All notes for Subtopic 505.12000 – Lack of Knowledge of Protected Activity

DecisionDescriptionPERC Vol.PERC IndexDate
2584E * * * JUDICIAL APPEAL PENDING * * * California Virtual Academies
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
The Board inferred knowledge of employees protected activity from 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.” more or view all topics or full text.
435409/21/18
2563E Napa Valley Community College District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Charge failed to demonstrate employer knowledge of employee’s prior PERB charges. Although employer was aware of a settlement agreement, it was not necessarily aware of the agreement’s contents. Employer’s reference to a court decision discussing the agreement was a readily apparent explanation for its knowledge of the agreement. more or view all topics or full text.
4215405/25/18
2567E Hartnell Community College District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
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.
43206/12/18
2567E Hartnell Community College District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
The Board denied Charging Party’s exception which asserted that the ALJ had improperly failed to consider evidence that the employer’s decisionmaker had received biased, inaccurate or incomplete information from a subordinate, which influenced the decision to take adverse action against Charging Party. The exception included no citation to the record and did not identify any specific evidence that was neglected. ERB Regulation 32300 requires the party filing exceptions to: (1) state the specific issues of procedure, fact, law or rationale to which each exception is taken; (2) identify the page or part of the decision to which each exception is taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each exception. (PERB Reg. 32300.) more or view all topics or full text.
43206/12/18
2445E Santa Maria Joint Union High School District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
In the employment law context, cat’s paw refers to an innocent or unwitting person or entity being used as a conduit to accomplish another’s purpose; PERB employs a cat’s paw theory of liability, referred to as subordinate bias liability; the unlawful motive of a subordinate supervisorial employee may be imputed to the decision-maker responsible for authorizing the adverse action where the lower-level official’s recommendation, evaluation or report was motivated by the employee’s protected conduct, the lower-level official intended for their conduct to result in adverse action, and the lower level official’s conduct was a motivating factor or proximate cause of the decision to take adverse action. more or view all topics or full text.
403807/31/15
2391H Trustees of the California State University (East Bay)
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Charging Party failed to present evidence that the decision-makers had knowledge of his protected activity. 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.
393909/02/14
2337E Palo Verde Unified School District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Where a supervisor who has displayed animus discharges an employee, with the support and ratification of the supervisor’s own supervisor, who himself displays animus, we attribute both supervisors’ actions and animus to the employer. more or view all topics or full text.
386910/29/13
2349M Santa Clara Valley Water District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
The charging party failed to prove that the employer’s decision maker knew of the charging party’s union activity at the time of the decision to deny charging party’s request for reclassification, where the decision maker was relatively new to her position, had not dealt with the charging party in his capacity as a union official, and did not rely on potentially biased information from subordinate managers in reaching her decision to deny the charging party’s reclassification. (subordinate bias liability theory). more or view all topics or full text.
389612/19/13
2206M City and County of San Francisco
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Charging party’s prima facie burden includes showing that the employer, specifically, the decision-maker taking adverse action against the employee, had knowledge of the protected activity; where the protected activity consists of a whistle-blowing report to the mayor that was intercepted before it was sent, the charge failed to allege facts sufficient to establish that the city had knowledge of the protected activity or that knowledge of the report can be imputed to the decision-makers responsible for taking the adverse action. more or view all topics or full text.
365910/05/11
2207M City and County of San Francisco
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Charging party’s prima facie burden includes showing that the employer, specifically, the decision-maker taking adverse action against the employee, had knowledge of the protected activity; where the protected activity consists of a whistle-blowing report to the mayor that was intercepted before it was sent, the charge failed to allege facts sufficient to establish that the city had knowledge of the protected activity or that knowledge of the report can be imputed to the decision-makers responsible for taking the adverse action. more or view all topics or full text.
366010/05/11
2258M County of San Diego
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Charge failed to establish who made decision to transfer employee and whether those people were aware of his protected activities. more or view all topics or full text.
3616904/26/12
2184M County of Riverside
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Supervisors had knowledge of employee’s protected activity in sending copy of written statement about workplace issue to union representative, where union representative’s name appeared directly below supervisor’s name on “cc” line of statement. Although decisionmaker did not have knowledge of protected activity, decision was based solely on recommendation of supervisor who knew of employee’s protected activity. 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. more or view all topics or full text.
36206/07/11
2090M County of Riverside * * * OVERRULED IN PART by Walnut Valley Unified School District (2016) PERB Decision No. 2495
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Knowledge established, when human resources officer and supervisors learned of employee’s complaints about working conditions. Employer also had knowledge when it was served with the unfair practice charge in the instant case. more or view all topics or full text.
344512/31/09
2066M Metropolitan Water District of Southern California
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
PERB will not impute knowledge of employee’s protected activity to the decision maker when the protected activity was known only to employees who played no role in the adverse action. Supervisor who met with employee and union representative about employee’s use of leave had no role in subsequent decision to terminate employee’s employment and health benefits. Thus, supervisor’s knowledge of employee’s protected activity could not be imputed to the decision maker. more or view all topics or full text.
3316509/29/09
2061E Oakland Unified School District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Supervisor who initiated termination by informing personnel officer of employee's absence, did not know of employee's protected activity. However, the personnel officer who signed and issued the termination notice knew of the protected activity. As the personnel officer was a participant in the decision to issue the disciplinary action, the "knowledge" element is established. more or view all topics or full text.
3315309/10/09
2019E Escondido Union Elementary School District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Burden of proof is on charging party to demonstrate knowledge of protected activity. Knowledge was established by the fact that one of the persons responsible for imposing discipline after an employee filed a charge with PERB filed a notice of appearance with PERB and participated in the preparation of disciplinary memoranda. more or view all topics or full text.
337404/30/09
1995H Regents of the University of California (Los Angeles)
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
University did not lay off employee in retaliation for union activities. While decision maker had knowledge of employee’s union activities, union animus held by employee’s supervisors is not imputed to decision maker, and layoff decision was not so economically indefensible that it must have been the product of unlawful motivation. more or view all topics or full text.
332512/19/08
1994M City of Modesto
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Employer had knowledge of employee’s protected activity of appealing his proposed suspension when two employees who prepared final notice of suspension for department head’s signature, but not department head himself, knew of employee’s appeal. more or view all topics or full text.
332412/19/08
1762S State of California (Department of Consumer Affairs)
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
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.
2912104/15/05
1668E Los Angeles Community College District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Board adopted proposed decision dismissing complaint where charging party failed to prove that employer had knowledge of protected activities. more or view all topics or full text.
2821507/28/04
1435S State of California (Department of Corrections)
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
The State argued that there was no evidence to impute the knowledge of charging party's supervisors to the warden. In rejecting this argument, the Board found that the letter of reprimand itself cited a protected act as a key reason for the discipline. Unlawful animus may be imputed to high management officials where, even innocently, they rely on inaccurate and biased information of lower level management officials; pp. 31-32, proposed dec. more or view all topics or full text.
253206805/11/01
1064S California Union of Safety Employees (John)
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Where a probibited motive is found, it is not controlling that the employer/union may have been mistaken in determining whether the individual was engaged in protected activity; p. 13, fn. 7. more or view all topics or full text.
192600411/01/94
0795E Jamestown Elementary School District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
No nexus found where little or no evidence that employer aware of protected activity and where comments of employer could not reasonably be interpreted to urge employee to abandon support for incumbent union; pp. 18-19, proposed dec. (Writ summarily denied.) more or view all topics or full text.
142106903/20/90
0505E Santa Paula School District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
District failed to show it lacked knowledge of protected activity where discriminatee involved in negotiations and had direct contact with district. more or view all topics or full text.
91612805/07/85
0492E Sacramento City Unified School District
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
There can be no unlawful retaliation if employer unaware of protected activity; animus not automatically inputed from supervisor to interview committee; committee unaware of both employee's protected activity and of animus of supervisor. more or view all topics or full text.
91609403/06/85
0328S State of California (Department of Parks and Recreation) * * * OVERRULED IN PART by County of Santa Clara (2017) PERB Decision No. 2539-M
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Panel's lack of knowledge of protected activity not defense where panel relied on tainted evaluation ratings. more or view all topics or full text.
71421107/29/83
0065E Santa Clara County Superintendent of Schools
505.12000: EMPLOYER DISCRIMINATION; DEFENSES; Lack of Knowledge of Protected Activity
Transfer of bus driver not unlawful where managerial employee responsible for transfer had no knowledge of protected activity and where decision due to insurer's refusal to insure charging party; p. 22, proposed dec. Discharge of bus driver not unlawful where protected activity not clearly shown, apparently minor in scope and, in any event, not shown to employer, and where denial of permit justified by age and poor driving record; p. 23, proposed dec. more or view all topics or full text.
2217108/16/78