EMPLOYER DISCRIMINATION; DISCRIMINATION – Burden of Proof; Evidence

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Because employee established that unlawful animus substantially motivated his employer’s decision not to promote him, the burden shifts to employer to establish that it would have refused to promote employee even if he had not engaged in 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 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.) In doing so, PERB keeps in mind that even when an employer has a managerial, statutory, or contractual right to take an employment action, its decision to act cannot be based on an unlawful motive, intent, or purpose. (City of San Diego (2020) PERB Decision No. 2747-M, p. 29; County of Santa Clara (2019) PERB Decision No. 2629-M, p. 13; County of Lassen (2018) PERB Decision No. 2612-M, p. 6; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5.)