EMPLOYER DISCRIMINATION; DEFENSES – Other

Single Topic for Decision 2928M

View all topics for Decision 2928M

Full Decision Text (click on the link to view): Full Text

If the employer takes adverse action based upon speech that has a mix of protected and unprotected parts, PERB must resolve whether the employer would have taken exactly the same action based solely on the unprotected portions of the speech. (Carpinteria Unified School District (2021) PERB Decision No. 2797, pp. 18-20.) The Board found that the facts here did not fall into that pattern, because SunLine did not introduce any of the videos that gave rise to the written warning, nor did it prove that any part of those videos were unprotected. Accordingly, there was no non-discriminatory reason for discipline. (San Diego Unified School District (2019) PERB Decision No. 2634, p. 13, fn. 7 [no need to separately assess affirmative defense if charging party has already disproven it in as part of prima facie case]; County of Riverside (2018) PERB Decision No. 2591-M, p. 18 [where all speech was protected, there was no basis for a mixed motive defense].) (p. 23.)