Filed 1/9/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

VISALIA UNIFIED SCHOOL DISTRICT,

Petitioner,

v.

PUBLIC EMPLOYMENT RELATIONS 

BOARD,

Respondent;

CALIFORNIA SCHOOL EMPLOYEES 

ASSOCIATION,

Real Party in Interest.

F084032

(PERB Dec. No. 2806-E, 

Case No. SA-CE-2979-E)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of review.

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

for Petitioner.

Dannis, Wolliver, Kelley, Sue Ann Salmon Evans and Ellen C. Wu; Keith J. Bray 

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, Wendi L. Ross, Jeremy G. Zeitlin, Seth P. Williams, and 

Gabriel H. Orea for Respondent.

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

-ooOoo-
2.

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 Code2section 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. Both 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 

1 We use Board to refer to both the venue and decision below. We use PERB to 

refer to the party appearing on review.

2 Undesignated statutory references are to the Government Code.

3

It also alleged a derivative charge under section 3543.5, subdivision (b).
3.

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 funding 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 assignments, 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 

4 For privacy, we omit the employee’s full name.

5 When students fail to complete work and are marked absent, a warning, called a 

“contract violation,” is provided. “Students are allowed [three] contract violations in one 

school year,” at which point a student is subject to removal. 
4.

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,” “[i]nefficiency,” “[n]eglect

of duty,” “[i]nsubordination,” “[d]iscourteous [t]reatment of the [p]ublic,” and violating 

“rules, policies[,] or procedures ....” 

6 Ramirez’s attendance errors went both ways: approximately 100 times she 

mistakenly reported students were present, and approximately one dozen times she 

mistakenly reported they were absent. 

7 At the time, the superintendent was an assistant superintendent. By the time she 

testified before the Board, she was the superintendent. For simplicity, we refer to her as 

the superintendent.
5.

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 

8 All testimony at the VUSD hearing was admitted into evidence at the formal 

hearing before the Board. 
6.

almost 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. 

9 The Board stated VUSD issued termination charges “subsequent[]” to Ramirez’s 

complaint, but Ramirez herself testified VUSD filed termination charges first, and “then 

[she] filed a complaint against” VUSD. The settlement agreement suggests VUSD 

“brought dismissal charges” before Ramirez “filed a complaint ....” The exact sequence 

is ambiguous but immaterial to this opinion.

10 In our analysis, we consider the withdrawn letter, dated July 22, 2015, to the 

extent it was properly considered by the VUSD hearing officer.
7.

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, testified VCIS “could get [its] doors closed if [it] 

inaccurately report[ed] ... attendance.” She added, as “compliance coordinator,” she was 

aware a school can potentially lose a student’s funding for the entire year by misreporting 

a single day’s attendance. 

VUSD’s “chief business officer” testified school funding is tied to “average daily 

attendance ....” He acknowledged VCIS was able to correct Ramirez’s errors relating to 

that current school year, but not the prior school year. He did not contact the California 

Department of Education nor was he aware of any actual financial hardship or impact 

stemming from Ramirez’s errors. 

11 Technically, VUSD eventually allowed Ramirez “to attend CSEA meetings 

while she [was] on paid administrative leave” but did not permit her to “go to her school 

site” or “discuss her work as it pertain[ed] to VCIS.” Whether the restriction on 

discussing her work meant she could not discuss the pending investigation, or if that was 

what Ramirez understood it to mean, is unclear.

12 Refutation occurred both through testimony and contemporaneous rebuttal 

letters responsive to challenged performance evaluations. 
8.

VCIS’s principal testified Ramirez’s first opportunity to enter attendance was 

September 2016. Ramirez was timely trained to enter attendance. By December, the 

principal was concerned with Ramirez’s disorganization, failure to order supplies “in a 

timely manner,” discourteous treatment to guests, and creating “scheduling conflicts” 

with orientations. These concerns were documented in January 2017, including 

additional concerns about transcripts and attendance. 

In December 2017, a mother contacted the principal complaining of attendance 

discrepancies for her child. The principal verified the mother’s complaint was correct 

and began identifying “other issues with ... attendance,” uncovering “quite a few 

discrepancies ....” She became concerned about “severe penalties to [the] school” and 

contacted the superintendent.

The superintendent ordered the principal to “dive” “deeper” into attendance. The 

deeper investigation “discovered” “additional errors” relating to “paperwork” and 

“transcript[s.]” After completing the investigation, the principal presented a report to the 

superintendent, who then “conducted [an even] deeper investigation.” 

The superintendent’s investigation concluded Ramirez’s errors resulted in a near 

$750,000 potential financial impact. The superintendent believed misreporting 

attendance was “very serious,” notwithstanding no ultimate “financial impact,” and 

decided to recommend termination. 

The decision to terminate was based on Ramirez’s “long-standing pattern” of 

errors “that had been going on for years” with “continual verbal warnings” without 

“improvement ....” Misreporting attendance, prior “inaccuracies,” “not paying attention 

to detail,” previous reprimand letters, and unsatisfactory performance evaluations all 

factored into the decision to terminate. 

The superintendent believed progressive discipline was followed in this matter, 

including “verbal warnings,” “conferences” with “managers,” reprimand letters, informal 

conversations, and previously seeking termination. She added this incident marked 
9.

VUSD’s first full-scale attendance audit, VUSD had never “terminated an employee for 

unintentionally misreporting attendance,” and falsification meant “inaccurate ....”13

An “assistant superintendent” testified she previously investigated Ramirez for 

“[l]ack of attention to detail,” and “grave mistakes,” i.e., “errors in reporting” agenda 

items to the VUSD school board. She recommended “dismissal charges” because 

Ramirez “had ... many different opportunities” to correct her work output, including 

“meetings, several letters of reprimand, training, ... [and] many, many discussions going 

over what needed to be done and the process in which it needed to be done.” She 

supported termination because Ramirez’s “careless errors[] continued to be made ... 

without correction ....” 

Board Exhibits

The parties introduced several exhibits including a transcript from the prior 

hearing, negative and positive performance evaluations, Ramirez’s rebuttals to certain

evaluations, all reprimand letters, the settlement agreement, the final attendance report, 

and examples of Ramirez taking initiative, asking questions, and garnering praise. The 

evaluations and reprimands generally focused on performance.

Evaluations

Ramirez received overwhelmingly positive evaluations in 1997, 1998, 2000, 2003, 

2005, 2006, 2008, 2010, and 2012.14 In 2013, Ramirez’s evaluations turned negative. 

The 2013 evaluation noted she needed to “increase her attention to details and the quality 

of the work she produces.” It also noted problems with “[a]nalytical and [p]roblem-

[s]olving [s]kills[.]” The 2014 evaluation noted the same. 

13 The Board found the superintendent’s falsification definition less than credible. 

14 The record does not contain an evaluation for the years not mentioned. The 

reason for the omission is unclear.
10.

In 2015, Ramirez’s evaluation stated she made “errors ... negatively impact[ing] 

the department.” It also described problems with analysis and problem solving. 

The evaluation turned worse in 2017. This evaluation “marked” Ramirez as 

needing improvement in dependability, professionalism, public relations, efficiency, 

adherence to policy, initiative, skill, knowledge, and work quality. Specifically, it

described her “struggl[ing] to meet the requirements of her job description” despite 

numerous resources available for assistance. 

Reprimands

In 2015, Ramirez received four reprimands in succession. The first, titled “Errors 

in Work Output,” described an error in placing the wrong item on an agenda for a school 

board vote. The letter mentioned the fact her “evaluations for the past two years” advised

a “need to slow down with ... work and focus ... on the details.” 

The next reprimand, titled “Job Performance,” noted “multiple errors and 

misunderstandings” relating to new hires.15 The third reprimand, also titled “Job 

Performance,” described an error in not following directions about contacting an 

employee.16 The fourth—and last—reprimand soon followed but was subsequently 

withdrawn in settlement.

Board’s Decision

The Board’s decision proceeded in two parts. First, it found the facts. Second, it 

analyzed the law.

Board’s Facts

The Board found “Ramirez received overwhelmingly positive performance 

evaluations” between 1997 and 2012. In 2013, the evaluation rated Ramirez’s work 

15 The letter in the record is vague and does not describe a specific error, or even 

what task was required.

16 Ramirez filed a rebuttal to each reprimand.
11.

quality and problem-solving skills as unsatisfactory. The following two years’ 

evaluations were substantially similar. In 2017, the evaluation was “generally 

unfavorable ....” 

VUSD “issued four letters of reprimand to Ramirez regarding her job 

performance” in 2015. Ramirez, for her part, “filed a written complaint ... alleg[ing] that 

her supervisor had discriminated against her and created a hostile work environment.” 

VUSD, at some point,17 initiated termination charges, but the parties formally settled 

their differences with Ramirez accepting a new position within the district. 

The settlement agreement sealed both “the contents of the termination charges” 

and the fourth reprimand letter. It permitted review by “[o]rder of [a]n [a]dministrative 

[h]earing [o]fficer” and did not prohibit VUSD from disciplining Ramirez for subsequent 

misconduct. 

Ramirez’s new “job duties included serving as a receptionist, registering and 

holding orientations for new students, maintaining student files, receiving and storing 

supplies, and [electronically] entering grades and student attendance ....“ “One of [her] 

main responsibilities was entering attendance ....” 

Accurate attendance reporting is important to VCIS because the school’s public

funding is tied to ... average daily attendance ....” During the relevant time period, 

Ramirez committed 110 attendance errors. VUSD’s “auditors” did not believe the errors 

were material, and VUSD “was not ultimately penalized for any of the reporting 

errors ....” 

When, in late 2016, Ramirez was nominated to serve as a union officer, the 

principal expressed concern about the impact union activity would have on Ramirez’s 

17 The record is unclear as to the exact sequence. Ramirez testified VUSD “had 

filed charges ... to terminate” her and “then [she] filed a complaint against” VUSD. 
12.

work performance. Ramirez began serving as vice president in January 2017.18 One 

year later, she criticized the superintendent at a public school board meeting. Two weeks 

later, she was placed on leave pending an investigation. VUSD “more likely than not 

decided to investigate Ramirez after she spoke out at the [school board] meeting.” 

The reason for the investigation was not initially revealed to Ramirez, and the 

accompanying leave notice prohibited her from entering VUSD property and contacting 

staff or students about the investigation. About two months later, the superintendent 

permitted Ramirez to attend union meetings. 

After a hearing19 provided by VUSD, the hearing officer sustained all allegations 

except for falsifying records. The officer recommended termination, and the VUSD 

school board ultimately voted to terminate “Ramirez from employment.” 

Board’s Analysis

The Board inferred VUSD retaliated against Ramirez for her protected union 

activity. It also found VUSD failed to prove it would have terminated Ramirez

irrespective of her engaging in protected activity.

First, the Board concluded “Ramirez engaged in protected activities by serving as 

Chapter Vice President and Chapter President, as well as by speaking at the [VUSD 

school board] meeting” where she criticized the superintendent. This conclusion 

“overrule[d]” prior Board precedent requiring “ ‘something more’ than holding union 

office to show ... protected activity ....” 

Second, the Board found VUSD retaliated against Ramirez for engaging in 

protected union activity. This finding was based on both the timing between Ramirez 

criticizing the superintendent at the school board meeting, and, alternatively, assessing 

numerous factors, including “timing,” “disparate treatment,” “departure from established 

18 Ramirez began serving as chapter president in January 2018.

19 See Education Code section 45113.
13.

procedures,” “inadequate investigation,” disproportionate punishment, “fail[ing] to offer 

a contemporaneous justification, or offering exaggerated ... reason[ing],” “animosity 

towards union[s],” and “any other” relevant facts “that might demonstrate [an] unlawful 

motive.” 

Last, the Board held VUSD failed to establish “it would have terminated Ramirez 

regardless of her protected activity because of her ongoing performance issues.” The 

Board recognized “concern with the impact of Ramirez’s errors on students [was] a 

legitimate one,” but believed that was pretextual. The Board’s conclusion was threepronged.

One, VUSD “refer[red] to students in the plural, [but] provided only a single 

example,” failed to “cite any other ways in which students were negatively impacted,” 

and the lone example “did not ultimately have a negative impact on the particular student 

because the mistake was corrected.” Two, Ramirez’s past performance issues, noted 

through her evaluation in 2017, did not warrant discipline at those times, “and the record 

[was] inadequate to show the extent to which [she] continued or corrected [her] 

performance issues ...”20 

Finally, Ramirez’s errors in recording attendance “would likely have [justified] a 

lower level of discipline,” “[b]ut ... the evidence simply [did] not show [VUSD] would 

have chosen termination as its discipline[e] ... absent [the] protected activity.” The 

Board ultimately ordered VUSD to rescind Ramirez’s termination and reinstate her to her 

position or its equivalent. 

DISCUSSION

VUSD presents four primary questions for review. Was Ramirez precluded from 

pursuing her retaliation claim with the Board? Is holding union office activity protected 

20 Technically, there are four prongs to the Board’s analysis, but it claimed the 

third “simply reiterated” the second, and rejected it “for the same reasons,” i.e., past 

performance issues did not then warrant discipline. 
14.

by the EERA? Did the facts establish retaliation? Did VUSD prove its affirmative 

defense it would have terminated Ramirez notwithstanding her union activity?

PERB and CSEA believe this court should deny the petition, essentially affirming 

the Board’s decision. We conclude Ramirez was not precluded from seeking redress 

from the Board, holding union office is activity protected by the EERA, the facts did 

support retaliation; however, VUSD proved its affirmative defense. VUSD is entitled to 

appropriate relief.

I. The Board Has Exclusive Jurisdiction to Adjudicate Antiunion Action

Preliminarily, VUSD contends the Board’s “conclusion rests upon defenses never 

raised in Ramirez’s [administrative] termination hearing,” barring their “consideration by 

[the Board] under res judicata or estoppel.” VUSD also contends Ramirez failed to 

utilize Code of Civil Procedure section 1094.5 to set aside her termination, which is “the 

singular mechanism to ‘appeal’ [her] termination.” We reject these contentions.21

“Where ... the decision [at issue] is alleged to be a violation of the [EERA], the 

remedy lies with [the Board].” (Sunnyvale Unified School Dist. v. Jacobs (2009) 

171 Cal.App.4th 168, 173 (Sunnyvale); § 3541.5 [“The initial determination as to whether 

the charges of unfair practices are justified, and, if so, what remedy is necessary to 

effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction 

of the board.”]; see City of San Jose v. Operating Engineers Local Union No. 3 (2010) 

49 Cal.4th 597, 603-606.) Accordingly, Ramirez was essentially restricted from 

presenting her retaliation claim to any body other than the Board.

Res judicata, or claim preclusion, is simply not implicated because in this case the 

Board provided the first opportunity for CSEA and Ramirez to present a retaliation 

21 The Board apparently did not resolve these issues.
15.

claim.22 (Samara v. Matar (2018) 5 Cal.5th 322, 326 [res judicata, also known as 

“ ‘claim preclusion,’ ” “prevents relitigation of entire causes of action.”].) Similarly, 

because the EERA provides a lawful remedy, Ramirez was not required to invoke Code 

of Civil Procedure section 1094.5. (See Conn v. Western Placer Unified School Dist. 

(2010) 186 Cal.App.4th 1163, 1174 [available remedy under Education Code obviated 

need to seek administrative writ].)

In arguing otherwise, VUSD cites Takahashi v. Board of Education (1988) 

202 Cal.App.3d 1464, 1481 (Takahashi). There, the appellate court stated “[i]t has long 

been the law in California that any available defense should be asserted at the earliest 

opportunity and certainly at an administrative hearing.” (Id. at p. 1481.) True. 

Takahashi, however, involved claims the individual “could have ... litigated” at 

the same time as other claims actually raised. (Takahashi, supra, 202 Cal.App.3d at 

pp. 1471, 1474-1475, 1481-1485 [racial, gender, and age discrimination, including due 

process violations].) This case is different. CSEA and Ramirez could not earlier present 

a defense within the later exclusive jurisdiction of the Board. (§ 3541.5.) Claim 

preclusion and estoppel are inapplicable.

23

22 It is true, of course, Ramirez could have raised antiunion retaliation at any time

prior to reaching the Board. But, because it is only the Board’s decision that matters, she 

was not required to do so.

23 Notably, in the proceedings below, VUSD argued “the [retaliation] claim [was] 

covered by” a collective bargaining agreement, “culminat[ing] in binding arbitration” to 

which the Board should have “deferred” the claim. It does not appear the Board ever 

addressed arbitration.

Public school employers and employees are entitled to collectively bargain and 

agree to arbitrate claims. (§ 3543.2.) The parties in this case had an agreement to 

arbitrate defined “grievance[s] ....” The law, however, prohibits collectively bargaining 

the “causes and procedures” related to “dismissal ....” (Ibid.) Assuming retaliation is a 

grievance, because this is a case involving dismissal, it “is not subject to contractual 

arbitration.” (Sunnyvale, supra, 171 Cal.App.4th at p. 173.)
16.

Finally, VUSD asserts the Education Code hearing conclusively established

sufficient cause to terminate Ramirez. Education Code section 45113, subdivision (b) 

provides that “the governing board’s determination of the sufficiency of the cause for 

disciplinary action shall be conclusive.” (See Board of Education v. Round Valley 

Teachers Ass’n (1996) 13 Cal.4th 269, 287 [“school board’s determination of sufficiency 

of cause for disciplinary action” is conclusive via statute].)

There is no decisional law discussing the intersection between Education Code 

section 45113 and the EERA. Education Code section 45113 vests in school boards the 

power to determine cause. PERB is entitled to review facts and resolve disputes to 

determine whether retaliation has occurred, but when Education Code section 45113 

applies, it cannot override a finding sufficient cause for discipline existed.

In other words, PERB must start with one fact already proved: sufficient cause 

existed for the discipline at issue. (See United Steelworkers of America v. Board of 

Education (1984) 162 Cal.App.3d 823, 839 [ the word “conclusive” in Education Code 

section 45113, subdivision (b) is broader than “a limitation on judicial review.”]; cf. State 

of California (Department of Social Services) (2019) PERB Dec. No. 2624-S, p. 9 [43 PERC 

¶ 128] (Social Services) [recognizing that in some instances, estoppel may apply in PERB 

proceedings].) PERB may still find retaliation, but it cannot negate cause.24 With this 

understanding, we turn to the merits.

II. Holding Union Office is Itself Activity Protected by the EERA

The Board held Ramirez’s union-officer status—distinct from publicly criticizing 

the superintendent—constituted protected activity. VUSD decries the holding, believing 

it is both inconsistent with Board precedent and the EERA’s plain language. We 

disagree.

24 The fact sufficient cause existed for discipline does not mean there was no unlawful 

retaliation. Other circumstances may prove a retaliatory motive notwithstanding sufficient cause 

for discipline.
17.

A. Additional Background

The Board in this matter specifically held Ramirez’s “status as a union officer 

from January 2017 until her termination in April 2019” constituted activity protected by 

the EERA. In so holding, the Board “overrule[d] [Trustees of the California State 

University (2009) PERB Dec. No. 2038-H [33 PERC ¶ 106] (Trustees)] and similar 

decisions to the extent they h[e]ld that an employee must allege ‘something more’ than 

holding union office to show that he or she has engaged in protected activity under any 

PERB-administered statute.” 

The holding was based on interpreting the Meyers-Milias-Brown Act (MMBA) 

(§ 3500 et seq.). Section 3502.1—part of the MMBA—states “[n]o public employee 

shall be subject to punitive action or denied promotion, or threatened with any such 

treatment, for the exercise of lawful action as an elected, appointed, or recognized 

representative of any employee bargaining unit.” The Board recognized this statute “is 

unique to the MMBA ....” In other words, the other Board-administered acts25 do not 

carve out specific protections for union officers.

Nonetheless, the Board, seeking harmony in all acts it administrates, found 

persuasive the fact the Legislature “ ‘did not create a new or separate category of unfair 

practice’ ” when it enacted section 3502.1 Rather, the Legislature’s enactment “merely 

clarified the protections which ‘were already afforded to employee bargaining unit 

representatives’ ” under the MMBA. That analysis was based on the Board’s prior

decision in Santa Clara Valley Water Dist. (2013) PERB Dec. No. 2349-M [38 PERC 

¶ 96] (Santa Clara). 

25 See, e.g., MMBA (§ 3500 et seq.), Dills Act (§ 3512 et seq.), Judicial Council 

Employer-Employee Relations Act (§ 3524.50 et seq.), EERA (§ 3540 et seq.), Higher 

Education Employer-Employee Relations Act (§ 3560 et seq.), Trial Court Employment 

Protection and Governance Act (§ 71600 et seq.), and Trial Court Interpreter 

Employment and Labor Relations Act (§ 71800 et seq.).
18.

B. Analysis

The EERA grants “[p]ublic school employees ... the right to form, join, and 

participate in the activities of employee organizations of their own choosing for the 

purpose of representation on all matters of employer-employee relations.” (§ 3543.) It 

prohibits “public school employer[s]” from “[i]mposing or threaten[ing] 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” the EERA. (§ 3543.5, subd. (a).)

The EERA “is considerably broader than ... the National Labor Relations Act ....” 

(Redwoods Community College Dist. v. Public Employment Relations Bd. (1984) 

159 Cal.App.3d 617, 623.) Nonetheless, when interpreting the EERA, “it is proper to 

look to [the National Labor Relations Act] for its persuasive value.” (County of San 

Joaquin v. Public Employment Relations Bd. (2022) 82 Cal.App.5th 1053, 1069 (San 

Joaquin); cf. County of Los Angeles v. Los Angeles County Employee Relations Com. 

(2013) 56 Cal.4th 905, 916 [the Public Employment Relations Board “is a quasi-judicial 

administrative agency modeled after the [National Labor Relations Board.”].)

The United States Supreme Court has held “[h]olding union office clearly falls 

within the activities protected” by the National Labor Relations Act. (Metropolitan 

Edison Co. v. N.L.R.B. (1983) 460 U.S. 693, 703.) For the following reasons, we reach 

the same conclusion under the EERA.

i. Statutory Interpretation

Foremost, we have no doubt the EERA’s plain language protects holding union 

office. Holding office undoubtedly exercises the right to join and participate in a union. 

(§ 3543 [“[p]ublic school employees [have] ... the right to form, join, and participate in” 

unions]; Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630 

[“ ‘ “When interpreting statutes, we begin with the plain, commonsense meaning of the 
19.

language used by the Legislature. [Citation.] If the language is unambiguous, the plain 

meaning controls.” ’ ”].)

VUSD, arguing otherwise, focuses on the fact the EERA protects a public 

employee’s “exercise” of rights.26 The argument is somewhat inexplicable. Seeking, 

joining, and holding union office is an exercise of rights. (See Knox v. Service 

Employees Intern. Union, Local 1000 (2012) 567 U.S. 298, 309 [“the ability of likeminded individuals to associate for the purpose of expressing commonly held views may 

not be curtailed.”]; Christian Legal Soc. Chapter of the University of California, Hastings 

College of the Law v. Martinez (2010) 561 U.S. 661, 680 [“ ‘Freedom of association’ ... 

‘plainly presupposes a freedom not to associate.’ ”]; Cumero v. Public Employment 

Relations Bd. (1989) 49 Cal.3d 575, 601 [“the EERA guarantees each employee in the 

unit the free choice of joining the union, refraining from participation in any union, or 

joining a rival union”].)

ii. Board Precedent

VUSD argues the Board’s precedent establishes “ ‘simple maintenance of [an 

employee’s union] position ... is insufficient” to invoke the law’s protection. (See Chula 

Vista Elementary School Dist. (1997) PERB Dec. No. 1232-Ea, p. 4 [22 PERC ¶ 29057] 

(Chula Vista).) We disagree.

In Chula Vista, the Board held simply holding membership in the union was 

“insufficient to satisfy the timing element of the [circumstantial evidence] test,” i.e., 

26 Amicus joins in this argument, citing Service Employees International Union, 

Local 99 (Kimmett) (1979) PERB Dec. No. 106-E [3 PERC ¶ 10134]. There, the Board 

held it did not have authority to govern a union’s “internal activities” and force it to 

“operate[] in any particular way,” “unless” there exists “a substantial impact on 

employees’ relationship with their employer ....” (Id. at pp. 13-17.) The decision is 

simply inapposite to defining exercise.
20.

membership itself is not circumstantial evidence of retaliation.27 (Chula Vista, supra, 

PERB Dec. No. 1232-Ea at p. 4.) Following Chula Vista, the Board in Trustees held an

employee’s “serv[ice] as a union steward” did not constitute protected activity. 

(Trustees, supra, PERB Dec. No. 2038-H at pp. 10-11.) That holding is based on Chula 

Vista but misapplies the decision. Chula Vista does not stand for the proposition holding 

union office is not protected activity. (See Chula Vista, supra, PERB Dec. No. 1232-Ea

at p. 4 [“maintaining [union] membership[] is insufficient to satisfy the timing element of 

the [circumstantial evidence] test.”].)

Viewed properly, the Board’s precedent does not proscribe officer status in a 

union from establishing protected activity. Indeed, Santa Clara explicitly held serving as 

a union officer was activity protected by law. (Santa Clara, supra, PERB Dec. No. 2349-

M at p. 29.) VUSD distinguishes Santa Clara because it involved the MMBA. It is true, 

as VUSD points out, section 3502.1 is unique to the MMBA in that it specifically 

protects union office. (See ante, II., A.) The EERA, on the other hand, explicitly 

protects only the rights to “form, join, and participate” in unions. (§ 3543.) The plain 

language difference is, in our view, immaterial. VUSD, on the other hand, argues unique 

protections afforded to union officers in the MMBA are superfluous if not given effect. 

(See Brennon B. v. Superior Court (2022) 13 Cal.5th 662, 691 [courts “seek to avoid 

‘interpretations that render any language surplusage.’ ”].) We disagree.

As the Board explained in Santa Clara, the Legislature made clear 

section 3502.1—enacted by Assembly Bill No. 1184 (2021-2022 Reg. Sess.)—served 

only “to clarify and reinforce the existing rights of public employees under the 

MMBA ....” (Santa Clara, supra, PERB Dec. No. 2349-M at p. 20.) “[T]he Legislature 

did not,” in other words, “intend to create a new or separate category of unfair 

27 In Board parlance, the circumstantial evidence test is often called the Novato 

test. (See Novato Unified School Dist. (1982) PERB Dec. No. 210-E, pp. 6-7 [6 PERC 

¶ 13114] [describing “factors ... support[ing] [an] inference of unlawful motive”].)
21.

practice.”28 (Id. at p. 21; Assem. Bill No. 1184 (2001-2002 Reg. Sess.) § 2 [“The 

Legislature finds and declares that the provisions of this act are declaratory of existing 

law.”].) 

“[A] declaration by the Legislature that a statut[e] ... is declaratory of existing law 

is ... a factor entitled to due consideration” when interpreting a statute, and one we find 

persuasive in this case. (Lone Star Security & Video, Inc. v. Bureau of Security & 

Investigative Services (2009) 176 Cal.App.4th 1249, 1256.) Interpreting section 3502.1 

as declaratory best fits “the whole system of law of which it is a part, so that all may be 

harmonized and anomalies avoided.” (Coachella Valley Mosquito & Vector Control 

Dist. v. Cal. Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1089 

(Coachella).) Accordingly, section 3543 in the EERA likewise protects serving as a 

union officer.29 (Coachella at p. 1090 [statutory interpretation must avoid “inexplicable 

anomaly”]; cf. Skidgel v. Cal. Unemployment Ins. Appeals Bd. (2021) 12 Cal.5th 1, 21 

[“ ‘the canon against surplusage is [merely] a guide to statutory interpretation and is not 

invariably controlling.’ ”].)

iii. Conclusion

VUSD resists interpreting the EERA to protect service as a union officer. In so 

doing, “it points to the absurd results that may reasonably follow from” such an 

interpretation. Those results primarily concern nullifying “the litany of [Board] decisions 

articulating the contours of what is and is not protected activity,” axiomatically proving 

28 Also in Santa Clara, supra, the Board acknowledged, section 3502.1 

notwithstanding, section 3502’s protection of the “right[s] to join, form, and participate” 

in unions would still protect s union officer’s service. (Santa Clara, supra, PERB Dec. 

No. 2349-M at p. 28.)

29 Notably, section 3502.1 was enacted in 2001. The EERA was enacted in 1975. 

(Coachella, supra, 35 Cal.4th at p. 1084.) Section 3502.1’s later enactment, as a 

declaratory statute, explains why similar, officer-centric language absent from the EERA 

or other PERB-administered statutes is, really, an explicable anomaly.
22.

“temporal proximity between the protected activity and the adverse action,” and 

incentivizing “unsatisfactory” employees to seek union office.30 We address each 

concern in turn.

a. Board Precedent Describing Protected Activity

Because employees relying on officer status alone will often find it difficult to 

prove retaliation, the “litany of PERB decisions articulating the contours of what is and is 

not protected activity” becomes more important. Those cases generally describe specific 

acts constituting protected activity, which, in practice, make it simpler to prove 

retaliation, especially where adverse action quickly follows an exercise of rights. (E.g., 

Monterey Peninsula Unified School Dist. (2017) PERB Dec. No. 2530-E, p. 9 [42 PERC 

¶ 2] [criticizing management “during staff meetings”]; Walnut Valley Unified School 

Dist. (2016) PERB Dec. No. 2495-E, pp. 9-10 [same]; Petaluma City Elementary School 

Dist./Joint Union High School Dist. (2016) PERB Dec. No. 2485-E, pp. 43-46 [41 PERC 

¶ 23] [picketing, leaflets, and soliciting support]; San Mateo County Community College 

Dist. (2008) PERB Dec. No. 1980-E, p. 8 [32 PERC ¶ 153] [utilizing union 

representation “in a work-related dispute”]; East Whittier School Dist. (2004) PERB Dec. 

No. 1727-E, p. 9 [29 PERC ¶ 40] [wearing union buttons]; Wilmar Union Elementary 

School Dist. (2000) PERB Dec. No. 1371-E, p. 16 [24 PERC ¶ 31053] [campaign sign 

on “private vehicle” in parking lot]; Ventura County Community College Dist. (1999) 

PERB Dec. No. 1323-E, p. 10 [23 PERC ¶ 30094] [filing a grievance]; Healdsburg 

Union High School Dist. (1997) PERB Dec. No. 1185-E, p. 47 [21 PERC ¶ 28055] [filing 

grievances, representing others, and serving as negotiator]; Coachella Valley Unified 

30 VUSD also warns of “open[ing] the door” to protecting “mere union 

membership[.]” Neither PERB nor CSEA advocate that position, and we need not 

address it because it is not ripe for decision—this case does not involve “mere” 

membership. (But see Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 

Cal.4th 525, 555 [“Public employers may not discriminate against their employees on the 

basis of membership or participation in union activities.”].)
23.

School Dist. (2013) PERB Dec. No. 2342-E, p. 12 [38 PERC ¶ 95] [“reporting cheating 

[on standardized tests] by teachers is not protected”].)

The Board cases describing what is and what is not protected activity will endure

and serve a vital role in evaluating union-retaliation complaints. Evisceration of these 

decisions by protecting status as a union officer is an unwarranted concern.

b. Temporal Proximity

Temporal proximity is important to demonstrating a rational connection between 

protected activity and adverse action. (Mt. San Jacinto Community College Dist., PERB 

Dec No. 2865-E, p. 27 [48 PERC ¶ 15].) VUSD argues status as a union officer itself

constituting protected activity would necessarily provide temporal proximity in each and 

every case. Typically, timing alone does not establish a retaliatory motive, but the closer 

in time an adverse action is to protected activity, the stronger the retaliatory inference. 

(Id. at pp. 27-28.)

VUSD’s concern about union service and temporal proximity is adequately 

addressed by identifying the appropriate endpoints. For example, it is possible for an 

employee to hold a union office for years. Given that potential lengthy period, the longer 

an employee holds office without experiencing adverse action, the less likely it is that any 

adverse action was due to the employee’s union status. Accordingly, properly assessing 

temporal proximity based on officer status alone requires considering the time period 

between the employee assuming office and experiencing an adverse action.

Absent temporal proximity, litigants will generally encounter difficulty in proving

retaliation. (See City of Santa Monica (2020) PERB Dec. No. 2635-Ma, p. 46 [44 PERC 

¶ 125] (Santa Monica) [“if the timing evidence is weak then a charging party will 

normally need to marshal a stronger array of other, non-timing evidence.”].) Because 

every case depends on its own facts, however, we cannot now broadly discern a potential, 

speculative impact. 
24.

In any event, the Board’s decisions make clear temporal proximity alone is 

insufficient to establish retaliation. (E.g., Trustees, supra, PERB Dec. No. 2038-H at 

p. 16 [“Although ... temporal proximity ... is an important factor,” it is not itself 

sufficient]; Santa Monica, supra, PERB Dec. No. 2635-Ma at pp. 45-46 [timing 

“inference weakens as the gap in time grows;” “timing alone is typically not 

determinative”]; City of San Diego (2020) PERB Dec. No. 2747-M, p. 26 [45 PERC 

¶ 45] [“protected activity” must be “substantial or motivating cause of the adverse 

action”].) There is no reason to fear the Board will depart from its well-established, wellgrounded precedent.

c. Incentivizing Union Activity

Finally, VUSD argues protecting union officers “creates the perverse incentive for 

certain union members to seek office,” i.e., those “whose work performance is 

unsatisfactory ....” We have already addressed the continuing viability and importance 

of engaging in protected activity beyond joining or serving in a union. Serving as a union 

officer, however, warrants particular protection because officers act as the union’s face 

and risk disproportionate backlash and criticism. (Local Union 1392, Intern. Broth. of 

Elec. Workers, AFL-CIO v. N.L.R.B. (6th Cir. 1986) 786 F.2d 733, 736 [“Obviously, 

unions act only through their officers.”]; Coats v. Construction & Gen. Laborers Local 

No. 185 (1971) 15 Cal.App.3d 908, 913, fn. 1 [“A union is an institution comparable to a 

corporation and acts normally through elected officers.”]; General Motors Corp. (1975) 

218 N.L.R.B. 472, 477 [officers are the union in an employer’s eyes].)

To the extent VUSD is concerned deficiently-performing employees will seek 

union office to receive EERA protection, the concern is not unwarranted. “[W]e cannot 

allow [an employee] genuinely dismissed for valid causes to be reinstated because school 

authorities were also displeased with [the employee’s] exercise of constitutional rights. If 

it were otherwise [an employee] about to be dismissed for valid causes could insulate 

[one]self from dismissal simply by engaging in political activities offensive to ... 
25.

superiors.” (Thornbrough v. Western Placer Unified School Dist. (2013) 

223 Cal.App.4th 169, 197 (Thornbrough).)

It remains the Board’s responsibility to legitimately evaluate the sincerity and 

merits of any complaint. Nothing in this opinion changes the Board’s longstanding 

framework to analyze union-retaliation claims.

d. Summary

In sum, section 3543 protects serving as a union officer. A public employer may 

not retaliate against a public employee for serving as an officer in a union.31 The Board’s 

decision to overrule precedent suggesting otherwise is well-taken. (Boling v. Public

Employment Relations Board (2018) 5 Cal.5th 898, 911 [“ ‘The proper interpretation of a 

statute is ultimately the court’s responsibility.’ ”].)

In Santa Clara, the Board recently reiterated that “whatever the specifics of their 

protected activity, employees must separately show that the employer knew of that 

activity, and that there is at least a reasonable inference, based on the evidence, that some 

adverse action was taken because of the employee’s protected conduct.” (Santa Clara, 

supra, PERB Dec. No. 2349-M at p. 28, emphasis added.) Analysis will always depend 

on the specific facts in each case—protecting union officers does not change the calculus.

III. An Inference of Retaliation

Establishing retaliation under the EERA requires either direct proof or evidence 

“that: (1) the employee exercised rights guaranteed by [the] EERA; (2) the employer had 

knowledge of the employee’s exercise of those rights; (3) the employer took action 

against or adverse to the interest of the employee; and (4) the employer acted because of 

the employee’s exercise of the guaranteed rights.” (Palo Verde Unified School Dist. 

(2013) PERB Dec. No. 2337-E, p. 10 [38 PERC ¶ 69].) We have already determined 

31 Although this case involves only the EERA, the same analysis would apply to 

other PERB-administered statutes utilizing language parallel to section 3543.
26.

Ramirez exercised protected rights, and VUSD does not dispute knowledge and adverse 

action. The only question is VUSD’s intent. 

In analyzing an employer’s intent, the Board “considers all relevant facts and 

circumstances ....” (City & County of San Francisco (2020) PERB Dec. No. 2712-M, 

p. 21 [44 PERC ¶ 173] (San Francisco).) More specifically,

32 it has “identified the 

following factors as being the most common means of establishing a discriminatory 

motive, intent, or purpose: (1) timing of the employer’s adverse action in relation to the 

employee’s protected conduct; (2) disparate treatment; (3) departure from established 

procedures or standards; (4) an inadequate investigation; (5) a punishment that is 

disproportionate based on the relevant circumstances; (6) failure to offer a 

contemporaneous justification, or offering exaggerated, questionable, inconsistent, 

contradictory, vague, or ambiguous reasons; (7) employer animosity towards union 

activists; and (8) any other facts that might demonstrate the employer’s unlawful 

motive.” (Ibid.)

This analysis, which the Board calls “nexus,” is factually intensive. (San 

Francisco, supra, PERB Dec. No. 2712-M, p. 17.) By statute, “[t]he findings of the 

[B]oard with respect to questions of fact, including ultimate facts, if supported by 

substantial evidence on the record considered as a whole, are conclusive.” (§ 3542, 

subd. (c).) 

On review, “ ‘ “we do not reweigh the evidence. If there is a plausible basis for 

the Board’s factual decisions, we are not concerned that contrary findings may seem to us 

equally reasonable, or even more so.” ’ ” (California Teachers Assn. v. Public 

Employment Relations Bd. (2009) 169 Cal.App.4th 1076, 1087.) Here, we generally 

accept the Board’s factual findings, subject to the following observations.

32 Although this case involves only the EERA, the same analysis would apply to 

other PERB-administered statutes utilizing language parallel to section 3543.
27.

A. Timing

The Board concluded Ramirez’s critical comments in January 2018, just two 

weeks before she was placed on leave pending an investigation, supported “temporal 

proximity.”33 VUSD argues the Board erred in considering this sequence, suggesting 

instead the relevant event is termination in April 2019.

The Board’s view is reasonable and entitled to deference. Moreover, the Board 

found it was “more likely than not” VUSD “decided to investigate Ramirez” after her 

critical, public comments. Notably, there is significant evidence suggesting VUSD 

received the parent-complaint underpinning the attendance investigation prior to Ramirez 

criticizing the superintendent, VUSD also explicitly documented receiving that complaint 

“in ‘late January 2018.’ ” We accept the Board’s factual resolution because, by relying 

on VUSD’s own documentation, it is eminently reasonable and supported by substantial 

evidence.

34

B. Disparate Treatment

The Board found VUSD “treated Ramirez disparately.” Its finding was based on 

three points.

First, VUSD “had not terminated any other employee for unintentionally 

misreporting attendance.” Second, VUSD “had never performed an audit looking at 

33 We note the Board partially concluded temporal proximity was established 

because Ramirez was a union officer at the time she was placed on leave and terminated. 

The Board’s conclusion failed to identify the correct endpoints, i.e., the time Ramirez 

became an officer and the time she suffered an adverse action. Because the Board did not 

analyze the appropriate endpoints, substantial evidence does not support its conclusion

Ramirez’s status in the union itself established temporal proximity.

34 The “late January 2018” language appears in VUSD’s proposed decision 

following the Education Code hearing. Specifically, the proposal stated “[i]n late January 

2018, [VCIS] received a complaint from a parent that her student received a contract 

violation for missing assignments, even though the student had turned in all 

assignments.” The VUSD school board later voted to terminate Ramirez based on the 

proposed decision, formally “adopt[ing]” it “in its entirety ....” 
28.

every data entry ... to determine whether an attendance clerk had made incorrect entries.” 

Third, VUSD’s “policy” “anticipated a certain amount of human error,” particularly 

requiring teachers “to [only] have an 85 percent accuracy rate” with their files.35 

These points are not supported by substantial evidence. There is no evidence any 

employee, other than Ramirez, ever misreported attendance. For the same reason, VUSD 

had no occasion to conduct a full-scale audit prior to Ramirez’s errors. (Rio School Dist. 

(2008) PERB Dec. No. 1986-E, p. 17 [33 PERC ¶ 8] [no disparate treatment if no 

similarly situated employees].) To the extent VUSD anticipated human error, the 

Board’s logic ignores the fact VUSD’s policies were designed to catch all errors before 

Ramirez would formally record attendance. VUSD desired to eliminate human error by 

the time data reached Ramirez—the policy clearly did not intend human error to persist.36

Absent evidence a similarly situated employee committed similar errors, the 

disparate treatment finding cannot stand. (Sacramento City Unified School District (2010) 

PERB Dec. No. 2129-E, p. 10 [34 PERC ¶ 134]; cf. Gupta v. Trustees of Cal. State Univ. (2019) 

40 Cal.App.5th 510, 519–520 [in Fair Employment and Housing Act case, “comparative data 

must be directed at showing disparate treatment between employees who are similarly situated to 

the plaintiff in all relevant respects.”]). The Board erred in eschewing this requirement.

C. Inadequate Investigation

Because “Ramirez received specific training for ... attendance-keeping at the end 

of September 2016,” the Board concluded VUSD unfairly “accused [her] of making 

35 Accuracy relative to teachers’ files was never adequately explained in the 

record. Regardless, teachers’ files are distinct from Ramirez’s job duties. The Board 

correctly acknowledged VUSD could “insist on a greater degree of accuracy for its 

secretaries,” and the paramount importance of accurately reporting attendance, as 

opposed to a teacher’s file, is readily established throughout the record. 

36 CSEA bemoans the fact VUSD “close[ly] monitor[ed] ... Ramirez’s routine 

tasks, ... which had never been done before,” suggesting “[f]urther evidence of disparate 

treatment ....” VUSD’s monitoring was justified by Ramirez’s years-long inattention to 

detail and repeated mistakes. It did not demonstrate disparate treatment.
29.

multiple attendance errors in ... August and September 2016.” The Board 

misapprehends the facts.

It is true Ramirez received training after August 2016; her errors in reporting 

August attendance occurred after she received training. The record is clear attendance is 

not entered daily, but rather is inputted every “six weeks.” The first time Ramirez 

entered attendance was in September 2016, after receiving training. It was at that time 

she committed the August errors. 

Elsewhere, the Board properly noted VUSD’s investigation failed to uncover 

“exculpatory” evidence in that Ramirez was allowed to “buddy check [attendance] if [it] 

had not been done already.” In other words, because VUSD blamed Ramirez for 

inputting attendance not obviously37 subject to double-checking, it failed to account for 

the fact she was empowered to conduct the double-check in the first instance. The Board 

also fairly noted VUSD’s investigation appeared “rushed” because it “conflated” data, 

discussed in further detail post (III., E.). 

D. Disproportionate Punishment

The VUSD school board, pursuant to Education Code section 45113, conclusively 

found sufficient cause to terminate Ramirez. As explained above, the Board was bound 

by that finding because it was not challenged or set aside. Accordingly, it was not within 

the Board’s purview to find punishment was disproportionate. Nonetheless, the Board’s 

finding is not supported by substantial evidence.

The Board inferred “improper motive” because VUSD “did not seriously explore 

any intermediate discipline for Ramirez, instead opting for summary termination over any 

form of progressive discipline.” The Board’s inference discounts all prior discipline 

because it was imposed “almost entirely ... in her previous position ....” 

37 By obvious we mean double-checked attendance sheets generally would 

indicate the double-checker’s initials. It is fair to believe Ramirez would not initial the 

sheets she herself double-checked because doing so would serve little purpose.
30.

The discount is improper. There is no sound reason an employer cannot consider 

past conduct in fashioning appropriate discipline. (Thornbrough, supra, 223 Cal.App.4th 

at p. 192 [“all relevant facts should be considered in assessing punishment,” including 

“past discipline”].) Perhaps more importantly, whether particular discipline is warranted 

is necessarily relative to underlying conduct—sometimes termination is justified, other 

times it is not. Ultimately, more serious misconduct warrants more serious discipline. 

The Board’s disproportionate-punishment conclusion fails to account for the gravity of 

errors at issue in this case.

The Board also found VUSD’s “standard approach to correcting performance 

deficiencies” “included informal verbal warnings and multiple written warnings.” PERB 

likewise faults VUSD for “mov[ing] immediately to terminat[e] without any prior 

discipline.” CSEA similarly argues VUSD was “required, prior to termination for nonegregious conduct, ... [to] afford[] the intermediate discipline of suspension ....” 

We disagree this case does not involve progressive discipline. More importantly, 

PERB and CSEA fail to persuasively explain why, after numerous issues spanning 

several years, VUSD needed to continue to apply discipline short of termination.38 

(Thornbrough, supra, 223 Cal.App.4th at p. 193 [“Once a valid ground of misconduct is 

shown, an agency has great latitude to determine the appropriate penalty.”].) Were PERB 

and CSEA correct, employees could commit the same mistake ad infinitum without 

repercussion. 

Last, the Board believed VUSD improperly cited, as justification, “evidence it was 

not permitted to ... based on the parties’ previous [settlement] agreement[.]” We again 

disagree. To the extent the prior settlement constituted evidence, it was properly 

38 VUSD argues its policies do not mandate progressive discipline. Even if true,

progressive discipline is a relevant factor to consider.
31.

admitted by the Education Code hearing officer and subsequently admitted before the 

Board.39

E. Contemporaneous and Exaggerated Justification40

The Board concluded VUSD “exaggerated the financial impact of Ramirez’s 

mistakes.” Particularly, the Board noted VUSD “conflated the total number of errors 

with the total number of students affected, resulting in a purportedly much larger group 

of students affected ....” 

VUSD did err by incorrectly believing every error related to a unique student. 

Similarly, the Board noted VUSD miscalculated financial impact by considering 

“annual” rather than “daily” funding per student. The record is clear, however, VUSD 

believed its liability per student was in fact the annual amount even if it misreported only 

39 PERB and CSEA agree VUSD “did not abide by the negotiated” settlement by 

using it as evidence in this matter. This, they suggest, “support[s] [a] retaliatory motive” 

because it demonstrates deviation from “established” practice. The Education Code 

hearing officer, however, properly allowed the evidence because the agreement itself 

permitted the officer’s review. 

40 The administrative law judge concluded there was no contemporaneous 

explanation provided to Ramirez, “suggest[ing] the true reason for the adverse action 

[was Ramirez’s] protected activity and the justification was created post hoc.” In our 

view, not proffering a contemporaneous reason to the employee is not always equivalent 

to post hoc rationalization. Nonetheless, we accept the conclusion. (See City of San 

Ramon (2018) PERB Dec. No. 2571-M, p. 5 [43 PERC ¶ 6] [Board “need not further 

analyze” issues resolved “adequately” by administrative law judge].)
32.

a single day.

41

 Nothing in the record, or cited by the parties, definitively refutes VUSD’s 

belief the annual figure was the correct yardstick.42

The Board also found VUSD exaggerated because it “was able to correct” 

Ramirez’s mistakes. In our view, such a finding unjustly punishes VUSD for identifying 

errors and ameliorating potential harm. “When an employee’s misconduct creates 

potential harm to the public, the employer need not wait until actual harm occurs before 

disciplining the employee.” (Social Services, supra, PERB Dec. No. 2624-S at p. 8,

citing County of Siskiyou v. State Personnel Bd. (2010) 188 Cal.App.4th 1606, 1615 

[“ ‘[I]n the context of public employee discipline,’ the ‘overriding consideration’ is ‘the 

extent to which the employee’s conduct resulted in, or if repeated is likely to result in, 

“harm to the public service.” ’ ”].)

Significantly, the Board determined VUSD’s falsification allegation was 

exaggerated. Falsification, the Board stated, involved intentional conduct, and the 

41 A witness testified VUSD’s potential liability, i.e., penalty, equaled $9,350 per 

student. It is unclear whether the testimony meant per erroneously reported attendance or 

per student. For example, if one student’s attendance was erroneously reported 50 times, 

was the school subject to 50 penalties, or one? Ultimately, we need not resolve the 

question because we can simply defer to the Board’s overall exaggeration finding. 

Indeed, the record appears insufficient for this court to definitively ascertain potential 

financial impact.

42 The Board, and the administrative law judge, criticized the superintendent for 

believing “liability per error was either $9,089 or $9,350 ....” The criticism is based on 

the superintendent testifying her belief “was based on information” from the chief 

business officer who, in turn, testified “he did not know the fiscal impact of the errors 

....” PERB blames VUSD for “consult[ing] a single source ... about the fiscal impact of 

Ramirez’s errors.” 

The chief business officer, however, clearly testified he provided the annual 

figures, i.e., $9,350, and the superintendent’s final report summarized “the potential 

impact ... of [Ramirez’s] errors[.]” He testified to the same at the Education Code 

hearing, making clear he “provided the actual dollar figure potential impact based on 

these errors ....” Similarly, the compliance coordinator testified the school could 

potentially lose annual funding for a single error. The Board’s focus on an annual 

funding amount is misplaced.
33.

superintendent’s testimony falsification included “inaccuracies” was less than credible.43 

These findings are supported by substantial evidence.

Finally, the Board believed VUSD’s “insubordination allegation was exaggerated” 

because insubordination “requires ... willful conduct.” Although we might disagree there 

is no willful conduct in this case, we again accept the Board’s resolution.44

F. Union Animosity

The Board concluded VUSD exhibited “union animus.” Its conclusion was based 

on VCIS’s principal explicitly commenting Ramirez’s work might suffer if she served in 

the union, coupled with the leave-notice’s prohibitions on entering VUSD property and 

conversing with union members. To the extent the animus finding, particularly the leave 

letter’s failure to accommodate union activity, involves factual resolution, we accept and 

defer to the Board’s determination. (Fallbrook Union Elementary School Dist. (2011) 

PERB Dec. No. 2171-E, p. 10 [35 PERC ¶ 58] [employer’s expression “ ‘[u]nion duties 

have gotten in the way of ... teaching objectives’ ” “may support a finding of union 

animus when coupled with other facts”], emphasis added.)

43 The falsification-charge language mirrors a VUSD administrative regulation 

defining “causes” for “suspension, demotion, involuntary reassignment, [and] dismissal 

....” Nonetheless, we defer to the Board, especially because the superintendent, at the 

Education Code hearing, testified the mistakes were “falsification on purpose ....” 

44 VCIS directed Ramirez to implement numerous procedures to improve her 

work, but she did not implement every directive. For example, she acknowledged not 

implementing a directive “to have others check [her] work for accuracy,” explaining “no 

one” was available to “check [her] work.” (See San Diego Unified School Dist. (1991) 

PERB Dec. No. 885-E, pp. 81-82 [15 PERC ¶ 22103] [insubordination includes refusing 

to implement directives].) This directive was contained in the withdrawn July 22, 2015,

reprimand, but was properly considered by the Education Code hearing officer. As 

previously noted, that hearing’s transcript, along with attendant exhibits, was admitted 

before the Board.
34.

G. Conclusion

Overall, we accept the Board’s conclusion VUSD inferentially terminated Ramirez 

in retaliation for protected activity. Its conclusion is reasonable due to the timing 

between Ramirez’s critical comments at the VUSD school board meeting and her 

subsequent placement on leave, VUSD’s exaggerated and noncontemporary 

justifications, VUSD’s inadequate investigation, and VUSD’s union animosity. The 

disparate treatment and disproportionate factors, however, do not withstand scrutiny and 

are not supported by substantial evidence. We turn next to evaluate VUSD’s affirmative 

defense.

IV. VUSD Proved Its Affirmative Defense

Relying on “documented concerns with Ramirez’s performance since 2013,” 

VUSD argues “substantial evidence supports that [she] would have been terminated 

absent her protected activit[ies] ....” PERB contends “[t]he Board correctly rejected” 

VUSD’s performance-related justification because the “data entry errors ... did not 

‘damag[e]’ ” VUSD, “ ‘potential fiscal impact’ ” was insubstantial, any resulting 

“minimal harm” did not “merit termination,” and prior performance concerns did not 

previously “warrant termination.” CSEA claims the Board “appropriately rejected the ... 

argument ... minor performance issues were the basis for ... termination.” We believe 

VUSD’s argument is well-taken.

“The charging party has the burden of showing protected conduct was a 

motivating factor in the employer’s decision. Once that is established, then the burden 

shifts to the employer to establish an affirmative defense. Typically, the employer must 

show that despite the anti-union motivation, the employment decision would have been 

taken anyway, for other, legitimate business reasons.” (Trustees of California State 

University v. Public Employment Relations Bd. (1992) 6 Cal.App.4th 1107, 1129.)

“[T]he test of employer conduct in a mixed motive situation, where legitimate 

business reasons arguably concur with anti-union motivations as the basis for an 
35.

employment decision, is a ‘but for’ test—whether the discharge or other violation of 

protected activity would have occurred anyway regardless of the improper anti-union 

motivation. This is an affirmative defense which the employer must establish by a 

preponderance of the evidence ....” (McPherson v. Public Employment Relations Bd.

(1987) 189 Cal.App.3d 293, 304; Cabrillo Community College Dist. (2015) PERB Dec. 

No. 2453-E, p. 12 [40 PERC ¶ 57]; San Joaquin, supra, 82 Cal.App.5th at pp. 1069-

1070; Thornbrough, supra, 223 Cal.App.4th at p. 195; cf. Mt. Healthy City School 

District Board of Ed. v. Doyle (1977) 429 U.S. 274, 287 [preponderance standard to 

assess employer’s defense]; Martori Brothers Distributors v. Agricultural Labor 

Relations Bd. (1981) 29 Cal.3d 721, 730 [“once the employee has shown that his union 

activities were a motivating factor in the employer’s decision to discharge him, the 

burden shifts to the employer to show that discharge would have occurred in any 

event.”].)

“ ‘In the case where the trier of fact has expressly or implicitly concluded that the 

party with the burden of proof did not carry the burden and that party’ ” seeks review, the 

reviewing court does not ask “ ‘whether substantial evidence supports the judgment.’ ” 

(Valero v. Board of Retirement of Tulare County Employees' Assn. (2012) 

205 Cal.App.4th 960, 965.) Rather, “ ‘where the issue on [review] turns on a failure of 

proof ..., the question for [the] reviewing court becomes whether the evidence compels a 

[contrary] finding ... as a matter of law.’ ” (Id. at p. 966; Phipps v. Copeland 

Corporation LLC (2021) 64 Cal.App.5th 319, 333.)

The record in this matter compels a finding in VUSD’s favor; the Board’s 

conclusion VUSD failed to carry its burden is unreasonable. To begin, it is important to 

understand the relevant adverse action is the VUSD school board’s vote to terminate—

not Ramirez’s placement on leave. (Thornbrough, supra, 223 Cal.App.4th at pp. 198-

199.)
36.

There is no doubt, absent Ramirez’s protected activities, VUSD would have 

uncovered her numerous errors. Accepting as accurate the Board’s timeline, i.e., VUSD 

decided to investigate Ramirez after she criticized the superintendent and then received a 

complaint about inaccurate attendance, it is clear the ultimate decision to terminate is 

based on serious errors striking at the school’s primary administrative functions.

Ramirez’s errors, and their discovery, were entirely divorced from any union 

activity. Those errors were real, not fancied or imagined. The attendant investigation 

originated not in union activity but in a parent’s legitimate complaint.

On this point, CSEA argues “falsification ... was the impetus for the investigation 

and proposed discipline, and without it, it is unlikely [VUSD] would have even sought 

discipline since the remaining infractions were old and had not been considered serious 

enough to warrant discipline.” That misreads the record.

The Education Code hearing officer did not sustain VUSD’s falsification charge. 

The VUSD school board fully accepted the officer’s findings, including the fact 

falsification was not substantiated. The school board voted to terminate Ramirez anyway, 

precisely because she repeated errors and mistakes over many years. It is without 

question the school board’s decision to terminate rested on the repeated nature of similar 

transgressions and not on a belief Ramirez intentionally falsified records.

Contrary to PERB’s and CSEA’s suggestions, those transgressions were neither 

“minimal” nor “minor ....” CSEA asserts the “end result was that there was no impact on 

any ... student from Ramirez’s alleged errors.” We are not convinced a result-oriented 

metric is appropriate.

45

“ ‘In considering whether ... abuse occurred in the context of public employee 

discipline, ... the overriding consideration in these cases is the extent to which the 

45 We disagree no students were affected by Ramirez’s errors, but are willing to 

accept CSEA’s assertion on review. Certainly, the student whose parent complained was 

affected, even if any harm was ameliorated.
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employee's conduct resulted in, or if repeated is likely to result in, “[harm] to the public 

service.” ’ [Citations.] ‘Other relevant factors include the circumstances surrounding the 

misconduct and the likelihood of its recurrence.’ ” (Pasos v. Los Angeles County Civil 

Service Commission (2020) 52 Cal.App.5th 690, 701 (Pasos).)

Here, VUSD was legitimately concerned the state would close VCIS due to 

misreporting attendance. That is a disastrous consequence. Employers need not await 

disaster to abate catastrophe. (Social Services, supra, PERB Dec. No. 2624-S at. p. 8.) 

Potential liability and likely recurrence are sufficient to act.

Beyond attendance, the Board never confronted Ramirez’s errors relating to 

transcripts and grades.46 Although not fully described in the record,47 these errors also 

are neither “minimal” nor “minor ....” Errors on permanent academic records are 

potentially catastrophic to a person’s life, especially teenagers at a high school.

For better or worse, VCIS needs money to operate, and students need grades and 

transcripts to pursue education. Ramirez’s errors struck directly at the school’s most 

basic, essential infrastructure. PERB’s suggestion Ramirez did not “ ‘damag[e]’ the core 

function of” VUSD is direly misplaced—the facts errors were corrected and harm did not 

materialize are not exculpatory. On this record, VUSD was not obligated to continue to 

employ a person repeatedly committing serious errors. (See Social Services, supra, 

PERB Dec. No. 2624-S at p. 8; Pasos, supra, 52 Cal.App.5th at 701.)

In Jurupa Unified School Dist., the Board found an employee’s termination 

justified by a “long record of complaints ..., many of which predated the [alleged] 

46 As noted, the Board also failed to address VUSD’s claim preclusion, collateral 

estoppel, mandamus, and arbitration arguments. (See ante, I.)

47 The record indicates Ramirez failed to timely enter “fall grades” by January 

2018, “grades had been entered wrong,” and “there [were] wrong dates for transferring, 

dropping[, and graduating] students ....” “[O]ther staff members had to go in and make 

the corrections.” Ramirez partially acknowledged discussing transcripts with the 

principal. 
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protected activity ....” (Jurupa Unified School Dist. (2015) PERB Dec. No. 2450-E, 

pp. 11-12 [40 PERC ¶ 46].) It concluded the district there “amply met its ... burden” by 

“showing” it terminated the employee “because of ... repeated misconduct.” (Id. at 

p. 21.) The evidence in this case supports the same result. 

The Board’s conclusion here—that Ramirez’s deficient performance merited

discipline less than termination—is without reasonable basis. Wrongful termination 

jurisprudence necessitates “the need for a sensible latitude for managerial 

decisionmaking ....” (Cotran v. Rollins Hudig Hall Intern., Inc. (1998) 17 Cal.4th 93, 

106.) “ ‘Employers are sometimes forced to remove employees who are performing 

poorly, engaging in improper work conduct, or severely disrupting the workplace .... 

Precedent does not prevent [an employer] from removing such an employee simply 

because the employee [recently] engaged in ... protected ... activity ....’ ” (Arteaga v. 

Brink’s, Inc. (2008) 163 Cal.App.4th 327, 354.) “What constitutes satisfactory 

performance is of course a question ordinarily vested in the employer’s sole discretion.” 

(Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 742; cf. Pugh v. See’s 

Candies, Inc. (1981) 116 Cal.App.3d 311, 330 [“Care must be taken ... not to interfere 

with the legitimate exercise of managerial discretion.”].)

The errors in this case, corrected or otherwise, were egregious, numerous, and 

occurred over several years. (See Thornbrough, supra, 223 Cal.App.4th at p. 192 [“all 

relevant facts should be considered in assessing punishment,” including “past 

discipline”].) There was no reason to believe the errors would subside.48 

Indeed, the reprimand letters, substandard performance reviews, and errors 

underlying Ramirez’s termination all point to her failure to grasp and perform duties 

correctly, inattention to detail, not following direction, causing disruption and generating 

additional work, not understanding the impact her errors wrought, and not achieving

48 At least one witness testified “concerns” with Ramirez’s work did not improve. 
39.

VUSD’s expected performance. These concerns were stressed repeatedly over time

without any reason to believe they were alleviated.

Importantly, VUSD previously sought termination for similar issues predating any 

alleged union activity, adequately dispelling a retaliatory inference. That proceeding was 

settled. This time, the VUSD school board, well aware of Ramirez’s union activities, 

voted to terminate Ramirez due to her longstanding, inadequate performance. Again, the 

Education Code hearing’s cause-sufficient-to-terminate finding is “conclusive.” (Ed. 

Code, § 45113, subd. (b).)

Viewed fully, with appreciation for the serious errors at issue, the only reasonable 

conclusion is VUSD justifiably terminated Ramirez. Accordingly, the record compels a 

finding VUSD affirmatively proved it would have terminated Ramirez notwithstanding 

her protected union activity.49

V. Summary

An employee’s service as a union officer is activity protected by the EERA under 

section 3543.5. VUSD’s contrary arguments—including exhaustion and forfeiture—are 

not persuasive. The Board, however, erred in finding VUSD failed to prove its 

affirmative defense.

DISPOSITION

The petition is granted and Public Employment Relations Board published 

decision number 2806-E [46 PERC ¶ 115] is set aside. The Board is directed to modify 

49 Our analysis applies equally to the derivative interference claim.
40.

the decision consistent with this opinion and dismiss the complaint issued against VUSD. 

(§ 3542, subd. (c).) Costs are awarded to VUSD. (Cal. Rules of Court, rule 8.493.)

SNAUFFER, J.

WE CONCUR:

POOCHIGIAN, Acting P. J.

DETJEN, J.