Decision 1299S – State of California (Department of Industrial Relations)

LA-CE-398-S

Decision Date: November 2, 1998

Decision Type: PERB Decision

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Perc Vol: 23
Perc Index: 30012

Decision Headnotes

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

In retaliation cases, once an inference of unlawful motivation is drawn, the burden shifts to the employer to establish that it would have taken the action regardless of the employee's protected conduct, citing Novato; p. 11. Participation in protected activity does not insulate or immunize an employee against decisions made by the employer, including adverse employment actions citing Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Ca.3d 721; pp. 11-12. The Board will find the employer's conduct to be unlawful if it determines that the action would not have been taken but for the employee's protected conduct;p. 12.


504.14000 – Other/In General

Since direct proof of unlawful motivation is not often present, the Board reviewed the record as a whole to determine if the inference of unlawful motive should be drawn; pp. 10-11. The temporal proximity of employee's protected conduct with the State's actions and the fact that the performance deficiencies memorandum and employee's second probationary report made specific reference to the employee's contact with the union representative supports the inference of unlawful motivation by the State; p. 11.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

Participation in protected activity does not insulate or immunize an employee against decisions made by the employer, including adverse employment actions citing Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721; pp. 11-12.

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

Board review of evidence in this case led to the same conclusion as the State Personnel Board (SPB) which had found substantial evidence supporting the probationary rejection and concluded that the employee had been rejected primarily because he had failed to follow the instructions of his supervisor; both SPB and PERB determined that rejection of probaiton was justified; p. 14. Participation in protected activity does not insulate or immunize an employee against decisions made by the employer, including adverse employment actions, city Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721; pp. 11-12.

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

Factors which may support an inference of unlawful motivation include the timing of the employer's adverse action in relation to the employee's protected conduct. In this case, employee's call to his union occurred only days before he received a performance deficiencies memorandum from his supervisor; p. 11. The temporal proximity of employee's protected conduct with the State's actions and the fact that the performance deficiencies memorandum and employee's second probationary report made specific reference to the employee's contact with the union representative supports the inference of unlawful motivation by the State; p. 11.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.13000 – Administrative and Judicial Notice

While the SPB decision denying employee's appeal of his probationary rejection is not afforded collateral effect in this PERB proceeding, it forms a part of the record before the Board; p. 14.

1405.00000 – GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA
1405.01000 – In General

The doctrine of collateral estoppel precludes a party to an action from relitigating in a second proceeding, matters litigated and decided in a prior proceeding, citing People v. Sims 1982) 32 Cal.3d 468; p. 8. Collateral estoppel is an aspect of, but not co-extensive with, the broader concept of res judicata. Collateral estoppel traditionally has barred religation of an issue if: (1) the issue is identical to one necessarily decided at a previous proceeding; (2) the previous proceeding resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior proceeding, city People v. Sims; p. 9. The Board concluded that collateral estoppel effect can not be given to the SPB proceeding in this case since the issue considered by the The Board concluded that collateral estoppel effect can not be given to the SPB proceeding in this case since the issue considered by the established in People v. Sims has not been met; p. 10.