EMPLOYER DISCRIMINATION; DEFENSES – Misconduct

Single Topic for Decision 1979C

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* * * OVERRULED IN PART ON OTHER GROUNDS by Napa Valley Community College District (2018) PERB Decision No. 2563. * * *

To establish the “but for” affirmative defense in mixed conduct cases, where discipline is based on both protected and unprotected activity, the employer bears the burden of showing it would have imposed the same discipline for the unprotected conduct standing alone as it imposed for the mixed conduct. Board found that the employer would have suspended the employee based solely on the employee’s unprotected activity and therefore the employee’s protected activity was not the true motivation behind the employer’s adverse action. PERB has no authority to determine the appropriate level of discipline for unprotected activity.