EMPLOYER DISCRIMINATION; DEFENSES – In General

Single Topic for Decision 2666E

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The evaluation of evidence under the Novato Unified School District (1982) PERB Decision No. 210 framework, i.e., the interplay between the charging party’s burden to establish nexus and the respondent’s burden to prove an affirmative defense, “is less formulaic than it may appear.” (Internal citation omitted.) The essence of the Novato test is to determine whether the employer acted for a discriminatory reason. To make this determination, we weigh the evidence supporting the employer’s justification for the adverse action against the evidence of the employer’s unlawful motive. As a result, the outcome of a discrimination or retaliation case ultimately is determined by the weight of the evidence supporting each party’s position. As the ALJ correctly observed, the evidence that the District was motivated by charging party’s protected activities is “sparse,” while the evidence supporting the employer’s legitimate, non-discriminatory reasons for the adverse actions is substantial. The District thus convincingly demonstrated that charging party’s erratic and non-protected behavior would have led to the same consequences even had it not been intermixed with charging party’s limited protected activity. (pp. 5-8.)