EMPLOYER DISCRIMINATION; DEFENSES – In General
Single Topic for Decision 2184M
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505.01000 – In General
Once a prima facie case is established, the employer bears the burden of proving it would have taken the adverse action even if the employee had not engaged in protected activity. Thus, when it appears that the adverse action was motivated by both valid and invalid reasons, “the question becomes whether the [adverse action] would not have occurred ‘but for’ the protected activity.” The “but for” test is “an affirmative defense which the employer must establish by a preponderance of the evidence.” When conducting the “but for” analysis, the proper inquiry is whether the employer’s true motivation for taking the adverse action was the employee’s protected activity. In making this determination, “PERB weighs the employer’s justifications for the adverse action against the evidence of the employer’s retaliatory motive.” Once PERB determines that the employer did not take action for an unlawful reason, its inquiry is at an end; PERB has no authority to determine whether adverse action not motivated by protected activity was just or proper. In this case, the supervisor’s recommendation to reject employee on probation was based upon three incidents that caused supervisor to doubt employee’s ability to develop as an investigator, while protected activity of listing union representative as a “cc” recipient on a written statement is relatively minor in nature. Thus, Board concludes that employee’s protected activity was not the true motivation for supervisor’s recommendation and the employer proved it would have released employee on probation even if he had not engaged in protected activity.