Los Angeles Unified School District (Davis) (PERB 1129E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHARLENE F. 	DAVIS,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-3430
PERB Decision No. 	1129
December 15, 	1995
Appearance: 	Charlene F. 	Davis, 	on her own behalf.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case is before 	the Public Employment
Relations 	Board 	(Board) 	on appeal by Charlene 	F. 	Davis 	(Davis)
of 	the administrative 	law judge's 	(ALJ) 	proposed decision
(attached). 	In that decision the ALJ dismissed Davis' 	unfair
practice 	charge 	which alleged 	that 	the 	Los 	Angeles 	Unified
School District 	(District) 	violated section 3543.5(a)1 of 	the
Educational 	Employment 	Relations Act 	(EERA) 	by terminating her
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
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
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
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employment with the 	LA's 	Best 	Program. 	The ALJ 	found that Davis
had not 	proven 	that 	the District 	terminated her due 	to her
protected 	activity.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the proposed decision, 	transcript, 	exhibits and Davis'
statement 	of 	exceptions. 	The Board finds 	the ALJ's 	findings 	of
fact 	and 	conclusions 	of 	law to be 	free 	of prejudicial 	error and,
therefore, 	adopts 	them as 	the decision of 	the Board 	itself.
ORDER
The 	complaint 	and unfair practice 	charge 	in 	Case
No. 	LA-CE-3430 	are hereby DISMISSED.
Chairman 	Caffrey and Member Garcia 	joined 	in this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHARLENE F. DAVIS 	(JOHNSON),
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-3430
PROPOSED 	DECISION
(6/12/95)
Appearances: 	Charlene F. 	Davis 	(Johnson), 	on her own behalf,
and Rochelle Montgomery, 	Attorney, 	for the Los Angeles Unified
School 	District.
Before James W. 	Tamm, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On March 29, 	1994, 	Charlene Davis 	(Davis or Charging Party)
filed 	this 	unfair practice 	charge 	against 	the 	Los 	Angeles 	Unified
School District 	(District). 	On July 19, 	1994, 	the general
counsel's 	office 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB
or Board) 	issued a 	complaint 	alleging 	the District violated
section 3543.5(a) 	of 	the Educational 	Employment 	Relations Act
(EERA or A c t ) 1 The 	complaint 	alleged that 	the District
terminated 	Charging 	Party 	from her position as 	a 	playground
1The 	EERA 	is 	codified at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	in
this 	decision are 	to 	the Government 	Code. 	Section 3543.5(a)
states 	that 	it 	shall be unlawful 	for a public 	school 	employer to:
(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. 	. 	. 	.
)
)
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)
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assistant with the 	LA's 	Best 	Program because among 	other 	things,
she 	filed 	complaints 	regarding 	safety 	issues.
A settlement 	conference 	was 	held but 	the 	parties 	were unable
to 	resolve 	their dispute. 	A formal 	hearing was 	conducted on
October 31 and November 1, 	1994. 	Transcripts were prepared, 	and
after 	several 	party 	initiated continuances, 	briefs were 	filed and
the 	case was 	submitted for decision on March 21, 	1995.
FINDINGS 	OF 	FACT
The 	District 	is 	an 	employer and 	the 	Charging 	Party 	is 	an
employee within the meaning of 	the Act. 	There 	is 	no applicable
collective 	bargaining 	agreement 	providing 	for 	binding 	arbitration
of 	their dispute.
The 	two main participants 	in this 	dispute are 	the 	Charging
Party and Gwen Turner, 	Principal 	of Alta Loma 	Elementary School.
They 	have 	given 	diametrically 	opposing 	testimony 	on 	several
issues. 	These 	factual 	findings 	and the 	decision based 	thereon
are 	the 	result 	of 	the 	credibility determination of 	these 	two
witnesses. 	Where their testimony is 	in dispute, 	I 	find that
Turner is 	a more 	credible witness 	than Davis. 	I based this 	on
two main 	factors. 	The 	first 	is 	that Turner's 	testimony was more
consistent with the 	testimony of 	Everlena Morris 	regarding
critical meetings 	in December 1992 	and October 1993, 	and the
testimony of 	Daniel Austin. 	Both Morris 	and Austin were very
credible. 	The 	second 	factor was 	that 	the 	Charging 	Party's
testimony was 	contradictory 	and 	internally 	inconsistent.
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The 	Charging 	Party has 	been a 	teaching assistant 	at Alta
Loma Elementary School 	for the past 	fourteen years. 	In 1992 	she
was 	also 	hired 	in an after 	school 	program called 	the 	LA's 	Best
Program. 	That program was 	a 	joint 	effort between the District
and the 	Los Angeles Mayor's 	Office.
In her role as 	a teaching assistant, 	Davis 	is a member of 	a
classified bargaining unit. 	Davis' 	position with the LA's Best
Program is 	not 	a bargaining unit position. 	She has 	no guarantee
of 	employment 	with the 	LA's 	Best 	Program and serves 	at 	the will
of 	the program.
Charging 	Party 	claims 	to have 	raised 	safety 	issues 	on 	two
occasions. 	Davis 	testified that 	in December 1992 	she verbally
complained 	to Turner about 	a parent 	who 	came 	to pick up her 	child
an hour late. 	Davis 	felt 	the parent was under the 	influence 	of
alcohol 	or drugs. 	Davis 	told Turner that 	the parent 	had verbally
abused her when 	she 	informed 	the parent 	that 	the 	child would have
to be picked up at 	the police 	station 	if 	she 	continued 	to pick up
her child an hour late. 	At 	that 	same 	time, 	Davis also complained
to Turner 	that 	there was 	no 	telephone at 	the 	location where 	the
students 	were being kept.
Davis also testified that 	in July or August 	of 	1993, 	two
transients 	came 	onto 	campus 	and became 	abusive 	when 	she 	asked
them to leave. 	Davis 	contacted Everlena Morris, 	the LA's Best
site administrator, 	who 	called campus police 	for assistance.
When the police arrived, 	however, 	the 	two 	transients had already
left 	the 	campus. 	Turner had not been 	informed of 	this 	incident
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at 	the 	time, 	but 	later learned of 	it 	during a meeting on
October 4, 	1993.
On September 24, 	1993, 	a group of parent volunteers were
cutting the 	lawns 	of 	the 	school. 	It was 	a hot 	day and one 	of 	the
parents 	asked Turner 	if 	they 	could have 	some drinking water. 	The
school 	regularly keeps bottled water 	in the 	cafeteria, 	so Turner
called 	the 	cafeteria manager and asked 	that 	she 	send 	some 	bottled
water 	to 	the parents. 	The 	cafeteria manager said 	she had no 	one
to deliver the water, 	so Turner told the 	cafeteria manager to
contact 	the 	LA's 	Best 	Program and have 	them send a 	student 	to
pick up 	the water and take 	it 	to 	the parents.
The 	cafeteria manager 	called 	the 	LA's 	Best 	Program and asked
that 	a 	student 	be 	sent 	to deliver 	the bottled water 	to 	the
parents. 	Mr. 	Nakia Davis, 	an employee in the LA's Best Program
received 	the 	call 	from the 	cafeteria manager. 	He 	told 	the
cafeteria manager 	that 	he would deliver the water himself. 	The
cafeteria manager 	told him 	that 	Turner 	said 	to 	send 	a 	student
rather than an adult. 	Nakia Davis 	reported this 	to 	the 	Charging
Party, 	who told him not 	to 	send the 	student. 	The Charging 	Party
believed that 	it 	was 	not 	safe 	for a 	student 	to deliver 	the water.
No 	student was 	therefore 	sent 	for the water and 	it was 	not
delivered 	to 	the parent volunteers.
After waiting 	for sometime 	for the water, 	one 	of 	the parents
again asked Turner 	for water. 	By that 	time 	cafeteria manager had
already gone home, 	so Turner had to send one of 	her office
4
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clerical 	employees 	to unlock 	the 	cafeteria and get 	water 	for 	the
parents.
Turner explained at 	the hearing 	that 	she 	felt 	it was
completely safe 	to use 	students 	to deliver the water. 	Student
monitors 	are used 	in numerous 	circumstances 	to deliver messages,
or 	run errands at 	the 	school 	site. 	Turner testified that 	she did
not 	want 	an adult 	to 	deliver 	the water because 	a 	class 	would 	then
have 	to be 	left without 	adult 	supervision.
Turner 	sent 	a memo 	to 	the 	Charging 	Party 	telling her 	that
she 	had 	caused 	a 	problem and 	that 	she 	should 	follow 	through 	on
Turner's 	requests. 	Turner also 	scheduled a meeting 	for
October 4, 	1993, 	to discuss 	the matter and sent notice of 	the
meeting 	to 	Charging 	Party. 	Everlena Morris 	was 	also 	invited to
the meeting. 	On September 27, 	1993, 	Charging Party filed a
complaint 	about 	Turner with the 	regional 	administrator, 	Daniel
Austin. 	Austin was Turner's 	immediate 	supervisor. 	The 	complaint
alleged 	that 	Turner had 	requested 	that 	students 	be 	used 	to
deliver drinking water and 	that 	the practice was 	unsafe 	due 	to
shootings 	and other 	safety problems 	that 	had occurred.2 The
complaint 	also 	alleged 	that 	Turner had been verbally 	abusive 	to
her.
On September 30, 	1993, 	the Charging Party revised the
complaint 	about Turner, 	and added more details 	to 	the 	complaint.
2The 	complaint 	also 	alleged 	that 	Turner had asked 	that 	a
student 	be 	used 	to deliver 	snacks 	to Turner 	from the 	cafeteria.
The 	testimony 	regarding 	that 	issue 	was 	contradictory 	and
inconclusive. 	There 	is 	not 	enough credible evidence 	in the
record 	to 	conclude 	that 	the 	incident 	ever occurred.
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Upon receiving 	the 	complaint 	about 	Turner, 	Austin 	contacted
both 	Charging 	Party and Turner 	and 	talked 	to 	them about 	it.
Austin was 	satisfied with 	the 	information he 	received 	from Turner
and 	felt 	Turner had acted professionally. 	He 	did not 	pursue 	the
matter any 	further. 	According 	to Austin his 	conversation with
Turner was 	not 	disciplinary 	in any way.
On October 4, 	1993, 	the previously scheduled meeting between
Turner, 	Davis 	and Morris 	occurred. 	By that 	time Turner had
received a 	copy 	of 	the 	complaint 	to Austin and was 	hoping 	to
resolve 	their differences 	about 	what 	had happened. 	Turner had
not 	immediately confronted Davis 	about 	the 	complaint, 	hoping 	that
the passage 	of 	time would minimize 	the 	incident.
During 	the meeting, 	as Turner was 	reviewing the 	incident,
Davis 	became 	agitated and 	called Turner a 	liar 	several 	times 	in a
loud voice. 	Davis 	eventually walked out 	of 	the meeting before
Turner 	could 	finish.
Turner had had some previous 	concerns 	about Davis' 	demeanor
with other LA's 	Best 	staff 	and parents. 	The District 	offered
testimony about 	incidents 	where 	the 	Charging 	Party had angry
exchanges 	with other employees 	and parents. 	The 	evidence was
offered not 	to prove 	that 	the actual 	incidents 	occurred, 	but 	only
to prove Turner's 	state 	of mind 	(i.e., 	that 	she believed Davis
has a history of angry inappropriate behavior). 	I make no
findings 	regarding 	the 	truth 	of 	the 	alleged 	confrontations
between Charging 	Party and 	other 	employees 	and parents. 	However,
I 	do 	find 	that 	Turner believed 	them to be 	true. 	Based upon
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Turner's 	belief 	that 	Davis 	had 	reacted 	inappropriately with 	other
staff and parents 	in the past, 	and Davis' 	inappropriate behavior
at 	the October 4 meeting, 	Turner then decided that 	she would
terminate Davis 	from the 	LA's 	Best 	Program.
The 	Charging 	Party was 	terminated 	from her 	after 	school
employment 	in the LA's Best 	Program, 	however her employment 	as 	a
teaching assistant 	at Alta 	Loma 	Elementary 	School 	has 	not 	been
altered 	in any way. 	She 	remains 	employed as 	a 	teaching 	assistant
in 	the 	same position with the 	same 	number of hours 	as 	she
previously 	held.
ISSUE
Did 	the 	District 	retaliate 	against 	Davis 	because 	she 	filed
two 	safety 	complaints 	and a 	complaint 	against 	her 	supervisor?
DISCUSSION
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 	(19 79) 	PERB Decision No. 	89.)
Once an inference 	is made, 	the burden of proof 	shifts 	to the
employer 	to 	establish 	that 	it would have 	taken the action
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complained of, 	regardless 	of 	the employee's protected activities.
(Novato; 	Martori Brothers Distributors v. 	Agricultural 	Labor
Relations Board 	(1981) 	29 Cal.3d 721 	[175 Cal. 	Rptr. 	626].)
Charging 	Party argues 	that 	she 	engaged 	in 	three protected
acts. 	The 	first 	two were 	safety complaints. 	The 	third was 	the
complaint 	to Austin.
The 	safety 	"complaints" 	however, 	were not 	so much complaints
as 	they were 	simply 	reporting 	incidents 	that 	occurred.
Nevertheless 	reporting an 	incident 	regarding a 	safety 	issue 	can
be 	considered protected activity. 	(See 	Pleasant Valley 	School
District 	(1988) 	PERB Decision No. 	708, 	where an employee
complained 	of 	unsafe 	equipment.)
The 	third action, 	filing the 	complaint with Austin, 	is
also protected. 	(See State of California, 	Department 	of
Transportation 	(19 82) 	PERB Decision No. 	257-S, 	where an employee
distributed 	leaflets 	criticizing his 	supervisor.) 	Charging 	Party
therefore 	has 	demonstrated 	that 	she 	engaged 	in protected
activities.
Charging 	Party has 	also demonstrated knowledge 	of 	that
protected activity by 	the 	employer. 	Turner had direct 	knowledge
of 	the December 	1992 	incident 	and learned of 	the July or
August 	1993 	incident during the October 4, 	1993, 	meeting. 	Turner
also had knowledge 	of Davis' 	complaint 	to Austin prior to
deciding 	to 	terminate her.
The 	adverse action 	is undisputed. 	Turner terminated Davis'
from the 	LA's 	Best 	Program.
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Charging Party has, 	however, 	failed to prove a nexus between
the protected activity and the 	adverse 	action. 	There was 	no
credible 	evidence 	that 	either of 	the 	safety 	reports 	caused any
resentment 	or animosity towards Davis. 	The 	incidents 	were
distant 	in 	time 	and not 	particularly 	significant 	to begin with.
While 	on 	its 	face 	the Austin complaint might have 	caused
resentment, 	the 	evidence 	reflects 	that 	Turner had an 	interest 	in
resolving 	the 	issue 	rather than escalating 	it. 	For example,
Turner did not 	immediately 	confront Davis with the 	complaint, 	but
rather waited, 	hoping 	that 	time would reduce 	the 	emotional
volatility of 	the 	issue.
The 	evidence 	suggests 	that 	it was not until Davis began
yelling at Turner, 	calling her a liar, 	then walking out 	of 	the
October 4 meeting, 	that 	Turner decided to 	terminate Davis 	from
the program. 	Turner's 	action appears 	to be 	related directly to
her belief 	that 	Davis 	had acted 	inappropriately 	in 	the past 	with
other program staff and parents, 	and was 	doing 	so again.
Turner's 	action was 	measured and appropriately 	limited 	to
Charging 	Party's 	employment 	in the 	LA's 	Best 	Program. 	Turner
took no action 	impacting Davis' 	other employment 	in 	the District
where 	she 	was 	more 	closely 	supervised and had not 	exhibited
inappropriate 	behavior.
SUMMARY
The 	Charging 	Party has 	not 	proven 	that 	Turner 	terminated her
due to her protected activities. 	Further, 	even if Davis had
shown 	that 	the 	adverse action was 	somehow related 	to her
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protected activities, 	the District 	established 	that 	it 	would have
taken the adverse action anyway, 	regardless 	of Davis' 	protected
activities. 	The 	complaint 	is 	therefore dismissed.
Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	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
20 	days 	of 	service of 	this Decision. 	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. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" 	when
actually 	received before 	the 	close of business 	(5:00 p.m.) 	on the
last day set 	for filing 	". 	. 	. o r when sent by 	telegraph or
certified or Express 	United States mail, 	postmarked not 	later
than the 	last 	day set 	for 	filing 	. . . " 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 	shall apply.) 	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 of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
James W. 	Tamm
Administrative 	Law 	Judge
10