EMPLOYER DISCRIMINATION; DISCRIMINATION – In General; Elements of Prima Facie Case

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Except for cases involving alleged facial discrimination, PERB considers a charging party’s discrimination or retaliation claim under the framework set forth in Novato Unified School District (1982) PERB Decision No. 210 (Novato) and its progeny. Under the Novato framework, the charging party’s prima facie case requires each of the following four elements: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (Alameda Health System (2023) PERB Decision No. 2856-M, p. 27.) If the charging party establishes a prima facie case, but the evidence also reveals a non-discriminatory reason for the decision, the respondent may prove, as an affirmative defense, that it would have taken the exact same action even absent protected activity. (Ibid.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Ibid.) (pp. 17-18.)