Isolated Reference To Union Activity During Termination Not Enough To Establish Retaliation

Fallbrook Union Elementary School District (2011) 2171-E (Issued on 3/01/11)

This case involved an allegation that the Fallbrook Union Elementary School District (District) decided not to reemploy a teacher because of her activities as a union site representative. For a retaliation case, the facts are fairly short and simple. The teacher was employed on a series of temporary contracts in 2005-06, 2006-07, and 2007-08. She received satisfactory evaluations the first two years. However, in 2007-08 she was not recommended for re-hire purportedly because of her classroom management skills. The teacher alleged that immediately after she was informed by the Principal that she would not be re-hired the next year, he stated, “On a side bar, off the record, I believe that your Union activities have gotten in the way of your teaching objectives this year. . .” Based on this statement, the union alleged that the teacher was retaliated against for her union activities as a site representative.

The Administrative Law Judge (ALJ) found in favor of the teacher. However, on exceptions by the District the Board rejected the ALJ’s proposed decision and dismissed the charge. The Board’s decision focused on whether the union had established the required “nexus” between the adverse action and the protected activity. According to the Board, there were two factors proffered to establish nexus. First, the union argued that the Principal failed to follow the contract by having a conference with the teacher within a certain time period after the classroom observation. Second, the union argued that the Principal’s statement, “I believe that your Union activities have gotten in the way of your teaching objectives this year …” evidenced discriminatory intent.

The Board rejected both of these factors as supporting the required nexus. As for the failure to follow the contract, the Board found that the Principal had failed to follow the contract in prior years when he gave the teacher a favorable rating. Based on this fact, the Board set forth a rule that, “[W]hen an employer fails to comply with an MOU provision both before the employee engaged in protected conduct and after the employee engaged in such conduct, the later failure to comply with the MOU is not a reliable predictor of discriminatory intent.” As for the alleged statement by the Principal, the Board held that, by itself, it was a “relatively benign statement that does not convey union animosity.” The Board acknowledged that it could indicate anti-union animus if coupled with other facts. But here, the Board found no other facts supporting anti-union animus. Accordingly, the Board rejected the ALJ’s proposed decision and dismissed the complaint.

Member Wesley dissented. Member Wesley stated that the District’s failure to adhere to the contract meant that the teacher was not apprised of her performance prior to the decision not to re-hire. According to Member Wesley, the teacher “had no way of knowing she was at risk of not being reemployed and she was not given the opportunity to improve as required in the evaluation procedure.” As for the statement by the Principal, Member Wesley agreed that it was not “blatant anti-union animosity …” However, she would have found that the statement, “does imply that union activity is inconsistent with professional achievement and further supports the inference that the District’s actions were unlawfully motivated.” Accordingly, Member Wesley would have found that the District unlawfully retaliated against the teacher for her protected activity.

Comments:

Historically, it’s rare for the Board to overturn an ALJ’s proposed decision in a retaliation case because such cases are very fact-intensive and often rely on credibility determinations that the Board is loath to reject. It’s also fairly rare for a decision to draw a dissent, so this case is doubly interesting.
It terms of new law, the Board held that, “[W]hen an employer fails to comply with an MOU provision both before the employee engaged in protected conduct and after the employee engaged in such conduct, the later failure to comply with the MOU is not a reliable predictor of discriminatory intent.” I think this makes sense. A classic example is the annual performance evaluation. Many public entities have an express requirement that an employee is supposed to get an annual performance evaluation. But it’s very common for supervisors to fail to comply with this requirement. In a situation where a supervisor fails to comply with this requirement for all employees, can it really be said that the failure is evidence of any discriminatory intent? Clearly, it’s not a good personnel practice and if the issue was “just cause” it would absolutely make a difference. But in a retaliation case under PERB, the issue is not “just cause” but whether the action was taken for discriminatory intent. The key to proving discrimination is showing that the employee was treated differently. If the employer’s non-compliance with the contract applies to everyone, then it cannot be said that any particular employee was treated differently. So I think the Board’s rule makes sense. However, I will add that failure to comply with rules and procedures can absolutely be evidence of discriminatory intent in other circumstances. So I think the application of this rule will be very fact specific.
The most interesting part of this decision is the Board’s treatment of the Principal’s statement, “I believe that your Union activities have gotten in the way of your teaching objectives this year …” The Board found that by itself, this statement wasn’t enough to establish retaliation. Presumably, this is because the Board felt that the Principal could merely have been saying that the teacher did not focus enough on her core reaching duties. Fortunately for the school district, there was no other evidence of unlawful retaliation. If there was other evidence, I believe the result would have been very different. The reality is that it’s very dangerous for a supervisor to reference an employee’s union conduct during a performance review. An employee can easily view such references as a form of retaliation. If an employee is inappropriately spending time on union duties there is a legitimate way to address that. But it must be done carefully to avoid charges of retaliation like the one in this case.