Decision 1409H – Trustees of the California State University

Unlawful motivation is essential to charging party’s case. In the absence of direct evidence, an inference of unlawful motivation may be drawn from the record as a whole, as supported by circumstantial evidence; p. 17, proposed dec. Any of a number of circumstances may justify an inference of unlawful motivation on the part of the employer. Once an inference is made, the burden of proof shifts to the employer to establish that it would have taken the action complained of, regardless of the employee’s protected activities; p. 17, proposed dec.

University met its burden. Evidence showed both charging parties would have been rejected from probation even if they had not filed the grievance. Their rejections from probation were not in retaliation for the grievance filing, and were not in violation of HEERA; pp. 20-22, proposed dec.