EMPLOYER DISCRIMINATION; DISCRIMINATION – In General; Elements of Prima Facie Case

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PERB generally analyzes allegations of employer reprisal and discrimination under two lines of cases, which can be distinguished primarily by the manner in which they permit the charging party to prove nexus. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 8.) Under Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 423-424 (Campbell), a charging party may establish “discrimination in its simplest form” via evidence of “employer conduct that is facially or inherently discriminatory, such that the employer’s unlawful motive can be inferred without specific evidence.” (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14.) In the absence of evidence sufficient to trigger the Campbell standard, we apply the Novato analysis of nexus factors. (Los Angeles County Superior Court, supra, at pp. 14-15, citing Novato Unified School District (1982) PERB Decision No. 210, pp. 5-6 (Novato).) The Novato factors have undoubtedly become the primary avenue for proving discrimination or retaliation allegations. Board relies on them where, as here, the employer’s conduct is not inherently discriminatory and neither party argued that the adverse action was discriminatory on its face under Campbell and its progeny. (County of Santa Clara, supra, PERB Decision No. 2629-M, pp. 8-9.)