Visalia Unified Sch. Dist. v. Pub. Empl. Rel. Bd.

317 Cal.Rptr.3d 169

VISALIA UNIFIED SCHOOL DISTRICT, Petitioner,

v.PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent;

California School Employees Association, Real Party in Interest.

F084032

Court of Appeal, Fifth District.

Filed January 9, 2024

ORIGINAL PROCEEDINGS; petition for writ of review. (PERB Dec. No. 2806-E, Case No. SA-CE-2979-E)

Lozano Smith, Sloan R. Simmons, Sacramento, Gabriela D. Flowers, Sacramento, and Sochie L. Graham, for Petitioner.

Dannis, Wolliver, Kelley, Sue Ann Salmon Evans, Long Beach, and Ellen C. Wu; Keith J. Bray, Long Beach, Kristin D. Lindgren, and Dana Scott for Education Legal Alliance of the California School Boards Association as Amicus Curiae on behalf of Petitioner.

J. Felix De La Torre, Sacramento, Wendi L. Ross, Sacramento, Jeremy G. Zeitlin, San Francisco, Seth P. Williams, and Gabriel H. Orea for Respondent.

Andrew J. Kahn, San Francisco, and Alex S. Leenson for Real Party in Interest.

OPINION

SNAUFFER, J.

California School Employees Association (CSEA) filed an unfair practice charge with the Public Employment Relations Board (Board or PERB).¹ The filing alleged Visalia Unified School District (VUSD) violated Government Code² section 3543.5, subdivision (a), by firing an employee—a secretary and local union chapter president—"in retaliation for engaging in protected union activity."

The Board, which has exclusive jurisdiction to adjudicate antiunion allegations brought by public employees against public employers, subsequently filed a formal complaint against VUSD. (See § 3541.5.) The formal complaint charged VUSD with violating section 3543 by terminating the employee for engaging in protected activity: serving as a union officer and advocating on the union’s behalf.³

Before the Board, VUSD argued (1) the employee failed to raise retaliation prior to termination, (2) service in a union was not protected activity, (3) CSEA failed to prove retaliation, and, in any event, (4) VUSD would have terminated the employee for inadequate performance. The Board found in the employee’s favor, concluding status as a union officer is activity protected under the Educational Employment Relations Act (EERA), VUSD retaliated against the employee for her union activity, and VUSD failed to prove, it would have terminated the employee notwithstanding an antiunion motive.

On review, VUSD renews its arguments. Roth CSEA and PERB resist, urging this court to deny VUSD any relief from the Board’s decision.

We conclude the Board correctly interpreted the law, properly found an inference VUSD retaliated against the employee for her union activity, but erred in holding VUSD failed to prove its affirmative defense it would have terminated the employee for poor performance notwithstanding any protected activity. Accordingly, VUSD is entitled to relief.

BACKGROUND

Ramirez⁴ was employed by VUSD for more than 20 years. She served as the local union chapter vice president and president between 2016 and 2018.

In 2015, VUSD initiated termination proceedings against Ramirez. The parties settled the dispute the next year, and Ramirez agreed to transfer into a position with Visalia Charter Independent Study (VCIS).

VCIS and Attendance

VCIS "operates traditional and online independent study programs" and "is a dependent charter school, meaning it is part of" VUSD. VCIS’s finding is tied to student attendance which in turn depends on students completing work.

When students complete work, teachers credit students with full attendance on an "assignment sheet." Because "accuracy is important," "school policy" requires a "buddy" to double-check attendance. After attendance on an assignment sheet was double-checked, Ramirez would enter nonattendance into a computer program— the program defaults to full attendance, so it was unnecessary to enter actual attendance. The program entries "equate[] to funding for the school."

Attendance Errors

If a student fails to complete enough alignments, VCIS can drop the student.⁵ In either December 2017 or January 2018, a parent complained a student was erroneously assessed an absence. The VCIS principal investigated the complaint, learned the parent was correct, and, when other attendance discrepancies were noticed, initiated a larger investigation. All told, Ramirez incorrectly entered attendance more than 100 times between September 2016 and January 2018, i.e., the entire period she was assigned to perform the task.⁶

The principal’s findings were reported to the superintendent.⁷ Ramirez was placed on leave on January 22, 2018, pending further investigation.

January 9, 2018 School Board Meeting

Two weeks prior to Ramirez’s placement on leave, she attended a school board meeting and criticized district policy—and the superintendent—requiring certain employees to appear on school property to write "book reports …." At least two school board members expressed empathy with the concern. The superintendent was present.

Termination Proceedings

The superintendent investigated "deeper" into Ramirez’s errors. This investigation concluded Ramirez "falsif[ied] school district records," "created numerous transcript and system errors …, creating incorrect and false permanent academic records for students," failed to implement policy on double-checking attendance, and misadvised "students and parents .…" The investigation placed VCIS’s potential liability for misreporting attendance to the state at nearly $750,000.

VUSD, subsequently initiated termination charges against Ramirez. The charges were based on "[f]alsifying information," "[i]ncompetency," "inefficiency," "[n]eglect of duty," "[i]nsubordination," "[d]iscourteous [t]reatment of the [p]ublic," and violating "rules, policies[,] or procedures .…"

Ramirez contested the charges at a hearing provided by VUSD. (See, generally, Ed. Code, § 45113.) The principal testified to VUSD’s concerns with Ramirez, including Ramirez’s "attitude towards students and staff members," botching "orientations" with families by providing incorrect directions, "some issues with transcript errors," misreporting attendance due to not properly identifying graduated students, and misreporting attendance in general.⁸

The principal also discussed Ramirez’s recent unsatisfactory performance evaluations and recent reprimand letters. For example, the expressed concerns involved "procedures … not being followed," not taking "initiative[ ]," "negligen[ce]," "careless[ness]," and "things not being done …."

The superintendent testified Ramirez previously settled termination charges by agreeing to transfer into another position with VUSD. She added that Ramirez’s performance history factored into the decision to terminate because the current concerns "all occurred in [the] previous position," representing "a long standing pattern for at least six years …." Finally, she deduced Ramirez intentionally falsified attendance records because "it’s such an easy task that [it must be] falsification" "on purpose …."

In rebuttal, a parent testified Ramirez was courteous, friendly, and professional. Ramirez herself testified, denouncing all allegations and generally claiming VUSD failed to provide adequate training. Positive materials, including documented praise and prior, satisfactory performance evaluations, were introduced on her behalf. She acknowledged failing to implement a prior directive "to have others check [her] work for accuracy," but explained there was "no one there to check [her] work."

The hearing officer found the following facts true. Between 1997 and 2012, Ramirez "received evaluations" indicating her work exceeded or met expectations "in al- most all instances." Evaluations in 2013, 2014, and 2015 demonstrated Ramirez’s need to improve in work quality and analytical problem solving. Also in 2015, Ramirez received multiple reprimand letters due to "errors in … ‘work output,’" and "concerns with … job performance."

The hearing officer concluded all charges, except for falsifying records, were substantiated. About one week later, the VUSD school board voted to terminate Ramirez’s employment.

Proceedings Before the Board

As noted, the Board subsequently issued a complaint against VUSD based on CSEA’s allegations. VUSD answered the complaint raising numerous defenses, generally based on fact but also claiming the charges were barred by "res judicata" and "collateral estoppel."

The matter proceeded to a formal hearing presided over by an administrative law judge. The same parties testified to the same general facts. Ramirez testified she settled her complaint against VUSD by agreeing to transfer positions, withdrawing her complaint, VUSD withdrawing its termination charges,⁹ and VUSD withdrawing a specific reprimand letter.¹⁰ She acknowledged her responsibilities included scheduling orientations for students and families and "enter[ing] grades and attendance …."

Ramirez conceded that, early on in her new assignment at VCIS, she made errors in attendance by using an incorrect code. These errors were readily corrected by another employee. Ramirez believed the attendance-training she received was insufficient.

In January 2017, Ramirez became the union vice president, despite the principal urging her to "not accept the nomination" due to lacking coverage for Ramirez’s "building." The following year, Ramirez publicly criticized the superintendent at a school board meeting. Two weeks later she was placed on paid leave pending an investigation, which explicitly prevented her from attending union meetings and conversing with union members. These latter restrictions were eventually lifted.¹¹

Ultimately, Ramirez denied falsifying any records, denied receiving extra support indicative of poor performance, and provided several examples wherein she asked questions, paid attention to detail, followed through on directives, and refuted performance criticisms.¹²

Another VCIS employee, tasked with assisting the principal to conduct the initial investigation into attendance errors,...