EMPLOYER DISCRIMINATION; ADVERSE ACTIONS – Warning Letters, Reprimands, Evaluations

Single Topic for Decision 2675E

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PERB uses an objective test to decide whether an employer’s action is adverse to an employee.
The question is “whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment.” [Citation.] Employer’s denial of employee’s request to be placed on a five-year evaluation cycle was not objectively adverse because no reasonable teacher would infer that such a decision reflected some deficiency in employee’s qualities as a teacher. Specifically, it was undisputed that employer never approved such requests unless and until he had the opportunity to evaluate the employee at least once. Since employer had no such opportunity with the employee, his decision was consistent with his practice. In light of the record evidence, employee’s request amounted to one for special treatment, i.e., employer would have to suspend his normal practice in order to place
her on a five-year evaluation cycle. Under these circumstances, the employer’s decision not to
create an exception but instead to follow its existing practice did not amount to an adverse
action. (pp. 8-9.)