EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS – Timing of Action

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One important circumstantial factor when assessing the presence or absence of an unlawful motive is the relative timing of a charging party’s protected activities and a respondent’s adverse action. (Adelanto Elementary School District (2019) PERB Decision No. 2630, p. 13.) PERB has repeatedly noted that adverse action taken shortly after an employee’s protected activities tends to suggest more strongly that the two are linked, and this inference weakens as the gap in time grows. (Ibid.) However, irrespective of whether the timing evidence is strong or weak, timing alone is typically not determinative (ibid), and when assessing the relative strength of timing as a factor, there is no “‘bright line’ rule for determining how close in time the protected activity must be to the retaliatory conduct.” (Regents of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H, p. 12.) Thus, while a charging party typically needs more than just timing evidence to prevail, if the timing evidence is weak then a charging party will normally need to marshal a stronger array of other, non-timing evidence. PERB continues to reject any bright line finding that certain time lags are so remote that timing alone could defeat a retaliation claim, irrespective of the other evidence.