Decision 0778E – Carlsbad Unified School District

Retraction. Superintendent's immediate retraction of administrator's denial of secretary to serve on negotiating committee corrected harm. Employee sought participation not for purpose of representation but to achieve appointment to confidential position. In this context, harm to employee was de minimis.

Promotion. Appointment of a secretary to a confidential position is not a promotion. Thus cases holding that denial of promotion is discriminatory are irrelevant. Transfer. Transfer of a secretary to a position in a high school to convert her former position to confidential status is not harm. Employee suffered no loss of pay, benefits or status.

Legitimate Business Purpose. An employer must be given broad discretion if filling a confidential position. Under the EERA, an employer may consider past protected conduct when selecting an employee for a confidential position.

School board may not rely on confidentiality of closed meetings for personnel decisions to avoid proving nondiscriminatory intent in discrimination case.