EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS – Departure from Past Practices or Procedures
Single Topic for Decision 2420E
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504.03000 – Departure from Past Practices or Procedures
Employer action is not evidence of discriminatory motivation when there is no evidence that, subsequent to charging party engaging in protected activities, the employer’s actions and handling of discipline differed from that prior to his protected activity, or when there is no evidence that the employer’s handling of charging party’s discipline differed from that of any other similarly-situated employee. Consistent violations of the Education Code before and after charging party’s protected activity that allegedly demonstrated a lack of just cause or procedural violations would not, by themselves, indicate improper motivation because of protected activity. Employer’s premature attachment of student complaints to summary of allegations against charging party, when it is the employer’s policy and practice not to provide written complaints to employees until the employee is going to a dismissal hearing, did not demonstrate that the employer predetermined the outcome of its investigation of charging party, and do not constitute circumstantial evidence of causal nexus between charging party’s protected activity and the employer’s termination of his employment. The employer benefitted charging party by giving him the statements along with the summary of allegations. An employer’s conduct that departs from past investigatory practice, but which inures to an employee’s benefit, is not evidence of unlawful motivation. Additionally, there is no basis to conclude that charging party was prevented from responding to this summary of allegations. District’s failure to provide a full evidentiary hearing prior to the District’s decision to initiate dismissal proceedings against a permanent certificated employee, failure to provide prior notice that the board was going to vote over whether to issue a notice of intent to terminate charging party’s employment, and District’s refusal to permit employee to address a school district governing board prior to its vote over the intent to impose discipline, were not evidence of unlawful motivation. When District’s maintenance of employee site files and investigation files, separate from the official personnel file, is the District’s regular practice, and when charging party was afforded the opportunity to review these files, there is no indication of departure from past practice.