EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS – Cursory Investigation

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504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.08000 – Cursory Investigation

Some cases have interpreted City of Santa Monica (2011) PERB Decision No. 2211-M, to stand for the proposition that the failure to interview an employee before taking adverse action is evidence of unlawful motive only if the employer routinely interviews employees under such circumstances. This is incorrect. “Departure from established practice” is a distinct indicium of unlawful motive. “Departure from established practice” and “cursory investigation/disproportionate punishment” are not necessarily interrelated. Thus, regardless of whether an employer routinely interviews employees before taking adverse action, failing to do so indicates unlawful motive where it reveals an employer’s disinterest in whether misconduct truly occurred. In City of Santa Monica, it was because the employer had a video recording of the misconduct that its failure to interview the employee did not show a cursory investigation. The fact that the employer did not have a practice of conducting interviews before releasing employees from probation defeated the claim that it departed from established practices. (p. 26, fn. 6.)