All notes for Subtopic 504.14000 – Other/In General
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2865E | Mt. San Jacinto Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General The Board found it relevant to nexus that the District removed two employees from their department chair positions, without notice, warning, or progressive discipline, for a single alleged act of insubordination and despite significant mitigating circumstances. (p. 31.) more or view all topics or full text. | 48 | 15 | 06/28/23 |
| 2865E | Mt. San Jacinto Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, we have identified the following factors as being the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures or standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 21.) (pp. 26-27.) more or view all topics or full text. | 48 | 15 | 06/28/23 |
| 2855E | The Accelerated Schools 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General PERB considers all facts and circumstances relevant to motivation. The following factors are the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures or standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 21.) Timing of protected activity in relation to an adverse action is not typically sufficient, by itself, to prove discrimination. (City of Santa Monica (2020) PERB Decision No. 2635a-M, pp. 45-46.) (p. 11.) more or view all topics or full text. | 47 | 139 | 03/17/23 |
| 2761M | County of San Joaquin 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General An employer’s conduct around notice or bargaining can evidence discrimination. (See, e.g., City and County of San Francisco (2020) PERB Decision No. 2712- M, p. 26 [allegation that employer refused to respond to bargaining request in a timely and adequate manner suggested discriminatory motive behind related employer conduct]; County of Orange (2018) PERB Decision No. 2611-M, p. 17 [unilateral change evidenced discriminatory animus].) Context is critical in determining whether particular conduct is persuasive proof of discrimination or an independent interference allegation. Where bargaining conduct evidences discrimination, PERB considers it irrespective of whether it was ever alleged or litigated in an unfair practice charge and irrespective of whether it falls within the statute of limitations. (City of Oakland (2014) PERB Decision No. 2387-M, pp. 35-36.) more or view all topics or full text. | 45 | 92 | 04/12/21 |
| 2610H | Regents of the University of California (Berkeley) (University Council-American Federation of Teachers) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General If the effect of the employer’s conduct on protected rights is comparatively slight, the balancing analysis focuses on whether that conduct was “reasonably adapted” to achieve the legitimate business purposes asserted. (NLRB v. Brown (1965) 380 U.S. 278, 288.) In such cases, the question of the employer’s motive is still very much at issue. In “comparatively slight” cases, if the employer comes forward with evidence that it acted for a legitimate and substantial purpose, the charging party must produce evidence of unlawful motive to sustain the charge. However, because we find the University’s conduct was inherently destructive of protected rights, no further proof of anti-union motive is necessary. Under Carlsbad Unified School District (1979) PERB Decision No. 89, an employer’s inherently destructive conduct “will be excused only on proof that it was occasioned by circumstances beyond the employer’s control and that no alternative course of action was available.” (Id. at pp. 10-11.) Private-sector authorities decided both before and after Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 articulate a slightly different standard, whereby the Board must balance the employer’s asserted business interest against the severity of the harm to protected rights. If the employer’s asserted business justification outweighs the harm to protected rights, there is no liability. However, if the asserted justification is insufficient to outweigh the harm to protected rights, the employer will be held liable for an unfair labor practice. Under this balancing analysis, the Board may find an unfair labor practice, even if the employer produces evidence that it acted for a legitimate business purpose. In the present circumstances, we find it unnecessary to reconcile the divergent tests under Carlsbad and the private-sector authorities from which Campbell draws its inspiration. Both lines of cases derive from NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26 and, under either analysis, the University has failed to justify its inherently destructive conduct. Program Director’s animus toward UC-AFT, which both prompted and infected University decisionmaker’s decision, was not a circumstance beyond the University’s control. Even under the apparently more lenient private-sector standard, the resulting harm outweighed the University’s asserted business justification. The permanent separation of the employees from their employment through layoffs, and their wholesale replacement with other, nonunionized employees, coupled with the destruction of the collective bargaining relationship itself resulting from subcontracting Young Musician’s Program, outweighs any legitimate business purpose asserted by the University in this case. (pp. 90-93.) more or view all topics or full text. | 43 | 100 | 12/19/18 |
| 2610H | Regents of the University of California (Berkeley) (University Council-American Federation of Teachers) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Board found direct evidence of nexus in the form of Program Director’s well-documented disdain for UC-AFT and Program Instructors’ protected activity, in addition to suspicious timing and other circumstantial evidence of unlawful motive. Regardless of University decisionmaker’s stated motives, it was clear that his decision-making process was tainted by Program Director’s hostility to the University’s collective bargaining obligations in general and to UC-AFT in particular. Under the subordinate bias liability theory, unlawful motive of a supervisor, manager or other lower-level official may be imputed to the decision-maker responsible for authorizing an adverse action, when the lower-level official recommended taking adverse action, the recommendation was motivated by protected activity, and the recommendation was a motivating factor or proximate cause of the decision to take adverse action. Even where the decision-maker’s action was entirely free of animus, the employer will nonetheless be held liable, if the decision was influenced by the unlawful animus of the lower-level official. Thus, to the extent Program Director’s demonstrably anti-union views were a contributing factor in the University’s decision to close and subcontract the Young Musician’s Program, there is direct evidence of nexus or inherently discriminatory conduct. (p. 84.) more or view all topics or full text. | 43 | 100 | 12/19/18 |
| 2610H | Regents of the University of California (Berkeley) (University Council-American Federation of Teachers) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Conduct which “directly and unambiguously penalizes or deters protected activity” may appear in a simultaneous form, as where an employer is alleged to have offered, provided or maintained differential pay, benefits, hours, or working conditions between different groups of employees on the basis of union or other protected activity. Facially discriminatory conduct may also be sequential or non-contemporaneous, as when an employer changes policy in response to protected activity. For sequential discrimination, the relevant baseline for comparison is not different treatment between groups of employees, but between the employer’s policies before and after the exercise of protected rights. Here, the allegation is that the University laid off all Young Musician’s Program Instructors in response to the protected activity of some Program employees and their representative in asserting their collectively-bargained rights and prosecuting the Churning Grievance. This allegation is more aptly characterized as one involving sequential discrimination or reprisal for protected activity, rather than simultaneous discrimination against Program Instructors vis-à-vis other, University employees about whom no evidence was presented. (pp. 81-82.) more or view all topics or full text. | 43 | 100 | 12/19/18 |
| 2610H | Regents of the University of California (Berkeley) (University Council-American Federation of Teachers) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General In those relatively rare cases involving direct evidence of unlawful motive, it is unnecessary to resort to Novato’s analysis of nexus factors to evaluate circumstantial evidence of unlawful motive. (Novato Unified School District (1982) PERB Decision No. 210.) While reliance on circumstantial evidence of motive has undoubtedly become the primary avenue for proving discrimination or retaliation allegations, Novato itself indicates that circumstantial evidence is only necessary if there is no direct evidence of unlawful motive, as there was in Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416. (p. 77.) more or view all topics or full text. | 43 | 100 | 12/19/18 |
| 2731M | City of Culver City 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General An employer asserting a contractual waiver cannot do so for a retaliatory motive. In such an instance, an employer’s discriminatory application of contractual language may itself give rise to a discrimination claim, and our assessment of an employer’s motivation may include whether the employer, by its assertion of contractual waiver to justify its conduct, engaged in disparate treatment or departed from established procedures or standards. (p. 20.) more or view all topics or full text. | 45 | 6 | 06/10/20 |
| 2747M | City of San Diego 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General To resolve a union’s retaliation claim, the Board must consider the employer’s motivations. In doing so, the Board 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. (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.) more or view all topics or full text. | 45 | 45 | 10/06/20 |
| 2704H | Regents of the University of California 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General PERB’s analytic framework for discrimination allegations differs from that applied by an arbitrator making a just cause determination, though the facts evidencing intent may also be relevant in a just cause determination. (p. 15, fn. 1.) more or view all topics or full text. | 44 | 158 | 04/14/20 |
| 2671E | Lake Elsinore Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General While the timing of the employer’s adverse action in close temporal proximity to the employee’s protected conduct is an important factor it does not, without more, demonstrate the necessary connection or “nexus” between the adverse action and the protected conduct. Facts establishing one or more of the following additional factors must also be present: (1) the employer’s disparate treatment of the employee; (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists; or (7) any other facts that might demonstrate the employer’s unlawful motive. (Adopting proposed decision at p. 24.) more or view all topics or full text. | 44 | 72 | 09/27/19 |
| 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General An employer asserting a contractual waiver cannot do so for a retaliatory motive. In such an instance, an employer’s discriminatory application of contractual language may itself give rise to a discrimination claim, and our assessment of an employer’s motivation may include whether the employer, by its assertion of contractual waiver to justify its conduct, engaged in disparate treatment or departed from established procedures or standards. (p. 20.) more or view all topics or full text. | ||||
| 2692M | City of South Pasadena * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * *Because PERB assesses all facts and circumstances relevant to an employer’s motivation, the Board may also consider, as part of the overall set of facts, whether the employer’s departure from the law or its own Skelly practices contribute to evidence of unlawful motivation. Although the Board expressed no opinion and made no finding as to whether the employer violated constitutionally-mandated pre-deprivation safeguards required under Skelly, as the issue was not before it, the Board noted the following facts: manager initiated the underlying investigation into employee, was substantially involved in determining which witnesses the investigator should interview, issued the Intent of Notice to Terminate, served as the Skelly officer without any other manager reviewing the matter at the pre-deprivation stage, and ultimately issued the Notice of Termination. (pp. 14-15.) more or view all topics or full text. | 44 | 131 | 01/30/20 |
| 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General An employer asserting a contractual waiver cannot do so for a retaliatory motive. In such an instance, an employer’s discriminatory application of contractual language may itself give rise to a discrimination claim, and our assessment of an employer’s motivation may include whether the employer, by its assertion of contractual waiver to justify its conduct, engaged in disparate treatment or departed from established procedures or standards. (p. 20.) more or view all topics or full text. | ||||
| 2712M | City and County of San Francisco 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, it has identified the following factors as being the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures or standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (p. 21.) more or view all topics or full text. | 44 | 173 | 05/06/20 |
| 2635Ma | City of Santa Monica 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, we have identified the following factors as being the most common means of establishing a discriminatory motive through circumstantial evidence: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures and standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (See, e.g., City of Sacramento (2019) PERB Decision No. 2642-M, p. 21; San Joaquin Delta Community College District (1982) PERB Decision No. 261, pp. 5-9.) more or view all topics or full text. | 44 | 125 | 01/22/20 |
| 2635Ma | City of Santa Monica 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General “To establish the final element of the prima facie case, the charging party must show that the employee’s protected activity was a motivating factor in the employer’s decision to impose the adverse action.” (Omnitrans (2010) PERB Decision No. 2121-M, p. 9.) PERB considers direct evidence, circumstantial evidence, or a combination. (Id. at p. 10.) Direct evidence is rarely attainable, and in any event, there is no hierarchy between direct and circumstantial evidence, as PERB considers all evidence for its persuasive value. (Id. at pp. 9-10; Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 20, fn. 13.) more or view all topics or full text. | 44 | 125 | 01/22/20 |
| 2634E | San Diego Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General In applying the Novato standard (Novato Unified School District (1982) PERB Decision No. 210), we often compare the employer’s proffered reasons with the parties’ evidence regarding any alleged wrongdoing “to determine if the employer exaggerated or otherwise mischaracterized what occurred, thereby evidencing an unlawful motivation.” (Adelanto Elementary School District (2019) PERB Decision No. 2630, p. 11.) more or view all topics or full text. | 43 | 156 | 03/22/19 |
| 2632M | Contra Costa County Fire Protection District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General 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. | 43 | 150 | 03/07/19 |
| 2622E | Cabrillo Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General When an employer initiates an investigation into an employee’s conduct prior to any knowledge of the employee’s protected activity and follows its customary practices in the investigation, it is difficult to demonstrate pretext, absent other factors raising an inference of unlawful motivation. However, retaliation may be shown if the employer alters its investigation practices or related employment decision in response to any intervening protected activity. (p. 7.) The District began its investigation before it learned of the employee’s protected activity and the evidence shows the protected activity did not influence the conduct or result of its investigation. (pp. 8-9.) more or view all topics or full text. | 43 | 126 | 02/04/19 |
| 2642M | City of Sacramento 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General While Board considers all relevant facts and circumstances in assessing an employer’s motivation, Board has identified the following factors as being the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in close temporal proximity to the employee’s protected conduct is an important factor; (2) the employer’s disparate treatment of the employee; (3) the employer’s departure from established procedures and standards when dealing with the employee; (4) the employer’s inconsistent or contradictory justifications for its actions; (5) the employer’s cursory investigation of the employee’s misconduct; (6) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (Santa Clara, supra, PERB Decision No. 2629-M, pp. 9-10; County of Yolo (2009) PERB Decision No. 2020-M, pp. 12-13; Novato Unified School District (1982) PERB Decision No. 210, pp. 6-7.) more or view all topics or full text. | 43 | 179 | 05/01/19 |
| 2642M | City of Sacramento 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General While some of the employer’s allegedly adverse actions were in close temporal proximity to employee’s protected activity, timing alone is not determinative. (Adelanto Elementary School District (2019) PERB Decision No. 2630, p. 9.) The record as a whole does not lead PERB to conclude that employer conducted investigatory interview of employee, delayed processing employee’s supplemental employment application, or lost employee’s Departmental personnel files because he engaged in protected activity. No evidence introduced suggesting employer was motivated by protected activity, where asserted adverse actions were mistakes or caused by breakdown in communication. more or view all topics or full text. | 43 | 179 | 05/01/19 |
| 2629M | County of Santa Clara 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General PERB generally analyzes allegations of employer reprisal and discrimination under two lines of cases, which can be distinguished primarily by the manner in which they permit the charging party to prove nexus. (City of Yuba City (2018) PERB Decision No. 2603-M, p. 10.) Under Campbell Municipal Employees Association v. City of Campbell (1982) 131 Cal.App.3d 416, 423-424, a charging party may establish “discrimination in its simplest form” via evidence of “employer conduct that is facially or inherently discriminatory, such that the employer’s unlawful motive can be inferred without specific evidence.” (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14 (LA Superior Court).) In the absence of evidence sufficient to trigger the Campbell standard, PERB applies the Novato analysis of nexus factors. (LA Superior Court, supra, PERB Decision No. 2566-C, pp. 14-15.) (p. 8) more or view all topics or full text. | 43 | 145 | 02/27/19 |
| 2629M | County of Santa Clara 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Novato factors apply where adverse action was not discriminatory on its face. (Novato Unified School District (1982) PERB Decision No. 210, p. 6.) (p. 9) more or view all topics or full text. | 43 | 145 | 02/27/19 |
| 2629M | County of Santa Clara 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, PERB has identified the following factors as being the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in close temporal proximity to the employee’s protected conduct is an important factor; (2) the employer’s disparate treatment of the employee; (3) the employer’s departure from established procedures and standards when dealing with the employee; (4) the employer’s inconsistent or contradictory justifications for its actions; (5) the employer’s cursory investigation of the employee’s misconduct; (6) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (County of Yolo (2009) PERB Decision No. 2020-M, pp. 12-13; Novato Unified School District (1982) PERB Decision No. 210, pp. 6-7.) (pp. 9-10) more or view all topics or full text. | 43 | 145 | 02/27/19 |
| 2629M | County of Santa Clara 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General When an adverse action advances a management interest—e.g., eliminating opposition to a management objective affecting the terms and conditions of employment—this fact may indicate the adverse action was motivated by the employer’s desire to further that interest. (See County of Yolo (2009) PERB Decision No. 2020-M, p. 13 [the nexus analysis may consider “any other facts that might demonstrate the employer’s unlawful motive”].) (p. 11) more or view all topics or full text. | 43 | 145 | 02/27/19 |
| 2629M | County of Santa Clara 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Context is always relevant in assessing motive. (p. 11, citing proposed decision, at p. 30.) Here, employer’s managerial concerns about employee were directly related to the very matters employee had raised during course of collective bargaining negotiations. more or view all topics or full text. | 43 | 145 | 02/27/19 |
| 2630E | Adelanto Elementary School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Unlawful motive is the required nexus between the employee’s protected activity and the adverse action. more or view all topics or full text. | 43 | 147 | 03/01/19 |
| 2629M | County of Santa Clara 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General 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. | 43 | 145 | 02/27/19 |
| 2591M | County of Riverside 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Where employer states that it disciplined employee as a result of employee statements, there is no question as to motivation and PERB’s task is to determine whether the statements were statutorily-protected. more or view all topics or full text. | 43 | 66 | 10/23/18 |
| 2584E | California Virtual Academies 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Employer’s statement that telephone call to employee “is not going to go well” and that employee would need to be convinced that “this is serious and not retribution for something else” appeared to be an instance of protesting too much, suggesting an unlawful motive. more or view all topics or full text. | 43 | 54 | 09/21/18 |
| 2566C | Los Angeles County Superior Court 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Direct evidence is not necessarily stronger or more persuasive than circumstantial evidence. more or view all topics or full text. | 43 | 1 | 06/12/18 |
| 2563E | Napa Valley Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General The Board has found direct evidence of motive when an employer announces that it is taking or has taken an adverse action because of or in response to an employee’s protected activity. more or view all topics or full text. | 42 | 154 | 05/25/18 |
| 2450E | Jurupa Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General District official’s hostility toward employees who filed public complaint is demonstrated by her animus toward the attorney representing the employees. more or view all topics or full text. | 40 | 46 | 08/31/15 |
| 2458E | Jurupa Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Discriminatory motivation may be shown when District official’s evaluation comments indicate similar performance shortcomings both before and after she engaged in protected activity, yet the ratings that the official gave her dropped precipitously after her protected conduct. It is reasonable to infer that the District would not have ordered charging party to participate in consecutive performance evaluations in the absence of the District official’s hostility towards charging party’s protected conduct. Removing an evaluation from charging party’s file after investigating her complaint did not retroactively diminish its substantial compliance with Education Code section 44664 for that school year. more or view all topics or full text. | 40 | 75 | 10/23/15 |
| 2453E | Cabrillo Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Along with suspicious timing, facts establishing one or more of the following factors must also be present for a prima facie case: (1) the employer’s disparate treatment of the employee (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists or employees engaged in protected conduct; or (7) any other facts that might demonstrate the employer’s unlawful motive. 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. To assist with assessing circumstantial evidence of unlawful motive, PERB has developed a set of “nexus” factors. Although the timing of the employer’s action in close temporal proximity to the employee’s protected activity is an important factor, it does not, without more, demonstrate the necessary nexus between the employer’s action and the protected activity. 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. Lack of evidence regarding an independent investigation by the District prior to its taking adverse action against charging party suggests that the District’s justification was pretextual. The District has not described how it conducted a thorough investigation of charging party’s academic credentials in the two days between charging party’s November 4, 2012, e-mail and the District’s November 6, 2012 adverse action. In addition, the undated evidence that was first submitted to PERB by the District in its March 6, 2013, position statement is arguably “after the fact,” and therefore unconvincing justification for its November 6, 2012, adverse action. As such, it supports an inference of unlawful motive as an attempt to legitimize later its earlier decision to impose adverse action. We conclude, therefore, that charging party has sufficiently alleged that the District’s motive for placing him on involuntary, paid administrative leave, withdrawing its tentative offer of employment for Spring 2013 and foreclosing the possibility of future employment with the District, was charging party’s protected conduct and not the District’s concerns about charging party’s qualifications and or his alleged failure to document or disclose prior employment. more or view all topics or full text. | 40 | 57 | 09/17/15 |
| 2391H | Trustees of the California State University (East Bay) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Charging Party failed to establish any factual or legal basis to attribute to the decision-makers any bias that may have been harbored by any of their subordinates, let alone that any subordinates harbored bias based on Charging Party’s grievance activities. For these reasons, Charging Party failed to establish a prima facie case for retaliation or discrimination on the basis of his protected activities. more or view all topics or full text. | 39 | 39 | 09/02/14 |
| 2381E | Monterey Peninsula Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Unlawful motive is “the specific nexus required in the establishment of a prima facie case” of retaliation. “[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). more or view all topics or full text. | 39 | 12 | 06/27/14 |
| 2411E | Berkeley Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Although an employer’s managerial prerogative to raise performance and professional misconduct issues with employees is beyond doubt, an inference of unlawful motivation is created when such issues are raised in immediate response to the exercise of statutory rights; in such a case, the threat of adverse action becomes closely enmeshed with the protected activity “to a point not well tolerated by the statutory scheme.” more or view all topics or full text. | 39 | 98 | 02/19/15 |
| 2283E | Jurupa Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Unlawful motive is the specific nexus required in the establishment of a prima facie case. Unlawful motive can be established by circumstantial evidence and inferred from the record as a whole. PERB has developed and applies a set of “nexus” factors in determining whether a charging party has alleged a prima facie case of retaliation. Although suspicious timing of the employer’s adverse action in proximity to the employee’s protected conduct is an important factor (North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento)), it does not, without more, demonstrate nexus between the adverse action and the protected conduct. (Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more of the following additional factors must also be present: (1) the employer’s disparate treatment of the employee (State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the employer’s departure from established procedures and standards when dealing with the employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the employer’s inconsistent or contradictory justifications for its actions (State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer’s cursory investigation of the employee’s misconduct (City of Torrance (2008) PERB Decision No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the employer’s failure to offer the employee justification at the time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or the offering of exaggerated, vague, or ambiguous reasons (McFarland Unified School District (1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might demonstrate the employer’s unlawful motive. (North Sacramento; Novato Unified School District (1982) PERB Decision No. 210.) more or view all topics or full text. | 37 | 58 | 08/21/12 |
| 2350M | County of Orange 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General In asserting that charging party was given insubstantial assignments depriving him of the opportunity to promote to a classification that would not be subject to a layoff, charging party failed to establish nexus between the protected activities of participating in the grievance process and seeking the assistance of the exclusive representative and the adverse action of being laid off; the assignments and failure to promote were made necessary by charging party’s prior misconduct for dishonesty, for which he was suspended for six months, and were not motivated by an unlawful purpose. more or view all topics or full text. | 38 | 100 | 12/23/13 |
| 2231M | Stanislaus Consolidated Fire Protection District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Where adverse action, the elimination of the Union Time Bank, occurred when a grievance was denied at Step III, the proximity in timing establishes evidence of unlawful motivation for purposes of satisfying the nexus element of the prima facie case of discrimination/retaliation. more or view all topics or full text. | 36 | 111 | 01/20/12 |
| 2207M | City and County of San Francisco 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Mere legal conclusions are not sufficient to state a prima facie case; charging party’s burden was not met where he alleged that his negative performance evaluation was “disparate hostile and deceptive treatment unlike or inconsistent with that imposed on any other staff” without providing a factual basis for this statement. more or view all topics or full text. | 36 | 60 | 10/05/11 |
| 2241E | Lake Elsinore Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General School Districts expressed reasons for non-reelecting probationary teacher because of his lack of support for co-teaching model does not constitute direct evidence of unlawful motivation. more or view all topics or full text. | 36 | 129 | 02/27/12 |
| 2184M | County of Riverside 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Under the subordinate bias theory, a supervisor’s unlawful motive may be imputed to the decisionmaker when: (1) the supervisor’s recommendation, evaluation, or report was motivated by the employee’s protected activity; (2) the supervisor intended for his or her conduct to result in an adverse action; and (3) the supervisor’s conduct caused the decisionmaker to take adverse action against the employee. While closeness in time between protected activity and supervisor’s recommendation supported an inference of unlawful motive, evidence failed to establish any other factors that would support such an inference. more or view all topics or full text. | 36 | 2 | 06/07/11 |
| 2174M | County of Contra Costa 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Charge failed to establish that decision to eliminate part-time public health nurse positions and lay off charging party was part of a “strategically orchestrated” plan to terminate charging party’s employment, where charge failed to establish that person or persons responsible for terminating interdepartmental contract and recommending budget cuts had any knowledge of charging party’s protected activity in filing grievances against her supervisor or acting as union steward. While it is conceivable that employees in the personnel department had knowledge of employee’s protected activities, charge failed to allege facts demonstrating any of the established “nexus” factors and therefore failed to alleged any facts that would support a finding that the decision to hire two full-time employees, the elimination of all part-time positions, or the denial of charging party’s request to fill in temporarily for another employee were motivated by employee’s protected activity. more or view all topics or full text. | 35 | 67 | 03/25/11 |
| 2161M | City of Alhambra 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Employee established a prima facie case of retaliation when: (1) he was rejected on probation the same day he made complaints in a staff meeting; and (2) the employer did not investigate allegations that the employee did not get along with his supervisor and co-workers, and had returned from the job site early on two days. The employer’s statement to the employee that he was being rejected on probation because he “no longer fit into the organization” did not support an inference of unlawful motive because the employer was not required by law, policy, or past practice to give a specific reason for rejecting an employee on probation. more or view all topics or full text. | 35 | 36 | 02/08/11 |
| 2140H | Trustees of the California State University (San Marcos) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Charge failed to allege facts establishing that a supervisor’s critical comments about an employee’s work performance were motivated by the employee’s filing of a grievance and unfair practice charge. Charge also failed to establish that the employer settled grievances without the grievant’s consent because the grievant had filed other grievances and an unfair practice charge. more or view all topics or full text. | 34 | 165 | 11/02/10 |
| 2129E | Sacramento City Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General School district’s exaggeration of the facts surrounding a substitute teacher’s late arrival for an assignment indicates that the incident was a pretext for removing the teacher’s name from the active substitute list because of his protected activity. more or view all topics or full text. | 34 | 134 | 09/03/10 |
| 2124E | Los Angeles Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Although the timing of the employer’s actions in close temporal proximity to the employee’s protected conduct is an important factor, it does not, without more, demonstrate the necessary connection or “nexus” between the adverse action and the protected conduct. Consequently, in order to establish a nexus, the charging party must demonstrate one or more of the following additional factors is present: (1) the employer’s disparate treatment of the employee; (2) the employer’s departure from established procedures and standards when dealing with the employee; (3) the employer’s inconsistent or contradictory justifications for its actions; (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists; or (7) any other facts that might demonstrate the employer’s unlawful motive. more or view all topics or full text. | 34 | 118 | 08/04/10 |
| 2121M | Omnitrans 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Admittedly taking adverse action against an employee because of the employee’s protected activity provides direct evidence of the employer’s unlawful motivation and is sufficient in itself to establish the required nexus between the employee’s protected activity and the employer’s adverse action. Prima facie case of retaliation established when employer fired employee in part for absences on days when employee was conducting union business. more or view all topics or full text. | 34 | 110 | 06/25/10 |
| 2058M | San Bernardino County Public Defender 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Timing alone is insufficient to establish a nexus between protected activity and adverse action. Though the charge established timing, it failed to allege additional facts showing the required nexus. more or view all topics or full text. | 33 | 148 | 09/03/09 |
| 1983M | Menlo Park Fire Protection District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General In order to establish a prima facie case for discrimination or retaliation under the MMBA, the charging party must show that: (1) the employee exercised rights under MMBA; (2) the employer had knowledge of the exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the action because of the exercise of those rights. The unfair practice charge failed to state a prima facie case of discrimination or retaliation because the facts alleged were insufficient to establish a nexus between the alleged adverse action and the employee’s protected conduct. more or view all topics or full text. | 32 | 158 | 10/28/08 |
| 2063E | Los Banos Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Charging party failed to establish a causal connection between the grievances and complaints he filed and the school district’s decision to terminate him. Accordingly, the charge fails to state a prima facie case that the District dismissed charging party in retaliation for having engaged in protected activity. more or view all topics or full text. | 33 | 161 | 09/25/09 |
| 2019E | Escondido Union Elementary School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General 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 conduct at a staff meeting 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. No unlawful motivation can be found based on discipline for acts cited in previous disciplinary memos, given employer’s progressive disciplinary system. Disciplinary notice and suspension merely carried out earlier recommendations consistent with progressive discipline policy. more or view all topics or full text. | 33 | 74 | 04/30/09 |
| 1995H | Regents of the University of California (Los Angeles) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Unlawful animus may be imputed to high management officials where, even innocently, they rely on inaccurate and biased information of lower level officials. In this case, union animus held by employee’s supervisors is not imputed to decision maker, where decision maker had no knowledge of supervisors’ animus and never consulted them regarding layoff decision. more or view all topics or full text. | 33 | 25 | 12/19/08 |
| 1993E | Baker Valley Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Nexus established by timing of employer’s decision to nonrenew teacher and giving of vague or ambiguous reasons for nonrenewal. Employer did not depart from past practices or procedures by offering teacher resignation in lieu of nonrenewal without providing written notice of nonrenewal. District superintendent’s alleged refusal to discuss employment concerns of two bargaining unit members with union president did not establish union animus. more or view all topics or full text. | 33 | 23 | 12/19/08 |
| 1994M | City of Modesto 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General No nexus between employee’s appeal of proposed suspension and employer’s imposition of five-day suspension when employees who knew of appeal and prepared final notice of suspension for department head’s signature were unaware that notice of suspension purported to suspend employee for two days, with three days held in abeyance. more or view all topics or full text. | 33 | 24 | 12/19/08 |
| 1986E | Rio School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Timing alone is insufficient to establish a nexus between protected activity and adverse action. Though the charge established timing, it failed to allege additional facts showing the required nexus. more or view all topics or full text. | 33 | 8 | 11/21/08 |
| 1980E | San Mateo County Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Even if four and one-half month lapse between employee’s protected activity and employer’s adverse action is sufficient to establish timing, the charge failed to allege additional facts showing the required nexus between the protected activity and the adverse action. more or view all topics or full text. | 32 | 153 | 10/17/08 |
| 1977M | City of Long Beach 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Retaliation charge properly dismissed for failure to establish a nexus between protected activity and adverse action. more or view all topics or full text. | 32 | 140 | 09/16/08 |
| 1970H | Trustees of the California State University 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Modifying job description to make former temporary holder of position less competitive as an applicant for permanent position and appointing a selection committee where two out of four members were biased against the applicant supported inference of unlawful motive. more or view all topics or full text. | 32 | 118 | 07/18/08 |
| 1838M | Sacramento Municipal Utility District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General To establish a prima facie case for discrimination in violation of MMBA section 3506 and PERB Regulation 32603(a), the charging party must demonstrate a “nexus” between the adverse action and the protected conduct. Although the timing of the employer’s adverse action in close temporal proximity to the employee’s protected conduct is an important factor, it does not, without more, demonstrate the necessary connection or “nexus” between the adverse action and the protected conduct. more or view all topics or full text. | 30 | 117 | 05/10/06 |
| 1920M | Jurupa Community Services District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General A supervisor accused an employee of being "insubordinate" and having a "bad attitude" when the employee insisted on filing a grievance. These phrases have been seen as evidence of an employer's anti-union animus and as pretext for its anti-union actions. more or view all topics or full text. | 31 | 136 | 08/10/07 |
| 1924E | San Leandro Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General In order to establish a prima facie case for discrimination, the charging party must demonstrate a “nexus” between the adverse action and the protected conduct. more or view all topics or full text. | 31 | 150 | 10/01/07 |
| 1893E | Lodi Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Protected activity followed by adverse action is not sufficient without nexus to establish a connection between the protected activity and the adverse action to show unfair practice. If adverse action is based on other conduct of charging party and not protected activity burden has not been met. more or view all topics or full text. | 31 | 76 | 03/20/07 |
| 1853H | Trustees of the California State University * * * OVERRULED by Sonoma County Superior Court (2015) PERB Decision No. 2409-C 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General * * * OVERRULED ON OTHER GROUNDS by Sonoma County Superior Court (2015) PERB Decision No. 2409-C. * * *In order to establish a prima facie case for discrimination, the charging party must demonstrate a “nexus” between the adverse action and the protected conduct. more or view all topics or full text. | 30 | 155 | 08/29/06 |
| 1805E | Compton Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Protected activity followed by adverse action is not sufficient without nexus to establish a connection between the protected activity and the adverse action to show unfair practice. If adverse action is based on other conduct of charging party and not protected activity burden has not been met. more or view all topics or full text. | 30 | 50 | 01/05/06 |
| 1787E | Los Angeles Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General There was no evidence of nexus to support a finding of retaliation against Thomas. The District’s conduct did not support the element of unlawful motive. more or view all topics or full text. | 30 | 12 | 12/08/05 |
| 1791E | Los Angeles Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Kahn did not demonstrate a nexus between the District’s conduct and any protected activity. While Kahn alleges that his refusal to hand over his log book was protected, refusal to comply with a supervisor’s directive, under these circumstances, is not protected conduct. more or view all topics or full text. | 30 | 32 | 12/29/05 |
| 1746E | Los Angeles Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General No evidence of nexus was provided to show that the audit or notice of recommended discipline were a result of Fykes filing unfair practice charges. The Board distinguished this case from Woodland Joint Unified School District (1987) PERB Decision No. 628. more or view all topics or full text. | 29 | 70 | 02/01/05 |
| 1762S | State of California (Department of Consumer Affairs) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General The charge did not allege a prima facie case of retaliation since PERB does not enforce whistleblower statutes, the charge did not allege facts showing the State’s improper motive, the dates or nature of her alleged union activity, and the State’s knowledge of her steward training. more or view all topics or full text. | 29 | 121 | 04/15/05 |
| 1732H | Trustees of the California State University 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General * * * OVERRULED IN PART ON OTHER GROUNDS BY Butte-Glenn Community College District (2022) PERB Decision 2834. * * * Board found no retaliation where charging party voluntarily resigned and decision not to rehire was not based on prior protected activity. more or view all topics or full text. | 29 | 48 | 12/27/04 |
| 1707M | Alameda County Medical Center 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General The Board found that Flenoy failed to state a prima facie case of discrimination. Although it is clear that Flenoy engaged in protected activity and the County was aware of her activity, Flenoy failed to show a nexus between the adverse actions and her protected conduct more or view all topics or full text. | 29 | 11 | 11/16/04 |
| 1702E | Berkeley Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Lavan did not state a prima facie case of discrimination since the alleged adverse action occurred before the protected activity. Lavan did not provide evidence of nexus; the District followed the proper procedures for issuing a letter of reprimand and did not engage in other conduct showing unlawful motive. more or view all topics or full text. | 29 | 5 | 11/05/04 |
| 1590H | Regents of the University of California (Davis) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Management’s statement that they laid off employees because of the employees’ complaints constitutes direct evidence of unlawful intent. Where there is direct evidence of unlawful intent, it is unnecessary for the Board to determine the existence, or lack thereof, of circumstantial evidence more or view all topics or full text. | 28 | 67 | 01/26/04 |
| 1576E | Peralta Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Board finds that evidence of a written reprimand occurring before the protected activity occurs cannot be used as evidence of animus towards a charging party to show a nexus between protected activity and an adverse action in a discrimination charge. more or view all topics or full text. | 28 | 44 | 12/31/03 |
| 1671E | Fullerton Elementary School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Protected activity followed by adverse action is not sufficient without nexus to establish a connection between the protected activity and the adverse action to show unfair practice. If adverse action is based on other conduct of charging party and not protected activity burden has not been met. more or view all topics or full text. | 28 | 216 | 07/28/04 |
| 1557E | Chula Vista Elementary School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Where charging party had no evidence that adverse actions were taken in response to protected activity, charge was properly dismissed for failure to establish the required nexus. more or view all topics or full text. | 28 | 14 | 11/20/03 |
| 1585H | Regents of the University of California 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Fact that charges in the termination notice are unsubstantiated does not by itself establish the required nexus. more or view all topics or full text. | 28 | 62 | 01/15/04 |
| 1524M | County of San Joaquin (Health Care Services) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Nexus demonstrated by decision to discipline employee for bad attitude because the attitude had been provoked by supervisors retaliatory investigation of employee; proposed dec., p. 29. more or view all topics or full text. | 27 | 74 | 05/14/03 |
| 1480S | State of California (Unemployment Insurance Appeals Board) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General No prima facie case of employer discrimination shown where charging party failed to present allegations demonstrating nexus between actions by named individuals and alleged protected activity. more or view all topics or full text. | 26 | 33063 | 05/02/02 |
| 1520E | Contra Costa Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General PERB has long recognized that direct evidence of discriminatory intent – the proverbial “smoking gun” – is rarely possible. Accordingly, the Board has held that circumstantial evidence of discriminatory intent may be sufficient to establish the required nexus. more or view all topics or full text. | 27 | 69 | 05/08/03 |
| 1532E | Los Angeles Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Charge alleged that District was satisfied with employee’s performance up to employee’s departure. Afterwards, District’s only contact with employee was in employee’s position as union representative. District’s refusal to re-hire employee because employee’s District reference was inadequate is circumstantial evidence that District was motivated by anti-union animus. more or view all topics or full text. | 27 | 92 | 06/23/03 |
| 1489E | Golden Plains Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Where supervisor did not return association representative’s call, District’s lack of responsiveness could also be evidence of a general anti-union animus. more or view all topics or full text. | 26 | 33098 | 07/08/02 |
| 1409H | Trustees of the California State University 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Unlawful motivation is essential to charging party’s case. In the absence of direct evidence, an inference of unlawful motivation may be drawn from the record as a whole, as supported by circumstantial evidence; p. 17, proposed dec. Any of a number of circumstances may justify an inference of unlawful motivation on the part of the employer. Once an inference is made, the burden of proof shifts to the employer to establish that it would have taken the action complained of, regardless of the employee’s protected activities; p. 17, proposed dec. more or view all topics or full text. | 24 | 31163 | 09/27/00 |
| 1373S | State of California (Department of Corrections) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General The charge fails to demonstrate the necessary "nexus" factors; although some evidence of timing can be inferred, it is extremely weak. The charge mentions no specific activities that occurred in close temporal proximity to the recuperating overpayments. more or view all topics or full text. | 24 | 31058 | 02/28/00 |
| 1314H | Regents of the University of California (Coalition of University Employees) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Charge fails to state a prima facie case for violation of HEERA section 3571(a) where charge fails to allege any facts demonstrating that employee's protected activity motivated the University's conduct; p. 5, dismissal letter. more or view all topics or full text. | 23 | 30056 | 02/01/99 |
| 1299S | State of California (Department of Industrial Relations) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Since direct proof of unlawful motivation is not often present, the Board reviewed the record as a whole to determine if the inference of unlawful motive should be drawn; pp. 10-11. The temporal proximity of employee's protected conduct with the State's actions and the fact that the performance deficiencies memorandum and employee's second probationary report made specific reference to the employee's contact with the union representative supports the inference of unlawful motivation by the State; p. 11. more or view all topics or full text. | 23 | 30012 | 11/02/98 |
| 1292S | State of California (Department of Corrections) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Dismissal appropriate because there was no evidence to support an inference of unlawful motivation on the employer's part. more or view all topics or full text. | 22 | 29175 | 10/21/98 |
| 1246E | Oakdale Union Elementary School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General 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. more or view all topics or full text. | 22 | 29047 | 01/28/98 |
| 1248E | Alisal Union Elementary School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Where District issued disciplinary memorandum in direct response to protected activity, Board finds it unnecessary to resort to circumstantial indicia of unlawful motivation; p. 6. more or view all topics or full text. | 22 | 29049 | 01/28/98 |
| 1232E | Chula Vista Elementary School District * * * OVERRULED IN PART by Visalia Unified School District (2022) PERB Decision No. 2806 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Single indication of unlawful motivation insufficient to support prima facie case for discrimination violation; p. 4. more or view all topics or full text. | 22 | 29012 | 11/19/97 |
| 1191E | Bakersfield City School District (Guerra) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General No prima facie case where charge does not allege any connection between protected conduct and discrimination; p. 2, warning letter. more or view all topics or full text. | 21 | 28071 | 04/03/97 |
| 1185E | Healdsburg Union High School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Animus of administrators can be imputed to school Board where information relied on by Board came from administrators and Board, like administrators misidentified documents; p. 52, proposed dec. more or view all topics or full text. | 21 | 28055 | 02/24/97 |
| 1035H | Regents of the University of California (University of California Los Angeles) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Charging party failed to establish that the University's refusal to take his grievance to arbitration was unlawfully motivated; p. 4, dismissal letter. more or view all topics or full text. | 18 | 25040 | 02/03/94 |
| 1032S | California Union of Safety Employees (Coelho) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Adverse conduct based on unsubstantial allegations may raise an inference of unlawful motivation; p. 13. more or view all topics or full text. | 18 | 25029 | 01/06/94 |
| 1028H | Regents of the University of California (Cutshall) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General It is unnecessary to decide whether the alleged theft was the true motivation for charging party's termination or to choose among various other possible motivations for the termination. The only question is whether the true motivation was because of charging party's protected conduct; p. 22, proposed dec. more or view all topics or full text. | 18 | 25025 | 12/09/93 |
| 0971E | Los Angeles Unified School District (Wyler) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General There was no connection between charging party's protected activity and the adverse action; therefore the allegations fail to satisfy the nexus requirement established by Novato Unified School District (1982) PERB Decision No. 210. more or view all topics or full text. | 17 | 24041 | 02/08/93 |
| 0957E | Los Angeles Unified School District (Kaady) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Circumstantial evidence may establish required employer animus. Factors considered may include timing, disparate treatment, failure to follow usual procedures, a pattern of union animus and/or shifting justifications for the action taken and the cursory investigation thereof; pp. 20-21, proposed dec. more or view all topics or full text. | 17 | 24000 | 11/18/92 |
| 0910H | California State University, San Francisco 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Board upheld ALJ's determination of no violation of HEERA section 3571(a), where insufficient evidence of nexus. more or view all topics or full text. | 15 | 22178 | 11/18/91 |
| 0879E | San Diego Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Accusation of negligent conduct without more is not enough to show employer's action was done because of employee's protected activity; pp. 3-4, Dismissal Letter. more or view all topics or full text. | 15 | 22088 | 05/21/91 |
| 0869H | California State University, Hayward (Dees) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General The totality of the circumstance suggests a hostile attitude from which an unlawful motive may be drawn from the record as a whole; p. 24, proposed dec. more or view all topics or full text. | 15 | 22051 | 02/25/91 |
| 0864E | Newark Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General An inference of unlawful motive may be drawn from the record as a whole; p. 5. more or view all topics or full text. | 15 | 22023 | 01/14/91 |
| 0838E | Yolo County Superintendent of Schools 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Motive may be shown by direct evidence or circumstantial evidence involving factors other than those enumerated in Novato. more or view all topics or full text. | 14 | 21180 | 09/17/90 |
| 0628E | Woodland Joint Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Refusing to reveal names of complaining parents not indicative of animus where employer took no action based on those complaints. more or view all topics or full text. | 11 | 18121 | 06/30/87 |
| 0617E | Los Angeles Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Dismissal appropriate where charging party set forth no facts linking exercise of protected rights to District's transfer of undesirable employee to charging party's department. more or view all topics or full text. | 11 | 18072 | 03/27/87 |
| 1707Ma | Alameda County Medical Center 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General The remaining new evidence does not convince the Board that Flenoy has shown nexus between her protected activity and termination. more or view all topics or full text. | 29 | 72 | 02/04/05 |
| 1735S | State of California (Department of Transportation) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Chen did not state facts showing the nexus between her protected conduct and, assuming that it is adverse action, the Expectations Memorandum. more or view all topics or full text. | 29 | 55 | 01/19/05 |
| 1222E | Los Angeles Community College District (Mrvichin) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Nexus is not demonstrated by District failure to provide notice of appearance, failure to provide Level II response and denied grievance at Levels I and II; p. 3, dismissal letter. more or view all topics or full text. | 21 | 28162 | 10/01/97 |
| 0401E | Inglewood Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General No violation where there was no evidence that adverse personnel actions taken against employee were motivated by employees exercise of protected rights; there was no protected activity of sufficient moment to establish that they were a motivating factor of discriminatory termination; pp. 42, 46, proposed dec. more or view all topics or full text. | 8 | 15154 | 08/29/84 |
| 0328S | State of California (Department of Parks and Recreation) * * * OVERRULED IN PART by County of Santa Clara (2017) PERB Decision No. 2539-M 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General * * * OVERRULED IN PART ON OTHER GROUNDS by County of Santa Clara (2017) PERB Decision No. 2539-M * * *Discipline based on unsubstantial allegations or on mere technical violations of employer work rules may raise inference of unlawful motivation. more or view all topics or full text. | 7 | 14211 | 07/29/83 |
| 0319H | Regents of the University of California (California State Employees Association, Chapter 41) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General No linking of unlawful motive by one supervisor who knew of protected activity to decision-maker who did not. more or view all topics or full text. | 7 | 14177 | 06/10/83 |
| 0299H | Regents of the University of California (University of California San Diego) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Under Novato test, charging party demonstrated motive by the timing, respondent's documentation of his activities coupled with respondent's failure to show charging party or counsel him regarding the recorded incidents; p. 14. more or view all topics or full text. | 7 | 14118 | 03/30/83 |
| 0272E | Rio Hondo Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General No nexus where District's decision made prior to employee's allegedly protected activity; p. 4. more or view all topics or full text. | 7 | 14028 | 12/28/82 |
| 0261E | San Joaquin Delta Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Employer's unsubstantiated allegations for discipline imposed is evidence of its unlawful motivation; p. 7. more or view all topics or full text. | 7 | 14011 | 11/30/82 |
| 0251E | Coast Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Employer's knowledge of employee's protected activity is not enough to establish nexus. more or view all topics or full text. | 6 | 13237 | 10/15/82 |
| 0210E | Novato Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Proximity of time between employer's action to transfer employee and and employee's vocal participation in grievance representation, along with the maintenance of a secret file on employee's union activities and the disparity in employee's evaluations, sufficient to prove unlawful motive; pp. 20-21. Violation of Education Code 44031 is evidence of improper motive. more or view all topics or full text. | 6 | 13114 | 04/30/82 |
| 0104E | Santa Clara Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Differing motivation of two District agents who both participated in discrimination does not warrant dismissal of charge; Board will consider motivations compositely and drain reasonable inferences therefrom; pp. 14-15. more or view all topics or full text. | 3 | 10124 | 09/26/79 |
| 1354H | Regents of the University of California (Bawal, et al.) 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General Charging parties established some, but not all, elements of a prima facie case of retaliation. They engaged in protected activities, including the University Professional and Technical Employees (UPTE) campaign, and University management had at least general knowledge of those activities. Also, the University departed from the established Personnel Policies for Staff (PPSM) layoff procedures. However, charging parties failed to establish an inference that the layoffs were unlawfully motivated. Retaliatory failure to rehire is not established by an adverse impact theory (higher percentage of UPTE members laid off than percentage of UPTE members in unit) because actual unlawful motivation required. Also, no unlawful motive established because rehire decisions were not made by a single decisionmaker, but rather by separate decisionmakers in each unit, there was no evidence to support an inference of bias by any of those decisionmakers. No basis to infer unlawful motivation with regard to issuance of evaluation, since management acted in response to the facts it possessed at that time. The evaluation process continued independent of the protected activity. more or view all topics or full text. | 23 | 30173 | 09/30/99 |