EMPLOYER DISCRIMINATION; DEFENSES – In General

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For an employer to prove its affirmative defense, it must demonstrate it had both an alternative, non-discriminatory reason for taking the adverse action and that it, in fact, exercised its discretion to act because of this alternative, non-discriminatory reason, and not because of the employee’s protected activity. (Palo Verde Unified School District (2013) PERB Decision No. 2337, pp. 31-32 [an employer defending against a prima facie case of retaliation cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct].) (pp. 31-32.)