All notes for Subtopic 505.03000 – Misconduct

DecisionDescriptionPERC Vol.PERC IndexDate
2736M City of Santa Maria
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Employer could not establish that suspected employee misconduct prompted it to investigate employees and their protected activities. There was no evidence that the employees’ protected activities, viz. issuing a “do not apply” communication to firefighters in outside departments, resulted in any disruption to the employer’s operations. Many protected concerted activities are undertaken for the purpose of disrupting the employer’s unfair practices and operations. In the absence of evidence that such activities “create a substantial and imminent threat to the health or safety of the public” (County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564, 586) there is no basis to believe that a communication like the one at issue here was rendered unprotected by its alleged success. (Page 28.) more or view all topics or full text.
06/30/20
2654E Claremont Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
The District argued it took adverse action against an employee in the larger context of his continuing harassing and intimidating behavior toward co-workers. The Board found this context of minimal weight where the conduct for which the employee received the adverse action was neither harassing nor intimidating. (pp. 17-19.) more or view all topics or full text.
07/10/19
2611M County of Orange
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
PERB examines the entire record to determine whether the employer’s proffered reason was honestly invoked and, in fact, was the cause of its adverse action. (p. 19.) When an employer cites accusations or complaints that it did not believe in good faith to be true as evidence of an alternative, non-discriminatory reason, PERB will find such justifications pretext for retaliation. (Ibid.) Because the employer appeared to rely on an insufficient investigation when it accepted a witness’ complaint at face value despite the witness’ subsequent complaint contradicting the first, its proffered justification failed to establish that the first complaint was, in fact, the reason for taking adverse action. (pp. 19-20.) more or view all topics or full text.
4310112/19/18
2611M County of Orange
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
An employer’s defense that the challenged action would have occurred in the absence of the employee’s protected activity must be proven by sufficient independent, non-hearsay evidence. (p. 20.) The employer could not rely on a hearsay complaint for its defense where it failed to present non-hearsay evidence showing that the events used to justify the written reprimand actually occurred. (pp. 20-21.) more or view all topics or full text.
4310112/19/18
2630E Adelanto Elementary School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
The reliability of statements relied upon by the employer is one consideration in determining whether the employer proved its affirmative defense that it would have taken the same adverse action in the absence of the employee’s protected activity. more or view all topics or full text.
4314703/01/19
2450E Jurupa Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
A District satisfies its burden of proving it took adverse action because of a legitimate, non-discriminatory reason when the District had a long record of complaints filed against charging party, many of which predated the protected activity, and the District warned charging party multiple times prior to charging party’s protected activity that it would not tolerate his misconduct. more or view all topics or full text.
404608/31/15
2458E Jurupa Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
The District’s alleged failure to report student accusations against charging party to Child Protective Services and/or the sheriff’s office does not logically lead to the conclusion that the investigation was a subterfuge for retaliation. Common sense and the District’s practice dictate that student complaints of mistreatment at the hands of teachers require investigation. That the District may have also had a duty to report the complaints to Child Protective Services does not vitiate the District’s legitimate non-discriminatory reason to interview charging party about the complaints. Exaggerated accusations of “insubordination” and bad attitude have been found to be pretextual where they were factually inaccurate and not adequately explained by other evidence. Where an employer has legitimate concerns over how a teacher’s conduct may affect the integrity of its education program, PERB has refused to disturb the employer's decision making process. more or view all topics or full text.
407510/23/15
2420E Jurupa Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Any slight irregularities in the investigation process or hints of bias are overshadowed by charging party’s admissions of several allegations of misconduct against him, many of which occurred prior to his protected conduct. Even where there is some evidence of nexus, an employee’s dismissal may be justified where the charges against an employee are mostly true. Where an employer has legitimate concerns over how a teacher’s conduct may affect the integrity of its education program, PERB has refused to disturb the employer’s decision to terminate employment. The fact that students repeatedly raised concerns about charging party to administrators, especially across multiple years and at different school sites, suggests that the District’s concerns about his effect on the integrity of the educational program were legitimate. more or view all topics or full text.
3914104/23/15
2391H Trustees of the California State University (East Bay)
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Charging Party’s improper workplace conduct gave the employer cause for non-discriminatory discipline, and CSUEB has proved through independent and competent evidence both the existence of such improper workplace conduct and that this conduct motivated its response. more or view all topics or full text.
393909/02/14
2337E Palo Verde Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Once the charging party establishes that the responding party was motivated in whole or part by statutorily protected conduct, the burden shifts to the respondent to demonstrate that the employer had, and acted because of, an alternative non-discriminatory reason. Where such alternative reason is alleged to be improper workplace conduct of the charging party, which is claimed to give the employer cause for non-discriminatory discipline or discharge, the employer must prove through independent and competent evidence both the existence of such improper workplace conduct and that this conduct motivated the employer’s response. Recitation by employer agents of a litany of hearsay reports cannot, absent competent, direct and independent evidence, meet the employer’s burden of proof that it acted for a lawful, non-discriminatory reason. more or view all topics or full text.
386910/29/13
2237S State of California (Board of Equalization)
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Corrective memorandum was not issued in retaliation for engaging in protected activity of preparing a grievance but because charging party insisted on preparing the grievance in an open print shop rather than in a quiet and private area arranged for by management. more or view all topics or full text.
3612102/07/12
2235E Santa Ana Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Record established that employer made decision regarding substitute employee’s employment based upon the fact that he falsified his timecard and that other employees had similarly been terminated for timecard falsification. Thus, employer established that it would have terminated employee’s employment even if he had not engaged in protected activity. more or view all topics or full text.
3611902/07/12
2211M City of Santa Monica
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
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.
366610/24/11
2121M Omnitrans
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
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.
3411006/25/10
2061E Oakland Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
The district would have terminated the employee's employment even in the absence of protected activity because she stopped coming to work. more or view all topics or full text.
3315309/10/09
1979C Los Angeles County Superior Court * * * OVERRULED IN PART by Napa Valley Community College District (2018) PERB Decision No. 2563
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
To establish the “but for” affirmative defense in mixed conduct cases, where discipline is based on both protected and unprotected activity, the employer bears the burden of showing it would have imposed the same discipline for the unprotected conduct standing alone as it imposed for the mixed conduct. Board found that the employer would have suspended the employee based solely on the employee’s unprotected activity and therefore the employee’s protected activity was not the true motivation behind the employer’s adverse action. PERB has no authority to determine the appropriate level of discipline for unprotected activity. more or view all topics or full text.
3215110/07/08
1920M Jurupa Community Services District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
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. more or view all topics or full text.
3113608/10/07
1826S State of California (Department of Corrections)
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Filing a fraudulent claim in a grievance is not protected activity. more or view all topics or full text.
308203/03/06
1697H Trustees of the California State University
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Cornelius did not state facts showing a nexus between her protected conduct (signing up for steward training) and the adverse actions (notice of termination and refusal to hire her for other positions). Rather, evidence shows that CSU approved her steward training and that Cornelius was terminated for misconduct. more or view all topics or full text.
2826409/30/04
1702E Berkeley Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
This matter can be distinguished from Moosa v. SPB (2002) 102 Cal. App. 4th 1379, in which a professor was demoted for failure to provide a teaching plan ordered by a supervisor. The supervisor’s directive violated the collective bargaining agreement. In this case, the order for Lavan to take an anger management class did not violate the collective bargaining agreement. more or view all topics or full text.
29511/05/04
1676M Rainbow Municipal Water District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Goddard’s conduct in disclosing a confidential communication did not lose its protected nature since he was simply reporting a conversation that he believed to be unlawful that he overheard while performing his regular duties. There was no evidence of bad faith or knowledge that the report might be untrue. The District had no specific rule regarding confidentiality and in any event, a rule that prohibits reporting violations of the MMBA is facially unlawful. more or view all topics or full text.
2822008/19/04
1602E San Bernardino City Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Board found no anti-union animus underlying allegations of misconduct by teachers. Although prima facie case of discrimination was established, District met its burden to demonstrate that non-tenured teachers would not have been renewed, even absent protected activities, because of their misconduct. more or view all topics or full text.
288802/24/04
1529E Oakland Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Once OEA stated a prima facie case of discrimination, the District’s defense that it would have placed Robinson on administrative leave regardless of his protected conduct is information that should be considered during the Board’s hearing process. more or view all topics or full text.
279106/20/03
1435S State of California (Department of Corrections)
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
The Board rejected the State's claim that comments uttered by charging party were violative of PERB case law governing speech in the workplace. To decide whether speech is lawful, a principal consideration is whether the speech contains a "threat of reprisal or force," under an objective rather than a subjective standard. The fact that an employer may interpret statements, which are otherwise protected, as coercive does not necessarily render those statements unlawful. Statements are viewed in their overall context to determine if they have a coercive meaning; pp. 36-43, proposed dec. Board rejected State's claims that charging party was guilty of misconduct with regard to the acts leading up to the investigation, and that he was dishonest during the investigation itself, finding that his acts did not justify adverse action under the circumstances presented; pp. 43-47, proposed dec. more or view all topics or full text.
253206805/11/01
1375E Pomona Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Charging party's letters were uncomplimentary to employer and expressed belief that she had been wronged but did not lose their protection as "opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice" as to cause "substantial disruption of or material interference with school activities." (Rancho Santiago Community College District (1986) PERB Decision No. 602.) more or view all topics or full text.
243106002/28/00
1323E Ventura County Community College District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Where coworkers and supervisor had expressed fear of employee, employee had recently pled no-contest to spousal abuse charges, and college 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 psychiatric evaluation of employee; pp. 10-11. more or view all topics or full text.
233009404/08/99
1185E Healdsburg Union High School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Insubordination may be met with discipline, notwithstanding protected activitiy. more or view all topics or full text.
212805502/24/97
1159H Regents of the University of California (Higgins)
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
The employer may investigate charging party's conduct pursuant to its rules as it would investigate the conduct of any other employee alleged to have engaged in misconduct; p. 2, warning letter. more or view all topics or full text.
202711206/18/96
1028H Regents of the University of California (Cutshall)
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
It is unnecessary to decide whether the allege 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.
182502512/09/93
0885E San Diego Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
The record clearly demonstrates that the charging party would have been dismissed regardless of whether she had engaged in protected activities because the employee had engaged nine categories of specified acts of misconduct, rudeness, and insubordination. Thus, the record solidly established that the charging party would not have been retained, regardless of her protected activity. more or view all topics or full text.
152210306/14/91
0641H California State University, Long Beach
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Adverse actions against an employee due to dissatisfaction with her work, displeasure with her resistance to accepting supervisorial directions and criticism, and desire of supervisors to conduct the operation according to their own judgment. Adverse actions not due to employee's invoking aid of union. more or view all topics or full text.
121900612/11/87
0639E Riverside Unified School District (Petrich)
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Evidence established that Employer's actions due to employee's attendance problems and failure to do assigned work as instructed. more or view all topics or full text.
121900311/23/87
0622E Riverside Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Adverse actions in response to employee misconduct, not to protected activity; pp. 62, 65 and 67, proposed dec.. more or view all topics or full text.
111810706/11/87
0575S State of California (Health Services)
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
No discrimination found where clear motive of employer was not retaliation for filing of grievance but displeasure at employees' disobedience. more or view all topics or full text.
101711906/20/86
1707Ma Alameda County Medical Center
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
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.
297202/04/05
0299H Regents of the University of California (University of California San Diego)
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
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.
71411803/30/83
0211H California State University, Sacramento
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Employee's misconduct, including repeated incidents of intoxication, were sufficient to support termination, absent a sufficient showing that termination was based on employee's protected activity; pp. 18-20 more or view all topics or full text.
61311504/30/82
0047E Pittsburg Unified School District
505.3000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct
Employees properly disciplined for offensive union leaflet where motivation was unrelated to protected activity itself but focused on nature of the leaflet. more or view all topics or full text.
2205102/10/78