Alisal Union Elementary School District * * * OVERRULED IN PART by County of Santa Clara (2017) PERB Decision No. 2539-M (PERB 1412E)

OVERRULED IN PART by County of Santa Clara
(2017) PERB Decision No. 2539-M
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ALISAL 	TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
ALISAL 	UNION ELEMENTARY 	SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-2052
PERB Decision No. 	1412
October 10, 	2000
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Appearances: 	California Teachers Association, 	by Ramon E.
Romero, 	Attorney, 	for Alisal Teachers Association, 	CTA/NEA;
Lozano 	Smith by Kristina A. 	Markey, 	Attorney, 	for Alisal 	Union
Elementary 	School 	District.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
BAKER, 	Member: 	This 	case comes before 	the 	Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the Alisal
Union Elementary School 	District 	(District) 	to 	a proposed
decision of a PERB administrative 	law judge 	(ALJ). 	In the
proposed decision, 	the ALJ 	found that 	the 	District 	violated
section 	3543.5(a) 	of 	the 	Educational 	Employment 	Relations Act 	(EERA)1
1EERA 	is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory reference 	herein are 	to
the Government 	Code. 	Section 3543.5 	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 purposes 	of

when 	it 	issued a 	letter of 	reprimand 	to 	Donna 	Leonard 	(Leonard)
in 	retaliation 	for her protected 	activities.
After reviewing the 	entire 	record 	in this 	case, 	including
the unfair practice 	charge 	and complaint, 	the hearing transcript,
the proposed decision and the 	filings 	of 	the parties, 	the 	Board
affirms 	the ALJ's 	finding of 	a violation 	for the 	reasons
presented 	below.2
PROCEDURAL 	HISTORY
This 	case 	commenced on May 5, 	1999, 	when the Alisal 	Teachers
Association, 	CTA/NEA 	(Association), 	filed an unfair practice
charge against 	the District. 	After investigation, 	on June 	10,
1999, 	the 	PERB general 	counsel 	issued a complaint 	against 	the
District. 	The 	complaint 	alleges 	that 	Leonard 	exercised 	rights
guaranteed by 	the 	EERA by 	serving 	as 	the Association's 	secretary,
president-elect, 	president, 	and past president, 	as well 	as site
representative. 	It 	is 	further alleged that 	Leonard has 	filed
grievances 	and unfair practice 	charges 	against 	the 	District. 	In
addition, 	it 	is 	alleged that 	Leonard served as 	a 	representative
for 	the Association's president 	in a 	series 	of 	meetings
concerning work performance. 	On or about March 	16, 	1999, 	the
District 	took 	adverse 	action 	against 	Leonard by 	issuing 	her 	a
letter of 	reprimand concerning her work performance. 	It 	is
this 	subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
2The 	District's 	request 	for oral 	argument 	is 	denied.
2

alleged this 	action was 	taken because 	of 	Leonard's 	exercise 	of
protected rights 	and violated section 3543.5(a) 	and 	(b).3
The District 	filed its 	answer on July 2, 	1999, 	denying any
violation of 	EERA. 	A settlement 	conference 	did not 	resolve 	the
dispute 	and a 	formal 	hearing was held on November 4 	and 5, 	1999.
Post-hearing briefs were 	filed on January 11, 	2000, 	and the
matter was 	submitted 	for 	a proposed decision. 	After 	receiving
the proposed decision, 	the District 	then 	filed exceptions 	and the
Association 	responded.
FINDINGS 	OF 	FACT
Leonard 	is 	an employee 	and the District 	is 	a public 	school
employer, 	both within the meaning of 	EERA.
Leonard has 	been employed by the 	District 	for 	18 	years,
teaching 	first 	grade 	about 	fourteen years, 	and a 	first 	and 	second
grade 	combination the 	rest 	of 	the 	time, 	except 	for her 	first 	year
when 	she 	taught 	fifth grade. 	Leonard has 	been at 	the District's
Steinbeck Elementary School 	(Steinbeck) 	since 	it 	opened 	in 	1990.
With the 	exception of 	the 	first principal, 	who 	served 	for 	four
years, 	and the second principal, 	who served two years, 	the school
has 	had a 	different 	principal 	every year.
3EERA section 3543.5(b) 	states:
It 	shall 	be unlawful 	for a public 	school
employer to 	do 	any of 	the 	following:
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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Leonard has 	been very active 	in the Association. 	She 	has
served as a professional 	relations 	chair, 	secretary, 	and
president. 	She has been a 	school 	site 	representative 	for the
last 	three years. 	Steinbeck has 	two 	site 	representatives.
Leonard has 	represented 	teachers 	in 	disputes 	with 	the
District, 	and 	the Association has 	represented her 	in extensive
litigation with the District. 	In the 	1993-94 	school year, 	the
fourth year 	following the 	opening of 	Steinbeck, 	Leonard 	filed 	13
grievances 	against 	the principal. 	This 	conflict 	led to 	an unfair
practice 	charge 	filed against 	the 	District 	by the Association.
There 	have 	been 	several 	other 	charges 	against 	the 	District 	filed
by the Association on Leonard's behalf.4
Leonard was 	involved 	in January of 	1999 	in 	another 	charge
filed on behalf of 	Ken Anderson 	(Anderson), 	president 	of 	the
Association. 	She 	attended one meeting on his 	behalf 	on
January 22, 	1999, 	with Reuben Pulido and Donna Kiernan.
Leonard 	testified 	that 	she 	also 	appeared on behalf 	of 	Carol
Bernett 	regarding an evaluation, 	some 	time 	in October of 	1998.
Robert 	Mayfield 	(Mayfield) 	has 	been 	the District's 	personnel
director 	for 	five years. 	He has 	attended all 	of 	the proceedings
involving Leonard before 	PERB, 	both 	formal 	and 	informal.
Alfonso Anaya 	(Anaya) 	has 	been 	the District 	superintendent 	since
July 1, 	1998.
4For 	example, 	the Board adopted an ALJ's proposed decision
holding 	that 	the 	District 	had 	interfered with Leonard's 	right 	to
respond 	to 	a 	disciplinary memo 	in Alisal 	Elementary 	School
District 	(1998) 	PERB Decision No. 	1248.
44

This 	case 	arises 	out 	of 	Leonard's 	conflict 	with a parent 	of
a new first 	grade 	student 	in the 	1997-98 	school 	year. 	The
student 	shall 	be 	called Paul 	Smith5 (Paul). 	According to
Leonard, 	Paul 	had problems 	during the 	course 	of 	the 	school 	year.
Mrs. 	Smith visited Leonard's 	class 	in June 	of 	1997 	to 	review the
setting 	for her 	son the next year. 	This was not 	uncommon.
When school 	commenced in the 	fall, 	Mrs. 	Smith visited the
classroom two or three 	times 	a day, 	every day, 	according to
Leonard. 	This was 	unusual. 	Other parents visited the 	classroom,
but 	not 	so 	frequently. 	Those parents would 	sit 	and observe 	the
class in session. 	Mrs. 	Smith, 	however, 	insisted on talking to
Leonard 	every 	day.
Leonard's 	class 	starts 	at 	8:30 	a.m. 	and ends 	at 	2:30 	p.m.
Most 	students 	arrive 	between 	8:00 	and 	8:20 	a.m. 	There 	is 	some
socializing by the 	students 	and then at 	8:30 	the 	bell 	rings.
Leonard then does 	"calendar" 	and roll 	call.
According 	to Leonard, 	Paul 	and his 	mother 	consistently
arrived between 	8:30 	and 	8:50 	a.m. 	Paul 	would 	talk 	to 	other
students 	and Mrs. 	Smith would 	interrupt 	the 	"calendar" 	to 	talk to
Leonard. 	Mrs. 	Smith would say she 	could not get 	Paul 	to do his
homework, 	or sit 	and focus 	on his work, 	or 	she would talk about
Paul's 	little brother, 	whom she brought 	along. 	She would stay
about 	ten minutes, 	said Leonard.
5Paul 	Smith 	is 	a pseudonym, 	given to protect 	the privacy of
the 	student 	and his parents. 	The parents 	in this 	case 	shall 	be
referred to as 	the 	"Smiths" 	and the mother as 	"Mrs. 	Smith."
55

Leonard spoke 	to Mrs. 	Smith about 	Paul's 	late 	arrivals but
the 	latter complained that 	she 	and 	Paul 	were both 	"night 	persons"
and had 	trouble 	getting 	started 	in 	the 	morning. 	Leonard
contended 	the 	District 	policy on 	reporting 	tardiness 	was 	unclear,
so 	she 	didn't 	always 	report 	Paul 	tardy.
The 	Newsletter
For the 	last 	five years, 	Leonard has 	sent her students'
parents 	a 	weekly newsletter 	describing 	events 	and 	circumstances
at 	the 	school. 	She has 	never been criticized for the 	contents 	of
the newsletter.
On September 2, 	1997, 	Leonard hand wrote on her newsletter
that 	she was 	missing a calculator, 	and asked parents 	to 	check
their child's back pack. 	At 	the 	same 	time 	Leonard 	told the
students 	that 	there 	would be 	no 	repercussions 	if 	the 	calculator
were 	returned. 	She 	also 	announced 	that 	the 	class 	would not 	use
calculators 	until 	the missing unit 	was 	returned.
On October 10, 	1997, 	Mrs. 	Smith came to Leonard with the
calculator. 	Leonard described Mrs. 	Smith as 	crying 	and her main
concern was 	that 	she 	didn't 	want 	anyone 	to 	know Paul 	had 	taken
the 	calculator. 	Leonard said her agreement 	with Mrs. 	Smith was
that 	she 	would not 	tell 	anyone 	that 	Paul 	had taken the
calculator. 	Leonard 	said 	she 	never 	did 	relate 	who 	took 	the
calculator. 	She 	did announce 	to the 	students 	in class 	that 	the
calculator 	had 	been 	returned.
On October 	13, 	1997, 	Leonard wrote 	in the weekly newsletter:
I 	want 	to begin by thanking 	the parent 	who
returned the 	calculator. 	You are 	setting 	a
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good example 	for your child. 	It 	took a great
deal 	of 	courage 	to 	come 	foreword with your
child and return 	it. 	Thank you!
The 	newsletter 	also 	contained 	an 	article 	about 	dogs 	in 	the
classroom. 	Because 	Principal 	Tom Cranson 	(Cranson) 	had 	shared
with her 	a 	complaint 	on the 	matter, 	she 	showed Cranson the
newsletter before 	sending 	it 	out. 	He 	did not 	say anything about
the 	calculator 	comment.
Leonard 	testified 	she wanted 	to praise Mrs. 	Smith because
the 	District 	operates under a 	set 	of 	"praise builder" 	principles
to 	"right 	wrongs 	and praise people." 	These principles 	are part
of 	the District's 	program to 	develop 	a positive 	learning
environment 	for the 	children.
Leonard testified that, 	at 	the time, 	she did not 	have any
reason to believe 	that 	anybody had 	any knowledge 	of 	who 	had
stolen the 	calculator. 	However, 	Leonard's 	credibility is
seriously undermined by her 	testimony 	about 	an 	event 	that
occurred a year later. 	A parent, 	Judy Donovan 	(Donovan), 	came to
Leonard and 	asked what 	Mrs. 	Smith had to 	do with 	the 	calculator.
Leonard described her personal 	reaction of 	surprise 	and 	that 	she
told Donovan 	she 	thought 	everyone 	knew 	that 	Paul 	had 	taken 	the
calculator because 	"Mrs. 	Smith was 	in my room with the
calculator, 	the door was open, 	the windows were open 	[and] 	there
were parents 	in the 	area, 	so 	since 	-- 	they were 	there and they
saw her handing me 	the 	calculator." 	She 	then 	testified 	that
Donovan had told her that 	Mrs. 	Smith was 	telling other parents
about 	the 	calculator.
7
7

Leonard 	also 	testified 	that 	she 	did 	not 	hear 	any 	complaints
about 	this 	reference until 	October of 	1998, 	a year later. 	The
principal at the time, 	Alicia Escobar 	(Escobar), 	told Leonard
about 	the 	complaint. 	Yet, 	Leonard also testified that 	at 	a
meeting 	in May with Mrs. 	Smith and Cranson, 	Mrs. 	Smith complained
that 	Leonard had 	told others 	Paul 	had 	taken 	the 	calculator.
The May 8, 	1998, 	meeting
On May 8, 	1998, 	Mrs. 	Smith wrote Leonard a note 	stating she
needed 	a 	conference 	with 	Leonard.6 Before 	Leonard 	could
respond, 	she was 	called to a meeting 	in Cranson's office. 	At
that 	meeting, 	Mrs. 	Smith told Leonard that 	a 	student 	had told her
that 	Leonard had 	stated her 	son had 	stolen 	the 	calculator. 	From
this point 	on, 	Leonard said, 	their relationship 	soured.
Cranson testified that 	he met 	with Mrs. 	Smith and Leonard 	in
late May. 	Mrs. 	Smith later did not 	feel 	the 	issue was 	resolved.
Mrs. 	Smith contacted the 	interim superintendent 	and the
principal. 	It was 	decided to move 	Paul 	to a different 	classroom.
Mrs. 	Smith was 	given 	the District 	complaint 	procedure 	and 	forms
and told 	to 	complete 	them 	if 	she 	felt 	the problem was 	not
resolved.
On June 	2, 	1998, 	Paul was 	transferred to Barbara Romaine's
first 	grade 	classroom which was 	located next 	door 	to 	Leonard's
classroom.
6Leonard did write 	a 	response 	offering 	to meet 	with Mrs.
Smith 	at 	7:45 	a.m. 	Although 	she 	often meets 	with parents 	after
school, 	she did not 	extend that 	opportunity to Mrs. 	Smith.
8

This 	move 	was 	apparently precipitated by a 	dispute 	between
Leonard and Mrs. 	Smith, 	when the latter, 	present 	in the
classroom, 	suggested a 	correction to 	a 	student 	in the 	spelling
group. 	Leonard told her 	she would deal 	with the 	group.
Mrs. 	Smith did 	it 	again and Leonard called the 	administrative
office. 	Mrs. 	Smith was 	requested to come to the 	administrative
office. 	About 	the 	same time, 	Paul began to cough, 	and Leonard
asked him if 	he wanted to go 	to 	the 	nurse's 	office. 	He 	did and
left 	the 	classroom.
Cranson gave 	Leonard a 	note 	directing her 	to 	transmit 	Paul's
personal 	belongings 	to Mrs. 	Romaine's 	classroom. 	Leonard did
send 	some 	of 	Paul's 	personal 	belongings 	to 	the 	next 	classroom,
but 	not 	Paul's 	Father's 	Day art 	project. 	She 	did not 	send the
art project, 	she testified, 	because 	it used a cigar box, 	was not
complete, 	and didn't 	have 	a name on it.7 On cross-examination,
she 	admitted 	she 	destroyed 	Paul's 	Father's 	Day project 	on June 	2,
the day Paul 	left her classroom, 	because 	it was 	incomplete.
Because his birthday was 	June 	3, 	Paul 	was 	absent 	that 	day.
On June 4, 	Paul was 	in Mrs. 	Romaine's 	classroom next 	door and
some 	of his belongings were 	already there, 	pursuant 	to Cranson's
7Leonard knew 	it 	was 	Paul's 	art 	project 	because 	he 	had done
an earlier project 	involving a 	cigar box. 	Mrs. 	Smith had
objected to 	the 	room mothers who had provided 	the 	boxes. 	For 	the
Father's Day project, 	Paul 	had pasted some 	items 	on the box, 	but
Leonard did not 	consider 	it 	finished. 	Paul 	did not 	finish the
project, 	Leonard testified, 	because he had to 	leave 	the 	classroom
due 	to his 	coughing. 	Leonard also 	testified that Mrs. 	Smith did
see 	the 	Father's 	Day project 	as 	she walked 	into 	the 	class 	room
the 	day Paul 	was working on 	it. 	At 	that 	time Mrs. 	Smith did not
say anything 	to 	Leonard about 	the project.
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direction. 	On June 5, 	1998, 	Mrs. 	Smith left a note for Leonard
specifically asking 	for 	the 	Father's 	Day project. 	She 	also
requested some 	other 	art 	work. 	Leonard did not 	have 	the 	other
art objects. 	And, 	of course, 	the Father's Day project was
already 	disposed 	of.
The 	last day of 	class was June 	9, 	1998. 	Under Leonard's
prior practice, 	unfinished projects were 	thrown away. 	Leonard's
practice 	is 	to 	start 	cleaning 	the 	classroom a week before 	school
is 	out. 	District 	policy is 	to have 	the 	room cleaned the 	day
after school 	is out. 	To assure the room is 	clean, 	the principal
signs 	a 	check-out 	form to 	that 	effect. 	Leonard has 	been cleaning
the 	classroom the 	last 	week of 	school 	for as 	long 	as 	she 	as 	been
with 	the 	District.
The 	District 	does 	not 	have 	a policy on 	student 	work
disposition. 	Leonard denied 	she 	had an 	inconsistent 	policy on
the 	issue. 	Leonard has 	never been told 	she 	could be 	punished 	for
not 	returning 	student 	work. 	She 	has 	had no prior complaints 	on
her practice.
At 	the 	hearing, 	Leonard denied 	she 	had difficulty getting
along with Mrs. 	Smith. 	Yet, 	in an October 3, 	1999, 	letter to
District 	Trustee Gary Karnes 	(Karnes) 	about 	the 	Smith complaint,
she 	cited several 	alleged transgressions by Mrs. 	Smith: 	abuse of
her 	children, 	entering the 	classroom while 	testing was 	under way
and giving answers 	to pupils, 	and 	"disrupt [ing] 	her teaching on a
daily basis." 	Leonard 	further asserted that Mrs. 	Smith 	"caused
turmoil 	in my room all 	year with the 	other parents."
10

Report 	Card
Grading 	for 	students 	is 	done 	on 	the 	quarter 	system. 	No
written comments 	are 	made 	at 	the 	end of 	the 	first 	quarter,
although there 	is 	a parent 	teacher 	conference 	in November where
the 	student's progress 	is 	discussed.
During 	this 	parent-teacher 	conference 	with 	the 	Smiths,
Paul's 	report 	card and maturity was 	discussed. 	Leonard 	felt 	Paul
was 	a 	little 	immature 	for 	first 	grade. 	He 	had 	trouble 	paying
attention 	in class, 	disturbed other 	children and acted
inappropriately 	in class.
In January 1998, 	at 	the end of 	the 	second quarter, 	Leonard
wrote 	on 	Paul's 	report 	card the 	following:
[Paul] 	still 	needs 	to work on 	staying 	focused
and not 	distracting 	the 	others 	sitting 	near
him. 	He 	also 	needs 	to work on getting 	to
school 	early enough 	to get 	himself 	oriented.
He 	usually arrives 	at 	school 	between 	8:30 	and
8:50.[8] He 	comes 	in, 	we 	are 	cleaning and
ready to 	start 	class. 	He 	is 	still 	in the
frame 	of 	mind 	to visit 	with his 	classmates
... 	but 	he has arrived too late 	to do that.
Then he 	spends 	calendar/journal 	time 	trying
to 	talk to 	everyone 	around him. 	He 	loses 	out
on 	crucial 	instruction and he 	prevents 	others
from participating. 	I 	would like 	to 	see 	him
try to get 	to 	school 	by 	8:15 	so 	that 	he 	can
get 	the 	social 	interruption out 	of his 	system
and be 	ready to 	learn.
At 	the June term, 	Leonard wrote:
[Paul] 	is very immature. 	He needs to start
taking 	responsibility 	for 	himself 	and 	his
8Leonard 	admitted 	Paul's 	tardiness 	could not 	be 	verified by
the 	school 	attendance record. 	However, 	that 	Paul 	did have 	a
timeliness problem was 	confirmed by Mrs. 	Smith when 	she 	told the
District's 	investigator, 	described below, 	that 	she had difficulty
getting 	Paul 	to 	school 	because he was 	unhappy 	in 	the 	classroom.
11

actions. 	He 	also needs 	to work on staying on
task 	and not 	disturbing 	other 	students.
The 	District's 	policy on 	report 	card 	format 	was 	changed 	for
the 	1999-2000 	school 	year. 	The new report 	card requires 	the
teacher 	to 	rate 	the 	student 	under 	a 	category called 	"Personal 	and
Social 	development", 	the 	student's 	timeliness 	in arriving at
school, 	respect 	for others 	and their property, 	whether the
student 	practices 	self 	control, 	accepts 	responsibility for
his/her own behavior, 	resolves 	conflicts peacefully, 	works
independently, 	and whether 	the 	student 	does 	his/her best 	work and
completes 	homework neatly and on 	time.
The 	Smith 	Complaint
On September 24, 	1998, 	Mrs. 	Smith filed a written complaint
against 	Leonard. 	Leonard 	learned of 	the 	complaint 	around
Halloween. 	She 	requested a 	copy of 	the 	complaint 	but 	the
District 	refused to provide 	it.
The 	Smith 	complaint 	was 	a nine 	page 	single-lined document
which began with the 	calculator 	incident. 	It 	went 	on to describe
other events, 	including, 	in detail, 	the confrontation in the
classroom between Mrs. 	Smith and Leonard over 	the 	former's
rendering 	assistance 	to 	students 	in a project 	and Leonard 	taking
umbrage 	to 	the point 	of 	calling the 	administrative 	office. 	It
also 	stated, 	"Her remarks 	as 	stated in his 	report 	card are 	rude
and 	inappropriate. 	I 	am asking the 	district 	to have 	all 	of 	her
remarks 	stricken from the 	record." 	Mrs. 	Smith 	further
recommended 	the 	District 	dismiss 	Leonard.
12

On November 17, 	1998, 	the District's attorney notified
Ramon Romero 	(Romero), 	Leonard's 	counsel, 	about 	a meeting set 	for
December 9, 	1998, 	at which Barbara Cornett 	(Cornett) 	would
interview Leonard. 	A copy of 	the 	complaint 	was 	enclosed.
Cornett 	had been hired by the 	District 	to 	investigate 	the 	Smith's
complaint 	against 	Leonard.9
According 	to 	Cornett, 	Mayfield 	indicated to her 	that 	there
had been 	some 	negative 	interactions 	between 	the 	District 	and
Leonard 	and 	they wanted 	to be 	sure 	that 	the 	investigation was
done 	by 	someone 	who 	had no 	contact 	with 	those 	interactions.
According 	to 	Leonard, 	hiring 	an outside 	investigator was
unprecedented. 	Normally, 	the principal 	investigates potential
discipline 	of 	teachers. 	This was 	confirmed by Mayfield. 	He
further 	testified 	the principal 	would make 	a 	recommendation 	to
him and he 	would 	then 	consult 	with 	legal 	counsel 	and 	advise 	the
superintendent. 	The 	superintendent 	then makes 	the 	decision.
Both Mayfield 	and Anaya 	testified 	that 	the 	District 	went
outside 	to get 	an 	investigator because 	Cranson, 	the 	incumbent
principal, 	had moved to 	the 	central 	office 	as 	coordinator of
special 	education services. 	Escobar, 	Cranson's 	successor, 	was
new to 	the 	school 	site 	and unfamiliar with the 	circumstances.
9Cornett 	retired 	in 	1992 	after 	31 	years 	in the 	Salinas 	Union
High School 	District 	in a number of 	different 	positions. 	After
her 	retirement 	she 	did 	some 	investigations 	for different 	school
districts. 	It 	appears 	she did one 	teacher complaint
investigation 	in a 	community college 	setting. 	She 	did not 	do
investigations 	in the high 	school 	district 	before 	her 	retirement,
but 	she 	did parent 	complaints 	for about 	ten years while 	she was
director of 	special 	education.
13

Anaya 	testified 	that 	at 	the 	time 	the 	District 	commenced 	its
investigation of 	the 	complaint, 	Escobar was 	still 	an 	interim
principal. 	She had no prior experience 	as 	a principal.
Mayfield 	testified 	these 	investigations 	are 	extremely 	time-
consuming, 	which was 	also a 	factor 	in deciding to go outside 	the
District. 	Yet, 	Mayfield could not 	cite 	a 	single 	time when the
District 	went 	outside 	in 	10 	or 	12 	complaints 	against 	teachers
that 	were 	investigated. 	All 	those 	investigations 	were 	done 	by
school principals.
Leonard was 	interviewed by Cornett 	on December 	9, 	1998.
Leonard was 	represented by Romero. 	The 	interview 	lasted about 	an
hour 	and one-half 	to 	two hours. 	Prefatory remarks 	in Cornett's
final 	report 	indicate 	she 	interviewed Mrs. 	Smith twice by
telephone and twice 	in person; 	Cranson five times, 	four by
telephone; 	Escobar three times, 	twice by telephone; 	the 	student's
current 	teacher 	and 	two parents 	of 	students 	taught 	by Leonard.
Leonard was 	interviewed only once, 	and was 	never 	contacted 	about
information 	derived by Cornett 	from 	interviews 	subsequent 	to
Leonard's, 	including Mrs. 	Smith's.
Cornett 	issued her report on December 20, 	1998. 	She
recommended 	that 	Leonard be 	issued a 	"directive" 	letter
indicating 	the 	need 	to develop 	a 	consistent 	policy on 	the 	care
and disposal 	of 	classroom possessions 	and work of 	students.10
She 	recommended 	that 	Leonard be 	"reprimanded" 	for 	disposing 	of
10The District 	does 	not 	have 	a policy on the 	disposal 	of
student possessions.
14

Paul's 	classroom work. 	She 	further 	recommended 	that 	Leonard's
comments 	in the 	report 	card be 	altered to Mrs. 	Smith's
satisfaction. 	Cornett 	did not 	refer 	to 	specific 	sections 	of 	the
report 	card that 	should be 	removed because, 	she 	stated, 	she 	did
not 	have 	sufficient 	background on 	Paul 	to make 	a 	final
determination. 	Cornett 	noted that 	Paul's 	then current 	teacher,
Mrs. 	Nancy Carroll 	(Carroll), 	also thought 	Paul was 	"immature"
for his age.
During 	the 	investigation, 	Cranson 	told Cornett 	that 	Leonard
was 	an extremely 	skillful 	classroom teacher. 	Cornett 	did not
ascertain whether 	Leonard had 	ever 	been 	disciplined before.
Mayfield did not 	recall 	whether he 	reviewed 	the 	report 	with
Cornett. 	He 	was 	unaware 	whether Leonard had ever been warned
about 	the 	contents 	of newsletters.
On January 	15, 	1999, 	Mayfield served Leonard with a draft
"Letter of Reprimand", 	as a result of the Smiths' 	complaint 	and
investigation by 	Cornett. 	The 	letter 	commenced with 	the
following:
This 	letter 	is 	a 	formal 	reprimand and
directive regarding Mr. 	and Ms. 	[Smith's]
complaint 	and 	District 	investigation
concerning 	several 	inappropriate 	and 	negative
events 	during 	their 	son's 	enrollment 	in your
first 	grade 	class 	in the 	1997-1998 	school
year.
Leonard met 	with Mayfield on February 16, 	1999, 	to 	review the
draft.
On March 	16, 	1999, 	Mayfield issued to Leonard the District's
"findings" 	relative 	to the 	Smiths' 	complaints 	and to 	"serve as 	a
15

statement 	of 	our 	concerns 	about 	your 	inappropriate 	and negative
conduct." 	The 	letter then went 	on 	to 	address 	in more 	detail
three 	issues, 	described as 	"Inappropriate Newsletter Content",
"Destruction of 	Student's 	Classroom Work" 	and 	"Inappropriate
Report 	Card Remarks." 	In 	connection with 	the 	newsletter 	content
issue, 	Mayfield wrote:
I 	conclude 	that 	teachers 	should not 	make
student 	discipline 	a public matter.[11]
While 	communication with parents 	is 	critical,
you 	should take 	care 	in what 	you write 	in
your newsletters. 	The 	return of 	the
calculator may have been noted, 	but 	the
reference 	to 	the 	parent 	and 	child was
unnecessary 	and 	potentially 	embarrassing.
Your 	statement 	thanking 	the parent 	for 	coming
forward with 	their 	child 	to 	return 	the
calculator 	could 	result 	in 	curiosity 	about
the 	child's 	identity and 	circumstances
surrounding the 	return of 	the 	calculator. [12]
In the 	setting of 	the 	small 	and 	close-knit
community at 	Steinbeck school, 	the 	identity
of 	the 	child and 	circumstances 	regarding 	the
return are 	likely to be 	known 	causing public
embarrassment 	and humiliation 	to 	the 	child
and the parents.
Regarding 	the 	destruction of 	student's 	classroom work,
Mayfield 	reiterated 	the 	circumstances 	of 	Paul's 	transfer 	and 	the
subsequent 	request 	by his 	mother 	for 	the 	art 	project 	relating 	to
the 	Father's 	Day gift. 	Leonard had told Cornett 	that 	she 	had no
consistent 	policy on disposing of 	children's 	classroom work. 	She
"Mayfield was 	unaware 	whether 	there 	had been 	student
discipline. 	He 	admitted other 	terminology would have 	been more
appropriate.
12Mayfield did not 	determine 	whether 	in 	fact 	anyone
expressed 	curiosity.
16

began cleaning 	out 	the 	classroom 	in 	the 	last 	week 	of 	class
.
Mayfield wrote:
During our February 16, 	1999 [,] 	meeting you
stated 	that 	you perceived no 	problem 	in
disposing of 	[Paul's] 	Father's Day gift
because Ms. 	[Smith] 	was a difficult parent
who 	had previously objected 	to 	the 	use 	of 	a
cigar box 	for a different 	art 	project, 	and
because 	[Paul] 	had not 	finished work on 	this
project 	which was 	also made 	out 	of 	a 	cigar
box.
The 	District 	expects 	its 	certificated
employees 	to 	exercise 	good 	judgement 	and 	to
remain professional, 	especially when
interacting with 	a parent 	who 	is 	perceived 	as
"difficult." 	Disposal of 	[Paul's] 	art
project 	because 	his 	mother 	had previously
objected to 	the use 	of 	the 	same 	component 	on
a 	different 	art 	project 	does 	not 	conform to
our 	standard of 	professionalism. 	You 	should
have 	informed District Administrators 	of 	the
potential 	problem between yourself 	and 	the
parent 	regarding 	the 	art 	project 	so 	the
District 	could 	have 	assisted you 	in 	resolving
the 	problem to 	the 	satisfaction of 	all
concerned.
Furthermore, 	[Paul] 	was attending class
literally right 	next 	door to yours. 	His
work, 	complete or not, 	could easily have been
returned 	to him. 	Your 	teaching 	experience
should have made 	you 	aware 	that 	many parents
treasure 	and retain 	their 	childrens'
classroom work, 	especially artwork.
Furthermore, 	you threw away 	[Paul's] 	Father's
Day project before 	Father's 	Day, 	and before
[Paul] 	had a chance 	to 	show it 	to his 	father.
You should have 	known, 	and the District
expects you to know, 	that 	a Father's Day
present, 	especially one 	created by a 	child,
is 	important to that 	child. 	We 	expect 	that
you would 	have 	recognized 	that 	importance 	and
kept 	the 	artwork to be 	transferred 	to
[Paul's] 	new first grade class. 	Given the
situation, 	the timing, 	and statements made
17

during the 	investigation, 	your actions 	appear
to Mr. 	and Mrs. 	[Smith] 	as vindictive.[13]
You 	are 	directed 	to 	develop 	a 	consistent
policy on 	the 	care 	and disposal 	of 	classroom
possessions 	and work of your 	students. 	This
policy, 	upon my approval, 	shall be
communicated by you 	to 	the 	parents 	of 	your
students.[14]
Regarding the 	report 	card, 	Mayfield wrote:
Written 	reports 	on 	report 	cards 	should be
expressed 	in positive 	terms 	and 	should
address 	factual 	information.[15] Generally,
the 	comments on 	[Paul's] 	report 	are positive
and 	address 	his 	academic 	progress 	throughout
the year. 	However, 	there are several
negative 	comments 	which may not 	have 	been
based on 	facts 	which 	should not 	have 	been
included on the 	report 	card. [16]
The 	paragraph 	in the 	report 	of 	January 	1998 	describes
in detail 	[Paul's] 	'late' 	arrival 	at 	school 	each day at
around 	8:30-8:45 	a.m. 	and 	reaches 	conclusions 	about 	his
disruptiveness 	and 	'frame 	of 	mind 	to visit 	his
classmates' 	instead of paying attention, 	which may not
13Mayfield did not 	draw a 	conclusion 	that 	Leonard's 	action
was vindictive, 	but 	was 	observing only that 	the 	Smiths 	thought
her 	actions 	were. 	Cornett 	did not 	think vindictive 	is 	a word 	she
would use 	to 	describe 	the 	situation.
14Mayfield does 	not 	know of 	what 	practices 	other 	teachers
have 	regarding 	classroom materials 	disposal. 	The 	District 	does
not 	have 	a policy on what 	teachers 	are 	required to 	do. 	As 	far as
Mayfield knows, 	Leonard 	is 	the 	only teacher 	required to 	adopt 	a
policy.
15While 	the 	report 	card used was 	unique 	to 	Steinbeck,
Leonard had never been directed 	to 	cast 	her 	remarks 	in 	such 	a
manner. 	Mayfield is unaware 	that 	such a rule 	is written
anywhere. 	Nor 	is he 	aware 	that 	teachers 	have been verbally told
that 	policy. 	He 	did not 	know 	if 	Leonard has 	been 	informed of
that 	policy.
16Leonard has 	never been 	advised by 	the 	District 	which
comments 	might 	not 	have been based upon 	fact. 	Mayfield testified
that, 	to him, 	the matter was 	inconclusive, 	that 	they did not know
which comments 	were 	not 	based upon 	fact 	and 	therefore 	used 	the
term 	"may".
18

have 	been based on 	f act.[17] In the 	June 	1998 	report
paragraph, 	you judge 	[Paul] 	as 	' immature.'[18]
I 	conclude 	that 	these 	types 	of 	comments 	and
concerns 	are 	better 	addressed 	during 	parent
conferences 	rather 	than on 	first 	grade 	report
cards. [19] As 	stated above, 	written reports
on 	report 	cards 	should be 	expressed 	in
positive 	terms 	and 	should address 	factual
information. 	Your comments 	should be
directed 	toward 	the 	age 	level 	and 	ability of
the 	individual 	student.
Without 	notifying 	Leonard, 	Mayfield 	altered 	Paul's 	report
card 	by 	deleting 	what 	Mayfield 	thought 	was 	objectionable.
Mayfield did 	not 	know 	if 	Leonard had problems 	before 	this
letter. 	Nor did he 	give 	consideration to 	her 	18 	years 	employment
with the District 	in this 	instance. 	He 	did not 	determine 	if 	she
had ever done 	these 	things 	before. 	Mayfield testified that 	he
did not 	consider 	the 	letter discipline.
Mayfield admitted that 	the 	complaint 	and 	letter, 	located 	in
Leonard's personnel 	file, 	could be 	used 	in discipline 	matters
later against 	her 	interests. 	He did not 	know the 	rationale 	for
the 	letter being 	inserted 	into 	her personnel 	file.
The 	decision to place 	the 	letter 	in Leonard's 	file was 	by
Anaya. 	Mayfield had no 	recollection of 	any meetings 	or
discussions 	with Anaya about 	the matter. 	Anaya 	thought 	placing a
17Leonard has 	never 	been 	advised why 	the 	District 	questioned
her assertion of 	lateness.
18Leonard said 	she 	has 	cited a 	student 	as 	immature 	in report
cards 	a number of 	times 	and this practice 	has 	never been called
to question.
19Leonard 	testified 	that 	she 	did 	address 	these 	issues 	during
parent 	conferences.
19

negative 	letter into a personal 	file was 	discipline. 	Later, 	he
testified that 	the way Leonard's 	letter was 	written 	it 	was 	not
disciplinary. 	It was a letter of 	"concern."
Cornett 	considered the 	letter 	to be 	discipline. 	The 	only
recommendation 	she 	made 	for discipline 	was 	regarding 	the
student's 	art 	work. 	Anaya was 	motivated to bring 	closure 	to 	the
complaint 	by the 	parent 	to 	avoid 	litigation.
Board policy 4118 (a) 	sets 	forth the grounds 	for discipline.
The 	board policy calls 	for progressive 	discipline, 	in relevant
part, 	as follows:
2. 	Progressive discipline 	shall 	be utilized
except 	for conduct 	which 	is 	of 	such a nature
that 	injures 	or 	threatens 	to 	injure 	the
safety of 	students 	or other 	employees 	or
causes 	substantial 	disruption of 	the
educational 	program.
a. 	Before 	issuing a verbal 	warning 	the
principal 	or 	immediate 	supervisor 	shall 	first
discuss 	and 	clarify 	specific 	acts 	and/or
omissions 	with the 	employee.
b. 	If 	a verbal 	warning does not 	result 	in
corrective 	conduct, 	a written reprimand shall
be 	issued 	for 	a 	similar 	and 	separate 	action
and/or omission. 	Reprimands 	shall 	not 	be
based 	upon 	unsubstantiated 	evidence.
The 	District 	has 	a policy on parent-teacher 	concerns 	that
suggests 	or 	encourages 	an 	initial 	conference between 	the 	teacher
and the parent.
The 	relevant 	collective bargaining agreements 	(1996-98, 	and
the 	successor 	1998-2001) 	do not have discipline procedures. 	The
grievance procedures 	do not 	end 	in binding arbitration.
20

On March 	16, 	Leonard was 	served with a 	letter 	from Mayfield,
dated March 	12, 	1999, 	that 	there was 	to be 	a closed meeting of
the board of 	trustees on March 17, 	1999. 	Mrs. 	Smith notified the
District 	that 	she would not 	attend the March 17 	hearing, 	so 	the
session was 	canceled. 	No 	new hearing was 	scheduled.
ISSUE
The 	issue 	in this 	case 	is 	whether 	the 	District 	issued the
March 16, 	1999, 	letter to Leonard in retaliation for her
protected 	activities.
In order to prevail 	on a 	retaliatory adverse 	action charge,
the 	charging party must 	establish 	that 	the 	employee 	was 	engaged
in protected activity, 	the 	activities were 	known to 	the 	employer,
and 	that 	the 	employer took 	adverse 	action because 	of 	such
activity. 	(Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210 	(Novato).) 	Unlawful motivation is essential 	to charging
party's 	case. 	In the absence of direct 	evidence, 	an inference of
unlawful 	motivation may be 	drawn 	from the 	record as 	a whole, 	as
supported by 	circumstantial 	evidence. 	(Carlsbad Unified 	School
District 	(1979) 	PERB Decision No. 	89.) 	From Novato and a number
of 	cases 	following 	it, 	any of 	a host 	of 	circumstances may justify
an 	inference 	of 	unlawful 	motivation on the part 	of 	the 	employer.
Such circumstances 	include: 	the 	timing of 	the 	adverse 	action in
relation 	to 	the 	exercise 	of 	the 	protected activity 	(North
Sacramento School District 	(1982) 	PERB Decision No. 	264); 	the
employer's 	disparate 	treatment 	of 	the 	employee 	(State 	of
California 	(Department of Transportation) 	(1984) 	PERB Decision
21

No. 	459-S); 	departure from established procedures or standards
(Santa 	Clara Unified School 	District 	(1979) 	PERB Decision
No. 	104); 	inconsistent or contradictory justification for its
actions 	(State 	of 	California 	(Department 	of 	Parks 	and Recreation)
(1983) 	PERB Decision No. 	328-S); 	or employer animosity towards
union 	activists 	(Cupertino 	Union 	Elementary 	School 	District
(1986) 	PERB Decision No. 	572).
Once 	an inference 	is made, 	the burden of proof 	shifts 	to the
employer 	to 	establish that 	it 	would have 	taken 	the 	action
complained of, 	regardless of 	the 	employee's protected activities.
(Novato; 	Martori 	Brothers Distributors v. 	Agricultural 	Labor
Relations Bd. 	(1981) 	29 Cal.3d 721 	[175 Cal.Rptr. 	626].)
The parties 	approach the 	case 	differently. 	The Association
argues 	the 	application of 	traditional 	factors 	justifies 	an
inference of unlawful motivation. 	The District 	argues 	that 	each
of the events 	cited in the March 16, 	1999, 	letter merited
sanctioning 	Leonard.
The Association 	cites 	the 	District's 	inconsistency 	regarding
the 	nature 	of 	the March 	16 	letter. 	Mayfield testified that 	the
letter was 	not 	a 	reprimand but 	a 	statement 	of 	the District's
concern. 	Anaya 	first 	testified that 	the 	letter was 	a
disciplinary document, 	then later contended that 	it 	was 	not 	a
reprimand. 	Yet, 	the District's 	answer admits 	the March 16 	letter
was 	a 	reprimand, 	and the 	draft 	of 	the 	letter 	shared with Leonard
on January 	15 	expressly stated that 	it 	was 	a 	letter of 	reprimand.
Moreover, 	the 	letter, 	placed into Leonard's personnel 	file
22

charging 	her with 	"inappropriate 	and negative 	conduct," 	was
adverse 	to her 	interest 	as 	a 	teacher 	in the 	District.
The 	Association 	finds 	further 	inference 	of 	unlawful
motivation in the 	timing of 	the 	letter, 	as 	it 	followed a 	steady-
stream of 	protected 	activities 	culminating 	in 	the 	issuance 	of 	two
PERB 	decisions 	favorable 	to 	Leonard 	in 	the 	two-year period
preceding the District's 	action complained of 	here. 	Further, 	the
March 	16 	letter 	followed only two weeks 	after 	the Association
filed 	another unfair practice 	charge 	in 	a 	dispute 	in which
Leonard 	served 	as 	a 	representative 	for Association 	President
Ken Anderson.
The 	Association next 	contends 	that 	the 	District 	departed
from established procedures 	in 	its 	actions 	against 	Leonard.
Whereas 	complaints 	were 	routinely 	investigated by 	the 	school
principal, 	the District's 	employment 	of 	Cornett 	to 	investigate
the 	Smith's 	complaint 	was 	unprecedented.
The 	complaint 	procedure 	directs 	that 	complaints 	be made
directly by 	the 	complainant 	to 	the 	person 	complained about.
Parents 	are 	encouraged 	to 	attempt 	to 	orally resolve 	problems 	with
teachers personally. 	Here, 	contends the Association, 	the 	Smiths
never discussed, 	nor were 	encouraged to 	discuss 	with Leonard the
report 	card 	comments 	or disposal 	of 	student 	work prior 	to 	the
discipline.
The 	Association 	further 	contends 	the 	District 	failed 	to
follow 	its 	"progressive 	discipline" 	policy 	in 	issuing 	the March
16 	letter. 	This policy requires prior notice 	that 	certain
23

conduct 	could result 	in discipline. 	Here, 	there was no notice 	to
Leonard about 	newsletter 	content, 	disposal 	of 	student 	work or
report 	card comments. 	The District 	has 	no 	rules 	on any of 	these
issues. 	Further, 	argues the Association, 	Cornett, 	Mayfield and
Anaya made 	no determination as 	to 	the practices 	of 	other 	teachers
in any of 	these matters.
The Association 	contends 	the 	investigation by Cornett 	was
not 	a 	fair and objective 	investigation. 	The 	complaint 	procedure
requires 	reprimands 	to be based upon 	"substantiated" 	facts.
Here, 	contends 	the Association, 	Cornett 	did not 	contact 	all 	the
witnesses 	provided by Leonard 	and had 	no 	follow-up 	interview with
Leonard 	after 	talking 	to 	other witnesses.
Without 	ascertaining 	the 	accuracy of 	Leonard's 	report 	card
comments, 	Mayfield disciplined her 	for those comments. 	The
Association 	contends 	the 	District 	violated 	the 	Education 	Code
when 	it 	deleted 	some 	of 	Leonard's 	comments 	in 	Paul's 	report
card.20
The 	District 	treated Leonard differently, 	contends 	the
Association, 	in that 	no other 	teacher has 	been 	subjected to
standards 	regarding newsletter content, 	disposal 	of 	student 	work
or contents 	of 	report 	cards. 	No other teacher has been required
to 	develop 	a policy on the 	disposal 	of 	classroom projects 	and
student 	work. 	Leonard was 	singled out 	on all 	three matters.
20Both sides 	raise 	several 	good points 	on this 	issue, 	but 	we
do not 	address 	it 	today because 	a 	ruling 	in 	favor of 	either
party's 	position would not 	affect 	the 	outcome 	of 	this 	case.
24

In addition, 	the Association cites Anaya's 	rationale 	for
placing 	the 	letter 	into 	Leonard's personnel 	file 	was 	to protect
the 	District 	because 	the 	parent 	had 	requested 	the 	teacher be
dismissed. 	Anaya 	wanted 	to 	demonstrate 	an 	"investigation was
done 	and 	every appropriate 	action was 	taken 	to 	deal 	with 	the
situation."
Another basis 	for 	inferring unlawful 	motivation, 	asserts 	the
Association, 	is 	the 	cursory investigation undertaken by the
District. 	The District 	had never worked with Cornett, 	did not
investigate 	her work 	and 	did not 	ask her 	any questions 	about 	her
report. 	Cornett 	did not 	interview other parents 	who had
experiences with Leonard or Mrs. 	Smith. 	Cornett was 	unable 	to
make 	any conclusive 	findings 	of 	Leonard's 	comments 	on the 	report
card. 	Thus, 	the District's quick dismissal 	of 	Leonard's direct
observations 	support 	the 	inference 	of 	unlawful 	motivation.
The Association 	further 	contends 	that 	the 	District 	violated
its 	rights under EERA section 3543.5(b) 	in that, 	by violating
Leonard's 	rights, 	it 	inherently denied the Association 	its 	right
to represent 	its members.
Finally, 	the Association asks 	for 	its 	fees 	and costs 	in
bringing the 	action plus 	10 	percent 	on the monetary remedy.
The 	District's 	defense 	is 	that 	all 	three 	issues 	addressed 	in
the March 16, 	1999, 	letter were justified. 	In each instance 	it
is 	highly critical 	of 	Leonard's 	testimony regarding 	the 	issue.
With 	respect 	to 	the 	letter's 	comments 	on the 	newsletter
article, 	the District 	contends 	that 	Leonard reneged on her
25

promise 	to not 	reveal 	who had taken the 	calculator. 	Yet, 	she did
just 	that 	when 	she 	commended 	the 	parent 	for 	returning 	the
calculator.
At 	the 	hearing, 	Leonard's 	testimony reveals 	her belief 	that
other parents 	saw Mrs. 	Smith returning 	the 	calculator to her.
Nonetheless, 	she publicly thanked the parent 	for having 	the
courage 	to 	come 	forward with her 	child and the 	calculator. 	This
clearly 	implied 	the 	child had 	taken 	the 	calculator.
The 	District 	contends 	Leonard's 	proffered 	reasons 	for her
action to the 	investigator, 	Mayfield, 	the trustee, 	in her charge
to 	PERB 	and at 	the 	formal 	hearing would 	support 	a 	conclusion that
her 	action was vindictive 	against 	the 	Smiths.
The 	timing 	of 	Leonard's 	destruction of 	Paul's 	art 	project
took place 	the 	very 	day Leonard 	called 	the 	administrative 	office
and requested 	that 	Mrs. 	Smith be 	taken 	from Leonard's 	classroom.
Leonard destroyed the project 	the 	same 	day it 	was 	started.
The 	District 	argues 	that 	Leonard's 	shifting 	justification
for destroying 	Paul's 	art 	work 	is 	also grounds 	for 	concluding her
action was vindictive 	against Mrs. 	Smith. 	Leonard told Cornett
that 	Mrs. 	Smith had taken umbrage 	at 	an Easter project 	that 	used
cigar boxes 	and therefore 	she 	thought 	Mrs. 	Smith would object 	to
the 	Father's 	Day project 	using a 	cigar box.
If 	such were 	the case, 	the District 	asks, 	why would Leonard
let 	Paul 	even begin working on 	such a medium. 	Leonard testified
that 	she would have 	let 	Paul 	take 	it 	home, 	had he 	finished the
project. 	Mrs. 	Smith had never 	said anything 	to Leonard directly
26

about 	the 	earlier 	cigar box project. 	Leonard 	also 	testified 	that
Mrs. 	Smith had seen Paul 	working on the 	cigar box and did not 	say-
anything. 	Thus, 	perhaps, 	Mrs. 	Smith did not have any objection
to the cigar box.
At 	the February 16, 	1999, 	meeting, 	Leonard told Mayfield
that 	she 	destroyed the 	Father's Day project 	because Mrs. 	Smith
was 	a 	difficult 	person who 	had previously objected 	to 	cigar
boxes, 	and because 	Paul 	had not 	finished the project.
The 	District 	observes 	that 	Leonard did not 	respond 	to
Smith's 	June 	5 	memo asking 	for three projects. 	Leonard did not
return any of 	them as, 	she 	stated, 	none 	of 	them existed.21 At
the 	hearing, 	Leonard testified that 	she 	did not 	return the 	art
work because 	it was not 	complete, 	didn't have a name on it, 	and
since 	she was 	cleaning out 	the 	room, 	she 	threw it 	away.
The 	District 	contends 	the 	comments 	in 	the March 	16 	letter on
the 	report 	card 	remarks 	by Leonard were 	justified 	and Leonard's
report 	card comments 	may not 	have 	been justified. 	Leonard's
comments, 	questioned by the District, 	related to Paul's 	arrival
time, 	his 	"frame of mind" 	and having judged Paul 	as 	"immature."
The 	District 	faults 	Leonard on her varying 	descriptions 	of
Paul's arrival 	record before Cornett 	(8:45, 	never by 8:30 	a.m.),
at 	hearing 	(first 	8:50 	to 	9:00 	a.m., 	then 	8:30 	to 	8:50 	a.m.) 	then
to the trustee 	in October 3, 	1999, 	letter, 	"seldom arrived at
21The 	District 	urges 	findings 	that 	Leonard 	destroyed other
objects 	requested by Mrs. 	Smith. 	The 	facts 	are 	insufficient 	to
make 	such a 	finding. 	Moreover, 	the March 16 	letter focused on
the 	Father's 	Day project.
27

school 	on time." 	Leonard's 	contention that 	Paul 	was 	usually late
is 	not 	supported by 	Paul's 	attendance 	record which 	shows 	him
tardy only nine 	times 	for the 	first 	half 	of 	school. 	The 	second
term he was 	late 	11 	more 	times. 	Leonard admitted 	Paul's 	lateness
habits 	as 	observed 	in the 	report 	card 	could not 	be 	substantiated
by the 	attendance 	record, 	the District points 	out.
The 	District 	attacks 	Leonard's 	report 	card 	comment 	that
Paul's 	tardiness 	caused a 	certain 	"frame 	of 	mind" 	or 	that 	he was
immature. 	This view, 	according to 	the District was 	undermined by
Paul's 	record 	for 	the next 	year as 	reported by Cornett. 	In her
report, 	Cornett observed, 	"in a 180 degree reversal, 	his teacher
this year, 	Ms. 	Carroll, 	describes Paul as 	'an average student who
is still 	somewhat immature for his age level. 	. 	. 	who has not
been tardy this 	fall.'"
The 	District 	disputes 	Leonard's 	contention 	that 	she 	was
engaged 	in 	protected 	activity by 	attacking 	her 	testimony
regarding 	the 	Bernett 	and Anderson 	representations 	(the 	latter
which meeting 	she 	attended was 	subsequent 	to 	the 	January 	15 	draft
of the letter to Leonard). 	Thus, 	the District 	contends there was
only 	the 	earlier unfair practice 	cases 	and her 	role 	as 	president
in 1993-94.
The 	District 	contends 	there 	are 	no grounds 	for 	finding 	an
inference 	of 	unlawful 	motivation. 	Citing 	PERB 	cases 	that 	found
six months 	too 	long to connect 	for timing, 	the District 	contends
here 	that the parent's complaint, 	received on September 24, 	1998,
was 	a year after 	the 	last 	unfair practice 	case 	had ended.
28

The 	District 	contends 	there 	is 	no 	evidence 	of 	disparate
treatment 	produced by Leonard. 	The 	District 	finds 	no 	evidence 	of
inconsistent 	or 	contradictory 	justifications 	for 	informing 	her
the 	newsletter was 	inappropriate. 	Anaya's purpose 	in placing the
letter 	in Leonard's 	personnel 	file 	was 	to protect 	the 	District 	in
the event of 	a 	lawsuit.
The District 	contends 	the 	investigation was 	reasonable. 	It
was 	reasonable 	to go 	outside 	the District 	for 	the 	investigation
of 	the 	complaint 	because 	Cranson was 	no 	longer at 	the 	site 	and
"the 	District 	had not 	replaced him." 	Cornett 	had no 	interest 	in
the 	outcome 	of 	the 	case 	and was 	an experienced 	investigator.
Both sides present valid points 	in their arguments. 	It
appears 	that 	the 	District 	had 	legitimate 	reasons 	for 	responding
to Leonard's 	conduct. 	However, 	the District's 	response 	to that
conduct, 	viewed altogether, 	raises 	an inference 	that 	it would not
have 	issued the March 16, 	1999, 	letter but 	for Leonard's
protected 	activity.
Read by 	itself 	the 	newsletter 	item does 	not 	reveal 	the
identity of 	anyone. 	Coupled, 	however with the 	facts 	as 	she knew
them, 	Leonard 	failed to honor 	the 	agreement 	not 	to 	reveal 	who had
taken the 	calculator.
Leonard knew other parents 	had 	seen Mrs. 	Smith hand over the
calculator to her on October 	10, 	1997. 	She must 	have known that
those 	same 	parents 	would know that 	Paul 	had 	taken the 	calculator.
Her newsletter 	article 	thanking 	the 	parent 	for having 	courage 	to
29

return 	the 	calculator would have 	confirmed 	to 	those 	parents 	that
Paul 	had taken 	the 	calculator.
Further, 	Leonard's 	testimony on the 	destroyed Father's 	Day
project 	appears 	to be an attempt 	to 	justify a 	senseless 	act. 	She
said the project 	had no name on it. 	Yet 	she knew it was 	Paul's
project. 	She 	said Mrs. 	Smith had previously objected to 	the use
of 	cigar boxes, 	yet 	Leonard allowed Paul 	to 	start 	the 	Father's
Day project 	using 	a 	cigar box, 	and was 	prepared to 	let 	him take
it home. 	Furthermore, 	Leonard testified that Mrs. 	Smith saw the
project 	and did not 	say anything. 	That 	Mrs. 	Smith saw the
project 	was 	confirmed by 	her written 	request 	specifically 	asking
for 	the 	Father's 	Day project.
Leonard destroyed the project because, 	she 	said, 	it was 	the
last week of 	class. 	Yet 	she 	destroyed it 	on June 	2, 	and school
was 	not 	out 	until 	June 	9.
It 	is 	fair to 	conclude 	that 	Leonard destroyed the 	Father's
Day project 	without 	justification. 	To the 	Smiths, 	this 	action
certainly could 	appear 	to be 	vindictive.
Accordingly, 	the 	District 	would have 	been justified 	in
counseling 	Leonard 	for 	the 	newsletter 	comment 	and 	destruction of
the 	art project.
The 	fact 	that 	Leonard may have 	breached her promise 	to Mrs.
Smith regarding the 	calculator, 	or that 	she deliberately
destroyed Paul's 	art 	project 	to get back at 	Mrs. 	Smith does 	not
end the 	inquiry, 	however. 	The question is, 	did the District
issue 	the 	letter 	in 	retaliation 	for Leonard's 	protected
30

activities? 	Several 	of 	the Novato 	factors 	are present 	here 	to
justify an 	inference 	of 	unlawful 	motivation.
The March 16, 	1999, 	letter followed an intense history of
combat 	between 	Leonard 	and 	the 	District. 	Mayfield was 	involved
in most 	of 	the 	PERB-related 	litigation 	that 	the Association 	and
Leonard had pursued. 	Twice, 	within two years before 	issuing the
letter of 	reprimand, 	the District, 	had been found to have
violated Leonard's 	EERA rights.22 While 	timing alone 	is 	not 	a
basis 	for 	inferring 	a motive, 	Leonard's 	long history of 	conflict
with the District, 	coupled with other factors, 	justifies 	an
inference 	of 	unlawful motivation 	in the 	imposition of 	the
March 16, 	1999, 	letter. 	The record contains evidence that 	the
District 	departed 	from 	its 	own policies 	and procedures 	in
imposing 	sanctions 	against 	Leonard. 	Unexplained, 	these
departures 	from 	established policies 	strongly 	suggest 	retaliatory
intent.
The District's 	complaint procedure, permits complainants,
employees, 	or 	the 	superintendent 	to request permission to address
the board of 	trustees regarding a complaint. 	Here, 	the District
canceled 	the 	hearing 	at 	which Leonard would 	have 	had 	an
opportunity to respond to 	the 	charges. 	Moreover, 	the District
issued the March 16, 	1999, 	letter before 	this procedure was
22Leonard's 	participation 	in 	the Anderson matter was 	not
connected to 	this 	case. 	Her appearance 	at 	a grievance meeting
followed the January 15, 	1999, 	draft 	letter of reprimand.
Likewise, 	the Association's 	argument 	that 	an unfair practice
charge 	filed on Anderson's behalf 	just before 	the March 	15, 	1999,
letter 	is 	rejected as 	there 	is 	no 	demonstrated connection between
Leonard 	and 	the 	unfair practice 	charge.
31

complete. 	Taken alone, 	this 	factor does not 	furnish an 	inference
of 	retaliatory motive, 	but viewed 	in the overall 	context,
cancellation of 	the 	hearing 	is 	not 	consistent 	with 	the 	goal 	of
"fair 	and 	constructive 	communication" 	espoused by 	the 	District 	in
its 	complaint 	resolution procedure.
The 	District 	failed 	to 	follow 	its 	own progressive 	discipline
policy. 	Leonard had been publishing 	the 	newsletter 	for 	five
years 	and had never had complaints 	regarding 	its 	contents. 	Under
its 	progressive 	discipline policy, 	the District 	should have 	given
her a verbal 	warning. 	Likewise, 	Leonard had been cleaning her
classroom in the 	same manner 	for as 	long 	as 	she 	had been with the
District, 	and without 	complaint 	about 	the practice. 	However,
destroying 	a 	child's 	Father's Day project, 	under 	the prevailing
circumstances 	in this 	case, 	merited some 	form of 	sanction against
Leonard. 	Again, 	however, 	the District's discipline policy
required a verbal 	warning prior 	to 	a written warning. 	In both
instances, 	the District 	failed to 	conform to 	its 	own discipline
policy.
The 	District 	further 	required Leonard 	to 	develop 	a policy on
destruction of 	classroom possessions. 	It 	required Leonard to
submit 	that 	policy to Mayfield 	for 	approval. 	It 	further 	required
Leonard 	to 	share 	that 	policy with the parents 	of 	her 	students.
Leonard was 	singled out 	to have a policy, 	have 	it 	approved, 	and
to 	share 	it 	with parents. 	No other teacher was 	required to do
so. 	Viewed in the overall 	context, 	this 	is evidence of disparate
treatment 	and 	is 	discriminatory 	towards 	Leonard.
32

In addition, 	Mayfield had no 	idea what policies were used by
other teachers. 	Neither he, 	nor Cornett 	investigated the
practice with other teachers. 	The District 	had no policy, 	nor
did it 	have 	a policy that 	teachers 	have 	a written policy, 	or that
such policy be 	approved by the District, 	or 	that 	the 	policy be
shared with parents.23
Moreover, 	the 	investigation with respect 	to 	the 	report 	card
comments 	was 	incomplete. 	Cornett 	stated that 	the 	January 	1998
report 	card 	"reaches 	conclusions 	which may or may not 	be 	based 	on
facts." 	She 	then recommends 	that 	"If 	the 	[report 	card 	is]
included in 	[Paul's] 	permanent 	cumulative record, 	Mrs. 	[Smith]
should be 	allowed 	to 	remove 	those 	sections 	which 	are 	not 	based 	on
fact."
Mayfield 	changed the 	comments 	on the 	report 	card 	even 	though
Cornett's 	report 	did not 	make 	a 	definitive 	judgment 	on which
statements were, 	or were not, 	based on fact. 	He did no
investigation of his 	own, 	and there 	is no evidence 	that 	he 	spoke
with Mrs. 	Smith to ascertain what 	objections 	she had to 	the
comments.24 In conclusion, 	we 	find that 	the District's
investigation was 	cursory 	and 	incomplete.
As noted by the Association, 	Mrs. 	Smith's complaint about
comments 	on 	Paul's 	report 	card consisted of 	two 	sentences 	out 	of
23We 	do 	not 	infer unlawful 	motivation 	from the 	absence 	of 	a
district policy on student project disposal. 	Rather, 	it 	is 	the
imposition of 	the 	requirement 	only upon Leonard.
24Mayfield's 	testimony also 	reflects 	an 	admission 	that 	he
was 	not 	sure which 	statements 	were 	factual 	and which were 	not.
33

a nine page 	single-spaced letter. 	Yet, 	it became a major part 	of
the 	sanctioning letter of March 16, 	1999, 	and it prompted the
District 	to 	take 	the 	affirmative 	action of 	altering 	the 	comments
on 	the 	report 	card.
The 	District 	chastised Leonard 	for 	referring 	to 	Paul 	as
"immature." 	Yet 	Cornett 	(and the District) 	accepted without
question Mrs. 	Carroll's 	assessment of 	Paul 	as 	"immature."
Moreover, 	in the 	same year 	it 	was 	sanctioning Leonard for
observing 	the 	student's maturity, 	the District 	implemented a
report 	card policy that 	required 	the 	teacher 	to 	comment 	on 	the
student's 	social 	integration, 	a 	factor 	that 	required assessing
maturity.
Anaya's 	concern 	regarding 	protecting 	the 	District 	from
litigation was 	laudable. 	He was 	new to 	the District 	and without
first-hand 	experience with Leonard's 	tenacious 	pursuit 	of 	her
rights. 	Such concern, 	however, 	does not 	justify the District's
issuing 	the 	letter of 	reprimand 	in violation of 	Leonard's 	rights.
We 	conclude 	the 	foregoing 	justifies 	an 	inference 	of 	unlawful
motivation by the District 	in issuing the March 	16, 	1999, 	letter.
The 	burden now shifts 	to 	the District 	to prove 	it 	would have
issued the March 16, 	1999, 	letter to Leonard, 	notwithstanding her
protected 	activity.
The 	only evidence 	offered by the 	District 	is 	that 	Anaya
wanted to bring 	closure 	to 	the 	complaint 	to 	avoid 	litigation. 	If
this were 	truly the District's motive, 	it 	could have brought
internal 	closure 	to 	the 	Smiths' 	complaint 	by invoking the
34

progressive 	discipline 	policy 	and 	counseling 	Leonard 	regarding
the 	newsletter 	and the 	art 	project 	destruction. 	Whether 	the
Smiths 	pursued 	outside 	litigation 	is 	beyond 	the 	District's
control.
Moreover, 	the District's 	own complaint procedure was not
exhausted before 	the 	District 	sanctioned Leonard. 	The 	District
scheduled a hearing on the 	Smiths' 	complaint 	for March 17, 	1999.
Yet, 	on March 16, 	1999, 	the District 	issued the 	letter to Leonard
on 	the 	issues 	raised 	in the 	complaint 	that 	were 	to be 	heard 	the
next 	day. 	Leonard was 	thus 	sanctioned without 	the 	opportunity to
respond 	to 	the 	complaint 	before 	the board of 	trustees.
Bringing 	"closure" 	to the 	complaint, 	by issuing the 	letter
of 	reprimand on March 16, 	1999, 	before completion of 	the
complaint 	review process, 	is 	inconsistent 	with a desire 	to avoid
litigation. 	We 	conclude 	that 	the 	District 	did not 	establish that
it would have 	issued the March 16, 	1999, 	letter regardless of
Leonard's 	protected 	activity.25
REMEDY
The PERB in EERA section 3541.5 (c) 	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
25The ALJ 	found 	that 	there 	was 	no 	independent 	evidence 	of
the 	impact 	the 	District's 	action against 	Leonard had on 	the
Association. 	Accordingly, 	he 	dismissed the EERA section
3543.5(b) 	allegations, 	citing State of California 	(Franchise Tax
Board) 	(1992) 	PERB Decision No. 	954-S. 	We see no reason to
disturb 	this 	conclusion.
35

with or without back pay, 	as will 	effectuate
the policies 	of 	this 	chapter.
It 	has 	been 	found 	that 	the 	District 	unlawfully retaliated
against 	Leonard by placing the March 	16, 	1999, 	letter 	into her
personnel 	file. 	It 	is 	appropriate 	to order the District 	to 	cease
and desist 	from retaliating 	against 	employees 	for 	engagement 	in
protected 	activity.
It 	is 	also appropriate 	to order the District 	to return to
the 	status 	quo preceding its unlawful 	act. 	Therefore, 	the
March 16, 	1999, 	letter shall 	be 	removed from Leonard's personnel
file 	and destroyed. 	(Mt. 	San Antonio Community College District
(1982) 	PERB Decision No. 	224.)
The Association 	requested 	its 	fees 	and 	costs 	in bringing 	the
action. 	We 	assume this 	request 	includes 	attorney's 	fees. 	PERB
will 	deny attorney's 	fees, 	"if the 	issues 	are debatable and
brought 	in good 	faith." 	(Modesto 	City and High 	School 	Districts
(1986) 	PERB Decision No. 	566.) 	We decline to grant 	the
Association 	fees 	because 	it 	has 	been 	found that 	the 	District 	did
have 	merit 	in 	sanctioning Leonard. 	She 	knew that 	parents had
seen Mrs. 	Smith return the 	calculator, 	and yet publicly thanked
the parent 	for having the 	courage 	to 	return 	it. 	Leonard 	further,
without 	justification, 	destroyed Paul's 	art project. 	These
actions 	merited a 	response 	by the 	District. 	The 	District's
failure was 	in the use of 	an appropriate 	level 	of 	discipline.
As 	there was 	no 	independent 	evidence 	of 	the 	impact 	the
District's 	action against 	Leonard had on 	the Association, 	the
36

EERA section 3543.5(b) 	allegations 	are dismissed. 	(State 	of
California 	(Franchise Tax Board) 	(1992) 	PERB Decision No. 	954-S.)
It 	is 	also 	appropriate 	that 	the District 	be 	required to post
a notice 	incorporating the 	terms 	of 	this 	order. 	The Notice
should be 	subscribed by an 	authorized 	agent 	of 	the 	District,
indicating that 	it will 	comply with the 	terms 	thereof. 	The
Notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such a notice will
provide 	employees 	with notice 	that 	the District 	has 	acted 	in an
unlawful 	manner 	and 	is 	being 	required to 	cease 	and 	desist 	from
this 	activity and will 	comply with the 	order. 	It 	effectuates 	the
purposes 	of 	EERA that 	employees 	be 	informed of 	the 	resolution of
the 	controversy and will 	announce 	the 	readiness 	of 	the 	District
to 	comply with the 	ordered remedy. 	(Davis 	Unified 	School
District, 	et al. 	(1980) 	PERB Decision No. 	116; 	Placerville Union
School District 	(1978) 	PERB Decision No. 	69.)
ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the 	entire record in this matter, 	it 	is 	found that 	the
Alisal 	Union Elementary School 	District 	(District) 	violated the
Educational 	Employment Relations Act 	(EERA), 	Government 	Code
section 3543.5 (a) . 	The District violated EERA when it 	issued a
letter of 	reprimand to Donna 	Leonard 	(Leonard) 	in 	retaliation 	for
her protected 	activities.
Pursuant 	to section 3541.5 (c) 	of EERA, 	it 	is hereby ORDERED
that 	the District, 	and its 	representatives 	shall:
37

A. 	CEASE AND DESIST 	FROM:
1. 	Retaliating against 	Leonard because 	of 	her 	exercise
of 	protected 	activities 	by placing 	a 	letter 	of 	reprimand 	in her
personnel 	file.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE EERA:
1. 	Within ten 	(10) 	workdays of 	service of 	a 	final
decision in this matter remove the March 16, 	1999, 	letter to
Leonard 	from her personnel 	file 	and 	destroy 	the 	letter 	and 	any
copies 	maintained by the 	District.
2. 	Within ten 	(10) 	workdays of 	service of 	a 	final
decision 	in this matter, 	post 	at 	all 	school 	sites 	and all 	other
work 	locations 	where 	notices 	to 	employees 	are 	customarily placed,
copies 	of 	the 	notice 	attached hereto 	as 	an appendix. 	The 	notice
must 	be 	signed by an authorized agent 	of 	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 	insure
that 	the notice 	is 	not 	reduced in size, 	altered, 	defaced or
covered by 	any 	other material.
3. 	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 	the 	director's 	instruction.
All 	other 	allegations 	in the 	complaint 	are 	dismissed.
Members 	Dyer 	and Amador 	joined 	in 	this 	Decision.
38

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. 	SF-CE-2052,
Alisal 	Teachers Association, 	CTA/NEA v. 	Alisal 	Union Elementary
School 	District, 	in which all 	parties 	had the 	right 	to
participate, 	it 	has been 	found that 	the Alisal 	Union Elementary-
School 	District 	(District) 	violated the 	Educational 	Employment
Relations Act 	(EERA), 	Government Code section 3543.5(a). 	The
District 	violated 	EERA by 	issuing 	to 	and placing 	in Donna
Leonard's 	(Leonard) 	personnel 	file 	a 	letter of 	reprimand.
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice 	and we will:
A. 	CEASE AND DESIST 	FROM:
Retaliating against 	Leonard because 	of 	her 	exercise 	of
protected activities 	by placing 	a 	letter 	of 	reprimand 	in her
personnel 	file.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
Within ten 	(10) 	workdays 	of 	service 	of 	a 	final 	decision
in this matter remove the March 16, 	1999, 	letter to Leonard from
her personnel 	file 	and destroy the 	letter 	and 	any copies
maintained by 	the 	District.
Dated: 	ALISAL 	UNION 	ELEMENTARY 	SCHOOL
DISTRICT
By:
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED WITH
ANY 	OTHER MATERIAL.
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