All notes for Subtopic 501.02000 – Burden of Proof; Evidence

DecisionDescriptionPERC Vol.PERC IndexDate
2635Ma * * * JUDICIAL APPEAL PENDING * * * City of Santa Monica
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
To establish a prima facie case of retaliation, the charging party has the burden to prove, by a preponderance of the evidence, that (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 has interpreted to mean that the protected activity was a substantial or motivating cause of the adverse action. If the charging party meets its burden to establish each of these factors, certain fact patterns nonetheless allow a respondent the opportunity to prove, by a preponderance of the evidence, that it would have taken the same action even absent protected activity. This affirmative defense is most typically available when, even though the charging party has established that protected activity was a substantial or motivating cause of the adverse action, the evidence also reveals a non-discriminatory motivation for the same decision. In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred ‘but for’ the protected activity. (NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 395-402; McPherson v. PERB (1987) 189 Cal.App.3d 293, 304; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 12-13; Omnitrans (2010) PERB Decision No. 2121-M, pp. 9-10; Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 22; Palo Verde Unified School District (1988) PERB Decision No. 689, pp. 7-8; Novato Unified School District (1982) PERB Decision No. 210, pp. 56; Wright Line (1980) 251 NLRB 1083, 1086-1089.) more or view all topics or full text.
01/22/20
2634E San Diego Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
While a respondent is free to assert the “but for” affirmative defense in any case in which it claims it took adverse action for a reason other than protected activity, it is often appropriate to separately analyze the affirmative defense when the evidence reveals mixed motives. Ultimately, however, the interplay between the charging party’s burden to establish nexus and the respondent’s burden to prove an affirmative defense is less formulaic than it may appear from the Board’s usual articulation of the Novato Unified School District (1982) PERB Decision No. 210, standards. In some cases, there is no need to separately assess the employer’s affirmative defense, if the charging party has already disproven the defense in the course of establishing nexus. more or view all topics or full text.
4315603/22/19
2634E San Diego Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
When it appears that the employer’s adverse action was motivated by both lawful and unlawful reasons, “the question becomes whether the [adverse action] would not have occurred ‘but for’ the protected activity.” (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730 (Martori Bros.); Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 22. Thus, in a “mixed motive” case in which the charging party has proven that discrimination or retaliation contributed to the employer’s decision, but the employer asserts that one or more other nondiscriminatory reasons also exist, the burden shifts to the employer to establish as an affirmative defense that it would have taken the same action(s) even absent any protected activity. (NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 395-402; Martori Bros., supra, 29 Cal.3d at pp. 729-730; Wright Line (1980) 251 NLRB 1083, 1089.) The employer must establish the “but for” affirmative defense by a preponderance of the evidence. (McPherson v. PERB (1987) 189 Cal.App.3d 293, 304.) more or view all topics or full text.
4315603/22/19
2632M * * * JUDICIAL APPEAL PENDING * * * Contra Costa County Fire Protection District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
District’s high-ranking labor relations officials repeatedly and expressly relied on the distinction between represented and unrepresented employees as the basis for determining eligibility for employment benefits. These statements provide direct evidence of motive and, indeed, of facially or inherently discriminatory conduct sufficient to support a discrimination allegation. more or view all topics or full text.
4315003/07/19
2654E * * * JUDICIAL APPEAL PENDING * * * Claremont Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Once a charging party establishes a prima facie case of discrimination or retaliation, the respondent must prove, by a preponderance of the evidence, that it would have taken the same adverse action even if the employee had not engaged in the protected activity. The employer must establish both that it had an alternative, non-discriminatory reason for taking the adverse action, and that its proffered reason was, in fact, the actual reason for taking the adverse action. (p. 16.) more or view all topics or full text.
07/10/19
2654E * * * JUDICIAL APPEAL PENDING * * * Claremont Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
The outcome of a discrimination or retaliation case is determined by the weight of the evidence supporting each party’s position. (p. 17.) Once the charging party establishes its prima facie case, PERB weighs the evidence supporting the employer’s alternative, non-discriminatory reason justification for the adverse action against the evidence of the employer’s unlawful motivation. (pp. 16-17.) more or view all topics or full text.
07/10/19
2654E * * * JUDICIAL APPEAL PENDING * * * Claremont Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
The fact that an employer takes adverse action in response to protected activity does not then preclude it from proving that it was motivated by other non-discriminatory reasons and would have taken the same action even absent the protected conduct. (p. 17.) more or view all topics or full text.
07/10/19
2611M County of Orange
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
PERB does not determine whether the employer had cause to discipline the employee; rather, it will examine the entire record to determine whether the employer’s proffered reason was honestly invoked and, in fact, was the cause of its adverse action. (p. 19.) When an employer cites accusations or complaints that it did not believe in good faith to be true as evidence of an alternative, non-discriminatory reason, PERB will find such justifications pretext for retaliation. (Ibid.) Because the employer appeared to rely on an insufficient investigation when it accepted a witness’ complaint at face value despite the witness’ subsequent complaint contradicting the first, its proffered justification failed to establish that the first complaint was, in fact, the reason for taking adverse action. (pp. 19-20.) more or view all topics or full text.
4310112/19/18
2611M County of Orange
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
An employer’s defense that the challenged action would have occurred in the absence of the employee’s protected activity must be proven by sufficient independent, non-hearsay evidence. (p. 20.) The employer could not rely on a hearsay complaint for its defense where it failed to present non-hearsay evidence showing that the events used to justify the written reprimand actually occurred. (pp. 20-21.) more or view all topics or full text.
4310112/19/18
2586E Chula Vista Elementary School District (Yvellez)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Where an employer’s words or actions reveal that the employer took adverse action against an employee in response to his or her protected activity, such conduct serves as direct evidence of an unlawful motive connecting the protected activity and adverse action. more or view all topics or full text.
436009/28/18
2629M County of Santa Clara (Reese)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
The charging party has the initial burden of demonstrating the “because of” element, that is, a causal connection or “nexus” between the adverse action and the protected conduct. (MMBA, § 3506.5; PERB Regulation 32603, subd. (a); Novato Unified School District (1982) PERB Decision No. 210, pp. 5-6.) Because “retaliatory conduct is inherently volitional in nature,” where it is alleged that the employer has acted in reprisal against employees for participation in protected activity, evidence of unlawful motive is the specific nexus required to establish a prima facie case. (Id. at p. 6.) (p. 8.) more or view all topics or full text.
4314502/27/19
2629M County of Santa Clara (Reese)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Under Novato, a charging party may prove unlawful motive, intent, or purpose through direct or circumstantial evidence, including evidence which tends to show that an employer’s proffered justification for its action was not its true motive or purpose. (Novato, supra, PERB Decision No. 210, p. 6.) Circumstantial evidence, including evidence under one or more of the nexus factors borrowed from Wright Line and other private-sector authority, can be equally as probative as direct evidence. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 20, fn. 13.) “[D]irect proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus . . . unlawful motive can be established by circumstantial evidence and inferred from the record as a whole.” (Novato Unified School District (1982) PERB Decision No. 210, p. 6.) (p. 9) more or view all topics or full text.
4314502/27/19
2629M County of Santa Clara (Reese)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Board rejects the employer’s argument that the ALJ was required to hold employee to a higher standard of proof in establishing a prima facie discrimination or retaliation case because employee (a medical doctor) was an at-will employee. See Los Angeles Unified School District (2016) PERB Decision No. 2479 (Los Angeles), where Board held that the elements of a prima facie case under Novato remain the same “regardless of the employee’s at-will or similar status or the procedural protections to which the employee may or may not be entitled to in a different forum,” and that “once the employee establishes a prima facie case, the employer’s Novato defensive legal burden attaches, regardless of the status of the employee.” (Id. at p. 14.) (p. 12.) more or view all topics or full text.
4314502/27/19
2629M County of Santa Clara (Reese)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
In Los Angeles Unified School District (2016) PERB Decision No. 2479, PERB disavowed the suggestion in County of Santa Clara that, with respect to a probationary employee, “[a]n employee alleging discrimination who is subject to dismissal without cause bears a heavier burden in overcoming the employer’s case for non-discriminatory motive.” (Los Angeles, supra, PERB Decision No. 2479, p. 14, quoting County of Santa Clara (2012) PERB Decision No. 2267-M, adopting ALJ proposed decision, at p. 21.) (p. 12) more or view all topics or full text.
4314502/27/19
2624S State of California (Department of Social Services (Service Employees International Union Local 1000)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Once the charging party establishes a prima facie case of retaliation, the burden shifts to the employer to prove it would have taken the same adverse action even if the employee had not engaged in protected activity. To prevail, the employer must show that it had an alternative non-discriminatory reason for imposing the adverse action and that it acted because of this alternative non-discriminatory reason, not because of the employee’s protected activity. more or view all topics or full text.
4312802/05/19
2591M County of Riverside
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
To lose statutory protection, an employee’s speech must be maliciously untrue. Any party alleging that another party acted with “actual malice” must satisfy a heightened standard of proof by coming forward with “clear and convincing” evidence. Assertions largely based on opinion unlikely to lose protection under actual malice standard. more or view all topics or full text.
436610/23/18
2603M City of Yuba City
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
If an employer has engaged in conduct that is facially or inherently discriminatory, i.e., discrimination in its simplest form, the employer’s unlawful motive can be inferred without specific evidence. The employer bears the burden of justifying such conduct by coming forward with a legitimate business justification. On the other hand, if the employer’s conduct is not facially or inherently discriminatory, the charging party must prove the employer’s unlawful motive under Novato Unified School District (1982) PERB Decision No. 210. more or view all topics or full text.
439012/12/18
2567E Hartnell Community College District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
The Board denied Charging Party’s exception which asserted that the ALJ had improperly failed to consider evidence that the employer’s decisionmaker had received biased, inaccurate or incomplete information from a subordinate, which influenced the decision to take adverse action against Charging Party. The exception included no citation to the record and did not identify any specific evidence that was neglected. ERB Regulation 32300 requires the party filing exceptions to: (1) state the specific issues of procedure, fact, law or rationale to which each exception is taken; (2) identify the page or part of the decision to which each exception is taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each exception. (PERB Reg. 32300.) more or view all topics or full text.
43206/12/18
2453E Cabrillo Community College District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Unlawful motive is the specific nexus required in the establishment of a prima facie case of retaliation. Direct proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus unlawful motive can be established by circumstantial evidence and inferred from the record as a whole. Where the employer’s motive is the central issue, the fact finder must often rely heavily on circumstantial evidence and inferences. Only rarely will there be probative direct evidence of the employer's motivation. An illegal purpose harbored by a discriminating employer may be inferred from the circumstances surrounding the adverse action. These may include anti-union animus exhibited by the employer or its agents; the pretextual nature of the ostensible justification; or other failure to establish a business justification. In such cases, the Board is free to draw inferences from all the circumstances, and need not accept an employer’s self-serving declarations of intent, even if they are uncontradicted. If the charging party establishes a prima facie case, the burden shifts to the employer to prove by a preponderance of the evidence that it would have taken the same course of action, regardless of any protected activity. more or view all topics or full text.
405709/17/15
2337E Palo Verde Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Where the employer’s motive is the central issue, the fact finder must often rely heavily on circumstantial evidence and inferences. Only rarely will there be probative direct evidence of the employer’s motivation. An illegal purpose harbored by a discriminating employer may be inferred from the circumstances surrounding the discipline or discharge. These may include anti-union animus exhibited by the employer or its agents; the pretextual nature of the ostensible justification; or other failure to establish a business justification. In such cases, the Board is free to draw inferences from all the circumstances, and need not accept an employer’s self-serving declarations of intent, even if they are uncontradicted. Circumstantial evidence and inferences drawn from the record as a whole are sufficient to establish the employer knowledge element of a discrimination or retaliation violation. The NLRB relies on circumstantial evidence and inferences drawn from the record as a whole to establish employer knowledge of an employee’s protected activity and also will infer employer knowledge of employee protected activity from the small size of the employer’s plant or other facility. more or view all topics or full text.
386910/29/13
2221E Chula Vista Elementary School District * * * OVERRULED IN PART by Bellflower Unified School District (2017) PERB Order No. Ad-447
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Unlawful motive may be proven either by direct or circumstantial evidence. more or view all topics or full text.
368811/23/11
2302H Regents of the University of California
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
In assessing the evidence presented in a retaliation case, PERB’s task is to determine whether the employer’s true motivation for taking the adverse action was the employee’s protected activity. PERB weighs the employer’s justifications for the adverse action against the evidence of the employer’s retaliatory motive. Once PERB determines that the employer did not take action for an unlawful reason, its inquiry is at an end; PERB has no authority to determine whether adverse action not motivated by protected activity was just or proper. PERB does not determine whether the employer had just cause to take adverse action, nor whether it was correct in its determination that the employee engaged in misconduct. Although there was direct evidence that the employer was motivated in part by employee’s protected activity in deciding to take adverse action, employer established that it would have taken the same action even if employee had not engaged in the protected activity. The evidence further failed to establish that the employer’s true motivation in deciding to suspend and terminate employee was based upon his protected activity rather than on its expressed concerns over his behavior in the workplace. more or view all topics or full text.
12/21/12
2061E Oakland Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Charging party bears the burden at the formal hearing of proving by a preponderance of the evidence the elements of a prima facie case of discrimination. more or view all topics or full text.
3315309/10/09
2019E Escondido Union Elementary School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Where an employer’s adverse action was motivated by both valid and invalid reasons, the employer failed to meet burden of proof that it would have issued memo and disciplined employee for alleged performance deficiencies notwithstanding filing of unfair practice charge. Criticisms justifying discipline were hearsay and, without independent evidence supporting them, cannot suffice to meet employer’s burden of proof. An employer need not justify each and every criticism in a disciplinary memo to satisfy the burden of proof, but there must be sufficient independent evidence for Board to conclude that the disciplinary action based on hearsay criticisms would have occurred notwithstanding the employee’s protected activity. Burden of proof is on union to demonstrate unlawful motivation for adverse action. Union failed to establish that criticisms contained in a written reprimand concerning his comments at a staff meeting concerning his PERB charge and other matters and for moving a co-worker’s tools were exaggerated or embellished. Absent evidence casting suspicion on the employer, reliance on direct supervisors’ reports for disciplinary actions is not evidence of unlawful motivation. Burden of proof is on charging party to demonstrate knowledge of protected activity. Knowledge was established by the fact that one of the persons responsible for imposing discipline after an employee filed a charge with PERB filed a notice of appearance with PERB and participated in the preparation of disciplinary memoranda. more or view all topics or full text.
337404/30/09
1945E Journey Charter School * * * VACATED by Journey Charter School (2009) PERB Decision No. 1945a
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Contents of a letter to parents did not directly address any issues relating to the teachers’ interests as employees. The teachers did not state how their complaints impacted their working conditions, or how their concerns would advance their interests as employees. Without such evidence, the Board found distribution of the letter was not protected activity. The evidence fails to show how a letter was specifically and directly related to work conditions, treatment of teachers as employees, job cancellation or labor relations problems. As the letter did not state matters of legitimate concern to the employees as employees, the teachers did not engage in activity protected by EERA when they distributed the letter. The Board found there was insufficient evidence to support an inference that a charter school was unlawfully motivated to discriminate against three teachers because of their participation in protected union organization activities. There was insufficient evidence to show a charter school was unlawfully motivated to discriminate against three teachers because of their expressed intent to form and join a union. Accordingly, the Board concluded the Association did not sustain its burden of proof that the charter school discriminated or retaliated against three teachers for their participation in protected activity. more or view all topics or full text.
324502/28/08
1356E Sacramento City Unified School District (Vellanoweth)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Information provided by charging party in the amended charge failed to perfect the deficiencies of the charge and the charge was dismissed; p. 2, dismissal letter. more or view all topics or full text.
233017810/07/99

501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Charging party has burden of showing that the protected conduct was a motivating factor in employer's decision. Burden then shifts to employer to establish an affirmative defense, such that despite antiunion motivation, the employment decision would have been taken anyway, for other legitimate business reasons. In mixed-motive situation, the test of employer conduct is a "but for" test, that is, whether the discharge or other violation would have occurred regardless of the improper antiunion motivation. This defense must be established by a preponderance of the evidence; pp. 1129-1130. more or view all topics or full text.
1325E Los Angeles Community College District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Charge must allege facts from which Board agent may infer improper motive for District's actions - mere assertions are insufficient; p. 3, warning letter. Allegations that a newspaper article and a failure to follow proper evaluation procedures supported a finding of nexus are not credit because facts do not support the allegations. more or view all topics or full text.
233009604/13/99
1299S State of California (Department of Industrial Relations)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Board review of evidence in this case led to the same conclusion as the State Personnel Board (SPB) which had found substantial evidence supporting the probationary rejection and concluded that the employee had been rejected primarily because he had failed to follow the instructions of his supervisor; both SPB and PERB determined that rejection of probaiton was justified; p. 14. Participation in protected activity does not insulate or immunize an employee against decisions made by the employer, including adverse employment actions, city Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721; pp. 11-12. more or view all topics or full text.
233001211/02/98
1298E Mountain Empire Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
In order to demonstrate business necessity, the employer must show that it would have made the decision to transfer the employee in spite of his protected activity; demonstrating the reasonableness of its attempts to mitigate the effects of the adverse action is insufficient; p. 4. more or view all topics or full text.
233001110/30/98
1255H Regents of the University of California (California Nurses Association)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Board rejects respondent's assertion that it would have taken adverse action in absence of employee's protected activity where respondent failed to present evidence demonstrating its rationale for discipline except for the disciplinary memorandum, itself, which was unsupported hearsay; pp. 50-51, proposed dec. more or view all topics or full text.
222906603/20/98
1246E Oakdale Union Elementary School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Where employer takes adverse action in direct response to employee's protected activity, Board finds nexus without resort to circumstantial indicia of unlawful motivation; p. 19. Failure to complete a thorough investigation coupled with timing of letter of reprimand is sufficient to support an inference of unlawful motivation where District fails to demonstrate that it would have taken adverse action despite protected activity; p. 17, note 6. more or view all topics or full text.
222904701/28/98
0962S State of California, Department of Youth Authority
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
The party alleging discrimination must make a prima facie showing of unlawful motivation by demonstrating a nexus between the protected activity and the adverse action; p. 12. more or view all topics or full text.
172401912/04/92
0965E Livingston Union School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Once probationary teachers set forth prima facie case for discrimination, burden shifts to District to show nondiscriminatory reason for nonreelection; p. 3; pp. 34-47, proposed dec. more or view all topics or full text.
172402212/10/92
0875E Los Rios Community College District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
No violation of section 3543.5(a) where District excluded certain part-time teachers from eligibility for a 20-year longevity, four percent salary bonus step in current collective bargaining agreement; p. 6. Board dismissed unfair practice charges where even assuming charging parties engaged in protected activity, there were no factual allegations that District had knowledge of protected activity or that District took its actions as a result of such activity; p. 14. Board dismissed unfair practice charges where charging parties failed to present any facts which would establish that they engaged in protected activity; pp. 13-14. more or view all topics or full text.
152208105/14/91
0869H California State University, Hayward (Dees)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
In applying the "but for" test in discrimination cases, trier of fact is required to weigh both direct and circumstantial evidence in order to determine whether an action would not have been taken against an employee "but for" the exercise of protected rights; p. 21, proposed dec. After charging party has proven prima facie case, to avoid finding of discrimination, employer must show that it would have taken adverse action against employee even if that employee had not engaged in protected activity; pp. 20-21, proposed dec. CSU met its burden of showing that employee would have been terminated in absence of protected activity where CSU showed that it was employee's insistence on certain working conditions and his mental health and not his protected activities which caused his termination; pp. 24-28, proposed dec. health and not his protected activities which caused his termination; pp. 24-28, proposed dec. more or view all topics or full text.
152205102/25/91
0864E Newark Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
In applying the "but for" test in discrimination cases, trier of fact is required to weigh both direct and circumstantial evidence in order to determine whether an action would not have been taken against an employee "but for" the exercise of protected rights; p. 27, proposed dec. more or view all topics or full text.
152202301/14/91
0845H California State University, Fresno
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Rejected from probation six days after testimony at a PERB formal hearing, inconsistencies in employer's actions, departure from established procedures, and inadequacies of the investigation of employee's performance support finding of a prima facie case of discrimination; p. 14. No operational justification where employer relied on prior employment history and failed to present credible evidence; pp. 15-16, 18. more or view all topics or full text.
142119310/04/90
0805H Trustees of the California State University (Statewide University Police Association)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
While employer may have had a legitimate operational purpose in taking disciplinary action against employee, employer's failure to present credible evidence resulted in Board finding violation; p. 29. more or view all topics or full text.
142109004/17/90
0786E McFarland Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Once probationary teacher sets forth prima facie case for discrimination, burden shifts to district to show nondiscriminatory reason for nonreelection, even though Ed. Code does not require district to show cause for decision; pp. 9-10. (Affirmed, McFarland USD v. PERB/McFarland Teachers Association (1991) 228 Cal.App.3d 166, review denied.) more or view all topics or full text.
142103401/03/90
0615H Regents of the University of California (Yeary)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Party alleging unlawful discrimination has the burden of making a showing to support the inference that protected conduct was a motivating factor in the employer's decision to take adverse personnel action. Nexus may be established by circumstantial evidence. (Good discussion of nexus); pp. 16-17. more or view all topics or full text.
111806003/03/87
0593E Inglewood Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Failure to show nexus between alleged improper conduct and protected activity where other employees similarly treated. more or view all topics or full text.
101717510/15/86
0573E San Francisco Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Failure to show nexus between protective activity and adverse action warrants granting motion to dismiss. more or view all topics or full text.
101710505/23/86
0562Ea Riverside Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Dismissal proper where charging party admits no evidence exists to support charge. more or view all topics or full text.
101710305/16/86
0559H California State University (San Francisco)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Burden does not shift if charging party fails to establish prima facie case. more or view all topics or full text.
101704301/03/86
1953M Carmichael Recreation and Park District * * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Charging Party failed to prove that a park district discriminated against two employees because of their protected activity where the only factor raising an inference of unlawful animus is timing. more or view all topics or full text.
326904/17/08
0534H Regents of the University of California (Berkeley)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Union fails to meet its burden of proof where union and employees rights are not significantly infringed upon and balance tips in favor of employer. more or view all topics or full text.
91623911/04/85
0535S State of California (Department of the Youth Authority) (Calcote)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Charging party fails to present facts giving rise to inference of unlawful motive where decision to transfer was made without knowledge of union election. more or view all topics or full text.
91624011/04/85
0500E Santa Clara Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
ALJ properly applied standards as enunciated in Novato No. 210, including allocation of burden of proof. more or view all topics or full text.
91611604/11/85
0492E Sacramento City Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Burden does not shift to employer to demonstrate lawful reasons for adverse action if changing party fails to establish prima facie case. more or view all topics or full text.
91609403/06/85
0432S State of California (Department of the Youth Authority)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Establishing that employer failed to make diligent effort to locate missing employee does not sustain burden of proof that employer was unlawfully motivated in terminating employee. The degree of employer's diligence irrelevant. more or view all topics or full text.
81521711/15/84
0378S State of California (Department of Developmental Services, Napa State Hospital) (Matta)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
A party alleging violation of section 3519(a) has the burden of making a showing sufficient to support the inference that the protected conduct was a motivating factor in employer's decision to engage in the action about which the employee complains; p. 22, proposed dec. more or view all topics or full text.
81503902/15/84
0368E San Diego Community College District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
The employer failed to rebut the inference of unlawful motive raised by the union's presentation of circumstantial evidence; p. 15, 25. more or view all topics or full text.
81500912/22/83
0346H Regents of the University of California
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Employee failed to show nexus between failure to be reclassified or to be interviewed for two positions and protected activities. more or view all topics or full text.
71425609/22/83
0226E Rio Hondo Community College District (Davis)
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Once Charging Party establishes facts from which the Board can infer that his/her protected conduct was a motivating factor in the employer's decision to take an adverse action, burden then shifts to the employer to prove its action would have been the same notwithstanding Charging Party's protected activity; p. 4. more or view all topics or full text.
61316707/19/82
0217E Konocti Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Anti-union animus on part of a superintendent not automatically imputed to District, where suspension of employees was result of independent disciplinary hearing not participated in by superintendent and where governing board rejected superintendents' recommendations to dismiss employee; pp. 10-11. more or view all topics or full text.
61315206/29/82
0210E Novato Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Once charging party has made a prima facie showing that exercise of rights granted by EERA was a motivating factor in employer's decision to transfer, the burden shifts to the employer to prove that its action(s) would have been the same despite the protected activity. The shifting of burdens does not undermine or conflict with the requirement of Board rule 32178 that charging party must establish an unfair labor practice by a preponderance of the evidence. The shifting burden merely requires the employer to make what is actually an affirmative defense to the prima facie case of wrongful motive. Such a requirement does not shift the ultimate burden; p. 14. Direct proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus, unlawful motive can be established by circumstantial evidence and inferred from a state of mind which may be known only to the actor. Thus, unlawful motive can be established by circumstantial evidence and inferred from and unlawful motives, the Board must determine whether the employer would have taken its action had the employee not engaged in protected activity; p. 16. more or view all topics or full text.
61311404/30/82
0145E Marin Community College District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
The illegal purpose harbored by the discriminating employer may be inferred from the circumstances surrounding the discipline or discharge. These may include anti-union animus exhibited by the employer or its agents; the pretextural nature of the osentible justification for the employer's action; or other failure to establish a business justification. more or view all topics or full text.
41119811/19/80
0936E Lindsay Unified School District
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
No prima facie case because no evidence of nexus. more or view all topics or full text.
162308305/22/92
0065E Santa Clara County Superintendent of Schools
501.2000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Charging party must prove by preponderance of the evidence that the respondent intended to discriminate or impose reprisals, or that such was the natural and probable consequence of the respondent's actions: unlawful intent may be proved by circumstantial evidence; p. 17, proposed dec. more or view all topics or full text.
2217108/16/78