BEST BEST KRIEGEREI ATTORNEYS AT LAW INDIAN WELLS RIVERSIDE (760) 568-2611 655 West Broadway. 1511) Floor (951) 686?1450 REE San Diego. California 92101 SACREENTO (949) 263-2600 (619) 525'1 300 (916) 325-4000 (619) 238?61 18 Fax LOS ANGELES BBKIaw.com WALNUT CREEK (213) 617-8100 (925) 977?3300 ONTARIO (909) 989?8534 Joseph Sanchez (619) 525-1300 October 14, 2019 VIA EMAIL AND U.S. MAIL Blaire Baily, Esq. Regional Attorney Public Employment Relations Board 425 W. Broadway, Suite 400 Glendale, CA 91204-1269 Re: El Rancho Administrators Supervisors Association v. El Rancho Unified School District Unfair Practice Charge No. Dear Ms. Baily: This letter is provided by the El Rancho Uni?ed School (?District?) under PERB Regulation No. 32620, in response to the above-referenced unfair practice charge (?Charge?). The Charge ?led by El Rancho Administrators Supervisors Association is without merit. The allegations in the Charge fail to state a violation of the Educational Employment Relations Act INTRODUCTION ERASA claims that the District, through its School Board, took speci?c actions to interfere with, discriminate and retaliate against its bargaining unit members. As explained in detail below, the District?s actions regarding ERASA members were based on legitimate business decisions in the best interests of the District and in no way related to any protected labor activities. In fact, the actions of ERASA surrounding the ?ling of this Charge, coupled with the Charge?s failure to state speci?c facts supporting a prima facie case, suggest that the ?ling of this Charge is nothing more than a political move orchestrated by ERASA in an attempt to discredit certain Board members. 60213 00014\32420418.1 BEST BEST 8: KRIEGER ATTORNEYS AT LAW Blaire Baily October 14, 2019 Page 2 The charge should be dismissed in its entirety because it does not provide facts establishing the requisite prima facie case of discrimination/retaliation or interference under the EERA. ERASA has failed to meet its burden of establishing that the District?s decision to either release or reassign certain ERASA members was ?because of? the exercise of protected EERA rights or that there was any interference with ERASA protected rights. Further, several of the allegations stated in the Charge are untimely. STATEMENT OF FACTS The Charge ?led by ERASA centers around the District?s decision to relieve certain administrators from their administrative positions in the Spring of 2019 including Sam Genis, David Sermeno, and Hector Vasquez. It has been well established in California that school administrators serve at the pleasure of the governing board. v. Sink (1973) 34 Cal.App.3d 19; Education Code 44951. In order to release an administrator for the following school year, the employee must be given notice prior to March 15 that the District may remove them from their administrative assignment for the following year.1 It is not uncommon for school districts, in the best interests of the district, to remove administrators from their current positions and place them back into a classroom position. As set forth in the attached Declaration from former District Superintendent Karling Aguilera?Fort (Exhibit 1), in the Spring of 2019, he with input of his cabinet, made recommendations to the School Board as to which administrators should be removed from their positions for the 2019-2020 school year in the best interests of the District. Aguilera-Fort provided a document to the Board outlining the reasons for each of his recommendations during the April 16, 2019 Board meeting. At that meeting, the Board voted to reassign four certi?cated administrators back to the classroom (including Genis, Sermeno, and Vasquez) and one certi?cated administrator into an alternate certi?cated administrator position. The Board also voted to release one probationary administrator. The Board?s action to remove certain administrators, and in particular Sam Genis, sparked a political movement by certain employee and public factions to seek the removal of certain Board members through a recall effort. It is the District?s belief that this PERB Charge is nothing more than a political ploy used to discredit the Board members who voted for the Superintendent?s recommendation to release certain administrators. In fact, the District first learned about the Charge in a newspaper story released detailing this PERB Charge which was released prior to the District even receiving notice of the Charge. In addition, the lack of speci?city, nexus, and timeliness of the allegations support that this Charge is more of a political tactic than a legitimate attempt to protect EERA rights. This is unfortunate because of the I All three of these employees were provided the required March 15 notice. Copies of these notices can be provided upon request. 60213.00014\32420418. 1 BEST BEST KRIEGER ATTORNEYS AT LAW Blaire Baily October 14, 2019 Page 3 District dollars that are being expended to defend against these baseless charges. As will be established in further detail below, each of the allegations set forth in the Charge fail to state a prima facie case of an unfair labor practice under the EERA. ARGUMENT A. THE CHARGE FAILS TO MAKE A PRIMA FACIE CASE OF RETALIATION The Charge states that former ERASA members Sam Genis, David Sermeno, Hector Vasquez, and Rosalio Medrano were ?fired? due to protected activities.2 In order to establish a prima facie case of discrimination or retaliation in violation of EERA section the charging party must demonstrate that: the employee exercised rights under (2) the employer had knowledge of the exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the action because of the exercise of those rights. Novato Unified School District (1982) PERB Decision No. 210. As set forth below, the Charge fails to set forth a prima facie case of discrimination/retaliation for each of the named administrators. 1. Sam Genis Charging Partv?s Allegations Regarding Genis" Protected Activity are Unclear and Untimely PERB regulation 32615(a)(5) requires that a charge must contain clear and concise statement of the facts and conduct alleged to constitute an unfair practice.? A charge must contain the ?who, what, when, where, and how? of an unfair practice. Mere legal conclusions are insuf?cient to state a prima facie case. State of California Department of Food and Agriculture (1994) PERB Decision No. 1071-8; United eachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944. It is unclear what protected activity ERASA is alleging in this instance led to the adverse action. The only Specific allegation is that on or about March 22, 2016, Genis alleges that two Board Members had a conversation with Genis about support of ERFT. This alleged conversation occurred over three years from the speci?ed adverse action.3 This is well past the six month statute of limitations. Coachella Valley Mosquito and Vector Control District v. 2 The Charge also references employees from the El Rancho Federation of Teachers ERASA does not have standing to assert an ULP claim on behalf of another union?s members. Therefore, any claims of retaliation against ERFT members will not be addressed. That said, all allegations that the District targeted and retaliated against ERFT members are false and completely without merit. 3 Both Mr. Lara and Mr. Orosco deny the allegations set forth in paragraph 31 of the Charge. 60213.00014\32420418.1 BEST BEST 8: KRIEGER ATTORNEYS AT LAW Blaire Baily October 14, 2019 Page 4 California Public Employment Relations Board (2005) 35 Cal.4th 1072. PERB also held in Los Angeles Unified School District v. Peters (2016) PERB Decision No 2479, that approximately one year (Fall 2009 to December 2010) was ?too great to support an inference of retaliatory motive.? In this case, there is a full three years between the alleged protected activity and the alleged adverse action. Also, there are no other speci?c facts in the Charge regarding any retaliatory or discriminatory conduct toward Genis during that three year period. The Charge only references speculation and conjecture with no dates or speci?cs. ERASA also implies that the Board may have sought to release Mr. Genis based on his Union President status. This allegation is not true. PERB has held that status of a union representative alone is insuf?cient to satisfy the timing element without some other protected activities around the time of the alleged adverse actions. Chula Vista Elementary Education Association (1997) PERB decision No. 1232. Again, the Charge sets forth no Speci?c protected activities on the part of Genis around the time of the notice of his removal as an administrator. Even if a contemporaneous protected activity could be established, the District can demonstrate that Genis? removal was for a legitimate business reason in the best interests of the District. As set forth in Aguilera?Fort?s declaration, he presented the reasons for the removal of Genis to the Board in a spreadsheet along with the other administrators he recommended removing from their positions.4 The Charge attempts to make a point by alleging that Aguilera- Fort did not make the recommendations on whom should be released on his own, but was directed to by Board members Lara and Orosco. While Aguilera-Fort states in his Declaration that this is untrue, even if it was true, that would not be evidence of an unfair labor practice charge because there is still no proof that the decision was ?because of? protected union activity. As stated above, administrators serve at the will of the Board. It is also important to note that there are no facts supporting that the decision-makers, in this case the Superintendent and the full Board, had knowledge of the exercise of the alleged protected rights. This is even more apparent given the three year length between the alleged protected rights and the decision to release Genis. Superintendent Aguilera?Fort was not even employed by the District in 2016 and Board member lbarra was not a member of the Board at that time. In addition, the Charge does not present facts that demonstrate the required nexus between Genis? alleged protected activity and the alleged adverse actions. Therefore, the charge should be dismissed in its entirety regarding Genis for failure to establish a prima facie case of retaliation/discrimination under EERA section 4 We did not provide the referenced spreadsheet in ligl?ll of the privacy interests of the administrators listed on the document. The District can provide that document upon request.4 60213.000148242041 8.1 BEST BEST 8: KRIEGER ATTORNEYS AT LAW Blaire Baily October 14, 2019 Page 5 2. David Sermeno The Charging Partv Fails to Establish Sermeno Engaged in Protected Activity and/or That Board Had Knowledge of the Exercise of Protected Activitv As with the Genis? allegations, it is unclear exactly what protected activity Sermeno engaged in from the allegations set forth in the Charge. It is not set forth in a clear and concise statement of facts as required by PERB regulation 32615(a)(5). In addition, as with Genis, there is no speci?c allegation of the date of the alleged adverse action or the protected activity. It appears that the ?alleged? protected activity was that Sermano was directed by the Superintendent to not use his school site for a parent meeting. Parent meetings have nothing at all to do with union activity. There is no explanation as to how this can be seen as protected union activity. Allowing parent meetings is not protected activity. Therefore, the element of establishing the employee exercised rights under EERA is not met.?1 Even if the alleged activity could be seen as protected activity under the EERA, the Charge does not allege any facts to support that the decision-makers had knowledge of the protected activity. In fact, the protected activity is alleged to have occurred on April 18, 2019 which was two days after the Board voted to remove Sermeno as a principal. See attached Board minutes from April 16, 2019 (Exhibit 2). Therefore, there is no way the Board could have ?retaliated? against Sermeno based on conduct that had not even occurred yet. As set forth above, even if a protected activity could be established, the District can demonstrate that Sermeno?s removal was for a legitimate business reason in the best interests of the District. In addition, the charge does not present facts that demonstrate the required nexus between Sermeno?s alleged protected activity and the alleged adverse actions. Therefore, the charge should be dismissed in its entirety regarding Sermeno for failure to establish a prima facie case of retaliation/discrimination under EERA section 3. Rosalio Medrano The Portions of the Charge Related to Medrano were Filed Bevond The Six Month Statue of Limitations PERB is prohibited from issuing a complaint regarding any charge under the EERA based upon an alleged unfair practice which occurred more than six months prior to the ?ling of the charge. Coachella Valley Mosquito and Vector Control District v. California Public Employment Relations Board (2005) 35 Ca1.4th 1072. This charge was ?led with PERB in 5 As stated by Aguilera-Fort in his Declaration, the reason he approached Sermeno about the parent meetings was because Sermeno had not followed proper protocol regarding scheduling parent meetings. 60213.00014\32420418 BEST BEST 8: KBIEGER ATTORNEYS AT LAW Blaire Baily October 14, 2019 Page 6 August of 2019. As alleged in the Charge, Medrano was released from the District in January 2018, over one year-and-a?half before the Charge was ?led. For this reason, the portion of the Charge related to Medrano must be dismissed as untimely. Even if the allegations in the Charge were timely, the District can clearly demonstrate that it had a legitimate business reason for terminating Medrano. The statement in the Charge that Medrano was forced out of the District ?for reasons unknown? is completely false and misleading. Medrano was released from the District for dishonesty. Speci?cally, Medrano failed to report on his employment application with the District that he was previously terminated from another school. The District has several documents demonstrating that Medrano was fully aware of the reasons for his dismissal including a decision from the California Unemployment Appeals Board denying Medrano unemployment bene?ts because of his misconduct regarding his employment applicationf' Medrano was also the subject of a public reproval pursuant to Education Code 44421 from the State of California Commission on Teacher Credentialing for his dishonest conduct regarding his employment application for the District. Education Code 44421 states, ?[t]he Commission on Teacher Credentialing shall privately admonish, publicly reprove, revoke or suspend for immoral or unprofessional conduct, or for persistent de?ance of, and refusal to obey, the laws regulating the duties of persons serving in the public school system, or for any cause that would have warranted the denial of an application for a credential or the renewal thereof, or for evident un?tness for service.? (emphasis added). The Commission approved the public reproval of Medrano at its April 2018 Commission meeting. The minutes and Agenda for the April 2018 meeting can be found at Because this an approved action by a State agency, this should be accepted as fact and de?nitive proof that the District had a legitimate reason for releasing Medrano and that his release was not ?because of? his engagement in any protected activity. It is important to note that any of the allegations raised or stated by Medrano should be disregarded given his propensity for dishonesty.7 In addition, the fact that such a blatant falsehood (that Medrano was unaware of the reasons for his dismissal) was included in the Charge should also discredit the entire Charge. The CTC publicly reproved his misconduct and the Unemployment Board denied him bene?ts for his misconduct. How can ERASA/Medrano state that he was terminated for reasons ?unknown? when two state agencies made public ?ndings otherwise. For the reasons stated above, the allegations regarding Medrano should be dismissed. 6 The EDD Appeal documents can be provided upon request. 7 Lara and Orosco deny engaging in any of the activity alleged in the Charge regarding Medrano. 60213 00014024204181 BEST BEST 8: KRIEGER ATTORNEYS AT LAW Blaire Baily October 14, 2019 Page 7 4. Hector Vasquez The Charging Party Fails to Establish Vasquez Engaged in Protected Activity and/or That Board Had Knowledge of the Exercise of Protected Activitv No details were provided in the Charge as to when the alleged conduct occurred regarding Vasquez. There is also no clear statement of what exactly the protected conduct was that Vasquez engaged in. The Charge fails to state that Vasquez engaged in any protected conduct under EERA. Therefore, these allegations should be dismissed for failure to state clear and concise statement of the facts and conduct alleged to constitute an unfair practice.? The Charge is also misleading as to Vasquez?s claims as it alleges that Board Member Orosco approached Vasquez to discuss matters that ?were properly the job responsibilities of the Superintendent and did not fall under the purview of the Board of Education.? What the Charge fails to mention is that the student referred to in the Charge as Student A was Orosco? 3 daughter. Just because Mr. Orosco is a Board member, does not mean he loses his rights as a parent to discuss matters regarding his own children with the Principal. While Orosco denies engaging in any intimidating or bullying behavior or for asking for special treatment, he did meet with Principal Vasquez as it was his right to do so. Just like any other parent, Mr. Orosco was trying to protect his child against bulling. That said, even if everything stated in the Charge were true regarding Mr. Vasquez, it still does not state a prima facie case that he was dismissed for engaging in protected activity. As set forth above, even if a protected activity could be established, the District can demonstrate that Vasquez?s removal was for a legitimate business reason in the best interests of the District. In addition, the Charge does not present facts that demonstrate the required nexus between Vasquez?s alleged protected activity and the alleged adverse actions. Also, the Charge does not allege any facts to support that the decision makers had knowledge of the protected activity. Therefore, the charge should be dismissed in its entirety regarding Vasquez for failure to establish a prima facie case of retaliation/discrimination under EERA section 5. Other Allegations The Charge also alleges violations of EERA sections 3534(a), and 3543.5 and However, nowhere in the Charge does it allege any speci?c facts that state a clear and concise statement of the facts and conduct alleged to constitute an unfair practice with regards to these sections. 3534a? This is not an EERA section and should be disregarded. 60213 00014\32420418 BEST BEST KRIEGER ATTORNEYS AT LAW Blaire Baily October 14, 2019 Page 8 3543.1(a) There are no facts anywhere in the complaint that refer to violations of this section. The only reference regarding the use of District facilities involves a parent meeting and not an ERASA meeting. These allegations should be disregarded and dismissed. 3543.5 and It appears that the Charge is attempting to allege that simply by exercising its right under the Education Code to remove an at-will administrator (ERASA President Genis), the Board ?interfered with ability to choose their own representatives.? The Charge alleges no other facts regarding this allegation. If that was all it took to prove interference without more, then a District could never release any union representative for fear of interference. It is important to note that Genis is still representing the Union as Executive Director. This allegation should be dismissed for failure to state a prima facie case. In conclusion, the District respectfully requests that the Unfair Practice Charge be dismissed in its entirety as no violation of the EERA can be established in this case. As stated above, it is the District?s contention that the ?ling of this Charge is nothing more than a political move orchestrated by ERASA in an attempt to discredit certain Board members rather than a legitimate attempt to protect EERA rights. If you have any questions or need additional information, please do not hesitate to contact me. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Sincerely, at My Joseph Sanchez for BEST BEST KRIEGER LLP cc: Jeffrey Boxer (via US. Mail) Dr. Frances Esparza (via email) 60213.00014\32420418.1 EXHIBIT 1 JOSEPH SANCHEZ, Bar No. 186622 joseph.sanchez@bbklaw.com Best Best Krieger LLP 655 West Broadway, 15th Floor San Diego, California 92101 Telephone: (619) 525-1300 Facsimile: (619) 233-6118 Attorneys for Respondent EL RANCHO UNIFIED SCHOOL DISTRICT STATE OF CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD EL RANCHO ADMINISTRATORS AND PERB Case No. LA-CE-6498-E SUPERVISORS ASSOCIATION (ERASA), DECLARATION OF KARLING AGUILERA- FORT Charging Party, V. BL RANCHO UNIFIED SCHOOL DISTRICT, Respondent. 61036.00207\32418533.1 DECLARATION OF KARLING AGUILERA-FORT LAW OFFICES OF BEST BEST 8: KRIEGER LLP 655 WEST BROADWAY, 15TH FLOOR SAN DIEGO. CALIFORNIA 92101 DECLARATION OF KARLING AGUILERA-FORT I, Karling Aguilera?Fort, declare as follows: 1. I was formerly Superintendent of the El Rancho Uni?ed School District (the ?District?), a public school district located in the city of Pico Rivera, California. The District of?ces are located at 9333 Loch Lomond Drive, Pico Rivera, CA 90660. 2. I was Superintendent of the District for approximately two years. I resigned from my position as Superintendent of the District following the end of the 2018-2019 school year. I am currently Superintendent of the Oxnard School District. 3. I have been informed of the Unfair Practice Charge (the ?Charge?) ?led by ERASA regarding former District Administrators Rosalio Medrano, Hector Vasquez, Samuel Genis and David Sermeno and have reviewed the Charge. 1 make this declaration based on my review of statements attributed to me in the Charge which are false and/or untrue. The facts stated herein are personally known to me, except where stated on information and belief, and if stated on information and belief, I believe them to be true. If called as a witness I could and would competently testify thereto. 4. Paragraph 17 of the Charge states, ?Former Superintendent Karling Aguilera?Fort speci?cally informed multiple individuals, including President Sam Genis, that he was instructed by the Board of Education to remove certain principals, and that it was not his decision as Superintendent.? 5. The statements contained in Paragraph 17 of the Charge are false. I was not instructed by the Board to remove certain principals prior to my recommendation to the Board on or about April 16, 2019. The decision as to which administrators that I would recommend to the Board to be released or reassigned was my decision, along with input from my cabinet. 6. Paragraph 19 of the Charge states, ?Former Superintendent Aguilera?Fort also informed ERASA President Genis that all of the removed principals would receive evaluations that meet standards. Aguilera-Fort resigned and left the District Without having provided written evaluations for any administrator within the District.? 7. The statements contained in Paragraph 19 of the Charge are false. I did not make 61036.00207\32418533.l I DECLARATION OF KARLING 1 gr 5:9 41% mmFE LULD owrz (0m -0: om