All notes for Subtopic 505.01000 – In General
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2797E | Carpinteria Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General In “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (City of Santa Monica (2020) PERB Decision No. 2635a-M, pp. 40-41.) To make this determination, we weigh the evidence supporting the employer’s justification for the adverse action against the evidence of the employer’s unlawful motive. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 19; Rocklin Unified School District (2014) PERB Decision No. 2376, p. 14; Palo Verde Unified School District (2013) PERB Decision No. 2337, p. 33 (Palo Verde).) As a result, the outcome of a discrimination or retaliation case ultimately is determined by the weight of the evidence supporting each party’s position. (See Novato Unified School District (1982) PERB Decision No. 210, p. 14 [“[a]fter all the evidence is in, it is a question of the sufficiency of the proof proffered by the various parties”].) more or view all topics or full text. | 46 | 86 | 11/16/21 |
| 2704H | Regents of the University of California 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General When 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. Simply presenting a legitimate reason for acting is not enough to meet the burden. The respondent “must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” To prevail on its affirmative defense, the employer must establish that it had a legitimate, nondiscriminatory reason for taking the adverse action and that the reason proffered was, in fact, the employer’s reason for taking the adverse action. To properly scrutinize an employer’s affirmative defense, we must look both at initiation of the disciplinary process and the discipline itself. Where an adverse action results from a process triggered at least in part by an unlawful motive, the affirmative defense fails if the process would not have been triggered absent the protected activity. Here, the record persuades us that supervisor’s decision to investigate Charging Parties was influenced by their protected activity. It is highly unlikely that a disciplinary investigation would have begun at all had supervisor used his customary practice and contacted Charging Parties to explain their unusual timecard punches. For instance, Charging Party would have explained that he thought he was supposed to punch in that way because he had logged out, in which case supervisor could have directed him to do it differently in the future and then could have deleted the punches. In this case, the disciplinary investigation supervisor triggered based on his unlawful motive was the sole cause of the full year audit. Thus, the University does not meet its burden as to any of the allegedly nondiscriminatory reasons for the adverse actions. (pp. 41-44.) more or view all topics or full text. | 44 | 158 | 04/14/20 |
| 2666E | San Diego Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General The evaluation of evidence under the Novato Unified School District (1982) PERB Decision No. 210 framework, i.e., 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.” (Internal citation omitted.) The essence of the Novato test is to determine whether the employer acted for a discriminatory reason. To make this determination, we weigh the evidence supporting the employer’s justification for the adverse action against the evidence of the employer’s unlawful motive. As a result, the outcome of a discrimination or retaliation case ultimately is determined by the weight of the evidence supporting each party’s position. As the ALJ correctly observed, the evidence that the District was motivated by charging party’s protected activities is “sparse,” while the evidence supporting the employer’s legitimate, non-discriminatory reasons for the adverse actions is substantial. The District thus convincingly demonstrated that charging party’s erratic and non-protected behavior would have led to the same consequences even had it not been intermixed with charging party’s limited protected activity. (pp. 5-8.) more or view all topics or full text. | 44 | 55 | 08/27/19 |
| 2760S | State of California (Correctional Health Care Services) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Because employee established that unlawful animus substantially motivated his employer’s decision not to promote him, the burden shifts to employer to establish that it would have refused to promote employee even if he had not engaged in protected activity. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 27.) This determination can involve weighing the evidence supporting the employer’s justification against the evidence of the employer’s unlawful motive to determine what would more likely than not have occurred in the absence of protected activity. (San Diego Unified School District (2019) PERB Decision No. 2666, p. 7.) In doing so, PERB 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. (City of San Diego (2020) PERB Decision No. 2747-M, p. 29; County of Santa Clara (2019) PERB Decision No. 2629-M, p. 13; County of Lassen (2018) PERB Decision No. 2612-M, p. 6.) more or view all topics or full text. | 45 | 91 | 04/12/21 |
| 2747M | City of San Diego 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Because the record revealed dual motives, PERB must determine if the District met its burden to show it would have taken identical action, even absent protected activity. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 27; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 15-16.) This determination can involve weighing the evidence supporting the employer’s justification against the evidence of the employer’s unlawful motive, in order to determine what would more likely than not have occurred in the absence of protected activity. (San Diego Unified School District (2019) PERB Decision No. 2666, p. 7.) The Board found that Fire Chief was already contemplating the change to the composition of the City’s elite swiftwater rescue team for legitimate reasons that predated any protected activity. Accordingly, the Board found that the City established its affirmative defense—that it would have taken exactly the same action at the same time even absent any protected activity—by a preponderance of the evidence. more or view all topics or full text. | 45 | 45 | 10/06/20 |
| 2747M | City of San Diego 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; 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.) The City prevailed on its affirmative defense where Board found that the Union established that discriminatory animus was a motivating factor in the Fire Chief’s decision to modify the composition of the City’s elite swiftwater rescue team (SWR Team), but the City demonstrated that it would have taken the same action, at the same time, even absent the Union’s protected activities. more or view all topics or full text. | 45 | 45 | 10/06/20 |
| 2675E | Lake Elsinore Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Once a charging party has established a prima facie case of retaliation by a preponderance of the evidence, the burden shifts to the respondent to prove: (1) that it had an alternative nondiscriminatory reason for the challenged action; and (2) that it acted because of this alternative non-discriminatory reason and not because of the employee’s protected activity. Simply presenting a legitimate reason for acting is not enough to meet the burden. The respondent “must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” [Citation.] Where there is evidence that the respondent’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.” [Citation.] The “but for” test is “an affirmative defense which the respondent must establish by a preponderance of the evidence.” Here, the evidence showed that the employer acted because of performance concerns rather than to punish protected activity. Because the weight of the evidence supported the employer’s stated reasons for its action, there was no evidence that those reasons were a pretext for retaliation. (Adopting proposed decision at pp. 53-54, 57.) more or view all topics or full text. | 44 | 78 | 10/17/19 |
| 2683E | San Diego Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General In analyzing “mixed motive” case, Board affirmed ALJ’s finding that school district established its affirmative defense that it would have proposed to reassign teacher to another school and assigned her to a “do nothing” position whether or not she had participated in protected activities. There was sufficient evidence that the school district was at least partially motivated by unlawful animus to find that the teacher’s protected activity contributed to the school district’s actions. However, the evidence demonstrated that the “unprecedented nature and volume” of parent and student complaints about the teacher’s work performance was the predominant motivation for the transfer and assignment to the “do nothing” position, thereby leading the Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s adverse actions. more or view all topics or full text. | 44 | 103 | 11/20/19 |
| 2683E | San Diego Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General In analyzing “mixed motive” case, Board affirmed ALJ’s finding that school district established its affirmative defense that it would have proposed to reassign teacher to another school and assigned her to a “do nothing” position whether or not she had participated in protected activities. There was sufficient evidence that the school district was at least partially motivated by unlawful animus to find that the teacher’s protected activity contributed to the school district’s actions. However, the evidence demonstrated that the “unprecedented nature and volume” of parent and student complaints about the teacher’s work performance was the predominant motivation for the transfer and assignment to the “do nothing” position, thereby leading the Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s adverse actions. more or view all topics or full text. | 44 | 103 | 11/20/19 |
| 2634E | San Diego Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General In analyzing “mixed motive” case, Board affirmed ALJ’s finding that school district established its affirmative defense that it would have taken adverse actions against teacher whether or not she had participated in protected activities. There was sufficient evidence of procedural irregularities by the school district to find that teacher’s protected activity contributed to the school district’s actions. However, there was also sufficient evidence that the school district had other, stronger motivations, thereby leading Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s actions. more or view all topics or full text. | 43 | 156 | 03/22/19 |
| 2647E | Los Angeles Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General The degree to which evidence constitutes persuasive support for an employer’s affirmative defense necessarily changes with the nature of the adverse action itself. Thus, depending on the quality of the prima facie case, uncorroborated testimony from a single witness is unlikely to be persuasive in the context of a termination premised on a pattern of misconduct. On the other hand, such testimony could well suffice to justify a written warning. Since this case arises from a unique, non-disciplinary displacement of numerous employees, it is necessary to contextualize these decisions before evaluating the persuasiveness of the District’s evidence in support of its non-discriminatory motivations. more or view all topics or full text. | 43 | 197 | 06/12/19 |
| 2651E | Mt. San Jacinto Community College District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General As part of its defense of a charge of retaliatory discipline, employer need not prove that the employee’s protected activity was “was so opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption of or material interference with [the employer’s] operations.” PERB uses this standard to determine whether an employee communication that would otherwise be protected under the relevant statute lost its protection because of its content or the manner in which it was communicated. This standard does not apply outside the employee communication context. more or view all topics or full text. | 44 | 15 | 06/24/19 |
| 2687H | Trustees of the California State University (Northridge) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Where there is evidence that the respondent’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.” [Citation.] The “but for” test is “an affirmative defense which the respondent must establish by a preponderance of the evidence.” [Citation.] (Adopting proposed decision at p. 38.) more or view all topics or full text. | 44 | 109 | 12/13/19 |
| 2654E | Claremont Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General 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.) 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. | 44 | 24 | 07/10/19 |
| 2654E | Claremont Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General 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 for the adverse action against the evidence of the employer’s unlawful motivation. (pp. 16-17.) more or view all topics or full text. | 44 | 24 | 07/10/19 |
| 2654E | Claremont Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Context is always relevant in determining whether an adverse action was unlawfully motivated by protected activity. (p. 17.) An employer may thus establish its affirmative defense if its adverse action, taken, in part, in response to protected activity, was also motivated by other non-discriminatory reasons. (p. 17.) The employer failed to do so here because it based its adverse action on an employee’s e-mail that was different from the inappropriate conduct and misbehavior of which he had previously been accused. (p. 18.) The employer further explicitly stated that it was taking adverse action in direct response to the employee’s protected activities. (pp. 18-19.) more or view all topics or full text. | 44 | 24 | 07/10/19 |
| 2622E | Cabrillo Community College District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General An employee’s protected activities do not immunize the employee from otherwise legitimate employment decisions, including an employer’s workplace investigation. (p. 7.) more or view all topics or full text. | 43 | 126 | 02/04/19 |
| 2637S | State of California (California Correctional Health Care Services) (Service Employees International Union Local 1000) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General In mixed motive cases where an employer’s action is animated both by discriminatory and nondiscriminatory reasons, the Board uses a “but for” test to determine whether the employer would have taken the same action regardless of its improper motivation. Once a charging party establishes a prima facie case of discrimination, the burden shifts to the employer to show by a preponderance of evidence that it would have taken the adverse action regardless of the employee’s protected activity. To prevail on its affirmative defense, the employer must establish that it had a legitimate, nondiscriminatory reason for taking the adverse action and that the reason proffered was, in fact, the employer’s reason for taking the adverse action. (p. 20) more or view all topics or full text. | 43 | 164 | 04/17/19 |
| 2637S | State of California (California Correctional Health Care Services) (Service Employees International Union Local 1000) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General The Boar will bar an employer from meeting its burden of proof when its stated reason for taking the adverse action was discovered through an investigation that itself was tainted by unlawful motive. (p. 20) more or view all topics or full text. | 43 | 164 | 04/17/19 |
| 2630E | Adelanto Elementary School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General An employer may not rely solely on hearsay evidence to prove its affirmative defense under Novato Unified School District (1982) PERB Decision No. 210. more or view all topics or full text. | 43 | 147 | 03/01/19 |
| 2624S | State of California (Department of Social Services (Service Employees International Union Local 1000) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Employer established that it had an alternative, non-discriminatory reason for demoting employee and that it acted for this reason; specifically, employer demoted employee because of her repeated violations of departmental policy. more or view all topics or full text. | 43 | 128 | 02/05/19 |
| 2605E | Mount San Jacinto Community College District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Board considers nature of the employee’s outburst when evaluating whether an alleged threat of physical harm communicated in an e-mail, rather than in a face-to-face meeting with the employer, loses statutory protection. (p. 12.) more or view all topics or full text. | 43 | 92 | 12/12/18 |
| 2584E | California Virtual Academies 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Employer cannot meet its burden of proof that it would have taken the same adverse action regardless of employee’s protected activity if its proffered reason for taking the action was discovered through an investigation that was itself tainted by unlawful motive. more or view all topics or full text. | 43 | 54 | 09/21/18 |
| 2584E | California Virtual Academies 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General In determining whether employer has proven it would have taken the same adverse action regardless of the employee’s protected activity, the Board weighs the evidence supporting the employer’s justification for the adverse action against the evidence of unlawful motive. more or view all topics or full text. | 43 | 54 | 09/21/18 |
| 2566C | Los Angeles County Superior Court 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General In determining whether employer has established its affirmative defense, the Board weighs the evidence supporting the employer’s justification for the adverse action against the evidence of the unlawful motive. more or view all topics or full text. | 43 | 1 | 06/12/18 |
| 2563E | Napa Valley Community College District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General The “but for” test is how PERB assesses the employer’s affirmative defense once a charging party has established a prima facie case of retaliation. It is irrelevant to the analysis of a prima facie case. more or view all topics or full text. | 42 | 154 | 05/25/18 |
| 2567E | Hartnell Community College District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General The Board adopted the ALJ’s finding that the Charging Party had failed to prove that the ultimate decisionmaker responsible for terminating Charging Party’s employment knew of Charging Party’s protected activity. (p. 9.) To prevail in a case alleging retaliation under Novato Unified School District (1982) PERB Decision No. 210 and similar authorities, the charging party must prove that at least one of the respondent’s agents responsible for taking adverse action knew of the charging party’s participation in protected activity. (p. 9.) more or view all topics or full text. | 43 | 2 | 06/12/18 |
| 2479E | Los Angeles Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General An employer that is not required to show “cause” to terminate an employee under a different statutory scheme is still required to overcome a charging party’s proven prima facie case with persuasive evidence that it took adverse action against the charging party for a non-retaliatory reason; a charging party has the right to attempt to discredit or undermine the employer’s stated reason for the adverse action notwithstanding the charging party’s at-will status; the role PERB plays in retaliation cases is shaped by the specific labor relations concern underlying the statutory scheme; PERB’s role is to ensure that public employees can exercise their right to participate in union and other organizational activities free of adverse action by the employer; the reason proffered by the employer for the adverse action is necessarily what must be examined by PERB in determining whether it is pretextual or, in cases involving dual motives, whether it is the “but for” cause for the adverse action; it matters not whether the proffered reason for the adverse action meets external law or contractual standards except to the extent that deficiencies in the employer’s discipline case against the employee evidences an unlawful retaliatory motive; in a case involving the termination of an at-will employee, PERB must examine the employer’s exercise of discretion, but not to second guess or judge it for any other reason than to ensure that the employer’s exercise of discretion was not motivated by the employee’s exercise of protected rights; when assessing the persuasiveness of the employer’s affirmative defense, PERB must inquire fully into all issues in order to establish that the employers’ affirmative defense was honestly invoked and its justification was in fact the cause of the adverse action. more or view all topics or full text. | 40 | 166 | 04/20/16 |
| 2453E | Cabrillo Community College District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General To prevail on its affirmative defense, the employer must establish both that a legitimate, non-discriminatory reason existed for taking the adverse action, and that the reason proffered was, in fact, the employer’s reason for taking adverse action. more or view all topics or full text. | 40 | 57 | 09/17/15 |
| 2391H | Trustees of the California State University (East Bay) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General CSUEB demonstrated that it had, and acted because of, an alternative, non-discriminatory reason for denying Charging Party tenure and promotion, specifically Charging Party’s inadequate performance in the areas of instructional achievement, academic achievement and university and community service. more or view all topics or full text. | 39 | 39 | 09/02/14 |
| 2337E | Palo Verde Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Upon proof that anti-union animus played a part in the employer’s decision to act, the burden then shifts to the employer to prove that its actions would have been the same notwithstanding the employee’s having engaged in protected activity and the employer’s anti-union animus. In such cases, the employer has both the burden of going forward with the evidence and the burden of persuasion. Proof of an alternative, non-discriminatory reason for the challenged action is insufficient standing alone to overcome the prima facie case. The employer must prove that it had both an alternative non-discriminatory reason for its challenged action, and that the challenged action would have occurred regardless of the employee’s protected activity and the employer’s anti-union animus. Once a charging party establishes a prima facie case of retaliation, the burden shifts to the respondent to establish both: (1) that it had an alternative non-discriminatory reason for the challenged action, and (2) that it acted because of this alternative non-discriminatory reason and not because of the employee’s protected activity. A responding party must prove up its affirmative defense through persuasive evidence. To demonstrate an affirmative defense to unlawful discrimination, independent evidence is required to establish both the existence of an alternative, non-discriminatory reason for challenged discipline, and that the employer acted because of that reason and not because of the protected conduct of the employee. Because out-of-hearing statements describing employee’s alleged improper workplace conduct cannot be cross-examined, we find the hearsay and double hearsay testimony by District supervisors insufficiently reliable to establish the District’s affirmative defense. An employer defending against a prima facie case of retaliation cannot simply present a legitimate reason for its action, but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct. The crucial factor is not whether the justification put forward by the employer was good or bad, but whether it was honestly invoked and was, in fact, the cause of the employer’s challenged action. PERB must analyze thoroughly and completely the justification for the action presented by the employer in order to determine whether the justification constituting an employer’s affirmative defense was honestly invoked and whether the employer’s proof establishes that its justification was in fact the cause of the employer’s action. When the burden in a PERB hearing shifts to an employer to establish an affirmative defense to a charge of discrimination or retaliation, the employer must demonstrate that it exercised its statutory or common law discretion in a manner consistent with the employee’s rights under our statutes. We acknowledge that such demonstration imposes on an employer a greater burden of proof than would be required to sustain a routine discharge within its discretion where there has been no allegation of unlawful motivation. PERB’s duty is to analyze thoroughly and completely the justification for the action presented by the employer and that in so doing PERB may inquire fully into all issues bearing on the employer’s burden to establish that employer’s affirmative defense was honestly invoked and its justification was in fact the cause of the employer’s action. The employer’s defensive burden to a charge of discrimination or retaliation is not limited by the extent of the employer’s statutory or common law duty to the employee(s), but is measured rather by the extent and persuasiveness of the employee(s) prima facie case which a successful affirmative defense must either meet or exceed. more or view all topics or full text. | 38 | 69 | 10/29/13 |
| 2309E | Jurupa Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General A retraction of a prior coercive statement which did not address the coercive aspects of the prior statement and was not tendered within a few days, at most, of the prior coercive statement was both inadequate and untimely, and thus not made in a manner that completely nullified the coercive effects of the earlier statement. more or view all topics or full text. | 37 | 183 | 03/08/13 |
| 2342E | Coachella Valley Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Although charging party proved a prima facie case for retaliation, the District established its affirmative defense that it both had alternative, non-retaliatory reasons for its involuntary transfers of charging party and acted because of those reasons. more or view all topics or full text. | 38 | 95 | 12/09/13 |
| 2221E | Chula Vista Elementary School District * * * OVERRULED IN PART by Bellflower Unified School District (2017) PERB Order No. Ad-447 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General * * * OVERRULED IN PART ON OTHER GROUNDS by Bellflower Unified School District (2017) PERB Order No. Ad-447. * * *Once the prima facie case is established, the burden shifts to the employer to prove it would have taken the same action even in the absence of the protected activity; the question becomes whether the adverse action would not have occurred “but for” the protected activity; the “but for” test is an affirmative defense which the employer must establish by a preponderance of the evidence; when conducting the “but for” analysis, PERB weighs the employer’s justifications for the adverse action against evidence of the employer’s retaliatory motive to determine whether the employer’s justification was honestly invoked; where justification given by the employer for the adverse action was that charging party’s interpersonal skills were deficient, but there was no history of deficiencies, every performance evaluation reflected superior interpersonal skills and colleagues who interacted with charging party all testified that charging party’s interpersonal skills were beyond reproach, the employer failed to establish its affirmative defense. more or view all topics or full text. | 36 | 88 | 11/23/11 |
| 2211M | City of Santa Monica 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Once a prima facie case is established, employer bears the burden of proving it would have taken the adverse action even if the employee had not engaged in protected activity. The issue before the Board is not whether the employer had just cause to discipline or terminate the employee, but rather whether the true motivation behind the employer’s decision was the employee’s exercise of protected activity. Thus, the Board does not determine whether the employer was correct in its determination that employee violated safety procedures, or whether good cause existed to terminate his employment. Weighing the evidence that probationary employee’s supervisors were dissatisfied with his performance throughout his employment against any possible inference of retaliatory motive, Board does not find that employee’s protected activity was the true motivation for the recommendation to terminate his probationary employment. more or view all topics or full text. | 36 | 66 | 10/24/11 |
| 2184M | County of Riverside 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Once a prima facie case is established, the employer bears the burden of proving it would have taken the adverse action even if the employee had not engaged in protected activity. Thus, when it appears that the adverse action was motivated by both valid and invalid reasons, “the question becomes whether the [adverse action] would not have occurred ‘but for’ the protected activity.” The “but for” test is “an affirmative defense which the employer must establish by a preponderance of the evidence.” When conducting the “but for” analysis, the proper inquiry is whether the employer’s true motivation for taking the adverse action was the employee’s protected activity. In making this determination, “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. In this case, the supervisor’s recommendation to reject employee on probation was based upon three incidents that caused supervisor to doubt employee’s ability to develop as an investigator, while protected activity of listing union representative as a “cc” recipient on a written statement is relatively minor in nature. Thus, Board concludes that employee’s protected activity was not the true motivation for supervisor’s recommendation and the employer proved it would have released employee on probation even if he had not engaged in protected activity. more or view all topics or full text. | 36 | 2 | 06/07/11 |
| 2161M | City of Alhambra 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Employer proved it would have rejected employee on probation despite his protected activity based on the employee’s inability to get along with his supervisor and co-workers, and his apparent unwillingness to perform the required amount of work. more or view all topics or full text. | 35 | 36 | 02/08/11 |
| 2129E | Sacramento City Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General At the charge investigation stage, PERB may not consider the employer’s affirmative defense that it would have taken adverse action against the employee even if the employee had not engaged in protected activity. more or view all topics or full text. | 34 | 134 | 09/03/10 |
| 2118S | State of California (Department of Corrections and Rehabilitation) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General An overall positive performance evaluation that contains some written comments and constructive criticism does not transform an otherwise positive evaluation into an adverse action. more or view all topics or full text. | 34 | 102 | 06/15/10 |
| 2118S | State of California (Department of Corrections and Rehabilitation) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General A referral to an EAP program does not constitute adverse action when participation in the program is voluntary and all services provided are confidential. more or view all topics or full text. | 34 | 102 | 06/15/10 |
| 2099I | Region 2 Court Interpreter Employment Relations Committee, et al. 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General In the event a charging party establishes a prima facie violation of the Court Interpreter Act section 71802(c)(3) at a formal hearing, the employer will be afforded an opportunity to demonstrate that its disparate treatment was taken for a legitimate reason, notwithstanding evidence of unlawful motive. more or view all topics or full text. | 34 | 53 | 02/25/10 |
| 2121M | Omnitrans 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Employer bears burden of proving affirmative defense that it would have taken adverse action even in the absence of employee’s protected activity. Employer proved affirmative defense by showing it would have terminated employee for excessive absences even though some of the absences were for union business. Some absences were for personal business, employee failed to properly request union leave for others, and absences were legitimately charged when employee failed to report for work on days union leave had been denied because employer showed legitimate operational need for denials. Validly charged absences totaled more than enough for termination under attendance provision of MOU. more or view all topics or full text. | 34 | 110 | 06/25/10 |
| 2090M | County of Riverside * * * OVERRULED IN PART by Walnut Valley Unified School District (2016) PERB Decision No. 2495 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General * * * OVERRULED IN PART ON OTHER GROUNDS by Walnut Valley Unified School District (2016) PERB Decision No. 2495. * * *Given that percipient witnesses did not testify to explain basis for adverse actions, the employer failed to establish any legitimate justification for its actions, and adverse actions culminating in termination were taken in retaliation for employee’s exercise of protected rights. Because virtually none of the percipient witnesses to the alleged incidents testified, there was no independent evidence in the record to support nearly all of the allegations of employee misconduct and the hearsay testimony presented was discredited on numerous points. Therefore, the employer failed to establish that it would have taken the adverse action even if the employee had not engaged in protected activity. Accordingly, the employer failed to meet its burden of proof under the “but for” test, and unlawfully retaliated against the employee for having engaged in protected activity. more or view all topics or full text. | 34 | 45 | 12/31/09 |
| 2072S | State of California (Department of Social Services) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General The State met its burden of establishing that it was motivated by legitimate business reasons in deciding first to place employee on administrative time off (ATO) and then to reject him on probation. more or view all topics or full text. | 33 | 177 | 10/27/09 |
| 1996M | Omnitrans 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Employer would have disciplined employee for failing to comply with requirement that he submit a request for union business leave 24 hours before taking leave, regardless of his participation in union activity. more or view all topics or full text. | 33 | 26 | 12/19/08 |
| 1993E | Baker Valley Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Employer failed to prove it would have nonrenewed teacher absent his protected activity because teacher’s personnel file contained no documentation of performance problems and the District superintendent’s testimony that he had spoken with the teacher about performance problems was not credible. more or view all topics or full text. | 33 | 23 | 12/19/08 |
| 1971M | City of Torrance 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Employer failed to establish it would have taken adverse actions against union president in the absence of president’s protected activity because adverse actions were not necessary to enforce the presidential release time MOU. more or view all topics or full text. | 32 | 126 | 08/21/08 |
| 1920M | Jurupa Community Services District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General The District did not sustain its burden of showing that it would have discharged an employee in the absence of his filing a grievance, when it disciplined, but did not discharge another employee who participated in a physical altercation. An employee’s door slamming, making derogatory comments towards co-workers, not following the District’s sick leave policy, filing a travel grievance, making a false accusation, and getting into a physical altercation were all cited by the District as reasons for his termination. The Board finds these reasons, however, to be pretext, some exaggerated, some untrue, some pulled out of a hat, some based solely on hearsay, and all cited in an attempt to mask the true motivation for the discharge, i.e., the employee’s filing a grievance. The District’s argument that a supervisor’s anti-union animus should not be attributed to the District was rejected where the District relied on and accepted that supervisor’s recommendation which led to termination of the employee. more or view all topics or full text. | 31 | 136 | 08/10/07 |
| 1880E | Oakland Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General The District met the burden of showing that it would have placed the teacher on administrative leave even if he had not engaged in protected activity. The District was unable to show that it would have non-reelected a probationary teacher regardless of his participation in protected activities, because there were discrepancies in the formal and informal evaluation forms offered to support the District’s position. An employee cannot cloak his or her own personal agenda in the veil of protected activity, and then seek the same insulation which such protected activities are afforded under EERA. Despite some troubling questions surrounding a teacher’s grading practices, the Board held that the District failed to carry its burden in showing that it would have chosen to non-reelect him regardless of his engagement in protected activities, because there were glaring inconsistencies underlying the District's decision to non-reelect him. more or view all topics or full text. | 31 | 45 | 01/11/07 |
| 1762S | State of California (Department of Consumer Affairs) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; 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. The Board rejected Wilson-Combs’ argument that it must presume the State’s unlawful motive for purposes of finding a prima facie case of retaliation. The charge did not specify the dates of her alleged union activity or facts showing the State’s knowledge of her activity. Contrary to PERB Regulation 32615(a)(5), the charge did not contain a “clear and concise statement of the fact and conduct alleged to constitute an unfair practice.” more or view all topics or full text. | 29 | 121 | 04/15/05 |
| 1459S | State of California 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General An employer is not under any obligation to create a position or the kind of position being sought for a prospective applicant; p. 7. more or view all topics or full text. | 25 | 32108 | 08/29/01 |
| 1409H | Trustees of the California State University 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General University met its burden. Evidence showed both charging parties would have been rejected from probation even if they had not filed the grievance. Their rejections from probation were not in retaliation for the grievance filing, and were not in violation of HEERA; pp. 20-22, proposed dec. more or view all topics or full text. | 24 | 31163 | 09/27/00 |
| 1323E | Ventura County Community College District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Where coworkers and supervisor had expressed fear of employee, employee had recently pled no-contest to spousal abuse charges, dean had observed employee's anger and frustration during meeting, Board found that employee's behavior, rather than protected activity, motivated college dean's decision to issue memorandum recommending evaluation of employee; pp.10-11. more or view all topics or full text. | 23 | 30094 | 04/08/99 |
| 1299S | State of California (Department of Industrial Relations) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General In retaliation cases, once an inference of unlawful motivation is drawn, the burden shifts to the employer to establish that it would have taken the action regardless of the employee's protected conduct, citing Novato; p. 11. Participation in protected activity does not insulate or immunize an employee against decisions made by the employer, including adverse employment actions citing Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Ca.3d 721; pp. 11-12. The Board will find the employer's conduct to be unlawful if it determines that the action would not have been taken but for the employee's protected conduct;p. 12. more or view all topics or full text. | 23 | 30012 | 11/02/98 |
| 1052E | Scotts Valley Union Elementary School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Once an inference of unlawful motivation 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. more or view all topics or full text. | 18 | 25115 | 08/24/94 |
| 1032S | California Union of Safety Employees (Coelho) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Respondent cannot use a conflict of interest which is the creation of its own unlawful act to avoid accountability for the retaliatory effects of its discrimination. more or view all topics or full text. | 18 | 25029 | 01/06/94 |
| 0910H | California State University, San Francisco 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; 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 |
| 0869H | California State University, Hayward (Dees) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General 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. 15-16, proposed dec. more or view all topics or full text. | 15 | 22051 | 02/25/91 |
| 0864E | Newark Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General 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; p. 15. District failed to meet its burden of showing that employee would have been transferred in absence of protected activity where it failed to offer non-pretextual justifications for retention of other teachers in employee's department; pp. 16-17. more or view all topics or full text. | 15 | 22023 | 01/14/91 |
| 0550E | Los Angeles Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Assuming activity was protected, no nexus because alleged harassment began prior to protected activity and did not change in kind or intensity thereafter. more or view all topics or full text. | 10 | 17025 | 12/17/85 |
| 0492E | Sacramento City Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Burden does not shift to employer to demonstrate lawful reasons for adverse action if charging party fails to establish prima facie case. more or view all topics or full text. | 9 | 16094 | 03/06/85 |
| 0299H | Regents of the University of California (University of California San Diego) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Under Novato, respondent met its burden that charging party would have been fired for insubordination even in the absence of his protected conduct; p. 17. more or view all topics or full text. | 7 | 14118 | 03/30/83 |
| 0272E | Rio Hondo Community College District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; 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 |
| 0226E | Rio Hondo Community College District (Davis) 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Employer introduced no evidence to rebut Charging Party's prima facie case of discrimination, thereby clearly failing to meet its burden of demonstrating that it would have denied Charging Party's request for a leave of absence notwithstanding his/her protected activity. more or view all topics or full text. | 6 | 13167 | 07/19/82 |
| 0227E | Moreland Elementary School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General Lack of "just cause" is not synonymous with anti-union animus; there are some improper or unlawful considerations of employer which bear no relation to matters contemplated under EERA; p. 15. Anti-union animus of a supervisor will not be attributed to employer unless supervisor contributed directly to decision to take adverse action. more or view all topics or full text. | 6 | 13171 | 07/27/82 |
| 0210E | Novato Unified School District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General 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 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. District's claim of operational necessity must be based on facts which are concurrent or which antedate the decision to transfer; p. 21. which are concurrent or which antedate the decision to transfer; p. 21. more or view all topics or full text. | 6 | 13114 | 04/30/82 |