EMPLOYER DISCRIMINATION; DEFENSES – Misconduct

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When the charging party has proven that discrimination or retaliation contributed to the employer’s decision, but the employer asserts that one or more other nondiscriminatory reasons also exist, the burden shifts to the employer to establish as an affirmative defense that it would have taken the same action(s) even absent any protected activity. Simply presenting a legitimate reason for acting is not enough to meet the burden. The respondent “must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” To prevail on its affirmative defense, the employer must establish that it had a legitimate, nondiscriminatory reason for taking the adverse action and that the reason proffered was, in fact, the employer’s reason for taking the adverse action. To properly scrutinize an employer’s affirmative defense, we must look both at initiation of the disciplinary process and the discipline itself. Where an adverse action results from a process triggered at least in part by an unlawful motive, the affirmative defense fails if the process would not have been triggered absent the protected activity. Here, the record persuades us that supervisor’s decision to investigate Charging Parties was influenced by their protected activity. It is highly unlikely that a disciplinary investigation would have begun at all had supervisor used his customary practice and contacted Charging Parties to explain their unusual timecard punches. For instance, Charging Party would have explained that he thought he was supposed to punch in that way because he had logged out, in which case supervisor could have directed him to do it differently in the future and then could have deleted the punches. In this case, the disciplinary investigation supervisor triggered based on his unlawful motive was the sole cause of the full year audit. Thus, the University does not meet its burden as to any of the allegedly nondiscriminatory reasons for the adverse actions. (pp. 41-44.)