Decision 1298E – Mountain Empire Unified School District

LA-CE-3634

Decision Date: October 30, 1998

Decision Type: PERB Decision

Description: District filed exceptions to Board agent’s proposed decision finding the District violated EERA when it transferred employee from high school to elementary school position in retaliation of his protected activities.

Disposition: Violation found. Board ordered District to rescind transfer at end of school year and pay employee stipend and mileage plus interest.

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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.