PERB Decision Number 2750-E

STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD JOEI DYES AND THE ANONYMOUS KNOW-NOTHINGS, Case Nos. LA-CE-6161-E Charging Parties, LA-CE-6411-E v. PERB Decision No. 2750 LOS ANGELES UNIFIED SCHOOL DISTRICT, December 4, 2020 Respondent. Appearance: Jefferey L. Norman, Representative, for Joei Dyes and the Anonymous Know-Nothings. Before Banks, Shiners, and Krantz, Members. DECISION1 SHINERS, Member: These consolidated cases are before the Public Employment Relations Board (PERB or Board) on exceptions by Joei Dyes and the Anonymous Know-Nothings to the proposed decision of an administrative law judge (ALJ). The complaints in these cases alleged that the Los Angeles Unified School 1 Subdivision (d) of PERB Regulation 32320, as amended effective April 1, 2020, permits a majority of Board members issuing any decision or order to designate all or part of such decision or order as non-precedential. Based on all relevant circumstances, including the criteria set forth in Regulation 32320, subdivision (d), we designate this decision as non-precedential. (PERB Regulations are codified at California Code of Regulations, title 8, section 31001 et seq.) District violated the Educational Employment Relations Act (EERA)2 by taking numerous adverse actions against Dyes because she engaged in EERA-protected activities and taking other actions that interfered with her right to engage in such activities. The ALJ dismissed the complaints, finding that the District’s actions were not retaliatory and did not interfere with Dyes’ right to engage in protected activities. Based on our review of the proposed decision, the entire record, and relevant legal authority in light of Dyes’ exceptions, we conclude the ALJ’s factual findings are supported by the record,3 and the ALJ’s conclusions of law are well-reasoned and consistent with applicable law, with one exception. Specifically, contrary to the ALJ, we conclude that the District’s May 9, 2018 directive prohibiting Dyes from contacting “any District employees during regular work hours” interfered with her right to communicate with her co-workers about working conditions. We therefore affirm in part and reverse in part the proposed decision, as discussed below. 2 EERA is codified at Government Code section 3540 et seq. All statutory references are to the Government Code unless otherwise indicated. 3 The ALJ determined that Dyes was not a credible witness and accordingly did not credit her testimony about material facts. Dyes excepts to this credibility determination. Because “a hearing officer who has observed the testimony of witnesses under oath is better positioned than the Board itself to make credibility determinations based on observational factors, such as the demeanor, manner, or attitude of witness[es],” we typically defer to such determinations. (State of California (Department of Social Services) (2019) PERB Decision No. 2624-S, p. 11.) While “[w]e accord no deference . to those aspects of a credibility determination not based on the ALJ’s firsthand observations . the Board will normally defer to an ALJ’s findings of fact involving credibility determinations ‘unless they are unsupported by the record as a whole.’” (Ibid., citations omitted.) The ALJ’s determination that Dyes was not a credible witness was based on both her observation of Dyes’ testimony at the hearing and the substance of the testimony itself. Our review of the record reveals no basis to overturn the ALJ’s credibility determination. 2 BACKGROUND Dyes began her employment with the District in 2004, teaching at North Hollywood High School (NHHS) from 2005 until her dismissal from employment in 2018. Between 2015 and 2018, Dyes engaged in numerous activities protected by EERA including, but not limited to, individually presenting employment concerns on several occasions to NHHS Principal Ricardo Rosales and other District administrators; participating in a group complaint with the assistance of United Teachers Los Angeles (UTLA), the exclusive representative of the District’s certificated personnel; utilizing UTLA representation to file appeals of disciplinary actions with the District; and filing two unfair practice charges with PERB, which she amended on several occasions. During this same period, the District took several adverse actions against Dyes including, but not limited to, issuing her three notices of suspension and rating her Below Standard on three consecutive annual performance evaluations. On May 9, 2018, the District placed Dyes on home reassignment pending investigation of an incident stemming from her role as faculty advisor for NHHS’s Latinos Unidos Club. The District’s written Home Reassignment Memorandum set forth Dyes’ working hours and break times,4 and included instructions for calling in at the beginning and end of each workday. Dyes was directed not to enter the premises of her current worksite or any other District location at any time, including during or outside her working hours, without prior written approval from the District. 4 “a. Workday: 8:00 a.m. to 3:00 p.m. [¶] b. Break: 10:00 a.m. to 10:20 a.m. [¶] c. Lunch: 11:30 a.m. to 12:00 p.m.” 3 The Memorandum also directed Dyes “not to contact any District employees during regular work hours.” This “no contact” directive was “boilerplate” language commonly used by the District in home reassignment memorandums.5 On September 14, 2018, Dyes received from the District by mail a Notice of Intent to Dismiss, with a statement of 68 charges that included the underlying facts supporting the three notices of suspension and the three Below Standard evaluations.6 The Notice of Intent informed Dyes that the District intended to dismiss her from employment 30 days from the date of service of the Notice unless Dyes demanded a dismissal hearing in accordance with Education Code section 44930 et seq. Dyes timely demanded a dismissal hearing, but subsequently withdrew her demand. Thereafter, the District notified Dyes that her dismissal would be effective October 12, 2018. Dyes filed the unfair practice charge in Case No. LA-CE-6161-E on August 12, 2016, subsequently amending the charge eight times. In September 2018, she filed a ninth amended charge and request to amend the complaint, which included an interference claim based on the District’s May 9, 2018 Home Reassignment 5 The record does not contain the written memorandum given to Dyes on May 9, 2018. It does contain, however, a September 6, 2018 memorandum summarizing a home reassignment conference held on that date. Dyes claimed at the hearing that the May 9 and September 6, 2018 memoranda were similar, and the District did not contest that description. We therefore affirm the ALJ’s implicit finding that the directives in the September 6, 2018 memorandum were the same as those given to Dyes on May 9, 2018. 6 The May 2018 incident precipitating Dyes’ home reassignment was not included in the statement of charges. 4 Memorandum. The ALJ granted Dyes’ motion to amend the complaint on November 27, 2018, adding, inter alia, an allegation that the District interfered with protected rights via its directive that Dyes “was not permitted to communicate with other employees of the District.” The ALJ conducted five days of hearing in the case in March 2019. Meanwhile, on October 29, 2018, Dyes filed the unfair practice charge in Case No. LA-CE-6411-E. The ALJ conducted two days of hearing in that case in July 2019. The cases were later consolidated, and two more days of hearing were held in December 2019. On July 28, 2020, the ALJ issued a proposed decision dismissing the complaints in both cases. Dyes timely filed exceptions to the proposed decision; the District did not file a response to Dyes’ exceptions. DISCUSSION When resolving exceptions to a proposed decision, the Board applies a de novo standard of review. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 6.) Under this standard, we review the entire record and are free to make different factual findings and reach different legal conclusions than those in the proposed decision. (City of Milpitas (2015) PERB Decision No. 2443-M, p. 12.) I. Retaliation The majority of Dyes’ exceptions dispute the ALJ’s conclusion that the District’s adverse actions against her were not retaliatory. Because many of these exceptions merely reiterate factual or legal contentions resolved correctly in the proposed decision, we decline to address them further. (City of San Ramon (2018) PERB 5 Decision No. 2571-M, p. 5; City of Calexico (2017) PERB Decision No. 2541-M, pp. 1-2.)7 Nonetheless, we briefly summarize why Dyes failed to establish that the District retaliated against her in violation of EERA. To establish a prima facie case that an employer discriminated or retaliated against an employee in violation of EERA section 3543.5, subdivision (a), the charging party must show that: (1) the employee exercised rights under EERA; (2) the employer had knowledge of the employee’s exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the adverse action because of the exercise of those rights. (Novato Unified School District (1982) PERB Decision No. 210, pp. 6-8.) Once the charging party establishes a prima facie case, the burden shifts to the employer to prove it would have taken the same adverse action even if the employee had not engaged in protected activity. (Id. at p. 14; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729- 730; Wright Line (1980) 251 NLRB 1083, 1089.) To prevail, the employer must prove that it had an alternative non-discriminatory reason for taking the adverse action and that it acted because of this alternative non-discriminatory reason, not because of the employee’s protected activity.

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