A recent PERB decision finds:
"In addition to all of the above circumstantial evidence of unlawful motive, there is also direct evidence of unlawful motive in the statements made by [Larry]Cunningham...If Cunningham had been misquoted or misunderstood, the District could have called him to testify; indeed, the record was left open for that very purpose. But the District did nothing."
From the
Joyce Abrams' November 23, 2011 PERB decision against Chula Vista
Elementary School District:STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD
JOYCE SINGER ABRAMS, Charging Party,
V.
CHULA VISTA ELEMENTARY SCHOOL DISTRICT, Respondent. November 23, 2011
Appearances:
California Teachers Association by Brenda B. Sutton-Wills, Attorney, for Joyce
Singer Abrams;
Fagen Friedman & Fulfrost by Susan B. Winkelman, Attorney, for Chula Vista Elementary School District.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members
November 23, 2011
...Accordingly, the Board adopts
the proposed decision as the
decision of the Board itself, as
supplemented by the following
discussion of the District’s
exceptions.
For reasons explained below,
however, the Board does not
adopt the AL’s proposed order
and notice...
At all relevant times here,
members of the BTSA Advisory
Board were: (1) Lebron; (2) CVE
President Peg Myers (Myers); (3)
Katy Croy, a Point Loma
Nazarene University
representative; and (4) Principal
Tom Glover.
In another part of the record the
composition of the BTSA Advisory
Board is
described as including Kathleen
Fernandez, a teacher...
Abrams’ 2007-2008 Term and
Reapplication for the 2008-2009
Term
Abrams served as a BTSA
Induction Program SP for the
eighth consecutive school year
during the 2007-2008 term She
entered into an SP agreement for
that term on or about
September 10, 2007, agreeing to
adhere to the SP agreement and
the BTSA SP Guidelines.
...
The BTSA Advisory Board met on
July 16, 2008. The Advisory Board
reviewed the
reapplications and the logs kept
by the SP’s documenting how
often they met with their PT’s.
The Advisory Board determined
that 14 of the SP re-applicants,
including Abrams, had not met
the one-hour per week meeting
requirement...
Lebron testified about the August
11, 2008, meeting with Abrams as
follows:
Q Did you tell her that the logs
were incorrect and that you
would fix them?
A Not that I would fix them. I told
her that, yes, they were
incorrect...
Sometime thereafter,
Lebron met with Cruz for
approximately 45 minutes to
review the logs of these re-
applicants.
Lebron testified that after
reviewing the logs with Cruz, she
continued to believe that the
Advisory Board’s original
determination was correct. The
Cabinet, however, ultimately
reinstated all but two of the 14
re-applicants who initially had
been told by the Advisory
Board that they had not been
renewed for the 2008-2009
term. Cruz testified that Dennis
Gascon (Gascon) was the only
other SP besides Abrams
who was not reinstated by the
Cabinet.
The fifth qualification listed in
the BTSA SP Guidelines, which
requires the SP to be either a
permanent or retired teacher
in the District, was omitted
from the Notice.
By letter dated September 17,
2008, Cruz informed Abrams that
she was not selected
for the 2008-2009 school year.
The letter contained no
explanation of the basis for the
decision.
Abrams filed level I and level II
grievances on October 3, 2008,
and a second level II
grievance on October 14, 2008.
By letter dated October 16, 2008,
Cruz dismissed Abrams’
grievances on the ground that,
as a retired teacher, Abrams
was no longer covered by the
CBA.
Myers had earlier decided not to
file a grievance on behalf of the 14
BTSA SPs whose
reapplications had been denied
because it was her understanding
that the District was going to follow
through with her recommendation
that they all be reinstated.
On November 10, 2008, at 9:41 a.
m., Cunningham left the following
telephone message
on Abrams’ answering machine:
Joyce, this is Larry again. I’ve
been in LA for the last five days,
but give me a, give me a call on my
cell phone. It’s probably the
easiest place to get a hold of me,
[phone number omitted]. I
talked to Lowell [Billings] and Tom
[Cruz], and it really comes
down to the point that they just
wanted to go in a different
direction. I mean, they felt that,
you know, you’ve always been
very negative about what the
District did and where they were
going and what direction they were
going in, so they just felt they
wanted to go in a different
direction. And so that’s what they
told me about it. So, if you want to
discuss it further, give me a call,
but that’s what I got from it. Talk to
you later. Bye.
On November 12, 2008, Abrams
spoke to Cunningham by
telephone. Admitted into
evidence at the hearing was a
note Abrams made memorializing
their conversation:
I stated that I had given my heart
and soul to the CVESD for 39
years. That, in all of those years of
employment, not once was
there a reference to my negativity
in any evaluation that I had
received. He said he thought that
it was in reference to my
association and activism in the
union, CVE.
I stated I thought there were laws
against being retaliated against
because of my union participation.
I have been singled out and
discriminated against.
...At the hearing, Cruz testified
that the Cabinet did not renew
Abrams’ SP position solely
because of her interpersonal
skills. In response to a question
from the ATJ inquiring into the
nature of the Cabinet’s concern
about Abrams’ interpersonal skills,
Cruz testified in pertinent part:
So the five executive directors and
the superintendent are actually
in those classrooms on a regular
basis. And it was from, many of
those folks had brought up
concerns about her positive
nature on
matters, how she, her outlook and
support of the District. And
there were concerns that she
may not be conveying the kinds of
messages to our new teachers
that we would prefer, because
her interpersonal skills were
abrasive and short whenever
others had interaction with her
During the 2007-2008 school
year, however, no individuals at
the Cabinet level had
observed Abrams in either her
teaching or SP role.
Prior to the 2007-2008 school
year, two of these individuals had
observed Abrams in
her classroom on occasion. As
there is no dispute that Abrams
was renewed for the 2007-2008
school year, it must be concluded
that whatever classroom
observations there might have
been
prior to the 2007-2008 school
year, none were found to be
disqualifying.
When asked to elaborate on
Abrams’ interpersonal skills during
cross-examination, Cruz further
testified:
As far as, and I’m using global
generalizations, she didn’t seem
to be happy or content with the
School District, critical about
the District about management
this, or principal this, or
teachers this.
It just seemed that Joyce was
not a happy positive person in
her interactions with the adults.
In contrast to Cruz’s testimony that
Abrams "was not a happy positive
person in her interactions with
adults," the direct documentary
and testimonial evidence on
this point supports the
opposite conclusion as a
factual matter. Performance
evaluations date-stamped in
Human Resources on January 5,
2006, September 21, 2004, June
24, 2002, September 5,
2000, May 20, 1998, and June 1,
1994 were received into
evidence...
Emily Claypool (Claypool) was
Abrams’ PT in 2000. Claypool
testified that Abrams
was friendly, supportive,
knowledgeable and available. She
considered Abrams to be her
mentor, and a strong advocate for
teachers.
DISCUSSION
The ALJ concluded that the
preponderance of the evidence
showed that the District had an
unlawful motive in denying
Abrams' SP reapplication for the
2008-2009 school year within
the meaning of EERA section
3543.5, subdivision (a). In its
exceptions, the District contends
that Abrams did not meet her
prima facie burden; that the AL’s
proposed decision is not
supported by the evidentiary
record; and that the ALJ’s
proposed remedy is not
appropriate.
...
Here, as the ALJ found, there is
ample circumstantial evidence
of unlawful motive.
Regarding the timing of the
adverse action, the District is
correct that Abrams had been
involved in her union for a long
time without incident. There may
not have been a single
triggering event. As the ALJ
observed, Abrams continued to
serve as a member of CVE’s
board of directors until just prior to
the denial of her reapplication. It is
worth noting that the
first time the District denied a
reapplication of Abrams was
immediately upon Abrams’
retirement and loss of active union
membership and membership on
the CVE board of directors.
In addition to all of the above
circumstantial evidence of unlawful
motive, there is also
direct evidence of unlawful motive
in the statements made by
Cunningham.
On top of all this, Abrams testified without contradiction that District board member
Cunningham, explaining the District’s denial of her reapplication, told her that the District found her "very negative," and he thought "it was in reference to [her] association and [her] activism with the Union."
If Cunningham had been misquoted or misunderstood, the District could have called him to testify; indeed, the record was left open for that very purpose. But the District did nothing. Even as hearsay, Cunningham’s statements to Abrams were admissible to corroborate
the other evidence of retaliation. (PERB Reg. 32176.)2
Furthermore, as admissions of a party, the statements are also admissible as independent evidence of retaliation. (Evidence Code, § 1220.)
In short, the preponderance of evidence shows that the District denied Abrams’
reapplication to be a support provider because of her union activity, and for no other reason.
The District is therefore found to have retaliated against Abrams in violation of EERA section 3 543.5(a), as alleged in the PERB complaint
PERB Decision No. 2221 Case No. LA-CE-5289-E
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