Decision 1091E – Los Angeles Community College District (Mrvichin)

LA-CE-3346

Decision Date: March 16, 1995

Decision Type: PERB Decision

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Perc Vol: 19
Perc Index: 26069

Decision Headnotes

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
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.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
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.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
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.

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

Filing grievances and participating in employee organizational activities is protected conduct (EERA section 3543); p. 11.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.