EMPLOYER DISCRIMINATION; DEFENSES – In General

Single Topic for Decision 2090M

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* * * OVERRULED IN PART ON OTHER GROUNDS by Walnut Valley Unified School District (2016) PERB Decision No. 2495. * * *

Given that percipient witnesses did not testify to explain basis for adverse actions, the employer failed to establish any legitimate justification for its actions, and adverse actions culminating in termination were taken in retaliation for employee’s exercise of protected rights. Because virtually none of the percipient witnesses to the alleged incidents testified, there was no independent evidence in the record to support nearly all of the allegations of employee misconduct and the hearsay testimony presented was discredited on numerous points. Therefore, the employer failed to establish that it would have taken the adverse action even if the employee had not engaged in protected activity. Accordingly, the employer failed to meet its burden of proof under the “but for” test, and unlawfully retaliated against the employee for having engaged in protected activity.