Decision 1970H – Trustees of the California State University

LA-CE-899-H

Decision Date: July 18, 2008

Decision Type: PERB Decision

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Perc Vol: 32
Perc Index: 118

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

Employee engaged in protected activity by filing three grievances and an unfair practice charge.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.09000 – Participation in Board Process

Employee engaged in protected activity by filing three grievances and an unfair practice charge.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.06000 – Blacklisting; Hire; Refusal to Recommend

Denial of opportunity to interview for permanent position when employee had held same position for three years as a temporary appointee constituted adverse action.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.06000 – Meritorious or Satisfactory Work Record; Prior Promotion or Wage Increase

Ranking of applicant last among candidates, when he had held position in temporary status for three years with no discipline or unsatisfactory performance reviews, supported inference of unlawful motive.


504.14000 – Other/In General

Modifying job description to make former temporary holder of position less competitive as an applicant for permanent position and appointing a selection committee where two out of four members were biased against the applicant supported inference of unlawful motive.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.13000 – Other

Employer may rebut inference of unlawful motive by showing it would have taken the same action had the employee not engaged in protected activity. While employer had legitimate reasons for modifying job description and ranking applicant last among four candidates, employer failed to establish that it would have taken these same actions had applicant not engaged in protected activity when he held the position as a temporary appointee.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.16000 – Adverse Inferences

Based on party’s failure to call presumably favorable witness to testify at hearing, ALJ drew inference that witness’ testimony would have been adverse to party. In light of California Evidence Code section 412, PERB does not draw an adverse inference when either party could have called the witness to testify but neither did so.