EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS – Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord

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Union’s allegations regarding the employer’s unusual, discriminatory, or otherwise suspicious conduct surrounding job reclassification constituted an adequate factual basis to state a prima facie case that the employer may have been substantially motivated by unlawful animus in its later adverse actions against employee. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17 [earlier events are relevant in assessing a respondent’s motive]; County of Santa Clara (2019) PERB Decision No. 2629-M, adopting proposed decision at p. 30 [“Context is always relevant in determining motive.”].) (pp. 26-27.) Although employer’s issuance of a performance improvement plan and related written warning and letter of instruction occurred more than six months prior to the amended charge, those actions likely bear on the ultimate determination of employer motive. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17.) However, PERB did not consider whether the complaint should allege those earlier adverse actions to constitute MMBA violations, because they appeared to have occurred outside the six-month statute of limitations. (p. 20, fn. 4.)