EMPLOYER DISCRIMINATION; DEFENSES – In General

Single Topic for Decision 2747M

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Because the record revealed dual motives, PERB must determine if the District met its burden to show it would have taken identical action, even absent protected activity. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 27; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 15-16.) This determination can involve weighing the evidence supporting the employer’s justification against the evidence of the employer’s unlawful motive, in order to determine what would more likely than not have occurred in the absence of protected activity. (San Diego Unified School District (2019) PERB Decision No. 2666, p. 7.) The Board found that Fire Chief was already contemplating the change to the composition of the City’s elite swiftwater rescue team for legitimate reasons that predated any protected activity. Accordingly, the Board found that the City established its affirmative defense—that it would have taken exactly the same action at the same time even absent any protected activity—by a preponderance of the evidence.