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

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While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, we have identified the following factors as being the most common means of establishing a discriminatory motive through circumstantial evidence: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures and standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (See, e.g., City of Sacramento (2019) PERB Decision No. 2642-M, p. 21; San Joaquin Delta Community College District (1982) PERB Decision No. 261, pp. 5-9.)