EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS – Other/In General

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Unlawful motive is the specific nexus required in the establishment of a prima facie case. Unlawful motive can be established by circumstantial evidence and inferred from the record as a whole. PERB has developed and applies a set of “nexus” factors in determining whether a charging party has alleged a prima facie case of retaliation. Although suspicious timing of the employer’s adverse action in proximity to the employee’s protected conduct is an important factor (North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento)), it does not, without more, demonstrate nexus between the adverse action and the protected conduct. (Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more of the following additional factors must also be present: (1) the employer’s disparate treatment of the employee (State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the employer’s departure from established procedures and standards when dealing with the employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the employer’s inconsistent or contradictory justifications for its actions (State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer’s cursory investigation of the employee’s misconduct (City of Torrance (2008) PERB Decision No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the employer’s failure to offer the employee justification at the time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or the offering of exaggerated, vague, or ambiguous reasons (McFarland Unified School District (1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might demonstrate the employer’s unlawful motive. (North Sacramento; Novato Unified School District (1982) PERB Decision No. 210.)