Pomona Unified School District (PERB 1375E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HELEN R. 	BAILEY,
Charging 	Party,
v.
POMONA UNIFIED SCHOOL DISTRICT,
Respondent.
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Case No. 	LA-CE-3967
PERB Decision No. 	1375
February 	28, 	2000
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Appearance; 	Parker, 	Covert 	& Chidester by Cathie L. 	Fields,
Attorney, 	for Pomona Unified School District.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
AMADOR, 	Member: 	This 	case comes before the Public
Employment Relations 	Board 	(PERB 	or Board) 	on exceptions by
the 	Pomona Unified School 	District 	(District) 	to an
administrative law judge's 	(ALJ) 	proposed decision. 	The unfair
practice 	charge 	alleged 	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.
EERA section 3543.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
( a ) I m p o s e 	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.

by retaliating against 	substitute teacher, 	Helen R. 	Bailey
(Bailey) 	for her protected activity.
After reviewing the entire 	record, 	including the unfair
practice 	charge, 	the proposed decision, 	and the District's
exceptions,2 the Board affirms 	the proposed decision, 	in part,
and reverses 	it, 	in part, 	in accordance with the following
discussion.
BACKGROUND
Bailey was 	employed by the District 	from November 14, 	1990
to June 30, 	1998. 	As a substitute teacher, 	she was not a member
of 	the 	bargaining unit 	represented by 	the Associated 	Pomona
Teachers 	(APT), 	nor was 	she a member of any other recognized
bargaining unit.
During most 	of her employment with the District, 	Bailey held
a series 	of 	emergency 30-day substitute 	teaching permits, 	which
authorized her to 	substitute 	for not more 	than 30 	days 	for any
one 	teacher during a school 	year. 	For the period of May 1, 	1997
to January 31, 	1998, 	she held an emergency long-term multiple-
subject 	teaching permit, 	which authorized her to 	teach multiple-
subject-matter self-contained classes. 	After the 	expiration of
her long-term permit, 	she again held a 30-day permit, 	for the
term of February 1, 	1998 	to March 1, 	1999.
2The 	District's 	request 	for 	oral 	argument 	was 	denied 	on
February 22, 	2000.
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The 	complaint 	alleges 	three 	separate 	adverse 	actions 	taken
against 	Bailey by the District. 	Each of 	those alleged adverse
actions 	shall 	be described 	in turn.
Refusal 	of 	Contract
The complaint alleges, 	in part, 	that on or about October 30,
1997, 	the District 	refused to offer Bailey a contract 	for a
permanent position. 	In her unfair practice 	charge, 	Bailey
alleged that 	her principal, 	offered her a 	contract 	on
September 3, 	1997, 	but that 	the District 	later refused to give
her 	the position and 	claimed 	that 	it 	had been 	filled.
The 	factual 	background 	includes 	the 	following events. 	On
August 	1, 	1997, 	the District posted a notice of vacancy for
"Math/Science Teachers 	(Investigations)" 	at Fremont Middle
School, 	where Bailey had previously taught as 	a substitute. 	The
notice 	listed as 	a minimum qualification 	"Appropriate 	California
Teaching 	Credential 	authorizing 	instruction 	in 	the 	above 	grade
and/or subject." 	On August 	18, 	1997, 	Bailey filed a request 	for
the position. 	She was 	interviewed on September 2, 	1997, 	and was
ranked as 	the 	top 	candidate by a panel 	that 	included middle
school principal, 	Gloria R. Marquez 	(Marquez).
The panel's 	ranking 	of 	candidates was 	then sent 	to 	the
District's personnel 	office, 	which referred it 	to the District's
credentialing expert, 	Sharon Mhoon 	(Mhoon). 	Mhoon determined
that 	for 	the math/science position, 	a 	teacher with an emergency
credential 	would need to have 	18 	semester units 	(or 27 	quarter
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units) 	in either math or science. 	She reviewed Bailey's
transcript 	and determined 	that 	Bailey 	did not 	qualify 	in 	this
regard.3
After learning of Mhoon's 	determination, 	the District's
personnel 	office 	informed Bailey 	and Marquez 	that 	Bailey did not
qualify. 	Marquez 	credibly 	testified she 	never 	offered Bailey a
contract. 	In fact, 	Marquez 	testified she never offered contracts
to anyone, 	and she was always very careful about 	even discussing
contracts with candidates, 	in case 	the 	candidate did not qualify.
Due to a lack of qualified candidates, 	however, 	Bailey did
teach the math/science classes 	for a time, 	but 	only as a long-
term substitute. 	On October 30, 	1997, 	the District 	sent Bailey a
form letter stating, 	in part:
I want 	to 	thank you 	for applying 	for 	the
[math/science] 	position referenced above.
This position 	is 	closed and 	I appreciate your
time and 	effort 	in applying 	for 	this vacancy
and 	encourage you 	to apply again 	for other
positions 	that may become 	available 	in 	the
future.
The 	letter was 	stamped with 	the 	signature 	of 	District
certificated personnel director, 	William Graham 	(Graham).
Bailey was 	confused by 	the 	letter. 	She understood 	the
statement 	that 	the position was 	"closed" 	to mean that 	the
position was 	filled by someone 	else, 	which she knew was 	not 	true.
Graham testified, 	however, 	that 	"closed" 	simply meant 	the time 	to
3Bailey was 	one 	of 	27 	candidates Mhoon determined did not
qualify 	for various 	positions 	that year. 	Mhoon did not 	know
Bailey and did not 	take 	into account 	any 	conduct 	by Bailey.
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apply was 	over, 	not 	that 	the position was necessarily filled. 	It
appears 	the October 30, 	1997 	letter was 	a general purpose 	form
letter to 	tell 	candidates 	they did not 	get 	a position.
Bailey 	called 	the personnel 	office, 	and Graham himself 	spoke
to her, 	explaining why she did not 	get 	the math/science position.
Their 	conversation was pleasant, 	and Graham thought 	the 	issue was
resolved.
The 	issue was not 	resolved, 	however, 	because Bailey believed
she 	could qualify 	for 	the math/science position 	if 	she 	enrolled
in appropriate classes. 	In the winter and spring of 	1998, 	Bailey
did 	enroll 	in 	classes 	at 	the 	California 	State 	Polytechnic
University, 	and she made 	several 	efforts 	to persuade 	the District
to give her the position.
Among other efforts, 	Bailey wrote 	letters 	to Graham and
Mhoon. 	In her letter to Graham, 	dated February 25, 	1998, 	she
characterized the October 30, 	1997 	letter, 	to her as 	"a very
strange 	letter 	falsely claiming 	that 	the position 	for which 	I
applied had been filled." 	She stated, 	in part, 	"I 	thought an
error had been made, 	and that 	someone would soon contact me with
corrections and a contract, 	[but] 	it's been four months 	since
that letter." 	In her letter to Mhoon, 	dated March 22, 	1998, 	she
asked, 	"Again, 	why haven't 	I been given the 	contract 	that was
offered to me 	in September, 	1997? " 	She also stated that 	"the APT
representative will 	be asked 	to 	file 	a 	complaint 	to get 	some
answers."
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Bailey did seek help 	from APT, 	although she was 	not 	a member
of 	the bargaining unit 	it 	represented, 	and APT did make 	inquiries
on her behalf. 	Graham explained 	to both 	the APT director and 	the
APT president 	that 	Bailey did not 	qualify 	for 	the math/science
position.
On March 30, 	1998, 	Graham sent Bailey herself a letter about
the math/science position stating, 	in part:
Interviews 	were 	held 	for 	this 	position 	in
September of 	1997, 	in which you were a
participant, 	and selections were 	recommended
to Personnel by the 	Principal. 	Subsequent 	to
this position, 	at 	least 	two other
Math/Science positions 	were 	available 	at
Fremont 	and still 	have 	not 	been 	filled due 	to
the 	lack of 	qualified applicants.
Applicants 	chosen 	for positions 	by 	Pomona
Unified School 	District must 	qualify at 	the
time 	the position 	is 	offered. 	My 	information
indicates 	that 	you were not 	selected 	for a
position because you do not 	hold 	the
appropriate credential. 	No applicant 	is
placed 	in a position 	contingent 	upon
completing 	coursework.
In your letter, 	you stated that you enrolled
in 	coursework at 	Cal 	Poly which you 	feel 	will
qualify you 	for Math/Science positions 	in 	the
future. 	Therefore, 	I would suggest that once
you 	complete 	the 	coursework, 	apply for vacant
positions 	for which you qualify.
Graham closed 	the 	letter by 	telling 	Bailey 	to make 	an appointment
if 	she wanted to discuss 	the matter 	further.
Bailey did make appointments 	to 	talk with Graham, 	but both
Bailey and Graham cancelled appointments. 	Instead, 	Bailey 	talked
on the telephone with Graham's assistant Cassandra Yep 	(Yep), 	who
had no 	information to add to Graham's March 30, 	1998 	letter.
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Refusal 	of 	Summer School 	Employment
The 	complaint also alleges 	that 	on or about May 27, 	1998,
the District 	took adverse 	action against 	Bailey by 	refusing 	to
offer her summer 	school 	employment. 	The 	evidence 	showed Bailey
applied to teach summer school 	on April 	1, 	1998. 	The District's
written policy on staff 	selection 	for summer school, 	however,
stated, 	in part:
Temporary 	and/or 	emergency 	credentialed
teachers 	are not 	eligible 	to 	teach summer
school. 	Unless however, 	all 	other applicants
have 	been 	exhausted and 	the 	appropriate
assistant 	superintendent 	and 	Personnel 	agree
that no other options are available, 	because
of 	the uniqueness 	of 	the 	specific need.
(Emphasis 	in original.)
Principal 	Marquez 	confirmed 	that 	this 	policy was 	followed at 	her
school.
Bailey's 	summer 	school 	application was 	filed with 	the
District's 	personnel 	office. 	Graham and his 	staff 	reviewed all
such applications 	and 	sorted 	out 	those 	ones 	filed by 	temporary
and/or emergency 	credentialed teachers, 	including Bailey. 	All
such applications 	were 	set 	aside and were 	not 	considered unless
there was 	no one 	else 	to 	fill 	a unique and specific need.
Apparently, 	there was no unique and specific need that 	only
Bailey 	could 	fill.
On May 27, 	1998, 	Graham sent Bailey a letter stating, 	in
part:
The 	number of 	applications 	submitted 	for
summer 	school 	employment 	far exceed 	the
number of available positions. 	We,
therefore, 	selected those 	individuals who
were 	highest 	on 	the priority list 	to 	teach
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the 	1998 	summer school program. 	Because of
this 	situation, 	we regret 	to 	inform you that
you were 	not 	selected 	this 	year.
This 	was 	a general 	purpose 	form letter sent 	to all 	unsuccessful
applicants 	for summer school 	employment.
Termination
The 	complaint 	also alleges 	that 	the District 	terminated
Bailey's 	employment 	as 	a 	substitute 	teacher 	in 	retaliation 	for
her protected activity. 	This 	allegation 	is based on the
following 	facts.
On June 30, 	1998, 	District certificated personnel director
Graham sent 	Bailey a 	letter 	that 	concluded as 	follows:
On a number of occasions, 	to date, 	you have
contacted 	the 	Personnel 	Office 	demanding
appointments, 	demanding that you be hired,
and attempting 	to 	compare your 	situation with
others without 	having all 	the 	facts. 	You
have been very 	rude 	and argumentative 	with
Mrs. 	Yep on at least two occasions. 	You
wrote uncomplimentary letters 	to Mrs. 	Yep on
three occasions and to Mrs. 	Mhoon on two
occasions. 	I responded to one of your
letters 	regarding why you were 	not
contracted. 	However, 	your persistence
continued 	and you 	telephoned 	and 	argued with
a number of 	different 	employees 	in the
Personnel 	Office on two or three occasions.
Employees 	of 	the 	Personnel 	Office have
tolerated your 	outbursts 	on 	the 	telephone,
your 	intimidating 	letters 	and your demands 	to
meet with me 	including 	the head of 	the
Associated 	Pomona 	Teachers.
In summary, 	I 	feel 	that 	Pomona Unified School
. District has provided you with every
opportunity to be 	successful. 	At 	this point
and time, 	my decision is 	that your service as
a 	substitute 	teacher with 	Pomona Unified
School 	District 	is 	no 	longer 	in the best
interest 	of 	the 	school 	district.
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It 	is 	simply too 	time 	consuming 	for everyone
to have 	to 	continue 	to 	tolerate 	the
unprofessionalism 	you 	consistently
demonstrate.
This 	letter did, 	in fact, 	terminate Bailey's employment by the
District.
Two 	of 	the 	letters 	from Bailey 	to Yep 	that 	Graham apparently
cited as 	"uncomplimentary" 	dated 	from 1991. 	The 	earliest 	of
these letters, 	dated October 25, 	1991, 	and referred to a
situation 	in which 	the 	District 	had apparently given apartment
manager, 	Carol Bacon 	(Bacon) 	some 	information about Bailey's
employment 	situation 	that 	had 	led Bacon 	to deny Bailey's 	rental
application.
In the October 25, 	1991 letter, 	Bailey asserted that 	the
information 	had been 	released 	in violation 	of 	her privacy and 	in
violation of law. 	The letter continued, 	in part, 	as 	follows:
Another 	issue 	of 	grave 	concern 	is 	giving me
false 	and misleading 	information 	regarding my
employment 	status, 	and then telling others
the opposite. 	I am refering 	[sic] 	to my
being 	told that my status was 	inactive, 	but
Ms. 	Bacon was 	told I was no longer employed.
Yet, 	after stating in your letter that 	I was
not 	terminated, 	you proceeded to say I was
rehired rather than reactivated. 	To be 	re-
hired 	implies 	firing.
As previously explained, 	the 	incidence 	[sic]
with Ms. 	Bacon has led to a lawsuit, 	and
since 	I am representing myself 	in pro per; 	it
is 	absolutely essential 	to have all 	the 	facts
correct 	so that 	an innocent person is 	not
falsely accused. Please be assured that if this information
was not 	extremely important, 	I would have
avoided writing 	this 	letter at 	all.
Realizing 	that 	you 	appeared hostile 	and upset
when 	first 	asked about 	your 	conversation with
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Ms. 	Bacon, 	and that you determine which
substitutes 	will 	work has 	caused me 	great
stress 	and 	fear 	of 	not 	being allowed 	to
substitute.
Nevertheless, 	I 	feel 	compelled to have the
aforementioned 	issues 	addressed 	and 	corrected
if at all possible. 	If 	correction is not
possible 	so 	that 	the written 	letter 	can be
submitted 	for public 	record, 	then a 	supeona
[sic] 	will be 	issued to both you and Bea to
appear 	in person.
Yep testified she was 	"puzzled" 	by this 	letter, 	but 	she 	then
talked to Bailey and 	felt 	the matter was 	resolved.4
The 	second 	"uncomplimentary" 	letter 	from Bailey to Yep was
dated November 30, 	1991. 	Bailey apparently believed the District
had not 	been 	calling her 	to work as 	a 	substitute 	teacher
(although District 	records 	show calls were being placed to her
answering machine and not returned). 	Her November 30, 	1991
letter stated, 	in part:
Therefore, 	I feel 	it 	is safe to assume that,
while 	I 	have not 	committed any professional,
or qualification wrong. 	You are not 	calling
me because 	of 	a personal 	grudge 	stymying
[sic] 	from recent attempts 	to obtain a basis
for contradictory, 	conflicting, 	or/and
incorrect 	information as 	relayed 	to myself
and others. 	This 	action is protected by law,
and is 	extended to all 	individuals, 	and it 	is
an unfair employment practice 	to be 	denied
employment 	for asserting 	that 	right.
A 	formal 	grievance 	will 	be 	filed 	in 	objection
to the unfair, 	unjust actions 	taken against
me without due-process, 	or an explanation. 	I
will 	contact 	the appropriate 	committees,
Boards, 	and individuals necessary to properly
resolve 	this very serious matter.
4The 	record contains no evidence of Yep or 	"Bea" 	having
received a 	subpoena 	in relation to 	this 	incident.
10

Yep did not 	testify as 	to her 	reaction or 	response 	to 	this
letter. 	Bailey did attempt to file a grievance, 	but 	it 	is not
clear what 	happened.
The 	record 	contains 	only one 	letter 	from Bailey to Mhoon,
but 	it was apparently sent twice: 	first on March 22, 	1998, 	and
again on April 	2, 	1998. 	The 	letter stated Mhoon had 	"ignored all
[previous] 	letters 	. 	. 	. 	and refused to address the issue." 	It
also 	stated 	that 	"the APT 	representative will 	be 	asked 	to 	file 	a
complaint 	to get 	some answers." 	The 	letter concluded as 	follows:
I'm 	really 	tired 	of 	being 	discriminated
against 	for whatever reasons. 	I work very
hard and do a 	good job and 	this 	negative
treatment 	is 	causing me much distress 	and
depression and needs 	to 	end 	immediately.
This 	letter is 	being mailed by 	certified mail
with return signature 	to ensure 	receipt.
Please 	reply.
Mhoon 	testified 	she probably gave 	the 	letter to 	someone 	else 	in
the personnel 	office, 	because Mhoon herself did not 	correspond
with 	individual 	candidates 	for positions.
The 	final 	"uncomplimentary" 	letter 	in the 	record was 	sent by
Bailey to Yep on June 	12, 	1998. 	Bailey believed that 	the
District 	should have 	allowed her 	to 	join 	the 	State 	Teachers'
Retirement System 	(STRS) 	in 1995 	(rather than 1996) 	and that 	the
District's 	failure 	to do 	so ultimately 	led 	to problems 	with 	the
Internal Revenue Service 	(IRS). 	Her June 12, 	1998 letter
discussed this 	issue 	and 	then brought 	in 	some 	other 	issues 	Bailey
had raised in the past; 	it stated, 	in part, 	as follows:
The 	IRS 	wants 	detailed 	information about 	this
situation and 	I 	need a 	letter 	from you
explaining why you 	told me 	in 	1995 	I 	didn't
11

qualify for STRS 	when STRS 	says 	subs
qualified as of 1991, 	not 	in 1996. 	See the
attached 	letter 	from the 	IRS.
I 	certainly hope 	that you don't 	refuse 	to
call me 	for work, 	or consider me 	for long-
term and 	contract 	positions 	for 	filing an 	IRS
complaint 	as you 	did when 	I 	filed a 	complaint
for 	discrimination 	against 	Afro-American
substitutes 	in 1991. 	Afterwards 	I couldn't
get much work after working 	long-term 	for
Karla 	Duvall's 	Spanish-speaking 	kindergarten
class 	at 	Lexington Elementary 	in 	1991 by
special 	request.
I 	wasn't 	given 	another 	long-term position
until 	1995 when Mr. 	Romero and Mrs. 	Hogan
made a 	special 	request 	for me 	to 	take Rob
Clark's place 	from January to June 	1995.
Even then, 	Ms. 	Hogan states that she was told
I didn't do long-term assignments, 	when I had
been begging 	for 	extra work and 	long-term
assignments. 	I never told you or anyone else
that 	I didn't want 	such assignments, 	but 	they
insisted 	that 	I be 	called anyway.
I 	knew you were 	punishing me 	for 	filing 	that
complaint 	and protesting 	the 	information
about 	my not passing 	the 	CBEST 	test 	and
wouldn't 	be working 	for 	PUSD anymore was 	an
invasion of privacy when 	it was 	given to an
apartment manager in 1991.
As you know, 	Personnel 	records and test
scores 	are 	confidential 	and 	cannot be
released without 	written 	consent 	and 	that
consent wasn't 	given to you 	or anyone 	else.
Objection was 	addressed 	in what 	you 	call 	my
long letters, 	to no avail.
I 	also 	feel 	that 	you have been 	instrumental
in preventing me 	from getting 	a 	contract.
Remember 	our 	telephone 	conversation where you
claimed Mr. 	Graham wouldn't 	discuss 	the
contradicting 	letters 	and 	explanations 	about
the contract 	I was promised, 	but didn't get
this year.
Again, 	you claimed I didn't qualify, 	even
though 	I 	have 	the 	same 	type degree and
qualify 	for the 	two 	types 	of 	emergency
credentials 	available 	and held by 	others 	who
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didn't 	have 	classroom experience 	when 	offered
contracts. 	I have taped their conversations
about 	such 	credentials 	and will 	present 	this
later.
Any U.S. 	citizen has 	the 	right 	to complain
when 	they 	feel 	they have been discriminated
against, 	or treated unfairly or unequal.
Federal 	laws protects us who do 	file
complaints.
Your prompt 	response 	is appreciated. 	The 	IRS
has 	a deadline 	for receipt 	of 	this
information. 	I'm notifying 	them that 	their
request 	for detailed 	information has 	been
made to you. 	I hope you don't 	ignore 	this
request as you did the phone 	call.
Yep testified she was 	"puzzled" 	by this 	letter too, 	so she 	turned
it over to Graham. 	In the June 30, 	1998 	termination letter
(cited above), 	Graham responded to the accusations 	in this
letter. 	There 	is no evidence 	that 	Yep had suggested to Graham
that 	Bailey be 	terminated.
On July 28, 	1998, 	Bailey filed the 	instant unfair practice
charge.
DISCUSSION
In 	order 	to prevail 	on a 	retaliatory adverse 	action 	charge,
the 	charging party must 	establish 	that 	the 	employee 	engaged 	in
protected activities, 	the activities were known to the employer,
and 	the 	employer 	took adverse action because 	of 	the activities.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210
(Novato).) 	Unlawful motivation is 	essential 	to the 	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
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District 	(1979) 	PERB Decision No. 	89. 	(Carlsbad).) 	According to
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 protected
activities 	(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 No. 	459-S); 	the employer's departure from established
procedures 	or 	standards 	(Santa 	Clara Unified School 	District
(1979) 	PERB Decision No. 	104); 	the employer's inconsistent or
contradictory justifications 	for 	its 	actions 	(State 	of 	California
(Department 	of 	Parks and Recreation) 	(1983) 	PERB Decision
No. 	328-S); 	or the employer's animosity toward 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 	show 	it 	would have 	taken 	the 	adverse 	action
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].)
As 	to 	the 	first 	two alleged adverse actions 	in this 	case,
lengthy analysis 	seems unnecessary. 	Even assuming 	the burden of
proof 	shifted to 	the District, 	the preponderance 	of 	the 	evidence
shows 	that 	Bailey would have been 	refused a 	contract 	for 	the
math/science 	position 	regardless 	of 	any protected activity,
14

because 	the District's 	credentialing 	specialist 	determined 	that
she 	did not 	qualify 	for the position. 	The allegations 	that 	this
refusal was retaliatory must, 	therefore, 	be dismissed.
The preponderance of 	the evidence 	also 	shows 	that 	Bailey
would have been 	refused 	summer 	school 	employment 	regardless 	of
any protected activity, 	because 	the District 	had a policy against
selecting 	temporary 	and/or 	emergency 	credentialed 	teachers. 	The
allegations 	that 	this 	refusal 	was 	retaliatory must 	also be
dismissed.
As 	to the 	final 	alleged adverse action in this 	case,
however, 	more analysis 	is necessary. 	That 	final action was
Graham's 	termination of 	Bailey's 	employment by the 	letter of
June 30, 	1998.
The initial question, 	under Novato. 	is whether those
activities were protected. 	It 	is well 	established that 	EERA
protects 	the 	rights 	of 	employees 	to be 	represented by an employee
organization and 	to 	represent 	themselves 	individually 	in 	their
employment 	relations 	with a public 	school 	employer. 	(EERA
sec. 	3543; 	Pleasant Valley School District 	(1988) 	PERB Decision
No. 	708.) 	The evidence shows that Bailey exercised both of 	these
rights.
With regard to 	the math/science position, 	Bailey contacted
APT, 	and APT contacted Graham. 	Although APT was not 	Bailey's
exclusive 	representative, 	that 	fact does not 	render these
contacts 	unprotected. 	Bailey also 	represented herself
individually, 	through numerous 	letters 	and telephone 	calls 	to 	the
15

District. 	These 	calls 	and 	letters 	generally concerned Bailey's
employment 	relations 	with 	the District 	and are 	therefore
protected under EERA. 	The question 	is whether these 	calls 	and
letters were so 	"rude," 	"argumentative," 	"uncomplimentary" 	and
"intimidating" 	as 	to lose 	their protection.
Speech 	(including writing) 	that 	is 	related to employer-
employee 	relations 	loses 	its protection under EERA only 	if 	it 	is
so "opprobrious, 	flagrant, 	insulting, 	defamatory, 	insubordinate,
or 	fraught with malice" 	as 	to 	cause 	"substantial 	disruption of 	or
material 	interference with 	school 	activities." 	(Rancho 	Santiago
Community College District 	(1986) 	PERB Decision No. 	602 	(Rancho
Santiago).)
It would be accurate 	to describe 	the portions 	of Bailey's
letters 	quoted above as 	"uncomplimentary" 	to the District 	or 	its
representatives. 	They certainly expressed Bailey's 	belief 	that
she 	had been wronged by 	the 	addressees; 	they also 	expressed her
determination 	to 	continue 	to 	challenge 	the perceived wrongs.
Read in the 	overall 	context, 	however, 	we do not 	find that 	the
letters 	are 	so 	insulting 	or malicious 	that 	they 	lose 	their
protected status. 	The language used is 	forceful but not abusive.
They do not 	threaten 	the 	addressees 	with anything worse 	than a
subpoena, 	a grievance, 	or a professional 	contact with the 	IRS,
all 	of which are 	topics 	that 	labor relations personnel 	are 	likely
to encounter at 	least 	occasionally 	in the 	routine 	course 	of
business.
16

On the whole, 	we find that 	there 	is 	insufficient 	evidence 	to
show that 	Bailey's 	calls 	and 	letters 	caused 	substantial
disruption of 	or material 	interference with District 	operations.
(See Rancho Santiago.) 	In conclusion, 	Bailey's 	calls and
letters, 	as well as her contacts with APT, 	were activities
protected by 	EERA.
Turning to the other elements 	of 	the Novato test, 	it 	is
plain that Graham knew about 	Bailey's protected conduct. 	It 	is
also undisputed 	that 	termination 	constitutes 	an adverse 	action.
The remaining question in this 	case, 	therefore, 	is whether
the District 	terminated Bailey's 	employment 	because 	of 	those
activities.
Bailey 	relies 	on the 	termination 	letter as 	evidence 	of 	the
District's motive. 	In examining 	the 	letter closely and placing
it 	in the appropriate context, 	we note that 	it 	covers a broad
range 	of 	topics. 	The first page and a half 	of 	the letter
summarizes 	key points 	in Bailey's 	employment 	history with the
District, 	and 	largely 	constitutes 	an attempt by 	Personnel
Director Graham to 	clarify 	facts 	or 	respond 	to accusations.
Nothing 	in 	this 	factual 	recitation/response portion of 	the 	letter
provides 	evidence 	of 	retaliatory motive.
Starting at 	the bottom of 	the 	second page, 	Graham presents
his 	own perspective 	of various 	communications by Bailey 	to 	the
District. 	He describes her as being 	"rude," 	"argumentative," 	and
"persistent" 	in her relations with District 	employees, 	and states
that 	certain letters 	were 	"uncomplimentary" 	and 	"intimidating."
17

At 	the 	end of 	the 	letter, 	Graham concludes by informing Bailey
that 	her 	service as 	a substitute 	teacher with 	the District 	is no
longer in the best 	interest 	of 	the 	school 	district. 	He states,
"It 	is 	simply too 	time 	consuming 	for everyone 	to have 	to 	continue
to 	tolerate 	the unprofessionalism you 	consistently demonstrate."
This portion of 	the 	letter 	contains Graham's personal 	opinion of
Bailey's behavior with regard to his 	staff, 	and conveys 	his
professional 	opinion that, 	as a result of 	that behavior, 	Bailey
is 	no 	longer an asset 	to the District. 	Even if 	one were 	to
disagree with Graham's opinions, 	his 	statement of 	those views 	in
this 	letter does 	not 	furnish evidence 	of 	a nexus 	between Bailey's
protected 	conduct 	and Graham's 	decision 	to 	terminate 	her
employment.
It 	is 	important 	to note that, 	in the entire three-page
termination 	letter, 	Graham makes 	only a 	single passing 	reference
to APT. 	He 	states 	that 	"Employees 	of 	the 	Personnel 	Office have
tolerated your outbursts 	. 	. 	., 	your intimidating letters and
your demands 	to meet with me 	[and] 	the head of the 	[APT]." 	This
is 	an apparent 	statement 	of 	fact 	that 	happens 	to 	include APT.
Read objectively, 	the statement places no particular connotation,
positive 	or negative, 	on the 	fact 	that 	Bailey wished to 	include
APT in a meeting. 	It is apparent 	that 	it 	is Bailey's demands,
letters and 	"outbursts" 	that Graham finds 	objectionable. 	The
letter's passing reference 	to APT 	falls 	far short 	of 	furnishing
18

evidence 	that 	Bailey's APT contacts 	(or her attempts 	to 	represent
herself) 	were 	the District's 	true motive 	for terminating her
employment.
Our 	interpretation of 	the 	letter, 	read in the 	context 	of 	the
entire series of events, 	is 	that 	it objectively documents the
reasons 	for Graham's 	decision to terminate Bailey's 	employment.
The 	letter 	lists 	the 	specific 	actions which are 	deemed
unacceptable, 	and it 	identifies 	those actions, 	under the rubric
of 	"unprofessionalism," 	as 	the basis 	for the termination. 	Placed
in context, 	we do not 	find that 	the 	letter furnishes 	the
requisite 	evidence 	of 	nexus.5 Nor do we 	find any 	other direct
evidence 	of 	retaliatory motive.
However, 	as 	stated above, 	in the absence of direct evidence,
PERB will 	consider whether there 	is 	circumstantial 	evidence 	of
unlawful motivation on the part 	of 	the employer. 	(Carlsbad.)
Factors 	that may be 	considered 	include: 	the 	timing of 	the
adverse 	action 	in relation to 	the protected activity; 	the
employer's 	disparate 	treatment 	of 	the employee; 	the employer's
5Nor are we willing 	to 	second guess Graham's 	sworn testimony
regarding his 	true purpose 	in terminating Bailey. 	He 	testified
that Bailey's 	contacts with the union, 	and union representatives'
subsequent 	contacts 	with Graham, 	were not 	reasons 	for his
decision 	to 	release 	Bailey from substitute 	service. 	(R.T.,
Vol. 	II, 	p. 	74:5-18.) 	There is nothing in the record that leads
us 	to believe 	that Graham lied under oath. 	Furthermore, 	Bailey
offered 	nothing to contradict 	Graham's 	sworn 	testimony.
We also note 	that 	the ALJ, 	who observed the parties
firsthand, 	concluded that Bailey's testimony, 	overall, 	was 	"not
particularly 	credible," 	yet 	he made 	no 	such 	finding with 	regard
to Graham. 	In light of 	these 	facts, 	we cannot 	conclude that
Graham's 	testimony was 	false.
19

departure 	from established procedures 	or standards; 	the
employer's 	inconsistent 	or 	contradictory 	justifications 	for 	its
actions; 	or the 	employer's 	animosity toward union activists.6
The majority of 	these 	factors 	are not present 	here. 	The
sole 	factor that arguably weighs 	in Bailey's 	favor, 	timing of 	the
adverse 	action 	in 	close 	temporal 	proximity 	to her protected
activity, 	is insufficient, 	standing alone, 	to demonstrate a
discriminatory motive. 	(Moreland Elementary School 	District
(1982) 	PERB Decision No. 	227.) 	A second factor must be present,
and we 	find no 	evidence 	of 	any 	other 	factor.
Even 	if 	one were 	to assume 	that 	Bailey had proven the 	nexus
element, 	we 	find that 	the District has met 	its burden of proof 	in
showing that 	it would have 	taken the adverse action regardless 	of
her protected activities. 	In addition to 	the 	grounds 	listed 	in
the 	termination letter, 	the 	record contains 	substantial 	evidence
to 	support 	Graham's 	justification 	for 	terminating 	Bailey's
employment. 	Graham simply decided that 	it was 	no 	longer in the
District's best 	interest 	to 	continue 	to employ Bailey, 	and Bailey
6In 	fact, 	Graham's uncontradicted testimony was 	that 	he had
cordial 	conversations with the APT representatives, 	who seemed
satisfied with his explanation. 	(R.T., 	Vol. 	II, 	p. 	72:8-27.)
20

has 	not 	established 	that 	he 	acted pursuant 	to a 	retaliatory
motive.7 In conclusion, 	this unfair practice charge must be
dismissed.
ORDER
The 	unfair practice 	charge and 	complaint 	in Case
No. 	LA-CE-3967 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
7See 	Fall 	River Joint Unified School 	District 	(1998) 	PERB
Decision No. 	1259 at pp. 	24-25, 	in which the Board dismissed
retaliation allegations 	because 	the 	district met 	its 	burden 	of
proof 	that 	the 	adverse 	action 	[involuntary 	transfer based 	on 	the
"best 	interest 	of 	the program"] 	was 	the 	result 	of 	the
deterioration of 	the 	relationship between 	the 	transferred
employee 	and the 	employer. 	The Board 	found that 	the District
would have 	transferred the 	employee 	regardless 	of 	the 	employee's
protected 	activity.
21