Berkeley Unified unfairly disciplined teacher for her email use, judge says

Berkeley Unified broke the law by penalizing an employee for an email that was critical of the district, according to the Public Employment Relations Board. Photo: Kaia Diringer

The Berkeley Unified School District violated the law by disciplining an employee who used her BUSD email account to distribute a message that was critical of the district, according to a January labor relations board ruling.

Judge Alicia Clement, with the state’s Public Employment Relations Board, ordered BUSD to revoke a penalty against retired Berkeley High teacher Valerie Trahan, reinstate her email privileges and notify all BUSD employees of their rights. The district sent out the mandated notice to all teachers and staff Feb. 14.

The PERB ruling is the product of charges filed by Trahan against BUSD in early 2016. At the time, Trahan had just begun substitute-teaching after retiring several months earlier. In her complaint, the former history teacher claimed the district illegally punished her because of the nature of an email she sent and later retaliated by denying her substitute-teaching jobs. Following a hearing in December, Clement ruled that the district acted illegally by punishing Trahan for her email use, but found no basis for the retaliation allegations.

The chain of events began when Trahan injured herself during her first day working as a sub in January 2016, according to the legal order. The next day, Jan. 13, the district subsequently changed Trahan’s status in the online substitute-teaching system to “inactive.”

The day after that, Jan. 14, Trahan used her district email address to contact the approximately 400 people on a Berkeley High staff listserv, attaching a letter by the president of the Berkeley chapter of the NAACP. The letter, by Mansour Id-Deen, criticized BUSD for mistreating employees and blamed the teachers’ union and the classified staff union for dismissing their members’ grievances as well. In the letter, Id-Deen encouraged all employees to send complaints against the district to his organization.

According to the judge’s order, Evelyn Tamondong-Bradley, BUSD’s assistant superintendent of human resources, heard about Trahan’s email from a teachers’ union representative shortly thereafter. Tamondong-Bradley issued Trahan a Notice of Unsatisfactory Conduct on Jan. 21 and revoked her email access, saying she violated district policy by using her email account “for political purposes.”

“The district does not consider the email you sent to be protected concerted activity, because the letter actually criticizes the unions for not being responsive to the needs of their own members, and was sent out by an organization that does not purport to represent district employees, or an organization that engages in labor organization,” the notice said. The district warned Trahan that she would be prohibited from substitute-teaching if the misconduct continued. That day, though, Trahan’s status in the system was changed back to “active.”

Trahan said she didn’t work as a sub again until April, even though she was willing to. She said the district was retaliating against her by not offering her jobs.

The Berkeley School Board passes policies on electronic communications and other issues. A judge said the policy was applied discriminatorily when a teacher sent out a critical email to all staff. Photo: Mark Coplan/BUSD

In written policy, Berkeley Unified tells employees their email access “is a privilege, not a right.” The policy prohibits employees from intentionally using their district accounts for “political activity,” or for sending out private information about other employees, students or district operations. Employees are only permitted to use the accounts for “district directed school-related tasks,” and can’t send out anything that disparages others based on aspects of their identity “such that it may create a hostile work or educational environment.”

In spite of the policy, the judge said state law considers speech relating to employer-employee relations to be protected unless it significantly disrupts the employer’s operations or is extraordinarily insulting or defamatory. Employees have the right to discuss workplace matters, including, according to the judge, via their employer-provided email accounts.

While Trahan’s email was “clearly annoying” to district staff, they were not legally justified in disciplining the teacher, Clement said in her order.

The email “did not lose its protected status merely because it was critical of district policies or personnel,” the judge said. Clement also dismissed the school district’s assertions that Trahan’s email violated policy by involving an outside group that was critical of the unions, and by disrupting usual business because it required 400 employees to open the letter.

“While it is understandable that the district would wish to keep the peace among its staff, the district cannot keep the peace at the expense of employees’ rights,” Clement wrote. She found the district “discriminatorily applied” its own email-use policy, enforcing it in a case when BUSD was criticized.

District spokesman Charles Burress declined to comment on this case because it deals with personnel matters.

Ty Alper, a School Board member, said the board’s policy committee, which he chairs, is currently revisiting the district’s rules regarding email use.

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

Trahan told Berkeleyside the judge’s order was good news for others in her position.

“Teachers now have the right to free speech,” she said. “So, it’s a victory for certificated and classified employees.”

The judge did not find Trahan’s other allegations to be credible. While the teacher complained that the district denied her substitute jobs after she sent out the email, BUSD records showed the district actually offered Trahan several opportunities to work before she eventually did so in April, according to the judge. Additionally, Trahan’s status was temporarily changed to “inactive” in the substitute system before she even emailed out the NAACP letter, meaning the district did not make the change in retaliation for that communication.

“Trahan’s testimony of the events during this period was inexact and full of inconsistencies,” Clement wrote. When asked about the digital records showing Trahan received multiple calls from the substitute-teaching system, the teacher responded that the data could have been manipulated, according to the judge.

Clement filed the proposed order in December, and it became official in late January. The district had 10 days after being served the order to post its corrective notice in public. The superintendent also emailed it to all employees last week.

Berkeley Unified is meanwhile enmeshed in another case involving employee emails. Last fall, conservative group Judicial Watch filed a public records request asking BUSD to turn over all communications between district administrators and King Middle School staff regarding King teacher Yvette Felarca and her activist organization By Any Means Necessary. Felarca has sued the district for intending to provide the emails to Judicial Watch. BUSD leaders have responded that they are legally obligated to comply with the request.