Decision 1298E – Mountain Empire Unified School District

LA-CE-3634

Decision Date: October 30, 1998

Decision Type: PERB Decision

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Perc Vol: 23
Perc Index: 30011

Decision Headnotes

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

In order to demonstrate business necessity, the employer must show that it would have made the decision to transfer the employee in spite of his protected activity; demonstrating the reasonableness of its attempts to mitigate the effects of the adverse action is insufficient; p. 4.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

Where employer offers employee choice between two objectively adverse transfers, employer has taken adverse action against employee; p. 29, proposed dec.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities

Where employer offers employee choice between two objectively adverse transfers, employer has taken adverse action against employee; p. 29, proposed dec. Transfer from high school to elementary school was objectively adverse because of longer commute; p. 29, proposed dec. Transfer from high school to continuation school assignment outside of teacher's credential was objectively adverse; Education Code section 44865 requires a teacher to consent to such a transfer because of the danger of critical evaluation for a teacher teaching outside his/her credential (California Teachers Ass'n v. Governing Board (1983) 141 Cal.App.3d 606); p. 29, proposed dec.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.03000 – Departure from Past Practices or Procedures

District deviated from established procedures when it failed to place employee on the master schedule without apparent reason; p. 3. District departed from established procedures when it undertook a mid-term modification of the junior high school's Title I program without holding a site council meeting; pp. 3-4.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.04000 – Timing of Action

District's decision to transfer employee within two months of settlement of major union lawsuit on which employee had a "major impact"; p. 33, proposed dec.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.11000 – Legitimate Business Purpose/Business Necessity

In order to demonstate business necessity, the employer must show that it would have made the decision to transfer the employee in spite of his protected activity; demonstrating the reasonableness of its attempts to mitigate the effects of the adverse action is insufficient; p. 4.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.13000 – Other

In order to demonstrate business necessity, the employer must show that it would have made the decision to transfer the employee in spite of his protected activity; demonstrating the reasonableness of its attempts to mitigate the effects of the adverse action is insufficient; p. 4.