Judge rules Berkeley school district unlawfully disciplined employee for email use

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The Berkeley Unified School District violated the Educational Employment Relations Act by disciplining an employee for distributing an email that was critical of the district, according to a ruling by California’s Public Employment Relations Board, or PERB.

Judge Alicia Clement and PERB ruled that BUSD unlawfully disciplined employee Valerie Trahan for an email that was ruled as protected speech. Clement and PERB ordered BUSD to restore Trahan’s revoked email privileges and post a notice to all district employees informing them of their rights under the Educational Employment Relations Act, or EERA.

According to the official ruling document, Trahan retired from teaching at Berkeley High School and began substitute teaching after a required six-month hiatus. On her first day back, Trahan sustained a workplace injury.

The following day, Jan. 13, 2016, assistant superintendent of human resources Evelyn Tamondong-Bradley changed Trahan’s status on Aesop, the district’s substitute teaching system, to inactive after learning about Trahan’s injury.

The following morning, Trahan sent an email to “Berkeley High Conference,” a Listserv that includes approximately 400 Berkeley High School employees, according to the official ruling document.

Attached to the email was a letter from Mansour Id-Deen, president of the Berkeley chapter of the National Association for the Advancement of Colored People, or NAACP, criticizing the district’s employment practices as well as the employees’ representatives for not addressing concerns such as alleged discrimination and hostile employment practices. In the letter, Id-Deen also encouraged employees to submit complaints to the NAACP.

On Jan. 21, 2016, Bradley sent Trahan a Notice of Unsatisfactory Conduct, or NUC, in response to Trahan’s Jan. 14 email and revoked her district email privileges. But Bradley also placed Trahan back into active status on Aesop the same day.

“You used your District email account, in violation of District policies prohibiting the use of District email for political purposes,” the NUC said. “Please note that the District does not consider the email you sent to be protected concerted activity.”

But Judge Clement found Trahan’s email to be protected under the EERA.

“(The email) was clearly annoying to District administrators and School Board members, but the employer’s annoyance does not justify stripping Trahan of her statutory right to speak about employer-employee relations in the workplace,” Clement said in the order. “The January 14th email did not lose its protected status merely because it was critical of District policies or personnel.”

Trahan did not work as a substitute teacher again until April 5, 2016, according to the ruling document. The ruling document also said Trahan alleged the district placed her on inactive status in retaliation for her Jan. 14 email. BUSD said in the ruling document, however, that Trahan was only placed on inactive status from Jan. 13 to Jan. 21, and her failure to work anytime after Jan. 21 was because she refused teaching assignments. Clement did not find Trahan’s allegations of the district’s retaliation to be credible.

BUSD public information officer Charles Burress declined to comment because the case deals with personnel matters.

Ty Alper, BUSD board president and chair of the school board’s policy committee, said in an email that the committee is currently reviewing district policies regarding electronic communication.

“We are working on revising District policies related to the use of electronic devices and other electronic communication generally, and it is helpful to get guidance from courts and other legal entities with respect to this complicated area of law,” Alper said in an email.

Contact Amanda Yao at [email protected] and follow her on Twitter at @AmandaJYao.