Decision 1091E – Los Angeles Community College District (Mrvichin)
LA-CE-3346
Decision Date: March 16, 1995
Decision Type: PERB Decision
Description: District discriminated against employee for his exercise of protected activity.
Disposition: Violation found. District ordered to reinstate employee, pay lost wages and delete documents from personnel file.
Perc Vol: 19
Perc Index: 26069
Decision Headnotes
1105.02000 – Background Evidence and Matters Not Alleged
Evidence of wrongdoing is not itself a bar to all relief sought by a victim of discrimination; McKennon v. Nashville Banner Publishing Co. (January 23, 1995) U.S. [63 U.S.L. Week 41045]; District cannot use after-acquired evidence to support termination; p. 17.
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Evidence of wrongdoing is not itself a bar to all relief sought by a victum of discrimination; McKennon v. Nashville Banner Publishing Co. (January 23, 1995) U.S. [63 U.S.L. Week 41045]; District cannot use after-acquired evidence to support termination; p. 17.
1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements
The Board generally gives deference to ALJ's factual findings that are based on credibility determinations; p. 9. By virtue of having witnessed the live testimony, an ALJ is in a better position than the Board itself to accurately make credibility determinations because the Board only reviews the written transcript of the hearing; p. 10.
102.02000 – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes
PERB has exclusive initial jurisdiction to consider unfair practices such as District animus. No deferral to the District's Personnel Commission which was considering whether the termination was for cause.
300.05000 – Grievances
Filing grievances and participating in employee organizational activities is protected conduct (EERA section 3543); p. 11.
504.03000 – Departure from Past Practices or Procedures
District departed from its policy by failing to complete the sexual harassment investigation and terminate Mrvichin via Notice of Unsatisfactory Performance. The district never consulted with the appropriate administrators in preparing the notice granting of a student's grade change request after a cursory investigation is also considered evidence of failure to follow policy.
504.04000 – Timing of Action
Although timing of the adverse action alone is not sufficient to justify an inference of unlawful motivation (Charter Oak Unified School District (1984) PERB Decision No. 404), it may, when coupled with other factors, constitute a basis for such conclusion; p. 12.
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions
The Board generally gives deference to ALJ's factual findings that are based on credibility determinations; p. 9. By virtue of having witnessed the live testimony, an ALJ is in a better position than the Board itself to accurately make credibility determinations because the Board only reviews the written transcript of the hearing; p. 10.