Los Angeles Unified School District (Jackson) (PERB 1338E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PAULETTE 	JACKSON,
Charging 	Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3851
PERB Decision No. 	1338
July 23, 	1999
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Appearance; 	Paulette Jackson, 	on her own behalf.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
AMADOR, 	Member: 	This 	case comes before the Public
Employment 	Relations Board 	(Board) 	on appeal by Paulette Jackson
(Jackson) 	to a Board administrative law judge's 	(ALJ) 	proposed
decision 	(attached). 	The ALJ dismissed the 	charge and complaint,
which alleged 	that 	the 	Los Angeles 	Unified School 	District
violated section 3543.5(a) 	of 	the Educational Employment
Relations Act 	(EERA)1 by terminating Jackson's 	employment because
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 provides:
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.

she 	exercised protected activities.
The Board has 	reviewed 	the 	entire 	record, 	including
the proposed decision and Jackson's 	exceptions. 	The 	Board 	finds
the ALJ's 	findings 	of 	fact and conclusions 	of 	law to be 	free of
prejudicial 	error and adopts 	them as 	the 	decision of 	the 	Board
itself.
ORDER
The unfair practice 	charge 	and 	complaint 	in Case
No. 	LA-CE-3851 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chairman 	Caffrey 	and Member Dyer 	joined 	in 	this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PAULETTE 	JACKSON,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-3851
PROPOSED 	DECISION
(3/10/99)
Appearances: 	Paulette Jackson, 	on her own behalf; 	Belinda D.
Stith, 	Staff 	Counsel, 	for Los Angeles Unified School District.
Before James W. 	Tamm, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On October 	7, 	1997, 	Paulette Jackson filed this unfair
practice 	charge 	against 	the 	Los Angeles 	Unified 	School 	District
(District). 	On November 25, 	1997, 	the Office of the General
Counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
issued 	a 	complaint 	alleging 	that 	the 	District 	violated
section 543.5(a) 	of 	the 	Educational 	Employment 	Relations Act
(EERA or Act)1 by terminating Jackson's 	employment 	because 	she
1EERA is codified at Government Code 	section 3 54 0
et 	seq. 	EERA section 3543.5 	states, 	in pertinent part:
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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exercised protected 	activities.2 The 	District 	answered 	the
complaint on December 16, 	1997, 	admitting the jurisdictional
facts 	but 	denying any violation of 	the Act.
A settlement 	conference was 	conducted, 	but 	the matter
remained unresolved. 	A prehearing 	conference 	was 	held 	June 	26,
1998. 	A formal 	hearing was held November 	12 	and 13, 	1998.3
Transcripts 	were 	waived, 	briefs were 	filed and 	the 	matter was
submitted for decision on January 8, 	1999.
FINDINGS 	OF 	FACT
For 	several 	years prior to the 	1997-98 	school 	year, 	Jackson
had been 	employed by the 	District 	as 	a 	day-to-day 	substitute.
During 	a portion of 	that 	time 	she 	had worked as 	a 	substitute 	at
John Burroughs 	Middle 	School 	for 	the 	Resource 	Specialist 	Program
(RSP). 	In June 1997, 	the Burroughs principal, 	Dr. 	Earl Barner,
offered Jackson a position as 	a 	substitute 	teacher, 	filling a
newly created 	seventh grade 	RSP position, 	beginning 	in 	September
at 	the 	start 	of 	the new school 	year.
Jackson's 	seventh grade 	class 	was 	considered 	a 	start-up
class, 	i.e., 	newly created. 	Jackson had heard from other
teachers 	that 	there 	were 	funds 	allocated 	for 	expenses 	associated
2The 	complaint 	also alleges 	that 	the District 	violated
Government 	Code 	section 3543.5(b) 	by denying Jackson the 	right 	to
represent 	other unit 	members. 	Jackson offered no 	evidence
regarding 	this 	allegation 	and did not 	discuss 	the 	issue 	in her
brief. 	I 	consider the 	issue 	to be 	abandoned and therefore 	it 	is
not 	discussed 	further 	in 	this 	decision.
3At 	the 	request 	of 	charging party, 	the 	original 	June 	1998
hearing 	date 	was 	continued because 	she 	was 	unable 	to 	serve
subpoenas. 	A second request 	on 	similar grounds 	was 	denied.
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with 	start-up 	classes. 	Without 	clarifying her understanding 	or
obtaining any prior approval, 	Jackson 	spent 	approximately 	$300 	of
her own money 	for 	supplies, 	believing 	that 	she would be
reimbursed.
Prior to 	the 	start 	of 	the 	1997-98 	school 	year, 	Principal
Barner was 	replaced as principal 	by Fonna Bishop. 	At 	the 	start
of 	the 	school 	year, 	Jackson went 	to Bishop and requested among
other things, 	that 	she be reimbursed for the $3 00 	of expenses.
Bishop 	explained 	that 	she would 	look 	into 	it, 	and would try to
get 	the 	funds 	reimbursed, 	but 	she was 	not 	optimistic 	that 	Jackson
would be 	reimbursed. 	The 	District's 	long 	established practice
required prior 	approval 	for 	reimbursable 	cash 	expenditures 	by
teachers. 	Prior approval 	is 	required because 	the 	District 	has
many 	sources 	for various 	supplies 	and may actually have 	the
necessary supplies 	without 	any extra 	expenditures. 	For example,
Jackson 	apparently purchased 	some 	books 	for 	her 	classroom without
ever checking 	the 	school's 	textbook supply office. 	Other
supplies 	can be 	more 	efficiently purchased 	directly by 	the 	school
or the District 	office.
Jackson became 	upset 	that 	she 	might 	not 	be 	reimbursed 	and
wrote 	a 	letter 	to 	Bishop 	and 	other District 	office 	personnel
complaining 	about 	not 	being 	reimbursed.4 Jackson 	followed up 	on
the 	letter by 	speaking again to Bishop. 	During 	the 	conversation,
Jackson 	complained 	to 	Bishop 	that 	she 	was 	unhappy about 	not
4There 	is 	no 	evidence 	that 	these 	other 	individuals 	played
any role 	in any personnel 	decisions 	affecting Jackson.
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getting 	reimbursed 	and 	that 	she 	was 	an 	experienced 	teacher who
could work 	in many other places. 	Bishop pointed out 	that 	because
Jackson was 	a 	substitute, 	she 	certainly had a great 	deal 	of
flexibility 	to work elsewhere 	if 	she 	wasn't 	happy 	at 	Burroughs
Middle 	School. 	Bishop 	told Jackson 	that 	if 	she wanted to be
released 	from her 	commitment 	at 	Burroughs 	Middle 	School, 	Bishop
would 	approve 	her 	release.
Jackson testified that 	the 	exchange was hostile, 	however,
Bishop disputed that 	testimony. 	Based on witness 	credibility, 	I
credit 	Bishop's 	version 	and 	find 	that 	while 	Jackson may have 	been
hostile 	towards 	Bishop, 	Bishop 	exhibited no 	hostility towards
Jackson. 	Jackson also 	testified 	that 	she 	had been 	rebuffed by
the 	assistant 	principal 	at 	the 	school 	when 	she 	sought 	to obtain
keys 	to 	the 	school's 	elevator.
Right 	from the 	start 	of 	the 	school 	year, 	Bishop had been
seeking 	to 	fill 	the vacant 	RSP position, 	which was 	temporarily
filled by Jackson as 	a 	substitute. 	Bishop was 	seeking 	to hire 	a
permanent, 	fully credentialed RSP 	teacher who had experience 	in
testing procedures. 	Jackson was 	allowed 	to 	substitute 	in the 	RSP
position 	based upon 	a 	special 	education 	emergency waiver
credential 	obtained by the District. 	Jackson did not, 	however,
have 	the 	testing 	experience 	sought 	by Bishop.
On September 23, 	Bishop 	interviewed Mary Patterson, 	a
teacher whose 	position at 	another District 	school 	was 	being
eliminated due 	to 	low enrollment. 	Patterson was 	a 	fully
credentialed 	RSP 	teacher 	with 	extensive 	experience 	in 	testing
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procedures 	in over 2 0 years with the District. 	Patterson was
exactly what 	Bishop was 	looking 	for 	and 	she 	accepted 	the 	job when
it 	was 	offered to her at 	the 	end of 	the 	interview.
Patterson's 	starting date was, 	however, 	delayed by Bishop so
that 	Jackson 	could benefit 	from an 	increase 	in pay provided 	to
substitutes 	on assignments 	longer than 21 	days. 	Once 	substitutes
work 21 	days 	in the 	same position, 	the pay increase 	is
retroactive 	to 	the 	start 	of 	the 	assignment. 	Bishop knew that
Jackson was 	close 	to being 	in the position for 21 	days, 	so 	in
order to provide Jackson with an increase 	in pay, 	Bishop delayed
Patterson's 	starting 	date 	until 	after 	Jackson had worked 	the 	full
21 	days. 	Patterson was placed into a District 	substitute pool
until 	Jackson had qualified 	for 	the 	increased pay. 	Jackson was
notified 	that 	her 	assignment 	would 	end 	as 	soon 	as 	she 	had
qualified 	for 	the 	higher pay rate. 	Jackson would 	then return to
the 	substitute 	pool 	as 	a 	day-to-day 	substitute 	and 	Patterson
would 	take 	over 	the 	class.
After Jackson had been given notice 	of 	the 	end 	of 	her
assignment 	and 	after 	she 	had packed up 	her 	classroom and 	said
goodbye 	to the children, 	but prior to the 	time 	that 	Patterson
actually 	started work, 	Patterson 	changed her mind 	and 	accepted 	a
more 	attractive 	teaching position at 	a 	different 	school 	within
the District.
Bishop 	decided not 	to 	rehire 	Jackson as 	a 	substitute 	since
she 	had already 	said goodbye 	to 	the 	students 	and 	cleaned out 	the
classroom. 	Bishop 	felt 	that 	it 	would be 	disruptive 	to 	the
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special 	education 	students 	to bring 	Jackson back 	to 	the 	classroom
once 	again, 	only to have her leave 	again 	in a 	short 	period as
soon as 	a permanent 	replacement 	could be 	found. 	More
importantly, 	however, 	Bishop was becoming even more 	concerned
that 	a 	large 	testing backlog was 	building 	up 	and 	she 	needed
someone who had experience 	in testing procedures, 	even 	if 	it was
a 	different 	substitute.5
Jackson was 	returned 	to 	the 	day-to-day 	substitute 	pool 	and
continued 	to 	receive 	other 	assignments 	from the 	District.
Jackson was 	eventually hired within 	the 	District 	in 	a 	full-time,
permanent 	position under 	another 	emergency 	credential. 	She 	was
not 	terminated 	from 	the 	District.
Bishop 	eventually hired 	a 	fully 	credentialed RSP 	teacher 	for
the vacant 	position.
ISSUE
Did 	the 	District 	violate 	the Act 	by replacing 	Jackson with 	a
permanent 	employee?6
DISCUSSION AND 	CONCLUSIONS
In order to prove a prima 	facie violation, 	charging party
must prove: 	(1) 	that 	she engaged in protected activity; 	(2) 	that
5The 	testing backlog was 	building up because 	there were 	two
substitutes 	in RSP positions 	at 	the 	school 	without 	any testing
expertise.
6The 	underlying unfair practice 	charge 	and 	complaint 	in 	this
case 	alleges 	that 	Jackson was 	terminated 	from her 	employment 	by
the District. 	The evidence 	is undisputed, 	however, 	that 	she was
not 	terminated 	from employment. 	She 	was 	simply placed back 	into
the 	substitute pool 	until 	such 	time 	as 	she 	was 	offered a
permanent position. 	She 	is 	currently a 	full-time 	teacher in a
permanent 	position.
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Bishop had knowledge 	of 	her protected activity; 	(3) 	that 	Bishop
took adverse 	action against 	her; 	and 	(4) 	that 	Bishop 	took the
adverse 	action 	against 	her because 	she 	had engaged 	in 	that
protected activity. 	(Novato Unified School 	District 	(1982) 	PERB
Decision No. 	210; 	Carlsbad Unified School District 	(1979); 	PERB
Decision No. 	89; 	State of 	California 	(Department 	of Developmental
Services) 	(1982) 	PERB Decision No. 	228-S.)
Once 	the 	charging party has 	done 	that, 	the burden then
shifts 	to 	the 	respondent 	to prove 	that 	it 	would have 	taken the
same 	action regardless of 	any protected activity. 	If, 	however,
the 	charging party has not 	proven a prima 	facie 	case, 	the burden
does 	not 	shift 	to 	the 	respondent, 	and it 	is 	under no obligation
to put 	forth any evidence.
In 	this 	case, 	Jackson engaged 	in protected activity by
complaining 	to 	her principal 	and other District 	personnel 	about
the 	District's 	reimbursement 	policy 	regarding 	her 	cash
expenditures. 	Bishop 	clearly had knowledge 	of 	this 	protected
activity.
Setting 	aside 	the 	issue 	of 	whether 	Bishop 	took 	any adverse
action 	against 	Jackson by 	filling 	the 	position with 	a permanent
employee. 	Jackson's 	case 	fails because 	she has 	not 	proven that
any action taken, 	adverse or otherwise, 	was because 	she had
engaged 	in protected 	activity.
Jackson 	argues 	that 	she 	was 	replaced because 	she 	complained
about 	not 	getting 	reimbursed 	for her expenses 	at 	the 	start 	of 	the
school year. 	The evidence, 	however, 	supports a contrary finding.
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Jackson 	had 	not 	followed District 	policy 	about 	reimbursement 	for
expenses. 	Bishop 	explained that 	she 	would do what 	she 	could 	for
Jackson, 	but 	it was 	unlikely she would get 	reimbursed. 	There was
no 	credible 	evidence 	that 	Bishop 	harbored 	any hostility 	over
Jackson's 	efforts 	to get 	reimbursed.
Right 	from the 	start 	of 	the 	school 	year, 	Bishop had wanted
to 	fill 	Jackson's 	substitute position with a permanent, 	fully
credentialed, 	RSP teacher who had strong 	testing 	skills. 	Once 	a
permanent 	RSP teacher 	(Patterson) 	was 	hired, 	Bishop 	even delayed
the 	transition date 	in order 	to 	qualify Jackson 	for 	higher 	long-
term substitute 	pay. 	This 	does 	not 	reflect 	the 	behavior of
someone 	wishing 	to 	retaliate.
Bishop 	also 	had 	a 	logical 	explanation 	for 	not 	bringing
Jackson back when the 	position once 	again became 	open. 	She 	felt
that 	since 	Jackson 	had 	already packed up 	her 	classroom materials
and said goodbye 	to all 	the 	students, 	it 	would be 	disruptive 	to
the 	students 	to 	bring 	Jackson back again only 	to 	have 	her 	leave
again in a 	short period of 	time. 	There 	is 	also no evidence 	of
disparate 	treatment 	by Bishop 	and no 	evidence 	of 	inconsistent 	or
shifting 	justifications 	offered 	for Bishop's 	actions.
Jackson has 	failed 	to prove 	that 	any action 	taken 	regarding
her was 	motivated by her protected activities. 	For 	this 	reason,
this 	complaint 	must 	be 	dismissed.
CONCLUSION AND 	ORDER
Paulette 	Jackson 	engaged 	in protected 	activities 	which was
known to 	the 	Los Angeles Unified 	School 	District. 	Principal
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Fonna 	Bishop's 	action 	to 	replace 	Jackson with 	a permanent 	fully-
credentialed 	Resource 	Specialist 	Program 	teacher 	with 	testing
experience 	was 	not 	motivated by Jackson's 	protected 	activity.
Therefore, 	the 	complaint 	and underlying unfair practice 	charge 	in
Case No. 	LA-CE-3851, 	Paulette Jackson v. 	Los Angeles Unified
School District, 	is 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 	request 	for an extension of 	time 	to 	file
exceptions 	or a 	statement 	of 	exceptions 	with the 	Board 	itself.
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 95814-4174
FAX: 	(916) 	327-7960
This 	Proposed Decision was 	issued without 	the 	production of
a written transcript 	of 	the 	formal 	hearing. 	If 	a 	transcript 	of
the hearing 	is 	needed for 	filing exceptions, 	a 	request 	for an
extension of 	time 	to 	file 	exceptions 	must 	be 	filed with 	the 	Board
itself 	(Cal. 	Code Regs., 	tit. 	8, 	sec. 	32132). 	The request for an
extension of 	time 	must 	be 	accompanied by a 	completed 	transcript
order 	form 	(attached hereto). 	(The 	same 	shall 	apply to 	any
response 	to 	exceptions.)
In accordance with PERB regulations, 	the 	statement 	of
exceptions must 	be 	filed with the 	Board 	itself 	within 20 	days 	of
service 	of 	this 	Decision or upon service 	of 	the 	transcript 	at 	the
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headquarters 	office 	in Sacramento. 	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 Regs., 	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 places 	the original,
together with 	the 	required number 	of 	copies 	and proof 	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.)
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
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a party or filed with the Board itself. 	(See 	Cal. 	Code Regs.,
tit. 	8, 	secs. 32300, 	32305, 	32140, and 32135(c).)
James W. 	Tamm
Administrative 	Law Judge
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