Gurowitz (September 1998), and Samuel (October 1998) to Conner. (See facts and analysis at V.A, pp. 4-7; VII.C.2, pp. 53-54; VII.C.4, p. 54; VII.D.2, p. 59.) This failure to give Conner an opportunity to respond to her critics and thereby improve her program shows that she was treated in a disparate manner. This evidence supports an inference of unlawful motivation. It is also an example of contradictory explanations of the employer's actions, and a departure from established standards and procedures, which provides further support for an inference of unlawful motivation. Proximity of Time Between Protected Activities and Harm 1. Conner's return to the Hillcrest campus after Gentry's aborted attempt to remove her in March 1996 was closely followed by Sanger and Loxton's unexplained visit to Hillcrest in early June 1996. (See facts and analysis at I.A, pp. 4-7; V.A, 75
pp. 22-23; VII.C.l, pp. 51-53.) This provides evidence of the short proximity of time between Conner's participation in protected activity and the adverse action. This evidence provides support for an inference of unlawful motivation. 2. In 1994-95 there was little or no evidence of conflict between Conner and Gentry and her evaluation was outstanding. At the end of 1995-96, shortly after she was returned to her classroom after the "postal employee comment," she received two evaluations. The first was somewhat lower than that of the prior year, the second was markedly lower. Hernandez' explanation for the existence of two evaluations was not credited. (See facts and analysis at IV.B, pp. 16-19; VII.E, pp. 60-61.) This evidence provides evidence of the proximity of time between the participation in protected activity and the adverse action. It also provides evidence of an inconsistent explanation of the employer's actions, and a departure from established standards and procedures. This evidence provides support for an inference of unlawful motivation. 3. Shortly after Conner's resignation of her Hillcrest UTLA chair became effective, she received a letter from Sanger which included assurances that she would receive a new 1995 96 evaluation and that her work was valuable to the LA's BEST children. The fact that no reevaluation was forthcoming does not negate the effect of this letter. This assurance of support is in direct contradiction to Sanger's testimony that Conner's program was in trouble from 1996 to her termination. (See facts 76
and analysis at V.B, p. 25.) This evidence supports a nexus between the cessation of protected activity and the receipt of a promise of relief from an earlier evaluation. This supports an inference of unlawful motivation. 4. In 1996-97, after her resignation of the Hillcrest UTLA chair, she once again received an unblemished evaluation. More particularly, this evaluation stated that she had cured the only seriously negative comment contained in the 1995-96 evaluation(s), when it stated, "continue to implement developmentally appropriate school-age child care programs." (See facts and analysis at IV.D, p. 20.) This evidence supports a nexus between the proximity in time between the cessation of a protected activity and the receipt of an improved evaluation. This supports an inference of unlawful motivation. Inconsistent, Contradictory or Vague Employer Explanations Additional examples of inconsistent, contradictory or vague employer explanations have been set forth, supra, under disparate treatment (para. 3) and proximity of time (para. 2). 1. When Gentry testified as to why she elicited Sanger and Loxton's help with Conner in 1998, she cited anonymous complaints, safety considerations and Hillcrest's low test scores. Her testimony is contradictory to the weight of the dence produced at the hearing. These comments were unsupported by any other evidence and were found to have had no credibility. (See facts and analysis at V.C, pp. 25-26; and 77
VII.B.3(a) (b) and (c), pp. 48-50.) They support an inference of unlawful motivation. 2. Gentry alleged that she complained in 1994-95 about Conner's program due to unsupervised children, parent complaints and more injuries. These comments were unsupported by any other evidence and were found to have no credibility. More importantly, they were in direct contradiction to Sanger's June, 1996 observations and her (Sanger's) later statements that she found Conner's program too structured. (See facts and analysis at V. A. 1 , pp . 2 3 - 2 4 ; VI . D . l , pp . 4 2 - 4 3 ; VI I . B . 4 , p . 5 0 . ) The inconsistency of Gentry's comments with those of Sanger's constitutes shifting explanations of the employer's actions. This supports an inference of unlawful motivation. 3. Sanger said she sent Gurowitz to Hillcrest because she was getting verbal reports that were in conflict with Conner's evaluations. The only person identified at the hearing that could have made such reports was Gentry. (See facts and analysis at V.D, pp. 26-27; VII.C.3, p. 54.) Her failure to admit it was Gentry or otherwise identify the source of such reports constitutes an inconsistent explanation of the employer's action. This test supports an inference of unlawful motivation. 4. Sanger's testimony that the September 17 meeting with Conner was a "probationary status" meeting was without support from either Loxton, Gentry or other evidence elicited at the hearing. (See facts and analysis at V.E, pp. 28-30; VII.C.6, p. 55.) This testimony constitutes an inconsistent explanation 78
of the employer's actions, which supports an inference of unlawful motivation. 5. Sanger initially claimed her concerns regarding Conner's program continued into 1997. However, the only support for this claim was one complaint from one parent about one teaching assistant. (See facts and analysis at VI.D.l, pp. 42-43; VII.C.8, p. 56.) This unsupported claim constitutes an inconsistent and vague explanation of the employer's actions as well as a departure from established procedures or standards. It also supports an inference of unlawful motivation. 6. Sanger claimed that ''there were statements that Conner was very difficult to work with." She was unable to support this claim with facts regarding when or by whom these statements were made. (See facts and analysis at V.H.l, pp. 37-38; VII.C.9, pp. 56-57.) This claim constitutes an inconsistent and vague explanation of the employer's actions. In addition, both this and the preceding paragraph are violations of the most basic of supervisory practices, i.e., dealing with one's subordinates in an honest and forthright manner. This behavior on the part of a supervisor also constitutes a departure from established procedures and standards. It also supports an inference of unlawful motivation. 7. Sanger's admission that Gentry was a part of the termination decision-making process is in direct contradiction to LAUSD's entire defense theory, i.e., neither LAUSD, nor its administrators, have any responsibilities for LA's BEST 79
employment decisions. This admission constitutes an inconsistent explanation of the employer's actions. (See facts and analysis at VI.A, pp. 39-41; VII.C.10, pp. 57-58.) This admission supports an inference of unlawful motivation. 8. Loxton 1 s November 13, 1998, notice of termination states, inter alia, that she was in agreement with the recommendation of Gentry that Conner should be terminated. (See comments in para. 7, supra, as well as facts and analysis at VII.D.3, pp. 59-60.) This statement supports an inference of unlawful motivation. Departure from Established Procedures or Standards Examples of departures from established procedures or standards have been set forth, supra, under disparate treatment (paras. 1 and 3), proximity of time between protected activities and harm (para. 2), and inconsistent, contradictory or vague employer explanations (paras. 5 and 6). Summation LAUSD insists that, as most of the evaluators of Conner 1 s program were unaware of her UTLA affiliation, there could be no unlawful motivation on their part. This argument misses the point. Gentry was in a battle with Conner. She attempted to get her removed from Hillcrest after the "postal" comment incident. She was unable to do so and suffered the additional humiliation of LAUSD's actually paying Conner $2,500 in settlement of the incident. 80
In 1998, Gentry called Sanger and Loxton and had them come out. There was no credible documentary or testimonial justification for this call. She elicited their help--not to improve the program, but to get rid of Conner. They agreed and began to inundate Conner with evaluations and surreptitious observations by fellow employees. They were faced with a problem regarding timing. In her uncontradicted testimony, James stated that when a LA's BEST site coordinator is in trouble it takes approximately three semesters before a termination occurs. In this case, Sanger and Loxton needed to retroactively create these three semesters. They initially used Sanger's June 1996 comments. However, an inconsistency diminished the impact of this report. If the comments in this report were so damning why were they not shared with Conner? Their attempt to create "two years of concerns" over Conner's program was a failure. Even her two evaluations from Hernandez were not sufficiently negative to support their "two years of concerns" theory. The 1997 and 1998 parent evaluations provided additional contrary evidence to this theory. Although it occurred after the termination, the three hundred and one petition signatures to restore Conner to her position added additional evidence the "two years of concerns" theory had little support in the community. In a attempt to support their "two years of concerns" theory, as well as the ultimate termination, they resorted to (1) unidentified (a) volunteers, (b) individuals who expressed 81
concerns, (c) (parental) complaints, (2) undocumented safety issues, (3) unsupported allegations that she was difficult to work with, (4) alleged patterns of lateness, (5) and a series of supervisor-inspired 11 observations 11 by fellow employees at staff meetings. Even if Conner's program was deficient in some manner, the very fact that Sanger and Loxton terminated her fifty-seven days after first putting her on notice of such deficiencies, clearly supports a conclusion their actions were not the result of a routine, arms-length personnel decision. An examination of the record, as a whole, dictates a conclusion that the subject termination was the result of unlawful motivation. It is also clear that this motivation came from Gentry, who convinced Sanger to terminate Conner, due to her protected activities at Hillcrest. Therefore, it is concluded that LAUSD is responsible for Conner's termination from her position with LA's BEST. This action constitutes a violation of subdivision (a) of section 3543.5. Subdivision (b) of Section 3543.5 Violation To establish a violation of subdivision (b) of section 3543.5 the union must establish a denial of its rights separate and apart from the involved employee. The union has a protected right to elect site leaders and have them communicate with their fellow employees. If one of these site leaders is subject to discrimination, in any manner, it thwarts the union's ability to have employees voluntarily step into leadership roles and communicate with its members. This 82
discrimination against one of its leaders constitutes a violation of subdivision (b) of section 3543.5. SUMMARY Based on all of the foregoing, it is concluded that LAUSD violated subdivisions (a) and (b) of section 3543.5 when it caused Conner to be terminated from her employment as a site coordinator at LA's BEST. REMEDY The PERB, in section 3541.5, is given: .the power to issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter. In order to remedy the unfair practice of the District and prevent it from benefitting from its unfair labor practices, and to effectuate the purposes of the Act, it is appropriate to order the District to (1) use its good offices to attempt to cause LA's BEST to reinstate Conner to her position as Hillcrest's site coordinator and (2) cease and desist from denying UTLA rights guaranteed to it by the Act. It is also appropriate that Conner be made whole by receiving any salary lost as a result of her unlawful termination. Such retroactive salary award shall include interest at the rate of 7 percent per annum. She should also be made whole for any ancillary losses, such as benefits, seni ty credit(s), leave credit(s) and reasonably expected overtime 83
salary opportunities, for example, that she would have received, but for the District's unlawful actions. Should LAUSD not be able to prevail upon LA's BEST to reinstate Conner to her previous Hillcrest site coordinator position, or a comparable position acceptable to Conner, LAUSD will continue pay to Conner an amount equal to what she would have earned had she not been unlawfully terminated. These payments shall continue until either LA's BEST or any successor organization ceases to exist, Conner terminates her employment relationship with LAUSD, or she secures substantially equivalent employment. It is also appropriate that the District be required to post a notice incorporating the terms of this order at all District sites where notices are customarily placed for certificated employees. The notice should be subscribed by an authorized agent of the District, indicating that it will comply with the terms therein. The notice shall not be reduced in size, defaced, altered, or covered by any other material. Posting such a notice will provide employees with notice the District has acted in an unlawful manner and is being required to cease and desist from this activity. It effectuates the purposes of the Act that employees be informed of the resolution of the controversy and will announce the District's readiness to comply with the ordered remedy. (See Placerville Union School District (1978) PERB Decision No. 69.) In Pandol and Sons v. Agricultural Labor Relations Board (1979) 98 Cal.App.3d 580, 587 [159 Cal.Rptr. 584] 84
the California District Court of Appeals approved a similar posting requirement. (See also National Labor Relations Board v. Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM 415) .) PROPOSED ORDER Based on the foregoing findings of fact, conclusions of law, and the entire record in this case, it is found that the Los Angeles Unified School District (District) violated subdivision (a) and (b) of section 3543.5 of the Educational Employment Relations Act (Act). Therefore, it is hereby ORDERED that the District, its administrators, and representatives shall: A. CEASE AND DESIST FROM: 1. Influencing LA's BEST to terminate Carol Conner (Conner), its site coordinator at Hillcrest Elementary School (Hillcrest). 2. Denying to the United Teachers of Los Angeles (UTLA) the right to communicate with its members through its elected officials, without fear of retaliation. B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE ACT: 1. Using its good offices to attempt to cause LA's BEST to reinstate Conner to her position as llcrest's site coordinator. 2. Pay to Conner, upon demand, the salary she lost as a result of her unlawful termination. Such retroactive salary award shall include interest at the rate of 7 percent per annum. 3. Make Conner whole, upon demand, for any other losses, such as benefits, seniority credit(s), leave credit (s) 85
for example, and reasonably expected overtime salary opportunities she may have suffered as a result of the District's unlawful action. 4. Pay to Conner, upon demand, should it not be able to prevail upon LA's BEST to reinstate her to her previous Hillcrest site coordinator position, or a comparable position with LA's BEST that is acceptable to Conner, an amount equal to what she would have earned had she not been unlawfully terminated. These payments shall continue until either LA's BEST or any successor organization ceases to exist, Conner terminates her employment relationship with LAUSD, or she secures substantially equivalent employment. 5. Upon issuance of a final decision, make written notification of the actions taken to comply with this Order to the San Francisco Regional Director of the Public Employment Relations Board in accordance with her instructions. Continue to report, in writing, to the regional director thereafter as directed. All reports to the regional director shall be concurrently served on the charging party herein. It is further Ordered that all aspects of the charge and complaint are hereby DISMISSED. Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision and Order shall become final unless a party files a statement of exceptions with the Board itself at the headquarters office in Sacramento within twenty days of service of this Decision. the Board's address is: 86
Public Employment Relations Board Attention: Appeals Assistant 1031 18th Street Sacramento, CA 95814-4174 FAX: (916) 327-7960 In accordance with PERB regulations, the statement of exceptions should identify by page citation or exhibit number the portions of the record, if any relied upon for such exceptions. (Cal. Code Regs., tit. 8, sec. 32300.) A document is considered "filed" when actually received before the close of business (5 p.m.) on the last day set for filing or when mailed by certified or Express United states mail, as shown on the postal receipt or postmark, or delivered to a common carrier promising overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing. (Cal. Code Reg., tit. 8, sec. 32135(a); see also Cal. Code Regs., tit. 8, sec. 32130.) A document is also considered "filed" when received by facsimile transmission before the close of business on the last day for filing, together with a Facsimile Transmission Cover Sheet which meets the requirements of Cal. Code Regs., tit. 8, sec. 32135(d), provided the filing party also placed the original, together with the red number of copies and of service, in the U.S. mail. (Cal. Code Regs., tit. 8, secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.) 87
Any statement of exceptions and supporting brief must be served concurrently with its filing upon each party to this proceeding. Proof of service shall accompany each copy served on a party or filed with the Board itself. (See Cal. Code Regs., tit . 8 , secs . 3 2 3 0 0 , 3 2 3 0 5 , 3 214 0 , and 3 213 5 ( c) . ) 88 Administrative Law Judge
3 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALIFORNIA |.
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS OF LOS ANGELES,
Charging Party, Case No. LA-CE-4066-E
V. PERB Decision No. 1469
LOS ANGELES UNIFIED SCHOOL DISTRICT, November 29, 2001
Respondent.
Appearances: Geffner & Bush by Steven K. Ury, Attorney, for United Teachers of
Los Angeles; Office of the General Counsel by Gregory L. McNair, Attorney, for Los Angeles
Unified School District.
Before Amador, Baker and Whitehead, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Los Angeles Unified School District (District) to the
proposed decision (attached) of a PERB administrative law judge (ALJ). The ALJ found that
the District violated section 3543.5 (a) and (b) the Educational Employment Relations Act
(EERA)! by causing Carol Conner (Conner), an employee of LA's BEST,’ to be terminated
from her employment because of her protected activities.
' EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code. Section 3543.5
provides, in pertinent part:
It shall be unlawful for a public school employer to do any of the
following:
After reviewing the entire record in this matter, including the ALJ's proposed decision,
the statement of exceptions filed by the District, the response filed by the United Teachers of
Los Angeles (UTLA), the hearing transcript and exhibits, and the briefs of the parties, the
Board hereby affirms the ALJ's proposed decision and adopts it as the decision of the Board
itself. 3 The Board writes separately to address the District's exceptions to the remedy and the
allegation that ALJ Al Link (Link) was biased.
DISCUSSION
Included in the District's exceptions to the proposed decision of the ALJ is an exception
to the proposed remedy and an allegation that the ALJ was biased against the District.
EXCEPTIONS TO THE REMEDY
The District argues that the proposed decision's award requires "a public school
employer to pay the employee of a private entity back pay and future pay until the employee
decides she wants to work for the private employer." The District argues that the award is
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise ofrights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
2 LA's BEST is an after school enrichment program for certain District students. BEST
is an acronym for Better Educated Students for Tomorrow.
3 The ALJ found that the District and LA's BEST are neither a single nor a joint
employer, but are two separate employers and that PERB has no jurisdiction over LA's BEST.
(Proposed Dec., pp. 62-68.) This conclusion of law was not excepted to by either party
therefore that portion of the decision is not before the Board and is not a part of the Board's
decision in this case.
2
therefore excessive, speculative, punitive, and would require the District to make a gift of
public funds. The District urges that if any remedy should be imposed, it should be limited to
a cease and desist order. The District also suggests that the postingorder is inappropriate.
Gift of Public Funds
The District argues "[t]here is no evidence that Ms. Conner would have kept her job as
a Site Coordinator for any material length of time beyond the date she was terminated." The
simple answer is no one will ever know how long she would have worked for LA's BEST
because the District caused her to be terminated. The District placed no evidence in the record
suggesting Conner would not have continued working, therefore the remedy is not speculative
and the District must live with its actions. The District's argument that the remedy calls for a
gift of public funds is made without support and is without merit.
Offer of Employment
The District claims it made an offer of reemployment to Conner the day she was
terminated and Conner turned it down. This claim is made to extinguish the District's liability
for Connor's wages. A review of the PERB hearing transcript reveals that Debe Loxton
(Loxton), then a program director for LA's BEST, testified on direct examination as follows
(questions are by the District's Counsel except as noted):
Q At the November 13 meeting, was Ms. Conner offered a
different position at LA's BEST?
A Yes.
Q What position was she offered?
A It wasn't a position specifically stated, it was that we
would try to make accommodations for her within the LA's BEST
program.
3
Q Was she interested in that?
A No.
ADMINISTRATIVE LAW JUDGE LINK: So she actually
wasn't offered a position, she was offered your good will as far as
trying to get her another position.
THE WITNESS: We said we would find her something within
the organization.
ADMINISTRATIVE LAW JUDGE LINK: You would or you
would try?
THE WITNESS: We would.
ADMINISTRATIVE LAW JUDGE LINK: Okay.
(R.T., vol. II, pp. 163 - 164.)
Further on this point, LA's BEST Chief Executive Officer Carla Sanger (Sanger)
testified that Conner was "advised that there would be other positions if she were interested"
but that "[t]here was not a specific offer of one position." (R.T., vol. III, pp. 160-161.)
Conner's testimony regarding the November 13 meeting appears to indicate she was
only given the choice to resign or be terminated. (R.T., vol. I, p. 147, lines 15-25.) Even
though the ALJ has held that when the testimony of Conner conflicts with either Loxton or
Sanger, Conner's testimony is credited, it is not necessary to make a credibility determination
on this issue. A reading of the testimony of Loxton and Sanger in a light most favorable to the
District does not support the District's assertion that it made an offer of employment to Conner.
Further, following the November 13, 1998 meeting, Conner received a document from
Loxton with a regards line: "Notice of Termination of Employment as of 11/20/98." (Charging
Party Exh. 35.) The notice of termination reflects that at the November 13 meeting Conner
was given the opportunity to resign from her position or be terminated from the LA's BEST
4
assignment she held as site coordinator on November 20, 1998. The notice of termination
states that, "Since you have expressed no interest in resigning, we will expect your last day
with the program will be on November 20th ." While it is not a certainty that a legitimate offer
of continued employment would be reflected in this document if it were actually made, the fact
that it is not reflected in the document, nor anywhere else in writing, is significant. When this
fact is combined with the less than firm testimony of Loxton and Sanger, the Board does not
find an offer of employment was made to Conner by LA's BEST.
Front Pay
Following the finding that an offer of employment was not made, we turn to the
appropriate remedy. Frontpay is a monetary award for loss of anticipated future earnings had
the employee not been subject to unlawful discrimination. There is a large volume of
"frontpay" caselaw which has developed under Title VII, Section 706(g) of the Civil Rights
Act of 1964. The remedial power language of Section 706(g) closely tracks Section 10( c) of
the National Labor Relations Act (NLRA). Section lO(c) authorizes the National Labor
Relations Board (NLRB) to issue an order requiring a respondent who has committed an unfair
labor practice to "cease and desist from such unfair labor practice, and to take such affirmative
action including reinstatement of employees with or without backpay." In applying Section
lO(c), the NLRB had consistently made awards of what it called "backpay" up to the date the
employee was reinstated, even if such event occurred after judgment (citations omitted).
(Pollard v. E.I. du Pont de Nemours & Company (2001) _US_ [121 S.Ct. 1946]
(Pollard).)
The Board's statutory authority under EERA includes the ability to investigate unfair
practice charges and "take any action and make any determinations in respect of these charges
5
or alleged violations as the board deems necessary to effectuate the policies of this chapter."
(EERA sec. 3541.3(i).) This broad remedial power is parallel to the remedial power given to
the NLRB and the remedial power in Title VII of the Civil Rights Act of 1964. For that
reason, reliance on federal precedent regarding "frontpay" emanating from both the NLRA and
Title VII of the Civil Rights Act of 1964 is appropriate. (Fire Fighters Union v. City of Vallejo
(1974) 12 Cal.3d 608,617 [116 Cal.Rptr. 507].)
The standard remedy for a discriminatory discharge is reinstatement. Reinstatement
best effectuates the purposes and policies of the EERA because it restores the status quo prior
to the unlawful action. As an order of reinstatement by the District is not an available remedy
in this case, a frontpay award in lieu ofreinstatement is appropriate. (See Maxfield v. Sinclair
International (3d Cir. 1985) 766 F.2d 788, 796 [38 Fair Empl. Prac. Cas. (BNA) 442].) An
award of frontpay is remedial, not punitive, and is well within the Board's statutory authority.
(See EERA sec. 3541.3(i).) Frontpay is "the salary that an employee would have received had
he or she not been subject to unlawful discrimination of his employer, subject to the
employee's mitigating his or her damages." (Hudson v. Reno (6 th Cir. 1997) 130 F.3d 1193,
1203 [75 Fair Empl. Prac, Cas. (BNA) 1001].) (Abrogated on different grounds by Pollard
(121 S. Ct. 1946).); Downes v. Volkswagen of America, Inc. (ih Cir. 1994); 41 F.3d 1132,
1141 [69 Fair Empl. Prac. Cas. (BNA) 11].)
Duty to Mitigate
The District argues that the proposed remedy calls for the District to pay Conner future
pay and benefits in perpetuity. This argument against the remedy is without merit.
The District's argument fails to consider that implicit in the Board's order in this case is
a duty for Conner to mitigate her damages. In Fresno County Office of Education (1996)
6
PERB Decision No. 1171, the Board adopted the NLRB burden of proof in the mitigation
context. Implicit in the adoption of the NLRB's burden of proof standard is the fact that
mitigation is an element of this Board's orders.
The proposed order in this case, which is adopted as the order of the Board, calls for
payments to continue to Conner until either LA's BEST or a successor organization ceases to
exist, Conner terminates her employment relationship with the District, or "she secures
substantially equivalent employment." While it may be difficult for Connor to find
substantially equivalent employment, Conner has a duty to look for such employment. The
duty to mitigate is the check which prevents the Board's order from becoming a windfall to
Connor. If a controversy arises over mitigation or any other aspect of the remedy, a
compliance proceeding is the proper forum to air the controversy. The District can argue that
its liability should be extinguished and may present facts to support its claim in a compliance
proceeding.
Posting Order
The District argues that the posting requirement is inappropriate because Conner is the
only person affected. While it could be possible to limit the posting to either the Hillcrest site
or to school sites with an LA's BEST program, it is appropriate to post the notice on a unit
wide basis.
If a Board decision does not limit the posting requirement, the notice is to be posted on
a unit-wide basis. (Trustees of the California State University (1988) PERB Order
No. Ad-174-H.) In this case the activity found to be unlawful was the District's retaliation for
an employees' protected activity. Other unit employees and District personnel would naturally
be concerned to know that the employer's actions in this case have been found unlawful.
7
Despite a direct effect on only one employee, the posting provides guidance and canprevent
the recurrence of the prohibited conduct on a unit-wide basis, therefore District wide posting is
appropriate in the context of this multi-campus school district. (See Los Angeles Unified
School District (1988) PERB Decision No. 659; The Regents of the University of California
(1990) PERB Decision No. 826-H.)
ALLEGATION OF BIAS
The District claims that the outcome of the proposed decision and many of the ALJ's
findings were tainted by bias. The District also founds its claim of bias "upon actions taken
and statements made by the ALJ at the hearing which are reflected in the hearing transcript."
(District's exceptions, p. 49.) Specifically, the District objected to three statements by the ALJ
and to the fact that after two and one-half days of hearing, he contacted PERB ALJ, Jim Tamm
(Tamm), the PERB agent that conducted the settlement conference in this case.
First, on the second day of hearing, after hearing from only two witnesses, Conner and
Loxton, Loxton testified to the neutrality of a September 17, 1998 meeting. During the ALJ's
questioning of Loxton, he stated, "I really don't think that was, you know, it was thatneutral in
September." (R.T., vol. II, p. 217, lines 25-26.)
Second, during a question to Sanger, the ALJ said, "All I know is, you know, if there's -
- if the fur is flying, if there's something that isn't right, something that doesn't add up, and this
doesn't add up, then why." (R.T., vol. III; p. 213, lines 18-21.)
Third, while Carole Gentry testified under cross examination, following her response,
the ALJ stated, "I think that answer is incredulous." (R.T., vol. V; p. 73, lines 5-6.)
8
The District claims that the above statements "and other statements in the record"4
clearly reflect the ALJ's bias against the District and LA's BEST.
The Board has held that "unless a judge makes statements indicating a clear
predisposition against a party, no bias or prejudice is established." (Gonzales Union High
School District (1985) PERB Decision No. 480.) As pointed out by UTLA in its response to
the District's statement of exceptions, the District does not offer a shred of evidence showing
the ALJ formed any opinion or conclusion which was not based upon the evidence before him.
None of the above described statements or actions meet the PERB standard for finding bias or
prejudice. Each "opinion" described above was arrived at after or in response to hearing
evidence on the topic.
It appears from the record that ALJ Link contacted ALJ Tamm without notice to either
party. The District characterized this conduct as an "ex parte communication." It appears from
the record that ALJ Link contacted ALJ Tamm to assess ALJ Tamm's availability to continue
settlement discussions. There is no evidence in the record that any other matter was discussed
in this phone conversation. The Board finds this conversation was not a prohibited "ex parte
communication."
ALJ Link informed the parties that it was in all of their interests to settle the case, but
did suggest it was in LA's BEST's interest "primarily" to settle. (R.T., vol. III, pp. 55-64.) As
4While the Board has reviewed the entire record in this matter and did not observe any
statements demonstrating bias, the Board nevertheless declines the District's implicit
suggestion that the Board comb the record for other statements in the record which
demonstrate the ALJ's bias. It is the burden of the excepting party to state specific issues of
procedure, fact, law or rationale to which exception is taken and to adequately identify such.
(PERB Regulation 32300; PERB regs. are found at Cal. Code Regs., tit. 8, sec. 31001 et seq.
and available on PERB's Web site at www.perb.ca.gov.)
9
the Board properly urges voluntary settlements that are in the best interests of EERA , the
Board does not find ALJ Link's urging the parties, and LA's BEST, to settle is an indicator of
bias or prejudice.
The dissent in this case appears to be based upon the mistaken premise that the Board's
decision has extended the Board's jurisdiction to cover the actions of LA's BEST or employees
of LA's BEST. It does not. This is a case where the District has retaliated against its own
employee. The District is clearly an employer within the Board's jurisdiction and Conner is
clearly an employee within that jurisdiction. The ALJ cited, and the Board agrees with, the
ample authority supporting the proposition that an employer can be held liable for its agent's
acts that have an effect outside of the District. (Rim of the World Unified School District
(1986) PERB Order No. Ad-161, Inglewood Teachers Assn. v. Public Employment Relations
Bd. (1991) 227 Cal.App.3d 767 [278 Cal.Rptr. 228]; see also, Springfield Manner (1989)
295 NLRB 17 [133 LRRM 1105]; International Shipping Assn. (1990) 297 NLRB 1059 [134
LRRM 1035].
ORDER
It is found that the Los Angeles Unified School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5(a) and (b)
by causing Carol Conner (Conner) to be terminated from her employment as a site coordinator
at the District's Better Educated Students for Tomorrow (LA's Best) program.
Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. CEASE AND DESIST FROM:
1.
Influencing LA's BEST to terminate Conner, its site coordinator, at
Hillcrest Elementary School (Hillcrest).
2. Denying to the United Teachers
of
Los Angeles (UTLA) the right to
communicate with its members through its elected officials, without fear
of
retaliation.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE THE POLICIES OF THE EERA:
1.
Using its good offices to attempt to cause LA's BEST to reinstate Conner
to her position as Hillcrest's site coordinator.
2. Pay to Conner, upon demand, the salary she lost as a result
of
her
unlawful termination. Such retroactive salary award shall include interest at the rate
of
7
percent per annum.
3. Make Conner whole, upon demand, for any other losses, such as
benefits, seniority credit(s), leave credit(s) for example, and reasonably expected overtime
salary opportunities she may have suffered as a result
of
the District's unlawful action.
4. Pay to Conner, upon demand, should it not be able to prevail
upon
LA's
BEST to reinstate her to her previous Hillcrest site coordinator position, or a comparable
position with LA's BEST that is acceptable to Conner, an amount equal to what she
would
have earned had she not been unlawfully terminated. These payments shall continue
until
either LA's BEST or any successor organization ceases to exist, Conner terminates her
employment relationship with the District, or she secures substantially equivalent employment.
5. Within ten (10) workdays
of
this decision becoming final, post at all
work locations where notices to bargaining unit members customarily are posted, copies
of
the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
11
the District, indicating that the District will comply with the terms
of
this Order. Such posting
shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
6.
Make written notification
of
the actions taken to comply with this Order
to the San Francisco Regional Director
of
the Public Employment Relations Board in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on UTLA.
It is further Ordered that all remaining aspects
of
the charge and complaint are hereby
DISMISSED.
Member Whitehead joined in this Decision.
Member Amador's dissent begins on page 13.
12
AMADOR, Member, dissenting: I respectfully dissent from the majority's holding that
the Los Angeles Unified School District (District) violated the Educational Employment
Relations Act (EERA) by "influencing" LA's BEST to terminate Carol Conner (Conner).
I would dismiss this unfair practice charge on any one
of
several grounds. First, the
charge challenges conduct
of
a third-party employer, LA's BEST, an entity which, as the
administrative law judge found, is outside the reach
of
the Public Employment Relations
Board's (PERB or Board) jurisdiction. No exceptions were filed to this finding.
Second, Conner, as an employee
of
LA's BEST, is not an "employee" eligible for
protection under EERA section 3540.l(i) or 3543.S(a).1
Third, Conner arguably lacks standing to file an unfair practice charge, since
in
order
for a person to have standing to file an unfair practice charge, that person must have been an
employee at the time the unfair practice occurred. A person's status as an employee is to be
examined at the time that the alleged unlawful conduct occurred. (California Union
of
Safety
Employees (Trevisanut) (1993) PERB Decision No. 1029-S, at p. 9.) (See also, Fremont
1 EERA section 3540. l(j) states:
(i) "Public school employee" or "employee" means any person
employed by any public school employer except persons elected
by popular vote, persons appointed by the Governor
of
this state,
management employees, and confidential employees.
EERA section 3543.S(a) states, in pertinent part:
It shall be unlawful for a public school employer to do any
of
the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
13
Union High School District (1987) PERB Decision No. 651; district teachers were not
employees under the EERA while they were working as summer school teachers for a separate
entity (the University
of
LaVerne), even though they were using district facilities and materials
and teaching district students, as the teachers received compensation from, were considered for
employment and selected by, and were supervised by La Verne, not the district.)
Fourth, I would dismiss this charge on the grounds that United Teachers
of
Los Angeles
has failed to prove a prima facie case
of
retaliation. Here, the adverse action is the allegedly
unlawful termination
of
Conner, an LA's BEST employee,
by
LA's BEST. It was not the
District that terminated Conner; in fact, there is no evidence to indicate that the District
had
the
legal power or authority to terminate any person's employment with LA's BEST, any
more
than the District would have the power to terminate any type
of
outside employment
of
a
District employee. As an example, I am confident that the Board would not hesitate to dismiss
an unfair practice charge which asserted that "the District got me fired from my part-time job
at Macy's." Even
if
the facts clearly showed that the District actually "influenced" Macy's to
terminate an employee, the charge would be promptly dismissed because the cause
of
action
does not lie under the EERA. Clearly, the Board lacks jurisdiction over Macy's, an entity that
does not meet the statutory definition
of
"public school employer." Furthermore, such a charge
would be dismissed because it failed to identify an adverse action committed against a public
school employee by a public school employer. The status
of
LA's BEST in the instant unfair
practice charge is akin to that
of
Macy's in this example, and dismissal is appropriate.
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
14
As a final note, a reading
of
the remedy gives an indication
of
the difficulty in righting
an alleged wrong perpetrated
by
an entity outside the scope
of
the Board's statutory
jurisdiction. The Board lacks the power to make Conner whole because the District lacks the
power to compel LA's BEST to undo the termination. Because
of
this fact, the Board can only
seek to compel a third party employer to do something
by
using the District as a tool. In
fashioning a remedy, the Board is forced to resort to somewhat awkward phrasing because
of
the limitations on its remedial power in this fact pattern. For example, the order requires the
District to "cease and desist from influencing LA's BEST to terminate Carol Conner" [a
somewhat meaningless remedy, since she has already been terminated] and to "use its good
offices to attempt to cause LA's BEST to reinstate Conner to her position" with LA's BEST.
If
the District is "not able to prevail upon LA's BEST" to reinstate Conner, the Board attempts to
make Conner whole
by
ordering payment
of
money damages for a period
of
time which
appears very difficult to ascertain.
Finally, as a matter
of
policy, it is inappropriate to find a violation on the theory that the
District "influenced" a non-EERA employer to terminate a non-EERA employee because such
a ruling improperly injects the Board into the labor relations
of
third parties.
15
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-4066, United Teachers
of
Los Angeles v.
Los Angeles Unified School District, in which all parties had the right to participate, it has
been found that the Los Angeles Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.S(a) and (b). The District
violated EERA by causing Carol Conner (Conner) to be terminated from her employment as a
site coordinator at the District's Better Educated Students for Tomorrow (LA's Best) program.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. CEASE AND DESIST FROM:
1.
Influencing LA's BEST to terminate Conner, its site coordinator, at
Hillcrest Elementary School (Hillcrest).
2.
Denying to the United Teachers
of
Los Angeles the right to communicate
with its members through its elected officials, without fear
of
retaliation.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1.
Using its good offices to attempt to cause LA's BEST to reinstate Conner
to her position as Hillcrest's site coordinator.
2. Pay to Conner, upon demand, the salary she lost as a result
of
her
unlawful termination. Such retroactive salary award shall include interest at the rate
of
7
percent per annum.
3.
Make Conner whole, upon demand, for any other losses, such as
benefits, seniority credit(s), leave credit(s) for example, and reasonably expected overtime
salary opportunities she may have suffered as a result
of
the District's unlawful action.
4. Pay to Conner, upon demand, should it not be able to prevail upon LA's
BEST to reinstate her to her previous Hillcrest site coordinator position, or a comparable
position with LA's BEST that is acceptable to Conner, an amount equal to what she would
have earned had she not been unlawfully terminated. These payments shall continue until
either LA's BEST or a successor organization ceases to exist, Conner terminates her
employment relationship with the District, or she secures substantially equivalent employment.
Dated: LOS ANGELES UNIFIED SCHOOL DISTRICT
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED, OR COVERED WITH ANY OTHER
MATERIAL.
2
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS OF LOS ANGELES, )
)
Charging Party, )
)
V. )
)
LOS ANGELES UNIFIED SCHOOL DISTRICT, )
)
_____________________Respondent. )
)
Unfair Practice
Charge No. LA-CE-4066
PROPOSED DECISION
(9/13/2000)
Appearance: Geffner & Bush, by Steven K. Ury, Attorney, for
United Teachers of Los Angeles; Gregory L. McNair, Staff Counsel,
for Los Angeles Unified School District.
Before Allen R. Link, Administrative Law Judge.
PROCEDURAL HISTORY
On May 19, 1999, the United Teachers of Los Angeles (UTLA)
filed an unfair practice charge with the Public Employment
Relations Board (PERB or Board) against the Los Angeles Unified
School District (District or LAUSD). The charge alleged
violations of the Educational Employment Relations Act (EERA or
Act) 1
On August 6, 1999, the Office of the General Counsel of
PERB, after an investigation of the charge, issued a complaint
alleging violations of subdivisions (a) and (b) of section
3543.5. 2
1All section references, unless otherwise noted, are to the
Government Code. EERA is codified at section 3540 et seq.
2Subdivisions (a) and (b) of section 3543.5 state:
It shall be unlawful for any public school
employer to do any of the following:
On August 26, 1999, the respondent answered the complaint
denying all material allegations and propounding various
affirmative defenses. An informal conference was held on
October 4, 1999, in an unsuccessful attempt to reach a voluntary
settlement. Six days of formal hearing were held before the
undersigned on February 14, 15, 16, 17, May 11 and 12, 2000.
With the filing of briefs by each side, 3 the matter was submitted
on August 22, 2000.
INTRODUCTION
Since 1989, or before, Carol Conner (Conner) has been a
LAUSD elementary teacher assigned to Hillcrest Drive Elementary
School (Hillcrest). She was also, for at least five school
years, 1993-96 and 1998-2000, her site UTLA representative.
In addition to her teaching assignment, she had been
employed as the Hillcrest site coordinator for LA's BEST program
for nine years. This program is an after-school enrichment
program for LAUSD students who have been identified as being at a
higher risk of getting involved in gangs, drugs and violence.
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of rights
guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
3 In addition to those of the parties, an Amicus Curiae brief
was filed by Riordan and McKinzie, by William Erner, Attorney, on
behalf of LA's BEST. BEST is an acronym for Better Educated
Students for Tomorrow.
2
In her role as UTLA's site representative, Conner became
involved in a number of conflicts with Carole Gentry (Gentry),
Hillcrest's principal. In November 1998, Conner was terminated
from her duties as LA's BEST site coordinator. She alleges such
termination was the result of her protected activities on behalf
of UTLA.
LAUSD contends that it and LA's BEST are two separate
organizations. Therefore, it insists, that Conner's termination
from LA's BEST has nothing to do with LAUSD. It further contends
that PERB lacks jurisdiction over LA's BEST; therefore, as this
case concerns allegations against that organization, it should be
dismissed.
FINDINGS OF FACT
The parties stipulated, and it is therefore found, that UTLA
is both an employee organization and an exclusive representative,
and LAUSD is a public school employer, within the meaning of the
EERA.
I. Conner's UTLA Involvement
At the beginning of the 1993-94 school year, Conner became
Hillcrest's UTLA chapter chair. Starting in 1995, she was
involved various UTLA activities, including the monitoring of
Hillcrest's LEARN4 program and the maintenance of the bilingual
master plan. Gentry became aware that Conner was the school's
UTLA chapter chair during this period.
4 LEARN is an acronym for a LAUSD project that selects
specific schools and attempts to promote sharing of decision-
making among all staff members.
3
A. Conner Files PERB Charge Against LAUSD
In late August 1996, Conner filed a PERB charge against
LAUSD, alleging that it had retaliated against her, when in March
and April of 1996 (1) Gentry (a) punitively transferred her to a
non-teaching position and (b) kept her from renewing her mentor
teacher position, and (2) a LAUSD official suggested she give up
her UTLA chapter chair position, ostensibly to avoid further
conflict with Gentry.
On March 4, 1996, Gentry and Conner, along with other
Hillcrest staff, attended a LEARN seminar to improve intra-school
communication. In response to comments by the moderator and
other staff members, Conner said that it was problems in the area
of poor communications that caused postal employees5 to walk into
their offices and start shooting. Gentry perceived this comment
as threatening and, shortly thereafter, called LAUSD's staff
relations office. She spoke to Yvonne Chavez, who told her to:
(1) write a memorandum describing the incident; (2) tell Conner
she would be transferred to the cluster area office; 6 and
(3) call the District police to the campus, in case Conner
resisted these instructions. Shortly thereafter, Conner was
given a memo that told her to report to the cluster office, and
5The prior week a prominent news story told of a postal
employee who walked into his office and shot a number of fellow
employees.
6A cluster area is a District sub unit, supervised by an
administrator called a cluster leader. In this case, Dr. Daniel
Lawson (Lawson) is the cluster leader who has direct line
authority over Hillcrest, along with a number of other LAUSD
schools.
4
according to Gentry, the policeman "walked her out" of the
school.
The next day, Gentry submitted an incident report describing
Conner's statement. Attached to her report were six statements
by various persons who were present when Conner spoke. All of
the accompanying statements support Gentry's position that
Conner's statement was threatening.
In the same general time frame, a "petition and Letters from
Teachers," were also submitted. The petition expressed the
employees' unified support for Conner with regard to this
incident and decried what it believed was Gentry's unjustified
reaction to it. The petition was signed by 29 teachers, one
parent volunteer, and two special education personnel, all of
whom were present when Conner made her statements. There were
also eleven letters describing Conner's statement, and the
writers' reaction thereto. The petition and letters uniformly
agreed that Conner's comments were not a threat of any sort.
Ten days after the incident, on March 14, 1996, Lawson,
Gentry, Conner, a UTLA representative, and a member of LAUSD's
staff relations office met in Lawson's office. At the end of
this meeting, Lawson returned Conner to her Hillcrest classroom
the next day, but he strongly suggested she give up her UTLA
chapter chair.
At the formal hearing in this case, Gentry denied that her
actions were retaliatory. She claimed that she transferred
Conner because she mentioned the post office shootings at a
5
meeting.
There
was
also
evidence
that
Conner,
along with
other
Hillcrest
staff
employees, had
gone
to
a
shooting
range
to
practice
marksmanship.
Conner
stated that
she
went
to
the
range
one
time.
Gentry
suggested
this
shooting
range
evidence,
somehow,
gave
her
fears
about
Conner's
comments
greater
credibility.
Gentry
explained
that
she
failed
to
renominate
Conner
as
a
mentor
teacher,
because she
did
not
think
she
was
"that strong
a
teacher."
However,
during
that
period,
Conner
received
an
outstanding teaching evaluation,
and
Gentry
had
previously given
her
enthusiastic
nominations
for
the
mentor
teaching
position.
In
addition,
Hillcrest's
vice
principal
supported Conner's
mentor
teaching
renomination.
The
PERB
case
was
eventually
settled
by
written
agreement,
signed
by
the
parties
on
July
10
and 15, 1997, which
stated, in
pertinent part:
1. Within
30
days
following
receipt
of theexecuted
copy
of
this letter,
the
Los
Angeles
Unified
School
District will
pay
to
Ms.
Carol
Conner
the
sum
of
$2,500.00 and
restore to
regular
pay
six
days
of her
illness
leave
balance with the
District
taken
March 6, 7,
8, 11,
12
and 13, 1996.
6.
The
parties
agree
that
any
future
recommendations
regarding
Ms.
Conner's
performance
at Hillcrest
Elementary School
("Hillcrest") will
be prepared
by
either
a
Vice
Principal at Hillcrest or the ClusterLeader for the group of schools that includes
Hillcrest. In addition,
any
future
employment
inquiries
from
prospectiveemployers regarding
Ms.
Conner's performance
at Hillcrest
must be handled by a
Vice
6
Principal
at Hillcrest
or
the
Cluster
Leader
for
the
group
of schools
that
includes
Hillcrest.
Conner,
who
signed
the settlement
agreement,
understood
paragraph
6
to
mean
that
Gentry
"would
no
longer
be
handling
any
of
my
job
performances
at Hillcrest
or
doing
any recommendations
regarding
my
future
employment
II
Gentry,
on
the
other
hand,
said
that
her understanding of
the
settlement
agreement
was
that
it
only
limited
her
participation
in
mentor
teacher
recommendations
for
Conner.
However,
Gentry could not
remember
doing
any
regular teaching
evaluations of
Conner
after
the settlement
agreement
was
executed.
B.
Conner
Resigns as
Hillcrest
UTLA
Chair
Shortly
after
her conversation with
Lawson
and
the execution
of
the settlement
agreement,
Conner
resigned as
Hillcrest's
UTLA
chapter chair, effective
June 30, 1996.
C.
Conner
Resumes
Hillcrest
UTLA
Activity
On
February
4, 1998, Conner and
another
Hillcrest teacher
wrote
a
letter
to
District
Superintendent
Ruben
Zacarias,
alleging several deficiencies in
a
number
of
specific educational
areas
at Hillcrest.
The
letter
stated that
they
were
"concerned
about
the decline in the quality
of the educational
program being
offered to our students."
A
copy
of the
letter
was
sent to
Gentry,
who
acknowledged
receiving
it.
In April, the
superintendent responded, noting that
Gentry had been asked to
respond in writing to Conner's allegations.
7
In
July
1998, Conner
again
became
Hillcrest's
UTLA
chair;
Gentry
became
aware
of
this
action.
In
this
position,
Conner
distributed
a
newsletter dealing
with
class size
reduction
7
and
its
relation
to
school budgets.
On
the
side
of
this
newsletter
she wrote
that
fourth
and
fifth
grade
teachers
should
request
copies of the
budget
and meet
to discuss
how
school
money
was
being
spent.
She
placed copies of
this
newsletter in
the
teachers'
mailboxes
in
Hillcrest's
main
office,
next
to Gentry's
office.
In the
second
week
of
September 1998, Conner
approached
Gentry
to discuss several
issues.
She
told
Gentry
that
Hillcrest's
classes
were
too
full,
and
teachers did
not
have
enough
supplies for the children in
their
classes.
She
suggested
that
Gentry
alleviate
these circumstances.
Gentry
told
Conner
that
her suggested
changes
were
not going
to
happen.
On
September 14, Conner
followed
up
her
comments
with
a
note
to
Gentry,
which
requested
a
meeting.
On
or
about
September 11, Conner
met
with
Hillcrest's
fourth
and
fifth
grade
teachers to discuss the
overcrowding
issue.
The
teachers determined
that
they
needed
more
budgetary information.
After the meeting,
Conner went
to the school
office
and
requested
7
Conner was aware
that the District prohibited grades
K
through
third
from having
more
than
20
students.
However,
all
of
these classes at Hillcrest
had between
21
and
24
students. In
addition, substitutes
were
often not available, so when a
teacher
was
absent, the remaining teachers were assigned
a
proportionate
share of the absent teacher's students.
8
the
total
budget
from
the
office
manager.
During
this
period,
Gentry
knew
that
Conner
was
having meetings
with
the
teachers.
D.
Conner's Post-Termination
UTLA
Activity
After
her
November 1998
LA's
BEST
termination,
Conner
continued
her
UTLA
activities.
On
January
17, 1999,
she, along
with
UTLA
representative
James
Duffy (Duffy),
filed
a
Uniform
Complaint
Procedure
form
with
LAUSD's
Office of
Specially
Funded
Programs,
alleging
funding
discrepancies
at Hillcrest.
LAUSD
responded
on
June
9, 1999,
stating that
"some
of the
allegations
regarding
[fiscal]
irregularities
have
been
substantiated,"
i.e.,
contrary to
District
regulations,
$300,000
had
been
spent without the
knowledge
or
approval of the
School
Site
Council. In
May
1999,
Gentry
announced she
would
resign
as
Hillcrest principal, effective
June 30, 1999.
In her testimony
at
the
formal
hearing in
this
case,
Gentry denied
any wrongdoing.
E.
LAUSD's May
1999
Discipline
of
Conner
On May
12, 1999, Conner
received notice
she
would be
disciplined, in her
LAUSD
teacher role, for alleged
irregularities
in proctoring the Stanford
Nine
standardized
test.
On
June 3, she
was
charged with reading
test instructions
from
the
wrong
booklet
and
not adhering to proper time
limits.
As
punishment
for her allegedly
improper
actions,
Conner
was
given
(1) a
notice of unsatisfactory acts,
(2) a
ten-day suspension,
and
(3) a
transfer
away from
Hillcrest.
Gentry
was
technically
still
the principal at Hillcrest at
that time, although she had not been present at Hillcrest after
9
December
16, 1998,
as
she
was
on
medical
leave.
Her
resignation
became
effective
May
30, 1999.
Conner
grieved the
discipline.
The
case
went
to
arbitration.
After
LAUSD
completed
its
case-in-chief,
it
withdrew
its
charges, thereby rescinding
all
of
its
disciplinary
actions.
II.
LAUSD/LA's
BEST
Relationship
LA's
BEST
program
operates exclusively
at
LAUSD
schools.
All of
its
students are
District
students.
The
program
is
incorporated
as
a
nonprofit public
benefit
corporation
and
is
a
tax
exempt
organization
under
section
50l(c)
(3)
of the United
States Internal
Revenue Code.
It
receives financing
from
many
sources, including federal,
state
and
local grants,
as well
as
private
donors.
It
receives
no
operating
funds
from
LAUSD,
although
it
does
receive
a
large
amount
of
non-monetary
or
in-
kind, support
from
the
District.
These
LAUSD
in-kind services
include free office
space,
free
use of school
facilities
and
free
use
of payroll
and
personnel
services.
LA's
BEST'S
President
and
Chief Executive
Officer
(CEO)
Carla Sanger (Sanger),
who
works
out of the mayor's
office,
is
responsible for the general administration of the
agency. Chief
Operating Officer
Debe
Loxton (Loxton),
who
works
out of
LAUSD's
headquarters,
is
responsible for the daily
management
of
its
various after-school sites.
Loxton
was
formerly
a LAUSD
employee
in
its
Youth
Service Department. She
reports to Sanger and
is
10
responsible for
all
of
the
school
site
employees,
including
traveling
supervisors-playground
(TSPs)
and
site
coordinators.
Sanger
insists
that
LAUSD
is
completely
separate
from
LA's
BEST;
however,
she admits
they are
often partners.
She
admits
many
of the
services
of
LAUSD
are
provided
"in
kind
to
LA's
BEST."
She
claims
that
LA's
BEST
has
its
own
insurance
and bank
accounts.
However,
it
was
determined
that
much
of
this
"separateness"
was
only
applicable to
its
administrative
staff
in
the mayor's
office,
not
to
the
TSPs
or the
school
site
personnel.
LA's
BEST
liability
insurance
does
not cover
on-site
staff,
students or
third parties.
They
are
covered
by
LAUSD
insurance
policies,
although
LA's
BEST
does
reimburse
LAUSD
for
its
workers' compensation
claims.
Sanger
justified this
policy
by
stating that
the
students
are
LAUSD
students,
even
when
they are
LA's
BEST
program
participants.
She
contends
this is
a
part
of the
LAUSD/LA's
BEST
partnership.
LA's
BEST
has
neither
a
personnel nor
an
accounting
department, although
it
does
employ one
accountant.
These
services are provided
by
LAUSD.
LA's
BEST
does reimburse
LAUSD
for
janitorial
services at
its
school
sites.
Unlike Sanger and
her
staff at
the
Los
Angeles mayor's
office,
Loxton and
her
staff
are paid
by
LAUSD
payroll checks.
The
vans used by
Loxton's office are
owned
by
LAUSD,
but
purchased with LA's
BEST
grant funds.
The
computers used
in its
corporate headquarters in the mayor's office
were purchased by
11
LA's BEST, but are owned by the City of Los Angeles. LA's BEST
pays no rent for its District office space.
A state funding application for 1998-99 states that 11 [a]ll
LA's BEST staff are LAUSD employees qualified by the LAUSD."
During the 1997-98 school year, all TSPs were also employed by
LAUSD, although one site coordinator was not a LAUSD employee.
LA's BEST employees receive the same salaries as comparable
District employees in its youth services classifications, i.e.,
classifications of site coordinator, TSPs, and activities
consultant. In addition to maintaining an interrelationship wit
LA's BEST salaries, LAUSD limits the number of hours that LA's
BEST staff are permitted to work each week. When asked about
this hourly limit, Loxton explained that LAUSD had a limit on th
total number of hours its personnel in any class code could work
in a week. As LA's BEST employees utilized this same class code
they fell under this same restriction. She believes this is a
Fair Labor Standards Act (FLSA) limitation.
h
e
,
When reminded that there are, ostensibly, two separate
employers involved, and therefore the FLSA limitation would not
apply, she continued to reference LAUSD's class code system as
justification for the limitation.
Loxton admits that her site employees are paid the same as
comparable LAUSD employees, but claims that this occurs because
LA's BEST chooses to do so. Loxton did not know whether LA's
BEST employees received the same health and retirement benefits
as LAUSD employees.
12
The LA's BEST letter of agreement (employment contract)
requires all of its employees to "follow all L.A.U.S.D. policies
and procedures." This document's letterhead suggests LA's BEST
is a part of LAUSD's student auxiliary services branch. Almost
all of the official information given to LA's BEST site employees
is printed on forms which include the words, "Los Angeles Unified
School District," at the top, above "LA's BEST."
Each school's LA's BEST program is supervised by a site
coordinator, who develops, designs and implements his/her site-
specific program. These site coordinators are supervised by
TSPs, who report to Loxton.
III. Hillcrest's LA's BEST Program
Gentry hired Conner as the Hillcrest coordinator at the
program's inception in 1989. The program's attendance has
fluctuated between 150 and 175 students. When Conner started her
LA's BEST duties, she did not have to submit her fingerprints or
a W-2 form. She did have to fill out an "additional assignments"
form required of all LAUSD employees who take on extra District
assignments. She also signed a "Site Coordinator Letter of
Agreement" listing twenty-four conditions of employment. Among
these conditions was:
24. I understand my unclassified assignment
is day-to-day, temporary, part-time, and as-
needed employment.
Conner, and her staff, prepared time cards, had them
approved by Gentry, and gave them to Hillcrest's office manager.
The LA's BEST staff is paid with LAUSD paychecks, which
13
identifies them by their LAUSD employee identification numbers.
For both her LA's BEST and LAUSD jobs, Conner was paid every four
weeks, with separate LAUSD paychecks that she obtained from the
Hillcrest office manager. At the end of the year, Conner
received one W-2 from LAUSD, which combined her income from both
jobs.
As a site coordinator, Conner was paid $15.00 per hour,
amounting to an annual salary of approximately $15,000. She
received LA's BEST salary raises at the same time and in the same
percentages as those she received from LAUSD for her duties as a
teacher.
LAUSD principals are an integral part of each site's LA's
BEST program. Site coordinators are required to work closely
with them. 8 The school principal coordinates all LA's BEST plans
and must approve all written correspondence, i.e., letters to
parents, etc. In addition, the principal is responsible for
reporting on the site's progress.
Gentry exercised hiring power over Hillcrest's program, and
on the occasions in which she refused to approve a new employee,
that person was not hired. Principals must sign off on numerous,
routine LA's BEST paperwork, including employee time sheets. The
requirement of a principal's approval covers such mundane items
8LA's BEST site coordinator duty statement, in pertinent
part, states such employee
Coordinates and plans the LA's BEST program
in conjunction with the LA's BEST office and
the school site administrator. [Emphasis
added.]
14
as co-educational soccer rosters and excursion requests. Loxton
stated that it was an LA's BEST objective for the principal to
have "mutuality of agreement" with it.
At Hillcrest, Conner worked closely with Gentry. They
consulted regarding the program, staff and the use of supplies.
Gentry monitored, observed and occasionally took notes on
Hillcrest's LA's BEST program. Essentially, her role with regard
to the LA's BEST program was the same as her role during the
regular school day. After Conner's termination, it was Gentry,
not an LA's BEST administrator, who sent her a note asking for
the return of LA's BEST supplies and equipment.
IV. Conner's LA's BEST Annual Evaluations
Each year, site coordinators are evaluated by their TSPs.
These evaluations are then sent to Loxton for review. Sanger
also reviews them. The evaluations are divided into three
sections. The first includes thirty-five separate categories,
such as attendance, work quality, work habits, relations to
others, etc. In each category the site coordinator is rated as
being in "Compliance" or "Non Compliance." The second section
requires the TSP to give the coordinator a rating of "Below
Standard," "Meets Standards" or "Exceeds Standard" in ten
categories. The third section, entitled "Overall work
performance," provides an area in which the TSP may insert
general comments regarding the employee's performance.
15
A. 1994-95 School Year
At the end of the 1994-95 school year, Conner received an
evaluation from her TSP, Eugene Hernandez (Hernandez), which
showed her in compliance in all 35 categories9 in the first
section. In the second, her ratings showed she exceeded
standards in nine of ten categories and met the standard in the
tenth. In the third "Comments" section, the supervisor inserted
a statement that Conner provides a "well-balanced program" with
"an environment that is motivating for your students."
B. 1995-96 School Year
There was considerable conflict with regard to this
evaluation. Both Conner and Hernandez agree that at an early
July 1996 meeting at the El Chollo restaurant, Conner was given a
written evaluation. The evaluation that Conner states she was
given was designated Exhibit 23. She further states that
Hernandez said nothing about its being a draft or that she would
receive another evaluation at a later date.
Hernandez, on the other hand, states that at the restaurant
he did not give Conner Exhibit 23, but rather a different
evaluation, which was designated Exhibit C. He contends that
Exhibit 23 was only a preliminary draft.
90n the form there are 35 actual categories in the first
section. However, at times Hernandez, and later his successor,
failed to place check marks on all of the available category
spaces. Whether this failure was due to inapplicability or
inadvertence is unknown. The compilation of ratings reported in
this proposed decision reflects actual check marks and not merely
available spaces.
16
Exhibit 23, Conner's evaluation exhibit, has a full "Eugene
S. Hernandez" signature on it, with a date of June 14, 1996.
Exhibit C, Hernandez' evaluation exhibit, has a full ''Eugene S.
Hernandez" signature on it, with a date of June 1, 1996.
Hernandez states that he never gave Conner his draft evaluation.
Conner states that she was never given, nor, prior to the formal
hearing, had she ever seen what Hernandez now insists is his
final document.
1. Conner's Proffered Evaluation
Exhibit 23, although still positive, is somewhat less
favorable than her prior year's evaluation.
It states that Conner was out of compliance in two of the
twenty-nine applicable categories. These two categories were
"Attends all trainings and staff development meetings" and
"Compiles and submits all paperwork in a timely manner II
Her ratings in six of the categories in the second section were
lowered from "Exceeds Standard" to "Meets Standards," which gave
her a final total of seven "Meets Standards" and three "Exceeds
Standard."
In the third section, Hernandez stated that Conner does a
good job in supervising, safety and maintenance. He also stated
that she needs to get her reports in on time. At the end of the
last page, below the signature, he inserted the following:
There needs to be a wider variety of
activities for students that are cognitive
appropriate.
17
2. Hernandez' Proffered Evaluation
Exhibit C, in the first section, lists Conner as being in
compliance in twenty-seven of twenty-eight applicable categories;
the one noncompliance category is entitled, "Compiles and submits
all paperwork in a timely manner." In the second section, she
was rated as "Meets Standards" in six areas and "Exceeds
Standard" in three areas and "Below Standards" in one area. The
area in which she received this low rating was "Developmentally
Appropriate Activities and Programs." In her evaluation for the
previous year, 1994-95, she received an "Exceeds Standard" in
this category.
In the third section, Hernandez commented on the necessity
of her submitting reports in a timely manner and added:
An interactionist, constructivist theoretical
framework needs to be adopted. This approach
emphasizes that children grow and learn
through interactions with other students.
When students are fully involved, they learn
more and build more complex concepts and
ideas through enriched experiences.
There was also a general statement regarding what
constitutes an effective LA's BEST program. It is difficult to
tell if this statement was meant to be a criticism of Conner's
program or a "boilerplate" statement for all site coordinators
under his supervision. The entire statement was as follows:
To be effective, LA's BEST programs must be
designed to meet the needs and interests of
the children the program serves. There is a
need for positive interpersonal interactions,
staff members need to be aware of the tone of
voice, facial expression, and body language
they employ. Conversations with children
18
contribute a great deal toward the students'
growth.
Hernandez admits that Conner's performance did not change
between the preparation of his draft and final evaluations.
Rather, he claims that he changed the evaluation based on his
site visitation notes. He states he reviewed these notes before
revising the evaluation. However, after Hernandez completed his
testimony, LAUSD, pursuant to a UTLA request, produced all of his
Hillcrest visitation slips. Although there were three slips
dated from 1995-96, none of these included any comments
suggesting Conner or her program were in any way deficient. The
only comments were (1) "students clustered to be picked up"
July 6, 1995, (2) "observed various activities" -- July 31, 1995,
and (3) "Personnel roster due" -- August 4, 1995.
Hernandez did not resume the stand to explain, or even
discuss, the absence of the visitation notes that he claimed were
so instrumental in lowering Conner's evaluation.
Conner refused to sign whichever evaluation Hernandez gave
her at the El Chollo restaurant and appealed to Loxton and Sanger
for a reconsideration of his evaluation.
C. Hernandez' Letter of Recommendation for Conner
In January 1997, Hernandez wrote Conner a letter of
recommendation stating that during the time he worked with her,
"she constantly demonstrated the traits of an exemplary scholar
and an outstanding teacher."
19
D. 1996-97 School Year
This evaluation, prepared by Hernandez, showed compliance in
all thirty-five applicable areas, but with a "minus" before the
check mark in the area relating to "Compiles and submits all
paperwork in a timely manner to the LA's BEST office." In the
second section of the evaluation, Hernandez rated her as
exceeding standards in eight of the ten areas and meeting
standards in the other two. Hernandez' comments regarding her
"Overall work performance" were equally positive. One comment
dealt directly with an issue he raised the previous year. He
said:
3) Continue to implement developmentally
appropriate school-age child care programs.
When asked if he made a preliminary draft of this
evaluation, Hernandez said that he does not recall. He does not
keep copies of his preliminary drafts.
E. 1997 Hillcrest Parent Survey
In October 1997 parents responded to the annual LA's BEST
survey about Hillcrest's program. Question 6 asked them to rate
"the overall effectiveness of the LA's BEST Program" on a scale
of one to five, with five being the highest. Out of thirty-eight
relevant responses, twenty-three gave the program a five, one
marked the space between five and four, six gave it a four and
eight gave it a three.
20
In
June
1998, Conner
received
an
evaluation
covering
the
period
from
March
to
June,
from
her
new
supervisor, Gilberto
Samuel (Samuel)
.
10
Hernandez
was
transferred
elsewhere
in
March
1998.
In
the
first
section,
he
rated
her as
in
"Compliance"
in
all
thirty-five
categories.
In the
second
section,
Samuel
told
Conner
that
she
F.
1997-98 School
Year
was
above "Meets
Standards."
However,
because
he
had
been
her supervisor for
such
a
short
time
(he
made
only
five
previous
visits
to
Hillcrest),
he
could not
rate
her
as exceeding
standards.
Therefore,
he
placed
his
check
marks
in
between
the
"Meets
Standards"
and "Exceeds
Standard"
in
all
ten
rating
boxes.
Samuel
included the
following
narrative at
the
bottom
of
the
evaluation:
Ms.
Conner
provides the student population
at
Hillcrest
with
a
program
that
has
a
wide
variety
of
activities
and programs
that
encourage
self
selection
and
student choice
which
results in positive
experience
and
enriched learning
activities
for
all
students
at Hillcrest
Drive
LA's
BEST
Program.
[Emphasis
added.]
G.
1998
Hillcrest
Parent
Survey
In
October
1998,
the parents
responded
to the
annual LA's
BEST
survey about
Hillcrest's
program. Question
11
of the
evaluation
asked
them
to put
a
check
mark
in
a
series
of
"Yes"
or
"No"
boxes as to
whether, as
a
result
of the
program,
their child
had improved
in
seven
specified areas.
Of
the sixteen parents
who
responded to this question, thirteen reported that their
10
Samuel had been
a
LA's
BEST TSP
for five years prior to
having Hillcrest
added to his assignment.
21
child
had improved
in
every
category,
one
reported
improvement
in
six
of the
seven,
and
two
checked
"Yes"
in
only
one
box.
There
were
no
check
marks
in
any
of the
"No"
boxes.
Positive
comments
on
the evaluations
included:
"Keep
up
the
good
work;"
"Great
Program--Parents
couldn't
survive without
it/children
depend
[on]
it
too;"
"I
am
very pleased
with
the
L.A.
BEST
program;"
"We
appreciate
the
controle
[sic]
and
motivating
qualities this
program
has
to
offer
our
children;"
and
"Great
Program." There
were
no
negative
comments.
V.
LA's
BEST's
Actions
Regarding
Conner
A.
1996
Sanger/Loxton
Hillcrest Visit
On
June 4, 1996,
Sanger
and Loxton
came
to
Hillcrest.
The
evidence
was
conflicting
as
to
why
they
came.
Sanger
said they
came
because
there
were
concerns about
the
progrctm
expressed
by:
. a
volunteer
that
we
had
sent to
work
there,
concerns
were
expressed
by
individuals
who
had
observed
the
program, and
concerns
were
expressed
by
our
staff
who
were
there tosupervise the
program.
[Ill
In
his
opening argument,
LAUSD's
counsel
stated that
Sanger
and Loxton
met
with
Conner
to discuss the
problems Hernandez'
noted
in
Conner's
1995-96
evaluation.
12
As
there are
two
such
evaluations in
evidence,
this
statement
must be
evaluated
in
light
of each of
them.
11
Neither the volunteer, nor the "observing individuals"
were
ever identified.
12
There was no evidence of any
direct
communication,
written
or spoken, between Hernandez and
either
Loxton or Sanger during
this time, with regard to this or any other subject.
22
If
Hernandez
is
correct
and
his
final
evaluation
was
signed
on
Saturday,
June 1,
he must
have
sent
it
to
Loxton
on
Monday,
June
3.
She
read
it
and
forwarded
it
to
Sanger
the
same
day and
then
the
two
of
them
decided
to
visit
Hillcrest
the
next
day.
If
Conner
is
correct
and
Hernandez'
evaluation
was
not
signed
until
June
14,
Sanger
and Loxton,
on
June
4, were
responding
to
an
evaluation
that
had
not
yet
been
prepared,
or at
least finalized
with
Hernandez'
signature.
While
they
were
there,
they
just
walked
around
with
Conner,
observing the
program. Sanger reduced
her observations to
writing.
1. Sanger's Written Observation
Sanger's observations,
in
their
textual entirety,
are as
follows:
The
children's
groups
are well organized;snack
distribution
proceeds
orderly
and
quickly.
Several
children interviewed reported
how
much
staff
care
about
them; and
they
generally like
the
program.
Major Concerns:
Children
can
become
bored
if
the
same
activities
are offered repeatedlv.
Children's
needs
often
change
as
their
home
situation, health,
developmental
level or
perceptions
change.
To
meet
the
needs of the
varied ages,
personalities,
background and
preferences of kids in
LA's
BEST,
it
is
critical
to present
a
variety of
activities
and
materials every day.
There seems
to
be
a
reluctance
by
staff tovary the presentation of
activities to
children based on
the response that "this is
what the children want." There seems
to
be
a
reluctance by
staff to arrange materials in
23
advance so
that
children
have
access
to
a
variety
of
equipment and
materials for
play.
To
meet
the
needs
of
the
varied
ages,
personalities,
background and
preferences of
kids
in
LA's
BEST,
it
is critical
to present
a
variety
of
activities
and
materials.
The
amount
of
discipline
required
is
often
directly
proportionate to
the
depth of
the
program
and
variety
of
activities
available
for the
child.
More
observed
interactions
between
adults
and
children
were
about
discipline
than
any
other
content
area-across
age
gr.
[sic] Children
and
staff
need
to
be
able
to
identify
reasons
tpr
[sic]
behaving
in
ways
a
teacher thinks
is
appropriate.
What
is
the reason
for single
file?
What
is
the reason
for
no
talking?
What
is
the
reason
for
heads
down?
Do
these
reasons
make
sense
in
the
after
school environment?
Why?
There
seems
to
be
a
lack of understanding
by
site
coordinator
that
children
at Hillcrest
come
from
no
greater
poverty,
no
greater
dysfunctional families,
and have
no
greater
emotional needs
than
children
from
other
LA's
BEST
sites.
This
seems
to
have been
held as
an excuse
for the
need
for
such
tight
controls
and
such
limited offerings to
the
children.
Repeated
visits
of administrative
staff
have
reported
few
varieties
of
experiences other
than those
imposed by LA's
BEST
administration.
[Emphasis
in original.]
Sanger
admitted
that
she never discussed
any
of these
concerns with
Conner and
that
she never
went
to Hillcrest to
investigate the
answers
to
any
of her questions.
She
described
these questions as
"a
talk
piece for,
.
Operations
staff
about
how
to
approach the issues that
were
of concern." She
states that
she
relies
on
her operations
staff
for the answers to
those questions.
24
B.
July
1996
Letter
from
Sanger
to
Conner
On
July
26, 1996,
shortly
after
Conner
resigned her
Hillcrest
UTLA
chair, in
response
to
her request
for
a
new
1995-96
evaluation,
Sanger,
Loxton and Hernandez
wrote
her
a
letter.
They
said that
she
would
receive
a
reevaluation
of
her
program,
based
on
longer
and
more
in-depth observations.
They
also
stated:
Your work
has been
indeed
valuable
to the
children
of
LA's
BEST
and
as
said in
our
meeting
of
July
25, no
one
finds
fault
with
your
efforts.
You
have
probably given as
many
hours
to
supporting
this
program
as
any
of the
LA's
BEST
staff.
She
was
also told that
LA's
BEST
board
members,
supervisors,
activities
consultants
and
administrative
staff
would be
regularly
observing her
program.
However,
there
were
no
additional
observers during
that
school
year;
nor
was
there
another evaluation of the
program
until
the
one
regularly
scheduled
for
June
1997.
C.
Gentry's
Contact
With LA's
BEST
Administration
In
late
August
or early
September 1998,
two
months
after
Conner resumed
her position
as
Hillcrest's
UTLA
chair,
Gentry
called
Loxton and Sanger.
She
told
them
that
she had
"serious
concerns" about Conner's program and she "needed
for
them
to
come
out and
take
a
look
at
the program."
She
said that
she
"elicited
their
help
. II
When
asked
why
she
made
that call,
she
said:
A
Because the program had
steadily
declined, and
I
had so
many
complaints
I
had
some
serious concerns about the safety of the
25
children and the fact that they need to have
a variety of activities because of the low
test scores.
ADMINISTRATIVE LAW JUDGE LINK: The test
scores had to do with -- their academic test
scores connected with Hillcrest. But there
are no scores connected with LA 1 s BEST, are
there?
THE WITNESS: No, this had to do with them
having activities that would enhance their
(Hillcrest) test scores. [Emphasis added.]
D. September 1, 1998, Meeting of Gentry, Sanger and Loxton
On September 1, 1998, Gentry met with Loxton and Sanger13 in
her Hillcrest office. Gentry insists that even though the
meeting was about Hillcrest's LA's BEST program, "we discussed
the program, not particularly Carol Conner as a person, but the
program. 11 On this subject she was asked:
Q Did you mention Carol Conner's name in
the entire meeting"
A I didn't. I don't know whether they
did, I don't remember. We talked about the
program, how it was being run, but not about
Carol Conner. [14i
Later that same day, Loxton called Conner and told her that
Gentry had called, stating she (Gentry) was concerned with the
13 Sanger, even after repeated questioning by UTLA's attorney,
stated that did she not remember meeting with Gentry at
Hillcrest. She stated that the meeting on September 17 was the
first time she remembered meeting with Gentry and Loxton.
14Gentry also said Sanger came to her Hillcrest off ice in
September 1996 to discuss concerns she had about the
effectiveness and quality of Conner's program. Gentry said that
Sanger told her that if the program did not improve she was going
to replace Conner.
26
depth
of the
program. Loxton
said
they
were
going
to
send
the
director
of
staff
development,
Eric
Gurowitz
(Gurowitz),
to
observe
her
program.
Conner
told
Loxton
that
she needed
support
from LA's
BEST
administration.
Loxton
said
she
was
giving
that
support
by
letting
her
(Conner)
know
about
Gentry's
concerns.
Conner
told
Loxton
that
LA's
BEST
should not
be
getting
involved
in
the
(UTLA)
conflicts
she
was
having
with Gentry.
Loxton
said
they
were
already
involved.
Conner
stated that
Loxton
suggested
she
apply
for
another job with
LA's
BEST.
Conner
declined
to
do
so.
Loxton
did
not
remember
any
discussion
about
another
position.
Sanger
stated that
she
sent
Gurowitz
to
Hillcrest
because
she
was
getting
verbal reports that
were
in conflict
with
the
written evaluations
Conner
was
receiving.
There
was no
testimony
or
documentary
evidence
proffered regarding
anyone,
other than
Gentry,
communicating
with
Sanger about
the
Hillcrest
program.
1. Gurowitz'
Hillcrest Visits
Pursuant
to Sanger's direction,
Gurowitz
paid three
visits
to
Hillcrest in
September,
the
first
of
which
was
the
day
after
the Sanger/Loxton/Gentry meeting.
With
regard to these
visits,
he
testified
that
he
felt
the
program
lacked
variety.
The
cover
letter
to
Sanger and Loxton
that
accompanied
his
site visit,
in
pertinent part, is
as follows:
Overall,
this site
lacks theprogrammatic depth that characterizes otherLA's
BEST
sites.
Children are well behaved
and
generally well supervised, but there is
very
little
academic reinforcement.
Additionally, there is
not
much
evidence of
27
programming that focuses on building
cognitive skills, boosting self esteem, or
developing critical thinking. It strikes me
that the expectations of the children's
abilities to focus and develop are too low.
I want to emphasize that I spent a total of
about six hours at the site, and my
observations are mostly anecdotal. I would
be happy to provide a more detailed and
comprehensive analysis if needed.
He was not asked to provide any additional analysis. Conner
was given neither his cover memorandum nor any of his three
written site observations until after she was terminated--and
then only as a result of UTLA making a demand for them.
E. September Meeting of Gentry/Sanger/Loxton/Conner
Gentry asked Conner to attend a September 17 meeting with
her, Sanger and Loxton. The meeting took place at Hillcrest, at
11 a.m., during a school day. Gentry had someone cover Conner's
classes. Norm Saatjian (Saatjian), a UTLA representative, also
attended the meeting on Conner's behalf.
At the meeting, Gentry15 told Conner that she called the
meeting because she had "concerns" about the program which she
felt used to be good, but was now declining. Gentry also said it
used to offer more programs. Conner asked what programs had been
deleted. Gentry said, "sewing." Conner stated that sewing had
been offered only for a brief period, but not for six years.
Sanger said that her written observations after her 1996 visit
(1) the program was too structured; (2) the were still valid:
15At this meeting no one objected to Gentry's being involved
in a meeting with Conner in a role as a supervisor or an
evaluator.
28
homework room was too quiet; and (3) the children should be
allowed to lay on the floor.
Loxton testified that Conner was told of three problems:
(1) lack of quality--too much lag time; (2) lack of depth; and
(3) a "certain harshness" from the staff when speaking to the
students. Sanger believed that these problems had existed since
at least June 1996, when she visited Hillcrest's program and
wrote her memorandum about it.
Most of the discussion at this meeting was vague, but there
were a few specific topics discussed. Sanger criticized the
program's drill team leader and said she should be fired. She
also told Conner that her entire staff had to attend a LA's BEST
staff all-day development meeting on the following Saturday.
Saatjian asked them to put their complaints in writing. Sanger
said they did not have to provide such a document and they were
not going to do so.
Sanger claimed she told Conner that she was on probation.
In fact, in her testimony, Sanger called it a "probationary
status" meeting. Sanger even went so far as to explain that
certain "expectations" had been communicated to Conner prior to
that meeting. There were no details given as to whom, where or
when such 11 expectations II had been communicated. Neither Loxton
nor Gentry said anything about "expectations" having been
communicated at any time prior to this meeting. Conner insists
that no statement regarding probation was made at that meeting.
Loxton states that Conner was given a month to improve the
29
quality of the program. Conner denies such a statement was made.
Sanger admits she did not give Conner a probation form, even
though LA's BEST has such a form. This form explains to the
employee the supervisor's areas of concern and/or noncompliance.
It also clearly puts the employee on notice that "failure to
comply" or correct the inappropriate action, "will result in the
immediate termination" of his/her employment.
Loxton admits she told Conner that if she would leave
Hillcrest, she (Loxton) would find something for her within LA's
BEST. Conner was not willing to leave.
F. Post-meeting Changes in Hillcrest's Program
After the meeting, Conner attempted to follow Sanger 1 s
directions. She spoke to her staff about being less structured,
letting the students talk more, and being more lenient. In
addition, the drill team leader was fired.
Her staff, with the exception of two people, attended the
Saturday meeting. After this September 17 meeting, many of
Conner's staff left LA's BEST employment. There was no evidence
proffered as to why they terminated such employment. Conner
replaced them with teachers and teaching assistants from
Hillcrest.
30
G. LA 1 s BEST Increased Scrutiny
1. Gentry
After the September 17 meeting, Gentry increased her
observation of the program. On September 27, she entered several
LA 1 s BEST classrooms and asked the children what they were doing.
She had never previously entered those classrooms.
2. Samuel
a. Samuel 1 s June to Mid-September Site Visits
Conner 1 s TSP, Samuel, states that he began visiting
Hillcrest more frequently. During Conner 1 s site coordinator
tenure, she received an average of one TSP visit per month.
Between the completion of his June 1998 performance evaluation
and September 21, Samuel states he prepared and submitted
"probably more than ten visitation slips 1116 on which he listed
areas of concern and observations on Hillcrest 1 s program. He
claimed that he forwarded these slips to Loxton 1 s office, but
after receiving a specific UTLA request for them, LA's BEST was
unable to produce them. There were some Hillcrest slips
produced, but they were prepared by Hernandez and dated from
16A visitation slip is a five by eight inch card on which a
TSP inserts "[a]reas of concern, what you observe, any comments,
needs." Samuel stated that minor problems are not the subject of
visitation slips. These are just discussed with the site
coordinator. The slips are used only for major problems.
An examination of the fourteen Hillcrest slips entered into
evidence, to the contrary, shows that they are used for routine
observations.
Most of the slips included little more than an
acknowledgement of the TSP 1 s noting the various tasks being
performed by students and staff while he was at the site.
31
September 21, 1994 to August 12, 1997. Loxton said that "there
are some missing cards for the period of time that Gilberto
Samuel supervised the site." Samuel did not prepare an
evaluation using these visitation slips. This was strictly a
period of observation.
Samuel states that these written visitation slips were
supposed to be attached to his evaluation. The evidence is
unclear as to which evaluation he was referring, the annual one
he prepared in June 1998 or the Site Evaluation Report he
prepared in October.
b. Samuel's September 21 to October 21 Visits
Samuel claimed that from September 21 to October 21 he
visited Hillcrest three times per week and on each visit stayed
from 3:00 to at least 6:00 p.m., the complete duration of each
day's program. As there are twenty-three school days during this
period, he had to have spent 13 or 14 three-hour periods at
Hillcrest. He contends the LA's BEST activities consultant
assigned to him, Karen James (James) accompanied him" [b]etween
four and five times. 1117 He also states that he spoke to Conner
at the end of each visit.
c. Conner's Recollection of Visit Frequency
Conner does not believe Samuel was at Hillcrest anywhere
near that amount of time. Conner remembers his visiting
Hillcrest only three times between September 17 and her
17James said she went to Hillcrest once or twice by herself
and twice with Samuel.
32
termination. The first visit lasted approximately one hour and
consisted of his waiting for, speaking to, and terminating the
drill team leader. The second was in early October. He spent a
little less than an hour on campus that time. On his third trip,
Samuel was joined by James. They spent approximately twenty
minutes on campus.
d. Williams Recollection of Visit Frequency
Hillcrest LA's BEST staffer Elnora Williams (Williams) only
recalls Samuel visiting once or twice during this period, and
staying "about 30 minutes or so." She was a classroom teacher
for LA's BEST, so from her classroom she would not have been in a
position to observe all visitors to the site. However, if he
spent thirteen or fourteen three-hour periods at Hillcrest, it is
difficult to believe that Williams and the rest of the staff
would not have been aware of his presence.
e. Samuel's Site Evaluation Report
After his September/October visits, Samuel wrote a Site
Evaluation Report based on his visits. In that report he listed
(1) areas of concern, (2) observations, (3) suggestions, and
(4) recommendations.
His areas of concern are
* Too much death (sic) time in between activities.
* Too many fights during LA' s BEST PROGRAM. r18
1
* Lack of communication between program staff and
site coordinator.
18Al though they disagree as to frequency, both Samuel and
Conner admit that fights do occur on school, and therefore, LA's
BEST, campuses.
33
* Lack of interaction between some staff member
[sic] and students.
* Students to staff ratio.
* Differences in program objectives.
Samuel, in his "Observations" section, described examples of
each of his areas of concern. In addition, he said that the
"staff seems to lack organization or/and lacks motivation."
In this section, he commented favorably on Conner having
implemented his recommendation to replace 60 to 70 percent of her
staff. He also stated the majority of the staff complied with
his request to increase their interaction with the students.
However, he also stated that he recommended Hillcrest's
staff visit other LA's BEST sites and that Conner disagreed,
citing lack of transportation and believing that she could do a
better job of training her own staff.
The last paragraph of his "suggestions" section is as
follows:
The T.P.S. asked the site coordinator, Ms.
Conner, to put a side [sic] her personal
objectives on the best strategies of
implementation to manage the LA's BEST
PROGRAM from an administrator perspective and
she was advised to adhere to the already
established program goals and objectives that
has [sic] used, by the current LA's BEST
administrators. In the opinion of the T.P.S.
changes are necessary at Hillcrest LA's BEST
PROGRAM in order for the program to close the
gap which exist [sic] between the site and
other programs. It is the T.S.P. opinion
that the difference in strategies of
implementation that exist between the site
coordinator, Ms. Conner and the LA's BEST
administrators is the major source of the
problem that Hillcrest program is having.
[Emphasis added.]
34
When
testifying
in
the
formal
hearing,
Samuel
did
not
explain
what he meant
by
"difference in
strategies
of
implementation
that
exist."
His recommendations were:
It
is
the
T.P.S. opinion
that
if
the
site
coordinator
does
not
changes
[sic] her
strategy
views
of the
program
implementation,
the
Hillcrest
LA's
BEST
PROGRAM
would
continue
to
have
the
same
problem.
The
LA's
BEST
administration
should
consider
otherpossible solutions,
should
Ms.
Corner
[sic]
decides [sic]
to stay
with her
current
program
objectives.
Program
administrator
may
want
to
consider
naming
a
co-
coordinator/replacing
Ms.
Conner
with
a
new
site
coordinator or
any
other possible
solutions that
comes
out of
a
meeting betweenLA's
BEST
program
administrators
and
school's
principal.
[Emphasis
added.]
Samuel
did
not
explain
what
Conner's
"current
program
objectives"
were.
Nor
did
he
explain,
if
the ultimate object
was
to
improve
Hillcrest's
program,
why
Conner would
not
have
been
an
essential participant in
any
meeting between LA's
BEST
and
Gentry.
f.
Conflict
Between
June and
October Reports
Samuel was
asked
why
these observations contrasted
so
sharply with
his
earlier
evaluation.
He
said that
it
was
because
with these observations,
he
was
able to take
a
more
in-depth
look
at the
program, and,
therefore,
was
able to get
a
better picture
of
the entire
program.
35
g.
Loxton's Receipt of
Samuel's
Report
Loxton
accepted
Samuel's
report,
but never
showed
it
to
Conner
or
asked
her
to
respond
to
it.
In
her
testimony
in the
formal
hearing,
Loxton
admitted
she
did
not
know
how
many
days
Samuel
spent
at Hillcrest,
or the length
of
each
visit.
She
also
admits
she
never
gave
Samuel's
report
to
Conner
until after
she
was
terminated,
and
then only
after
UTLA
requested
it.
3.
James
James
said
she observed
Hillcrest's
LA's
BEST
program
three
to
four
times
when
Conner
was
the
site
coordinator,
once
or
twice
by
herself
and
twice with
Samuel.
When
asked
to describe
problems she observed,
she answered:
A
Too many
children
assigned
to
one
adult,children fighting
with each
other
and
staff
not being
aware
of
it.
Children needing help
with
their
homework
and
not being able
to get
the assistance
because
there
were
not
enough
adults to
give
them
assistance that
they
needed.
Lack
of
variety
of enrichment; attendance,
in
terms
of the
numbers
that
were supposed
to
be
at
the
site
at certain
times.
Q
Of
students or of
staff?
A
Students
Q You mean,
they
just didn't
have enoug
kids?
h
A
Yeah.
Both Samuel and Conner
told
James
that Conner's job was
in
jeopardy.
36
H.
Additional
LA's
BEST
Monitoring
1.
Staff
Documented
Observations
In
addition to
these increased
site visits,
members
of
Sanger's
immediate
staff
monitored
Conner
at
various
District
meetings
and documented
their
concerns about
her.
At
a
September
26
staff
meeting,
four
employees
reported
their
criticisms
of
Conner
to
Sanger.
After
Sanger
added
her
comments,
she,
or
her
assistant,
summarized
these
comments
into
one
report.
19
Sanger
insists
she
did
not ask
the
staff
members
to
prepare
and
submit
these
comments
about
Conner.
Rather,
she
insists,
that
the
staff
said that
Conner was
difficult
to
work
with.
When
asked
who
said
this
she
said,
"[f]rom
staff
members
at
I
can't recall
exact
meetings and
times
and
places."
Because
of
this
alleged personality
trait,
Sanger
said there
was
a
reluctance to discuss these improprieties
with
her face-to-face.
Therefore, they
all
sent
their
complaints
to
Sanger.
Although
the other
staff
members
were
not
directed to
observe
Conner, Sanger does admit
to
asking Berenice Garcia
(Garcia), regional recreation director, to
observe
Conner
at
an
19
The comments
included
( 1) when
at
tending
a
staff
meeting
Conner
asked
for the
name
tags for
all
of her
staff,
when
"In
reality
two were
missing,"
(2)
"Constant
talking to
staff
during
speech",
(3)
"Hillcrest staff
making
point to
speak to presenter
after
keynote,"
(4)
Conner
"closing eyes during individual
activity
of leadership training.
Not on
task,"
(5)
"Constantly
identifying
what she already
knew,"
(6)
"Extremely verbal during
Bain
presentation-not adding
new
information, rather validating
speaker per her experience,"
(7)
"Interaction at level less
meaningful than all others observed," and
(8)
11
[T]alking to staff
and
getting parents to pick up
children before 6:00 p.m."
37
October
3
science
inservice
meeting. This admission
was made
necessary
as Garcia
states
in
her
report:
During
the
course
of the
second
session,
Carla
Sanger,
CEO
and
President of
LA's
BEST,
asked
that
I
observe
Site
Coordinator
Carol
Conner.
Garcia
continues
with the substance of
her Sanger-directed
observation,
as follows:
At
the
time
of the observation,
Carol
Conner
was
sitting
in
the
Science
Manual Workshopi
workshop
explaining the contents of the
manual
and
information
on
planning science
fairs.
I
was
instructed to
identify
the
materials/paperwork
that
Carol
Conner
was
doing while
in
the
workshop.
I
identified
it
as
Hillcrest's
monthly
CDD
report,
and
reported
this
information
to
Carla
Sanger.
Carla Sanger's administrative decision
was
not
to interrupt
Carol Conner's behavior
and
document
her
actions.
At
this
point,
I
removed
myself
from
the scene.
These
reports
were
not
part
of the
regular evaluation
process
for
site
coordinators.
Among
those
employees
who
took
notes
on Conner
for
Sanger
were
Operations
Director
Anna
Rosenberg (Rosenberg),
Administrative Assistant
Sharon Yarbrough
(Yarbrough), Gurowitz,
James
and
Garcia.
It
was
not
a
regular
part of Rosenberg's, Yarbrough's,
or Garcia's
job
to evaluate
site
coordinators.
2. Conner's
Comments
Regarding Monitoring Reports
a.
Name
Tags
The
allegation that
she asked for
all
of her
name
tags
was
perceived by Sanger, and
her reporting subordinate, as an
attempt
to cover-up the fact that
two
staffers
were missing. Conner
states that she merely went
to the sign-in desk and
identified
38
herself
as being
from
Hillcrest.
She was
given
all
of her
school's
name
tags.
She
returned
two
of
them,
stating
that
one
person
was
not
coming
ass/he
had
to attend
a
funeral
and
another
had
not
shown
up
at
the designated
time
and
place for
transport
to
the
meeting.
Later,
it
was
determined
that
this
absent
employee
was
stopped
by
the
police
and had
her
vehicle
impounded
due
to
its
expired
license
registration.
b.
Paperwork
Conner
admitted
she
was
doing paperwork,
but
insisted that
other
participants
were
also
doing paperwork,
reading
and
completing assignments.
No
one
at
the
meeting
spoke
to her
about
her
completing
paperwork.
VI.
Conner's
LA's
BEST
Termination
A.
November
13, 1998, Meeting
On
November
13, 1998,
Sanger,
Loxton and
Gentry
again
met
with
Conner,
who
was
accompanied by Duffy.
The
meeting began
in
Gentry's
office,
but
Duffy
pointed out
that
the
prior
PERB
settlement
agreement
prohibited
Gentry
from
evaluating Conner's
job performance.
At
that point, the meeting
was moved,
without
Gentry,
to
Conner's classroom.
20
Loxton
told
Conner
that
she
would be
terminated as of
November
20. Sanger,
in her testimony,
stated that the termination decision
was made
by
herself,
Loxton,
Samuel, James and Gentry. Loxton
told
Conner
that the
wDespite Gentry's testimony that
she believed the settlement
only applied to
mentor teacher evaluations, there is
no
evidence
that Gentry or anyone
else objected to her being excluded from
this termination meeting.
39
termination decision
was
based
on
reports
and
observations
from
a
variety
of
LA's
BEST
personnel.
When
Duffy
asked
Loxton
to
produce
this
documentation,
Loxton
refused.
Loxton
said
Conner
was
an
employee-at-will.
Conner
asked
for
a
letter
documenting
the
things
they
told
her during the
meeting. In response
to
this
request,
Loxton
sent
her
a
November
13, 1998,
memo
entitled
"Notice
of Termination of
Employment
as of 11/20/98."
The
memo
stated that at
the
September
17
meeting,
Conner had
been
told to
improve
in
the
following
areas:
o
Seeing
to
it
that
staff
understand
the goals of
LA's
BEST
by
ensuring
children's
use
of
a
variety
of
materials,
equipment and
supplies
and
the scheduling of
a
variety
of
activities
for children to
selfselect
o
Demonstrating
leadership
and
staff
motivation
by,
for
example,
maximizing
staff
planning
time
at
a
staff
development day
o
Identifying
and recommending
staff
for specific
content areas to
improve
the depth of the
program
Conner
insisted that at
the
September
17
meeting she was not
given
any
of these three directions.
The
memo
further alleged that
Conner had
not "accomplished
what
is
necessary to
make
sufficient
changes
to
improve
the
quality" of the program. For
this
reason, Loxton wrote:
I am
in
agreement with therecommendations of Hillcrest
Drive Principal,your direct supervisor, Gilberto Samual[sic],
the director of staff
development, EricGurowitz and the President
& CEO
of LA's
40
BEST, Carla Sanger, that new leadership must
be identified to ensure the quality of the
program for children at Hillcrest Drive LA's
BEST program. [Emphasis added.]
Sanger insisted Gentry did not request that she terminate
Conner's site coordinator employment. She also stated that she
(Sanger) was unaware Conner was a UTLA representative.
1. James
James testified that she was aware of one other LA's BEST
site coordinator who had been on probation with similar problems.
This occurred at one of her assigned schools. In that case, the
probation period lasted approximately three semesters.
Due to her participation in district-wide staff meetings as
an activities consultant, she was aware of other programs
throughout the District that were under heightened disciplinary
scrutiny. Although her memory of these events was not precise,
she believed that this heightened scrutiny lasted approximately
three semesters before the issue was resolved by the site
coordinator being replaced or the problems being resolved. She
spent approximately two and one-half years attending such staff
meetings.
B. Post Termination Parent Petition
When he learned Conner was to be terminated, one of
Hillcrest's LA's BEST staff members, William Celestine, Jr., who
is also a Hillcrest teacher, circulated a petition among parents
protesting her dismissal. Three hundred and one signatures were
gathered at the program's sign-out location. Although these
signatures were not independently verified, one hundred and
41
twenty-one were accompanied by telephone numbers and forty-six
others included addresses, which would facilitate such
verification.
C. UTLA's Request for Termination Documentation
On May 14, 1999, UTLA officials Terry Skotnes and Duffy sent
Loxton a request for" [a]ll written materials" from Hillcrest
site visits from July 1, 1998 through October 31, 1998 and all
"other documents written" by Hillcrest "(staff, parents,
students, administrators, etc.) relevant to Ms. Conner's last
L.A. BEST Performance Evaluation."
The only LA's BEST documents received by UTLA, in response,
were three reports: (1) Sanger's June 4, 1996, report,
(2) Gurowitz' September 2, 11 and 14, 1998, site visit
observations, but not his cover letter, and (3) Samuel's
October 1998 site evaluation report. Conner had not seen any of
these documents before Loxton produced them for UTLA at the
hearing.
D. Additional Circumstances in Support of Termination
Sanger insists she had long-standing doubts about Conner and
her program. She claims she had "concerns" about the program
ever since 1996 and that the "program quality" had suff for
that long.
LAUSD points to an additional series of circumstances that
it believes supports LA's BEST's decision to terminate Conner:
42
1. Gentry's 1994-1995 Concerns
Gentry said she first began to be concerned about the
program in 1994-95. She described her concerns as follows:
Q And what was it that you perceived that
you considered a decline in the program?
A It did not appear to be as well
organized. Children were running all over
the yard unsupervised. There were many more
injuries, parent complaints. That's about
it. And the lack of a structured program
where they had activities, the lack of a
variety of activities in the classroom.
( [Emphasis added.)
2. Sanger's 1997 Concerns
Sanger stated that her concerns about the Hillcrest program
continued into 1997, but she admitted she did not observe
Conner's program that year. Rather, she claimed that her 1997
concern was based on one complaint from one parent. This single
complaint focused not on Conner but on one of her teaching
assistants. Despite this one complaint, Sanger admitted that in
1997 she knew that parents at Hillcrest generally approved of
Conner's performance as site coordinator.
3. Conner's Pattern of Lateness
Sanger also claimed that Conner exhibited a "pattern of
lateness" in coming to meet and submitt documents. She
complained, in particular, that Conner was often late to staff
development meetings.
However, these meetings took place on school days at
3:30 p.m. at the District headquarters in downtown Los Angeles.
Conner did not complete her teaching duties until 3:08 p.m. and
43
then it was a forty to forty-five minute drive to the District
office. In addition, it often took up to twenty minutes to find
a parking place.
4. Sanger Acknowledgment of Gentry/Conner Conflict
Sanger said that Conner told her that she and Gentry did not
get along. Sanger advised Conner to go to another school. She
did not talk to Gentry about her attitude toward Conner.
However, Gentry told Sanger, a long time ago, that she should
appoint a co-site coordinator because Conner had emotional
problems and was not up to having the responsibility of the job
on a full-time basis.
E. Explanation of Evaluation/Termination Inconsistencies
Loxton admitted she could not account for Conner's
termination after such glowing evaluations, offering only that
"[m]aybe something changed for her."
Sanger, near the end of her testimony, was asked to examine
Conner's last four LA's BEST annual performance reports (school
years 1994-98) After this examination, she admitted they were
exemplary.
When asked why Conner's annual evaluations were
diamet cally opposed to the evidence she received from her
operations staff Sanger answered:
THE WITNESS: My explanation is that we had a
lot of tightening up to do with our practices
and supervision and that we have a staff that
has taken corrective actions that, I would
agree with you, there look to be
inconsistencies; however, I look to June '96
to the evaluation which, by the way, for me
represents a shift.
44
I believe that Carol Conner was an exemplary
employee until '96, and I believe something
changed. I wasn't privy to everything that
happened, but I know something changed. And
I believe that change, Carol Conner and I
have talked about informally, and there was a
change. I believe there was a disconnect
from what I know to be her background and
experience and what was reflected in the
program.
The program suffered, the program quality
as of 1996 was of concern. That concern was
not reflected in the evaluations
appropriately, and I believe LA's BEST is at
fault for that if, in fact, these evaluations
were not discussed appropriately with Ms.
Conner.
THE WITNESS: I am suggesting to you that
based on many conversations -- not one, not a
few -- from people who have been at the site,
there were serious concerns about the quality
of the program and what was happening for
children.
VII. Credibility Determinations
A. Hillcrest UTLA/LAUSD Conflicts
There is absolutely no doubt, that for an extended period of
time, Gentry and Conner were engaged in an ideological, as well
as a personal, battle over the manner in which Hillcrest was
being run. Conner, on behalf of UTLA in her representation of
the employees, was attempting to effect certain changes. Gentry,
on behalf of LAUSD, defended the manner in which she was running
the school and resisted those changes.
A conflict between a school site administrator and a site
union chair is hardly an unusual circumstance; however, this
45
particular conflict was taken to extraordinary lengths. In order
to make knowledgeable credibility determinations, it is necessary
to understand the underlying motivations of the parties.
This Gentry/Conner, LAUSD/UTLA conflict manifested itself in
a number of incidents. Three of these incidents are discussed
below.
1. Frustrated Postal Employee Comment
Gentry attempted to use Conner's comment to exact punitive
action against her. The Hillcrest faculty lined up behind their
respective champions, with six insisting Gentry was right, and 29
supporting Conner. There was insufficient evidence presented at
the formal hearing in this case to support a finding as to which
side was "correct."
However, LAUSD's ultimate action clearly favored Conner.
She was reinstated to her Hillcrest teaching position, had six
days of sick leave restored, was awarded $2,500, and had Gentry
removed from the preparation of any of her future evaluations.
There is little doubt that this District action humiliated
Gentry.
2. Hillcrest's Alleged Fiscal Improprieties
Conner's initiation of a LAUSD investigation into Hillcrest
SIP spending provides evidentiary support that the battle between
Conner and Gentry was ongoing, even after Gentry was no longer on
campus. Although chronologically post-termination, this evidence
bears on Gentry's motivation and, therefore, her credibility at
the formal hearing in this case.
46
3. Improper Testing Allegations
Shortly after Conner initiated the above described
investigation, she was accused of giving a state-wide test to her
students in an improper manner. Although this accusation was
made after Conner's LA's BEST termination, it did occur prior to
the formal hearing in this case. Therefore, it has a potential
impact on the motivation, and consequently, the credibility of
witnesses at the formal hearing in this case.
As a result of this accusation, LAUSD decided Conner was to
be suspended for ten days, transferred from Hillcrest and given a
notice of unsatisfactory acts.
It is difficult to understand why a transfer would be a
proper response to an improper test-giving allegation, unless
LAUSD had an interest in separating her from the other teachers
at Hillcrest. The only other reason that comes to mind would be
that Gentry, although not physically in charge of Hillcrest,
still was able to exert some influence in an attempt to "punish"
her antagonist. A transfer from Hillcrest would amount to an
ultimate "victory" for Gentry over Conner.
As in the first incident, there was insufficient evidence
proffered at the formal hearing to support a finding as to
whether the charges and punishment were justified. However, once
again, it is possible to rely on LAUSD's own actions to provide
this justification. After LAUSD completed its case-in-chief,
with its witnesses undergoing cross-examination by Conner's
attorneys, it withdrew the allegations and negated all proposed
47
punishments. Even if Gentry was not involved in the prosecution
or the quantum of the charges, it was undoubtedly irritating for
her to see Conner escape punishment for a second time.
B. Gentry
The evidence presented a series of circumstances in which
Gentry's testimony was in conflict with other evidence, both
documentary and testimonial. Some of these circumstances are set
forth below.
1. Gentry said that she failed to renominate Conner
for mentor teacher status, insisting that Conner was ''not that
strong a teacher." However, during that same period Conner
received an outstanding teacher evaluation and Gentry's vice-
principal supported the mentor teacher renomination. This
conflict provides an example of lack of credibility on the part
of Gentry.
2. Gentry called Sanger and Loxton in September 1998
to complain about Hillcrest's LA 1 s BEST program. At that meeting
she insists that they never discussed Conner, only her program.
There was no doubt that the two women were antagonists. Gentry
would have PERB believe that two months after Conner resumed her
UTLA chair, she (Gentry) complained about Conner's program and
never discussed Conner herself. This testimony lacks the most
basic level of credibility.
3. When asked, in September 1998, why she elicited
Sanger and Loxton's help, Gentry explained she "had so many
complaints I had some serious concerns about the safety of the
48
children." She also stated that she called for help because the
students ''need to have a variety of activities because of the low
(Hillcrest) test scores."
(a) The persons registering these "many
complaints" were never identified, but it is unlikely it was any
of the children's parents. They overwhelmingly supported Conner,
as evidenced by the 1997 and 1998 parental evaluations and the
petition to have her termination overturned. If Gentry's "many
complaints" comment had any validity at all, and if they had come
from parents, there would have been some negative comments
included in those evaluations. In essence, Gentry insists she
had "many complaints," but none of these parents said anything
negative, even though given two official anonymous opportunities
to do so. If the "complaints" were from persons other than
parents, they were not identified by either name or category,
i.e., teacher, custodian, administrator, neighbor, etc. Gentry's
testimony in this regard is not credible.
(b) If there was any validity to the "safety of
the children" issue, there could have been some justification for
a quasi-emergency call to LA's BEST administration for immediate
action. However, there was neither statistical nor testimonial
evidence proffered at the hearing that Hillcrest was any less
safe than any other LA's BEST site.
(c) In essence, Gentry is saying that she asked
Sanger and Loxton to come to Hillcrest to examine the program,
after nine years with Conner at the helm, because it was not
49
providing
sufficient
assistance to
Hillcrest's test
scores.
This
contention
is
improbable.
This evidence
dictates
a
finding
that
her
entire
explanation
for her
call
to
Sanger
and Loxton
is insufficiently
credible to
be
given
any
weight.
4.
Gentry
said that
she
was
concerned about
Conner's
program
in
1994-95
because
"children
were
running
all
over
the
yard unsupervised," "parent
complaints"
and
"many
more
injuries."
The
issues
of
parent
complaints
and
safety
have
already
been
discussed.
With
regard
to
the
"unsupervised"
children,
this
testimony
was
in direct
contradiction to that
of
Sanger,
in
1996,
insisted
the
program
was
too
structured.
She
deplored Conner's
insistence
on
"single
files,"
having
a
"no
talking" rule,
and
requiring
"heads
down.
"
She
also stated that "children's
groups
are well
organized;
snack
distribution
proceeds
orderly
and
quickly."
To
the extent that
Gentry
insists
Conner
was
at fault for
being too
lenient,
she
is
direct conflict
with Sanger
who
insists
Conner
is at fault
for being too
structured.
These
two
administrators
were
the primary
architects
of Conner's eventual
termination.
The
fact that
they express diametrically opposite
views as to
what she
was
doing
wrong
attacks both of
their
testimonial
credibilities,
as well as
dictates
a
finding
that
a
serious credibility
gap
exists
with regard to
why
Conner's LA's
BEST
employment was
terminated.
50
5.
Gentry
said
that
Sanger
came
to
her
office in
September
1996
and
said
that
if
the
program
did
not
improve
she
was
going
to replace
Conner.
Sanger
testified
before
Gentry.
During
her testimony
she
said
nothing
about having
made
such
a
statement.
LAUSD's
primary defense
to
the
instant
charge
is
that
Conner's
termination
was
justified
as
her
program had
been
deficient
for
over
two
years.
Therefore,
it
is
inconceivable
that
both
LAUSD'S
attorney
and
Sanger
would
have
forgotten
to
introduce
this
alleged
1996
comment
into
evidence
when
Sanger
was
on
the stand.
Therefore,
this
unsubstantiated
statement
by
Gentry
is
not
credited
and
is
another
example
of Gentry's lack of
credibility.
Summation
Due
to
all
of the
above,
it
is
found
that
when
Gentry's
testimony
is
in conflict
with
that
of
Conner,
it
is
Conner's
that
will
be
credited.
C.
Sanger
The
evidence presented
a
series
of circumstances
in
which
Sanger's testimony
was
in conflict
with
other
evidence,
both
documentary and
testimonial.
Some
of these circumstances
are set
forth
below.
1.
When
asked
why
she went
to Hillcrest in
June
1996
and
wrote an
observation report,
21
she
said
concerns
were
21
It
must be noted that this observation
is
the only
contemporaneous documentation that permits LA's
BEST
to contend
Conner was
doing
a
poor job for twenty-six
months
prior to her
termination. If the objectivity of this
document
is tainted or
discounted, due
to Gentry being
its
genesis, LA's BEST's
entire
51
expressed
by
(1)
"a
volunteer
that
we
had
sent to
work
there,"
(2)
"individuals
who
had
observed
the
program,"
and
(3)
"staff
who
were
there to
supervise the
program."
The
volunteer
"who
was
sent to
work
there,"
was
never
identified.
Nor do
we
know
if
this
person
was
sent to
observe or
to
work
and
just
happened
to
comment
on
whats/he
saw.
The
11
individuals
who
had
observed
the
program" were
also
not
identified.
Given
six
days
of hearing
and
the
variety
of people
"observing"
Conner and
her
staff,
it
is difficult
to believe that
neither
the volunteer
nor
the "individual observers"
were
asked
to
testify
or
prepare
written declarations
on
such
observations.
LA's
BEST's
"staff
who
were
there to supervise the
program"
consisted of
TSP
Hernandez
who
prepared
two
evaluations
of
Conner
within
a
week
or
two
of Sanger's
visit. If
his
two
evaluations
are
added
together,
Hernandez found Conner
to
(1)
be
in
compliance
in
everything but
attending
staff
meetings
and
submitting
paperwork on
time,
(2)
"exceed
standards"
in
6
areas,
"meets
standards"
in
13
areas,
and be "below
standard"
in the
area of "Developmentally Appropriate
Activities
and
Programs,"
and
(3)
need
a
wider
variety
of cognitively appropriate
activities.
In addition,
he added
some
rather universal
statements of
what
constitutes
a
good
after-school
program.
"24 months of concerns" argument
fails. If this
argument
fails,
the only support for the termination is
(1) two months of
subjectively
documented,
potentially serious, failures to
conform, and (2) a
Sanger-directed surreptitious assembling of
"complaints" about Conner.
52
These
evaluation(s), in toto,
would
not
seem
to
call
for
a
personal
visit
from
the
CEO
of the
district-wide
program.
This
would
seem
to
be
especially true
as
Hernandez
did
not
sign
one
of
these evaluations
until
June 1,
four
days
before Sanger's
visit,
and
the other
was
not signed
until
June
14,
ten
days
after
her
visit.
The
only
other possible supervisory input
would
have
come
from
Hernandez'
visitation slips.
However,
these
slips
contained
no
negative
comments
about
either
Conner
or the
Hillcrest
program. There
was
no
evidence of
any
conversation
between
Hernandez and
either
Loxton
or
Sanger
during
this
period.
There
was
a
total
lack
of evidence
in
support of "concerns"
having been
"expressed"
by
the
unidentified
"volunteer"
or
"individuals
who
had
observed."
Due
to
this,
plus
Hernandez'
nonexistent negative
documentation,
it
must be found
that
Sanger
came
to
Hillcrest
for
a
reason
other
than the
one
she
expressed.
This evidence supports finding
a
lack of
credibility
on
her
part.
2.
After
Sanger
prepared her
June 4, 1996,
written
observations,
setting forth various
problems she
believed
Conner
was
experiencing
at Hillcrest,
she never discussed her
report
with
Conner,
nor
was
there
any evidence
that
she
directed
any of
her
staff
to
do
so.
If
Conner
was
terminated, as LA's
BEST
insists, in
an arms
length
manner,
solely
because she
was
an
ineffective site
coordinator, Sanger, or
someone
at her
direction, should have shown
her this observation.
s
would
53
have
enabled
her
to
modify
her
program
to bring
it
into
compliance
with
LA
1 s BEST 1 s
expectations.
Sanger
justified
her
inaction
by
insisting
it
was
just
a
"talk
piece for,
.
Operations
staff"
on
how
to
approach
the
issues.
That
may
be
true,
but
if
it
was
serious
enough
to
be
used
to
support
her eventual termination,
it
was
serious
enough
to
be
discussed
with
her.
Sanger
1 s
failure
to
show
and/or discuss her
1996
observation
with
Conner
conflicts
with her contention
that
Conner
was
terminated only
because
of
deficiencies in
her
program.
This
demonstrates
a
lack
of
credibility.
3. Sanger
said
she
sent
Gurowitz
to Hillcrest
because
she
was
getting
verbal reports that
were
in conflict
with
the
written evaluations
Conner
was
receiving.
The
source of
these
verbal reports
was
not
identified.
There
was
no
evidence
proffered regarding
anyone
other
than Gentry communicating
with
Sanger about
the
Hillcrest
program.
As
this
hearing concerned,
to
a
large extent, Gentry's influence
on
LA
1 s BEST
decision-
making
procedures, Sanger's
failure to
either
admit
that
it
was
Gentry
or to otherwise
identify
who
gave
her
such
reports
was
a
crucial
omission. This omission
is
an example
of
a
lack of
credibility.
4. Sanger's failure to
show
and/or to discuss
Gurowitz' report with
Conner
conflicts with her contention that
Conner was
terminated only because of deficienc
sin
her
program. This
is
an example of
a
lack of credibility.
54
5. Sanger 1 s insistence that Conner 1 s program was
deficient due to excessive structure was in direct conflict with
Gentry 1 s claims that the children were running rampant. (See
VII.B.4, p. 50, for a further analysis of this point.)
As stated above, these circumstances lend support to a
finding that a serious credibility gap exists concerning the
reason Conner's LA 1 s BEST employment was terminated. Therefore,
this evidence supports finding a lack of credibility on Sanger 1 s
part.
6. Sanger claimed that she told Conner at the
September 17 meeting that she was on probation. Conner denied
such a statement was made. Sanger admitted no probation form was
filled out and/or presented to Conner. Sanger even went so far
as to describe the meeting as a "probationary status" meeting,
which would suggest that Conner had been on probation even prior
to this meeting. The only support for this "prior" probationary
status was Sanger's statement that certain "expectations" had
been communicated to Conner prior to that meeting. The person
who communicated such expectations was not identified; nor were
the circumstances under which such communication was effected
described.
Sanger's assertion that specified events occurred with a
concomitant failure to provide evidence in support of such
assertion, in conjunction with her failure to prepare and
transmit an organizational probationary form, support finding a
lack of credibility.
55
7.
At
the
September
26
staff
meeting,
various
staff
members
monitored
and
reported
their
observations of
Conner
1 s
behavior.
These
reports
were
compiled
and
used
to
support
Conner
1 s
termination.
Sanger
insists
that
she
did
not ask
the
staff
members
to
prepare
or
submit such
reports.
However,
she does admit
to
asking Garcia
to
secretly
walk
over
to
Conner,
look over
her
shoulder, see
what
she
was
doing,
and
report
what
she
saw
to
Sanger.
Garcia's
subsequent
report
was
attached to the
other
staff
reports.
It
does
not take
an
in-depth
examination of
these
documented
staff
comments
to
support
a
finding
that
none
of
them would have
initially
been
made,
much
less
committed
to writing,
had
Sanger
not asked
for
such
information.
Her
denial of
directing her
staff
to
make
such
observations
and
subsequent
reports strongly
supports
a
finding of
a
lack of
credibility
on
Sanger's
part.
8.
Sanger
initially
claimed
that
her
1996
concerns
about
the
Hillcrest
program
continued
into
1997.
However,
upon
cross-examination
it
was
learned
that these concerns
were
based
on one
complaint
from one
parent
about
one
of Conner's
teaching
assistants.
This attempt to
use an
inc
that
had
little
or
nothing to
do
with
Conner
to perpetuate her
own
contention
that
Conner's program
was
deficient for
two
prior years,
is
an example
of lack of
credibility.
9. Sanger claimed that
11
there
were
statements
that
expressed that
[Conner] was
very difficult to
work
with." She
56
could not remember who made the statements or when they were
made. She used these "statements" to justify the staff members'
surreptitious note-taking of Conner's behavior, stating that they
were afraid to confront her about her doing paperwork during the
meeting.
These negative comments, allegedly made by unidentified
person(s) with no credible supporting documentation, are in the
same genre as the secret Hillcrest volunteer, and the unnamed
individual observers. Due to the lack of evidence to support
this "difficult to work with" comment, it must be found that
Sanger made the statement for a reason other than the one she
expressed. This provides one more example of evidence that
supports a finding of lack of credibility on the part of Sanger.
10. LAUSD insisted, in its opening statement,
throughout the hearing and in its closing brief that it is
entirely separate from LA's BEST. In fact, it insists that PERE
has no jurisdiction over the matter because of this separateness.
However, when discussing Conner's termination, Sanger states
that the ultimate decision was made by her, Loxton, Samuel, James
and Gentry. If LAUSD had nothing to do with Conner's LA's BEST
termination, why is Sanger citing Gentry as being one of the
termination decision-makers?
In addition, the evidence shows that Gentry told Conner that
she (Gentry) called the September 17 meeting because of concerns
she had about the program. Sanger acquiesced in Gentry's control
of the meeting. If Gentry had nothing to do with a LA's BEST
57
termination, why was Sanger permitting Gentry to call a meeting
to discuss her concerns with the LA's BEST program? It is
understandable that Gentry would attend, and even be involved, in
a peripheral manner. However, permitting her to actually call
the meeting to discuss her concerns, is diametrically opposed to
LAUSD's contention the two organizations were separate and LAUSD
personnel had no influence on LA's BEST's employment policies.
These incongruities are examples of a lack of credibility on
Sanger's part.
Summation
Due to all of the above, it is found that when Sanger's
testimony is in conflict with that of Conner, it is Conner's that
will be credited.
D. Loxton
The evidence presented a series of conflicts between
Loxton's testimony and other evidence, both documentary and
testimonial. Some of these conflicts are set forth below.
1. Loxton called Conner shortly after the
September 1, 1998, meeting to tell her that Gentry had called
about Hillcrest's program. Conner stated that Loxton suggested
that she apply for another job with LA's BEST. Loxton states
that she does not remember any discussion about another position.
Logically, this should have been a very stressful phone call
for Loxton. If LAUSD's contentions are correct, Conner was doing
a horrible job and Sanger and Loxton were going to have to do
something about it. On the other hand, if UTLA's contentions are
58
correct, Gentry was pressuring them to get rid of Conner because
she was a UTLA thorn in her side at Hillcrest. In either case,
Loxton had to be very aware of what she was saying and the manner
in which she said it. If her testimony had been that she did not
suggest Conner apply for a different LA 1 s BEST position, it would
have been more credible than her statement that she did not
remember any discussion about another position. The offering of
an alternative LA 1 s BEST position would not be surprising: Loxton
admitted that later, at the September 17, 1998, meeting, she told
Conner that she would provide such a position, if she (Conner)
resigned her Hillcrest position. However, Loxton 1 s testimony
that she does not remember whether she even discussed this matter
with Conner is not credited.
2. Loxton 1 s failure to show and/or to discuss with
Conner the reports from Sanger, Gurowitz, or Samuel directly
contradicts her contention that Conner was terminated purely
because of deficiencies in her program. This evidence supports a
finding of a lack of credibility on the part of Loxton. (See
VI.C.2 and 4, pp. 53-54, for further analysis.)
3. LAUSD insisted in its opening statement,
throughout the hearing and in its briefs, that it is entirely
separate from LA's BEST, and that the District had nothing to do
with Conner's termination. In fact, it insists that due to such
separateness 1 PERB has no jurisdiction over this matter.
However, Loxton's November 13, 1998, "Notice of Termination"
letter to Conner stated that, "I am in agreement with the
59
recommendations of Hillcrest Drive Principal, . that new
leadership must be identified . " Loxton' s use of Gentry's
recommendations to support Conner's dismissal is in conflict with
LAUSD's contentions it is not involved in LA's BEST's employment
decisions.
This is an example of lack of credibility on Loxton's part.
4. When asked about the conflict between Conner's
termination and her exemplary 1994-98 evaluations, Loxton stated
only that" [m]aybe something changed for her." The LA' s BEST
staff spent over two months finding and documenting each and
every Conner flaw, both real and perceived. In the face of this
effort, testimony that dismisses nine years of employment and
four years of documented positive evaluations with such a comment
is another example of a lack of credibility on the part of
Loxton.
Summation
Due to all of the above, it is found that when Loxton's
testimony is in conflict with that of Conner, it is Conner's that
will be credited.
E. Hernandez
The evidence presented a circumstance in which Hernandez'
testimony was internally inconsistent. This circumstance is
discussed below.
Hernandez' testimony with regard to the two 1995-96
evaluations was confusing, at best, and incredible, at worst.
His "final" evaluation was dated earlier than his draft. He
60
insisted that he never gave his draft to Conner, and yet it was
that document that she offered into evidence. He affixed his
full signature to both evaluations. He insisted that he lowered
his evaluation ratings due to his visitation slips. And yet the
only chronologically appropriate visitation slips produced by
LAUSD, after the completion of Hernandez' testimony, contained
comments that proved nothing other than he visited Hillcrest on
the specified dates. His failure to return to the stand to
explain the absence of negative comments on his visitation slips
added to the incongruity of his testimony.
This internal inconsistency in Hernandez' testimony supports
a finding that it should not be given any credibility.
Summation
Due to the above example, it is found that when Hernandez'
testimony is in conflict with that of Conner, it is Conner's that
will be credited.
ISSUES
1. Are LAUSD and LA's BEST a single employer, or in the
alternative, joint employers?
2. Did LAUSD, through its agent, Gentry, cause Conner to
be terminated from her LA's BEST employment because of her
protected activities, thereby violating subdivisions (a) or (b)
of section 3543.5?
61
CONCLUSIONS OF LAW
ISSUE NO. 1
Charging party contends that the operations of LAUSD and
LA's BEST are so interwoven, they are a single employer, or in
the alternative, they are joint employers.
Single Employer
In support of its "single employer" argument, it cites
Blumfield Theaters (1979) 240 NLRB 206 [100 LRRM 1229], enforced
without opinion (9th Cir. 1980) 626 F.2d 865 [106 LRRM 2869]. In
that case, the National Labor Relations Board (NLRB) cited Radio
& Television Broadcast Technicians Local Union 1264, IBEW v.
Broadcast Service of Mobile, Inc. (1965) 380 U.S. 255 [58 LRRM
2545] (Broadcast Service), in which the Supreme Court held that
in determining whether enterprises constitute a single employer,
the controlling criteria are:
( 1) interrelation of operations, (2) common
management, (3) centralized control of labor
relations, and (4) common ownership.
In Hvdrolines, Inc. and TNT Hvdrolines, Inc. and Local 333,
United Marine Division, International Longshoreman's Association,
AFL-CIO (1991) 305 NLRB 416 [138 LRRM 1363] (Hvdrolines), the
NLRB held that
No one of the four criteria is controlling
nor need all be present to warrant a single-
employer finding. The Board has stressed
that the first three criteria are more
critical than common ownership, with
particular emphasis on whether control of
labor relations is centralized, as these tend
to show "operational integration."
[Citation.] "[S] ingle employer status
depends on all the circumstances of the case
62
and is characterized by absence of an 'arm's
length relationship found among unintegrated
companies.' 11 [Citation; fns. omitted.]
There is little doubt that LAUSD and LA's BEST's operations
have an extensive interrelationship of operations. Some examples
of these are:
1. LA's BEST using LAUSD headquarters without paying rent.
2. School principal intricately involved in LA's BEST
program.
3. LA's BEST personnel driving LAUSD vehicles, with exempt
license plates, even though vehicles purchased with LA's BEST
funds.
4. LAUSD performing all bookkeeping functions for LA's
BEST, with the exception of one accountant.
5. LAUSD performing all personnel management functions for
LA's BEST.
6. No separate new hiring procedures, i.e., no new W-2,
fingerprint submission, etc.
7. LA's BEST's use of LAUSD's insurance for all of its
operations, other than personnel located in mayor's office.
8. Integrated payroll procedures:
a. Use of LAUSD employee numbers as means of
identification of LA's BEST employees.
b. Disbursal of one W-2 form for moneys earned from
both organizations.
c. FLSA restrictions applied to total hours worked
for both organizations.
63
9. LAUSD site administrator has control over hiring of new
employees.
10. LAUSD site administrator has control over such things
as soccer rosters and field trip requisitions.
11. LAUSD is LA's BEST'S only client.
12. Requirement that LA's BEST employees adhere to all
LAUSD rules and regulations.
13. Common salary structure, including increases.
14. With one exception, all site level supervisory
personnel, i.e., site supervisors and TSPs, work for both
organizations.
With regard to the centralized control of labor relations,
the evidence in this case showed that:
1. Each LAUSD site principal has to approve the hiring of
any new LA's BEST employee.
2. Gentry called a September 17, 1998, meeting to discuss
with Sanger, Loxton and Conner deficiencies she perceived in
Hillcrest's LA's BEST program.
3. Gentry was one of the persons that made the decision to
terminate Conner's LA's BEST employment.
In addition, PERE has issued a decision the
relationship between LAUSD and LA's BEST.
In Los Angeles Unified School District (1995) PERB Decision
No. 1129 (LAUSD (Davis)), the Board held that the principal of
Alta Loma Elementary School terminated the LA's BEST employment
relationship of an employee at her school.
64
There
do
not
seem
to
be
any
issues
regarding
common
management,
other
than
at
the
site
level,
which
has
been
described
above
in
the
discussion,
supra,
regarding the
centralized
control
of
labor
relations
criteria.
Nor
does
there
seem
to
be any
issue
with regard
to
common
ownership
as
LA's
BEST
is
a
private
corporation
and
LAUSD
is
a
public
institution.
Joint
Employers
With
regard
to
LAUSD
and LA's
BEST
being
held
to
be
joint
employers, United Public
Employees,
Local
790,
SEIU, AFL-CIO
v.
PERB
(1989)
213
Cal.App.3d
1119
[262
Cal.Rptr.
158]
(United
Public
Employees,
overturned
a PERB
decision
holding
that the
City
and County
of
San
Francisco
(City)
was
the sole
employer
of
specified
classified
employees working
at
the
San
Francisco
Community
College
District
(SFCCD).
The
court held
that the
City
and
SFCCD
were
joint
employers
of the
employees,
stating that
the
.
Union
will
continue to bargain with the
District
over those matters
in
which
the
District
exerts authority
and
control,
and
with the City over the areas within
its
purview.
The
court in
United Public
Employees
described
great
detail,
and
relied
to
a
large extent,
on
the
manner
in
which the
City
and
SFCCD
divided the
community
college's
personnel
procedures, hiring practices, payroll responsibilities
and
grievance procedures.
Each
entity
had
a
clearly defined
role
that
was
described
and memorialized in written
memoranda.
65
In
The
Regents
of the University
of
California
(1999)
PERB
Order
No.
Ad-293-H
(Regents),
on
p.
12,
the
Board
held
that
.
applicable
case
law
argues
againstgranting
the
motion
to
amend
on
a
joint
employer
theory.
As
a
private
nonprofitcorporation
USHC
falls
under
the
jurisdiction
of the National
Labor
Relations
Act
(NLRA),
even though
some
interrelationship
with
UC
may
exist.
(Management
Training Corporation
(1995)
317
NLRB
1355, 1358,
fn.
16 [149
LRRM
1313]
.)
In continued,
at
p.
13:
Also
relevant
here
is
PERB
case
law
holding
that
PERB
will
not
exercise
jurisdiction
over
entities
that
do
not
fall
within the
definition
of
employer
under
HEERA.l
221
Because
USHC
is
a
private
entity
that
does
not
fall
within the
definition
of
employer under
HEERA.
. PERB
may
not
exercise
jurisdiction
over
USHC
or
its
employees. (Fresno
Unified
School
District
(1979)
PERB
Decision
No.
82,
at
p.
5)
Subdivision
(k)
of
section
3540.1,
defines
a
"public school
employer"
or
"employer,"
for
purposes of the
EERA,
as follows:
.
means
the
governing board
of
a
school
district,
a
school
district,
a
county board
of education,
a
county
superintendent of
schools, or
a
charter
school
that
declared
itself
a
public
school employer
pursuant to
subdivision
(b)
of Section
47611.5
of theEducation
Code.
22HEERA
is
an acronym
for the Higher Education Employer-
Employee
Relations Act, see Government Code,
Title I, Division
4,
Chapter
12 (commencing with section
3560
et seq.)
66
Summary
In
order for
PERB
to
assert
jurisdiction
over
LAUSD
and
LA's
BEST
as
a
single
employer,
LA's
BEST
would
have
to
fall
within
the
above
definition
of
an
"employer."
It
meets
none
of the
criteria
of
such
definition.
Therefore,
PERB
cannot
assert
jurisdiction
on
a
single
employer
basis.
Even
as
a
joint
employer,
there are
difficulties
with
PERB's
asserting jurisdiction.
Regents
states
that
PERB
cannot
assert jurisdiction
over
a
private
corporation
as
it
falls
outside
of
EERA's
definition
of
an employer.
However,
United Public
Employees
states that
it
is
possible
to
assert
PERB's
jurisdiction
in
a
private/public partnership.
However,
in
order to
do
so
there
has
to
be
a
clearly
defined
line
between
the
two
organizations
with regard
to labor
relations.
This
line
would have
to
clearly
describe the
rights
and
responsibilities
of
each
organization.
This
would
enable
PERB
to
understand
what
part
of
LA's BEST's
operations
fell
within the
definition
of
a
public
school employer and what
did not.
In
the
absence
of
such
a
line,
it
is
not
possible to
conclude
that
PERB
may
assert jurisdiction
over
LA's
BEST
or
any
zation
that
does not
meet
the definition in subdivision
(k)
of section
3540.1.
In the instant case, the labor relations responsibilities
of
the
two
organizations
have no formal overlap at the institutional
level.
However,
at the site level the
LAUSD
principal has labor
67
relations responsibilities, i.e., the right to absolute veto over
hiring decisions and some undefined input into termination
decisions. (See LAUSD (Davis) and Sanger's testimony regarding
Gentry's part in LA's BEST's termination of Conner.)
However, this interrelationship is insufficient to bring
LAUSD and LA's BEST within the scope of the holding in United
Public Employee.
Due to the above, it is concluded that the two organizations
are neither a single nor a joint employer, but are two separate
employers. PERB, therefore, has no jurisdiction over LA's BEST.
However, this conclusion is not dispositive of the case.
LAUSD may be held responsible for the acts of its agents, even
though the "harm" occasioned by the employee is incurred outside
the ambit of the District's usual authority.
Parameters of LAUSD's Responsibility for Gentry's Actions
In Rim of the World Unified School District (1986) PERB
Order No. Ad-161 (Rim of the World), the Board discussed, at
length, whether a school official could be held to have committed
an unfair labor practice by filing a lawsuit against school
employees. Although the case centered on other issues, the
analysis made it clear that an employer could be held liable for
its agent(s)' acts that had an effect outside of the parameters
of the District.
In Inglewood Teachers Assn v. Public Employment Relations
Board (1991) 227 Cal.App.3d 767 [278 Cal.Rptr. 228], the District
Court of Appeal discussed at length, the same question presented
68
by Rim of the World. Its analysis, although decided on other
grounds, clearly assumed that an employer could be held liable
for its agent's acts that had an effect outside the parameters of
the District.
In HS Healthcare, Inc. d/b/a/ Springfield Manner et al.
(1989) 295 NLRB 17 [133 LRRM 1105], an employer was found to have
called other nursing homes in the area and explained that it had
fired a specified employee for union organizing. This action
prevented the employee from obtaining employment in this field in
the area. The employer was ordered to reinstate the employee
with back pay. In International Shipping Association (1990) 297
NLRB 1059 [134 LRRM 1035], an employer was also found to have
directed a successor employer to decline to hire specified
employees, due to protected activities. The NLRB's order
directed the employer to
. make them whole for any losses of
earnings and other benefits suffered as a
result of the discrimination against them
from the date of the refusal to employ them
in early December 1987 to the date they
secure substantially equivalent employment
with interest. [Emphasis added.]
ISSUE NO. 2: Did LAUSD, through its agent, Gentry, cause Conner
to be terminated from her LA's BEST employment, because of her
protected activities, thereby violat subdivision (a) or (b) of
section 3543.5?
PERB has long held that principals are agents of their
districts. (See Santa Clara Unified School District (1979) PERB
Decision No. 104, California State University (CFA) (1990) PERB
Decision No. 793-H.) In this case there would no question of
69
such agency
as
Gentry
was
interacting
with
Sanger's
organization
in
compliance
with the
duties
delegated
to
her
by
LAUSD.
Applicable Test
The
Board,
in
Carlsbad Unified
School
District
(1979)
PERB
Decision
No. 89
(Carlsbad),
set forth
the following
test
for
alleged
violations
of
an
employer's duty
regarding
discrimination
against or interference
with
employees:
1.
A
single
test
shall
be
applicable
in
all
instances in
which
violations
of
section
3543.5(a)
are alleged;
2.
Where
the charging
party establishes
that
the
employer's
conduct
tends
to or
does
result
in
some
harm
to
employee
rights
granted
under
the
EERA, a
prima
facie
case
shall
be
deemed
to
exist;
3.
Where
the
harm
to
the
employees'
rights
is slight,
and
the
employer
offers
justification
based
on
operational necessity,the
competing
interest
of the
employer and
the
rights
of the
employees
will
be
balanced
and
the
charge
resolved accordingly;
4.
Where
the
harm
is
inherently destructive
of
employee
rights,
the employer's conduct
will
be
excused only
on
proof
that
it
was
occasioned
by
circumstances
beyond
theemployer's control
and
that
no
alternative
course of
action
was
available;
5.
Irrespective of the foregoing,
a
charge
will
be
sustained
where
it
is
shown
that
the
employer would
not
have engaged
thecomplained-of conduct but for
an unlawful
motivation, purpose
or intent.
[Emphasis
added.]
In
Novato
Unified School
District
(1982) PERB
Decision
No. 210
(Novato), the Board
set forth the
test for retaliation
or
discrimination in light of the National Labor Relations Board
(NLRB)
decision in
Wright Line, Inc.
(1980) 251 NLRB 1083 [105
70
LRRM 1169] enforced in part (1st Cir. 1981) 662 F.2d 899 [108
LRRM 2513] Under Novato, unlawful motivation must be proven in
order to find a violation.
In both cases, a nexus or connection must be demonstrated
between the employer's conduct and the exercise of a protected
right, resulting in harm or potential harm to that right.
In order to establish a prima facie case, charging party
must first prove that the subject employee engaged in protected
activity. 23 Next, it must prove that the person(s) who made the
decision that resulted in the harm were aware of such protected
activity.
Proving the existence of unlawful motivation can be
difficult. PERB acknowledged that when it stated the following
in Carlsbad, at page 11:
Unlawful motivation, purpose or intent is
essentially a state of mind, a subjective
condition generally known only to the charged
party. Direct and affirmative proof is not
always available or possible. However,
following generally accepted legal principles
the presence of such unlawful motivation,
purpose or intent may be established by
inference from the entire record. [Fn.
omitted.]
In addition, the Board in Novato set forth examples of the
types of circumstances to be examined in a determination of
23 Section 3543 grants public school employees:
. the right to form, join, and
participate in the activities of employee
organizations of their own choosing for the
purpose of representation on all matters of
employer-employee relations.
71
whether union
animus
is
present
and
a
motivating
factor in the
employer's
action(s).
These
circumstances
are:
(1)
the presence
of
any
disparate
treatment of charging
party;
(2)
the proximity
of time
between
the
participation
in protected
activity
and
the
adverse
action;
(3)
any
inconsistent, contradictory or
vague
explanation of the employer's
action(s);
(4)
any
departure
from
established
procedures
or standards;
and
(5)
any
inadequate
investigation.
(See
also
Baldwin
Park
Unified
School
District
(1982)
PERB
Decision
No.
221.)
Explanatory
Comments
1.
The
facts in
this
case
are both
varied
and
voluminous.
In
addition,
many
of the determining
issues in
this
case
have
already
been
set forth
twice,
once
in
the
initial
findings of
fact,
and
again
in
the
credibility
determinations
at
the
conclusion of those findings.
Therefore,
when
possible in the
following
analysis, specific
events
will
be
incorporated
by
reference to
page and
outline designation,
rather
than
by
a
reiteration
of the previous
text.
2.
In
this
case,
most
of the actors are not employees
of
LAUSD.
Irrespective
of
this
employment
distinction,
if
the
eventual
harm was
created
by
the acts of
its
agent, the
District
is
still
liable for
such
harm.
In examining
the types of
circumstances
set forth in
Novato,
the purpose of the analysis
must be twofold.
First
it
must be determined whether unlawful motivation
was
the underlying reason for the harm,
i.e.,
Conner's termination.
72
Second, it must be determined whether the District's agent was
the source of that unlawful motivation. Each of these elements
may be established by inference from the entire record.
The District, in its defense, propounds two primary
contentions. First, it insists that the two organizations are
separate entities and therefore, PERB has no primary jurisdiction
over LA's BEST. In this area, it has been concluded it was
correct and it prevailed. See holding, supra, i.e., the two
organizations were neither a single employer nor joint employers.
Its second contention is that Conner's program at Hillcrest
was so deficient that LA's BEST, in an arms-length manner, was
justified in terminating her employment. It called numerous
after-school expert witnesses who provided testimony in support
of this contention.
UTLA attempted to counter this contention with evidence that
such alleged deficiencies were (1) insufficiently documented,
(2) very subjective, (3) supported by inconsistent evidence, and
(4) manifested for a relatively short period of time. This last
deficiency was a crucial element in UTLA's case, in that it
contended that Conner's alleged deficiencies did not justify LA's
BEST's swift termination. UTLA insists that these four factors,
acting in concert, prove that LA's BEST had insufficient
justification to terminate Conner in November 1998. It further
contends this lack of termination justification supports an
inference of unlawful motivation.
73
As Conner was not involved in any protected activities vis-
a-vis LA's BEST, UTLA contends that the genesis of such unlawful
motivation came from LAUSD's agent, Gentry. It was her unlawful
motivation that caused Sanger and her organization to terminate
Conner.
Analysis
There is no doubt that Conner engaged in protect activities.
Her tenure as Hillcrest's UTLA chapter chair, the PERB charge she
filed, plus the various discussions she had with Gentry on behalf
of her fellow teachers provides this element. (See I.A and C,
pp. 4-9.)
Gentry admitted knowing of Conner's UTLA chair status. She
also was aware of the PERB unfair practice charge and its
eventual outcome. Therefore, the remaining element is whether
Conner's termination was the result of these protected
activities.
Presence of Disparate Treatment of Charging Party
1. LA's BEST observations and reporting of Conner
activities at staff meetings. (See facts and analysis at V.H.1
and 2, pp. 37-39, as well as VII.C.7, pp. 56.) These types of
trivial compla s are neither noticed nor reported unless the
supervisor requests them. The very fact that they were
requested, made and memorialized shows that Conner was treated in
a disparate manner. It also is an example of a departure from
established procedures. A supervisor using employees to spy on
an a fellow employee in order to support a termination is hardly
74
an
established
personnel
practice.
This
is
especially true
as
the
"reportable
offenses"
were de minimus.
This
behavior
supports
an
inference of
unlawful
motivation.
2.
Gentry's
failure
to
renominate
Conner
for
mentor
teacher
status.
(See
facts
and
analysis
at
I.A,
pp.
4-7,
as
well
as
VII.B.1,
p. 48.) This
failure
to
renominate
in
the face of
uncontested
evidence
to
the
contrary
shows
that
Conner
was
treated
in
a
disparate
manner.
This
supports
an
inference of
unlawful
motivation.
3. Sanger
and
Loxton's
failure
to
provide negative
program
information
from
Sanger
(June
1996), Gurowitz (September
1998),
and
Samuel
(October
1998)
to
Conner.
(See
facts
and
analysis at
V.A,
pp.
4-7; VII.C.2,
pp. 53-54;
VII.C.4, p.
54;
VII.D.2,
p. 59.)
This
failure
to give
Conner an
opportunity to
respond
to
her
critics
and
thereby
improve
her
program
shows
that
she
was
treated in
a
disparate
manner.
This evidence supports
an
inference of unlawful motivation.
It is
also
an example
of
contradictory explanations of the employer's
actions,
and
a
departure
from
established standards
and
procedures,
which
provides
further
support for
an
inference of unlawful motivation.
Proximity of
Time
Between
Protected Activities
and Harm
1. Conner's return to the
Hillcrest
campus
after Gentry's
aborted attempt to
remove
her in
March 1996 was
closely followed
by Sanger and Loxton's unexplained
visit to Hillcrest in early
June 1996. (See
facts
and
analysis at I.A, pp. 4-7;
V.A,
75
pp. 22-23; VII.C.l, pp. 51-53.) This provides evidence of the
short proximity of time between Conner's participation in
protected activity and the adverse action. This evidence
provides support for an inference of unlawful motivation.
2. In 1994-95 there was little or no evidence of conflict
between Conner and Gentry and her evaluation was outstanding. At
the end of 1995-96, shortly after she was returned to her
classroom after the "postal employee comment," she received two
evaluations. The first was somewhat lower than that of the prior
year, the second was markedly lower. Hernandez' explanation for
the existence of two evaluations was not credited. (See facts
and analysis at IV.B, pp. 16-19; VII.E, pp. 60-61.) This
evidence provides evidence of the proximity of time between the
participation in protected activity and the adverse action. It
also provides evidence of an inconsistent explanation of the
employer's actions, and a departure from established standards
and procedures. This evidence provides support for an inference
of unlawful motivation.
3. Shortly after Conner's resignation of her Hillcrest
UTLA chair became effective, she received a letter from Sanger
which included assurances that she would receive a new 1995 96
evaluation and that her work was valuable to the LA's BEST
children. The fact that no reevaluation was forthcoming does not
negate the effect of this letter. This assurance of support is
in direct contradiction to Sanger's testimony that Conner's
program was in trouble from 1996 to her termination. (See facts
76
and analysis at V.B, p. 25.) This evidence supports a nexus
between the cessation of protected activity and the receipt of a
promise of relief from an earlier evaluation. This supports an
inference of unlawful motivation.
4. In 1996-97, after her resignation of the Hillcrest UTLA
chair, she once again received an unblemished evaluation. More
particularly, this evaluation stated that she had cured the only
seriously negative comment contained in the 1995-96
evaluation(s), when it stated, "continue to implement
developmentally appropriate school-age child care programs."
(See facts and analysis at IV.D, p. 20.)
This evidence supports a nexus between the proximity in time
between the cessation of a protected activity and the receipt of
an improved evaluation. This supports an inference of unlawful
motivation.
Inconsistent, Contradictory or Vague Employer Explanations
Additional examples of inconsistent, contradictory or vague
employer explanations have been set forth, supra, under disparate
treatment (para. 3) and proximity of time (para. 2).
1. When Gentry testified as to why she elicited Sanger and
Loxton's help with Conner in 1998, she cited anonymous
complaints, safety considerations and Hillcrest's low test
scores. Her testimony is contradictory to the weight of the
dence produced at the hearing. These comments were
unsupported by any other evidence and were found to have had no
credibility. (See facts and analysis at V.C, pp. 25-26; and
77
VII.B.3(a) (b) and (c), pp. 48-50.) They support an inference of
unlawful motivation.
2. Gentry alleged that she complained in 1994-95 about
Conner's program due to unsupervised children, parent complaints
and more injuries. These comments were unsupported by any other
evidence and were found to have no credibility. More
importantly, they were in direct contradiction to Sanger's June,
1996 observations and her (Sanger's) later statements that she
found Conner's program too structured. (See facts and analysis
at V. A. 1 , pp . 2 3 - 2 4 ; VI . D . l , pp . 4 2 - 4 3 ; VI I . B . 4 , p . 5 0 . ) The
inconsistency of Gentry's comments with those of Sanger's
constitutes shifting explanations of the employer's actions.
This supports an inference of unlawful motivation.
3. Sanger said she sent Gurowitz to Hillcrest because she
was getting verbal reports that were in conflict with Conner's
evaluations. The only person identified at the hearing that
could have made such reports was Gentry. (See facts and analysis
at V.D, pp. 26-27; VII.C.3, p. 54.) Her failure to admit it was
Gentry or otherwise identify the source of such reports
constitutes an inconsistent explanation of the employer's action.
This test supports an inference of unlawful motivation.
4. Sanger's testimony that the September 17 meeting with
Conner was a "probationary status" meeting was without support
from either Loxton, Gentry or other evidence elicited at the
hearing. (See facts and analysis at V.E, pp. 28-30; VII.C.6,
p. 55.) This testimony constitutes an inconsistent explanation
78
of the employer's actions, which supports an inference of
unlawful motivation.
5. Sanger initially claimed her concerns regarding
Conner's program continued into 1997. However, the only support
for this claim was one complaint from one parent about one
teaching assistant. (See facts and analysis at VI.D.l,
pp. 42-43; VII.C.8, p. 56.) This unsupported claim constitutes
an inconsistent and vague explanation of the employer's actions
as well as a departure from established procedures or standards.
It also supports an inference of unlawful motivation.
6. Sanger claimed that ''there were statements that
Conner was very difficult to work with." She was unable to
support this claim with facts regarding when or by whom these
statements were made. (See facts and analysis at V.H.l,
pp. 37-38; VII.C.9, pp. 56-57.) This claim constitutes an
inconsistent and vague explanation of the employer's actions.
In addition, both this and the preceding paragraph are
violations of the most basic of supervisory practices, i.e.,
dealing with one's subordinates in an honest and forthright
manner. This behavior on the part of a supervisor also
constitutes a departure from established procedures and
standards. It also supports an inference of unlawful motivation.
7. Sanger's admission that Gentry was a part of the
termination decision-making process is in direct contradiction to
LAUSD's entire defense theory, i.e., neither LAUSD, nor its
administrators, have any responsibilities for LA's BEST
79
employment decisions. This admission constitutes an inconsistent
explanation of the employer's actions. (See facts and analysis
at VI.A, pp. 39-41; VII.C.10, pp. 57-58.) This admission
supports an inference of unlawful motivation.
8. Loxton 1 s November 13, 1998, notice of termination
states, inter alia, that she was in agreement with the
recommendation of Gentry that Conner should be terminated. (See
comments in para. 7, supra, as well as facts and analysis at
VII.D.3, pp. 59-60.) This statement supports an inference of
unlawful motivation.
Departure from Established Procedures or Standards
Examples of departures from established procedures or
standards have been set forth, supra, under disparate treatment
(paras. 1 and 3), proximity of time between protected activities
and harm (para. 2), and inconsistent, contradictory or vague
employer explanations (paras. 5 and 6).
Summation
LAUSD insists that, as most of the evaluators of Conner 1 s
program were unaware of her UTLA affiliation, there could be no
unlawful motivation on their part. This argument misses the
point.
Gentry was in a battle with Conner. She attempted to get
her removed from Hillcrest after the "postal" comment incident.
She was unable to do so and suffered the additional humiliation
of LAUSD's actually paying Conner $2,500 in settlement of the
incident.
80
In 1998, Gentry called Sanger and Loxton and had them come
out. There was no credible documentary or testimonial
justification for this call. She elicited their help--not to
improve the program, but to get rid of Conner. They agreed and
began to inundate Conner with evaluations and surreptitious
observations by fellow employees. They were faced with a problem
regarding timing. In her uncontradicted testimony, James stated
that when a LA's BEST site coordinator is in trouble it takes
approximately three semesters before a termination occurs. In
this case, Sanger and Loxton needed to retroactively create these
three semesters. They initially used Sanger's June 1996
comments. However, an inconsistency diminished the impact of
this report. If the comments in this report were so damning why
were they not shared with Conner?
Their attempt to create "two years of concerns" over
Conner's program was a failure. Even her two evaluations from
Hernandez were not sufficiently negative to support their "two
years of concerns" theory. The 1997 and 1998 parent evaluations
provided additional contrary evidence to this theory. Although
it occurred after the termination, the three hundred and one
petition signatures to restore Conner to her position added
additional evidence the "two years of concerns" theory had little
support in the community.
In a attempt to support their "two years of concerns"
theory, as well as the ultimate termination, they resorted to
(1) unidentified (a) volunteers, (b) individuals who expressed
81
concerns,
(c)
(parental)
complaints,
(2)
undocumented
safety
issues,
(3)
unsupported
allegations that
she
was
difficult
to
work
with,
(4)
alleged
patterns
of
lateness,
(5)
and
a
series
of
supervisor-inspired
11
observations
11
by
fellow
employees
at
staff
meetings.
Even
if
Conner's
program
was
deficient in
some
manner,
the very
fact that
Sanger
and Loxton
terminated her
fifty-seven
days
after
first
putting
her
on
notice
of
such
deficiencies,
clearly
supports
a
conclusion
their
actions
were
not
the
result
of
a
routine,
arms-length personnel
decision.
An
examination of the record, as
a
whole,
dictates
a
conclusion
that
the subject termination
was
the
result
of
unlawful
motivation.
It is
also
clear that
this
motivation
came
from
Gentry,
who
convinced Sanger
to terminate
Conner, due
to
her
protected
activities at Hillcrest.
Therefore,
it
is
concluded
that
LAUSD
is
responsible for
Conner's
termination
from
her
position
with
LA's
BEST.
This
action constitutes
a
violation
of
subdivision
(a)
of section
3543.5.
Subdivision
(b)
of Section
3543.5
Violation
To
establish
a
violation
of subdivision
(b)
of
section
3543.5
the union
must
establish
a
denial of
its
rights separate
and
apart
from
the involved
employee.
The
union has
a
protected right to elect site
leaders and
have them communicate
with
their
fellow employees.
If
one
of
these
site
leaders is subject to discrimination, in
any manner,
it
thwarts the union's ability to
have employees
voluntarily step
into leadership roles
and communicate with
its
members.
This
82
discrimination against
one
of
its
leaders
constitutes
a
violation
of
subdivision
(b)
of
section
3543.5.
SUMMARY
Based on
all
of the foregoing,
it
is
concluded
that
LAUSD
violated
subdivisions
(a)
and
(b)
of
section
3543.5
when
it
caused
Conner
to
be
terminated
from
her
employment
as
a
site
coordinator
at
LA's
BEST.
REMEDY
The
PERB,
in section
3541.5,
is
given:
.the
power
to issue
a
decision
and
order
directing
an
offending
party to
cease
and
desist
from
the
unfair practice
and
to
take
such
affirmative action, including but not
limited to
the reinstatement of
employees
with
or
without
back pay,
as
will effectuate
the
policies
of
this
chapter.
In order to
remedy
the
unfair practice
of the
District
and
prevent
it
from
benefitting
from
its
unfair labor
practices,
and
to effectuate
the
purposes of the
Act,
it
is
appropriate
to
order
the
District
to
(1)
use
its
good
offices
to attempt
to
cause
LA's
BEST
to reinstate
Conner
to her
position
as
Hillcrest's
site
coordinator
and
(2)
cease
and
desist
from
denying
UTLA
rights
guaranteed
to
it
by
the Act.
It is
also appropriate that
Conner be
made
whole by
receiving
any
salary lost
as
a
result
of her unlawful
termination.
Such
retroactive salary
award
shall include
interest at the rate
of
7
percent per
annum. She
should
also
be
made
whole
for
any
ancillary losses, such as benefits, seni ty
credit(s), leave credit(s)
and reasonably expected overtime
83
salary opportunities, for example, that she would have received,
but for the District's unlawful actions.
Should LAUSD not be able to prevail upon LA's BEST to
reinstate Conner to her previous Hillcrest site coordinator
position, or a comparable position acceptable to Conner, LAUSD
will continue pay to Conner an amount equal to what she would
have earned had she not been unlawfully terminated. These
payments shall continue until either LA's BEST or any successor
organization ceases to exist, Conner terminates her employment
relationship with LAUSD, or she secures substantially equivalent
employment.
It is also appropriate that the District be required to post
a notice incorporating the terms of this order at all District
sites where notices are customarily placed for certificated
employees. The notice should be subscribed by an authorized
agent of the District, indicating that it will comply with the
terms therein. The notice shall not be reduced in size, defaced,
altered, or covered by any other material. Posting such a notice
will provide employees with notice the District has acted in an
unlawful manner and is being required to cease and desist from
this activity. It effectuates the purposes of the Act that
employees be informed of the resolution of the controversy and
will announce the District's readiness to comply with the ordered
remedy. (See Placerville Union School District (1978) PERB
Decision No. 69.) In Pandol and Sons v. Agricultural Labor
Relations Board (1979) 98 Cal.App.3d 580, 587 [159 Cal.Rptr. 584]
84
the California District Court of Appeals approved a similar
posting requirement. (See also National Labor Relations Board v.
Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM 415) .)
PROPOSED ORDER
Based on the foregoing findings of fact, conclusions of law,
and the entire record in this case, it is found that the Los
Angeles Unified School District (District) violated subdivision
(a) and (b) of section 3543.5 of the Educational Employment
Relations Act (Act). Therefore, it is hereby ORDERED that the
District, its administrators, and representatives shall:
A. CEASE AND DESIST FROM:
1. Influencing LA's BEST to terminate Carol Conner
(Conner), its site coordinator at Hillcrest Elementary School
(Hillcrest).
2. Denying to the United Teachers of Los Angeles
(UTLA) the right to communicate with its members through its
elected officials, without fear of retaliation.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Using its good offices to attempt to cause LA's
BEST to reinstate Conner to her position as llcrest's site
coordinator.
2. Pay to Conner, upon demand, the salary she lost as
a result of her unlawful termination. Such retroactive salary
award shall include interest at the rate of 7 percent per annum.
3. Make Conner whole, upon demand, for any other
losses, such as benefits, seniority credit(s), leave credit (s)
85
for example, and reasonably expected overtime salary
opportunities she may have suffered as a result of the District's
unlawful action.
4. Pay to Conner, upon demand, should it not be able
to prevail upon LA's BEST to reinstate her to her previous
Hillcrest site coordinator position, or a comparable position
with LA's BEST that is acceptable to Conner, an amount equal to
what she would have earned had she not been unlawfully
terminated. These payments shall continue until either LA's BEST
or any successor organization ceases to exist, Conner terminates
her employment relationship with LAUSD, or she secures
substantially equivalent employment.
5. Upon issuance of a final decision, make written
notification of the actions taken to comply with this Order to
the San Francisco Regional Director of the Public Employment
Relations Board in accordance with her instructions. Continue to
report, in writing, to the regional director thereafter as
directed. All reports to the regional director shall be
concurrently served on the charging party herein.
It is further Ordered that all aspects of the charge and
complaint are hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section
32305, this Proposed Decision and Order shall become final unless
a party files a statement of exceptions with the Board itself at
the headquarters office in Sacramento within twenty days of
service of this Decision. the Board's address is:
86
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of
exceptions should identify by page citation or exhibit number the
portions of the record, if any relied upon for such exceptions.
(Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received
before the close of business (5 p.m.) on the last day set for
filing or when mailed by certified or Express United states mail,
as shown on the postal receipt or postmark, or delivered to a
common carrier promising overnight delivery, as shown on the
carrier's receipt, not later than the last day set for filing.
(Cal. Code Reg., tit. 8, sec. 32135(a); see also Cal. Code Regs.,
tit. 8, sec. 32130.)
A document is also considered "filed" when received by
facsimile transmission before the close of business on the last
day for filing, together with a Facsimile Transmission Cover
Sheet which meets the requirements of Cal. Code Regs., tit. 8,
sec. 32135(d), provided the filing party also placed the
original, together with the red number of copies and
of service, in the U.S. mail. (Cal. Code Regs., tit. 8, secs.
32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs.
32090 and 32130.)
87
Any statement of exceptions and supporting brief must be
served concurrently with its filing upon each party to this
proceeding. Proof of service shall accompany each copy served on
a party or filed with the Board itself. (See Cal. Code Regs.,
tit . 8 , secs . 3 2 3 0 0 , 3 2 3 0 5 , 3 214 0 , and 3 213 5 ( c) . )
88
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