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

Single Topic for Decision 2453E

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Along with suspicious timing, facts establishing one or more of the following factors must also be present for a prima facie case: (1) the employer’s disparate treatment of the employee (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists or employees engaged in protected conduct; or (7) any other facts that might demonstrate the employer’s unlawful motive. Unlawful motive is the specific nexus required in the establishment of a prima facie case of retaliation. Direct proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus unlawful motive can be established by circumstantial evidence and inferred from the record as a whole. To assist with assessing circumstantial evidence of unlawful motive, PERB has developed a set of “nexus” factors. Although the timing of the employer’s action in close temporal proximity to the employee’s protected activity is an important factor, it does not, without more, demonstrate the necessary nexus between the employer’s action and the protected activity. Where the employer’s motive is the central issue, the fact finder must often rely heavily on circumstantial evidence and inferences. Only rarely will there be probative direct evidence of the employer's motivation. Lack of evidence regarding an independent investigation by the District prior to its taking adverse action against charging party suggests that the District’s justification was pretextual. The District has not described how it conducted a thorough investigation of charging party’s academic credentials in the two days between charging party’s November 4, 2012, e-mail and the District’s November 6, 2012 adverse action. In addition, the undated evidence that was first submitted to PERB by the District in its March 6, 2013, position statement is arguably “after the fact,” and therefore unconvincing justification for its November 6, 2012, adverse action. As such, it supports an inference of unlawful motive as an attempt to legitimize later its earlier decision to impose adverse action. We conclude, therefore, that charging party has sufficiently alleged that the District’s motive for placing him on involuntary, paid administrative leave, withdrawing its tentative offer of employment for Spring 2013 and foreclosing the possibility of future employment with the District, was charging party’s protected conduct and not the District’s concerns about charging party’s qualifications and or his alleged failure to document or disclose prior employment.