Decision 2019E – Escondido Union Elementary School District

Where an employer’s adverse action was motivated by both valid and invalid reasons, the employer failed to meet burden of proof that it would have issued memo and disciplined employee for alleged performance deficiencies notwithstanding filing of unfair practice charge. Criticisms justifying discipline were hearsay and, without independent evidence supporting them, cannot suffice to meet employer’s burden of proof. An employer need not justify each and every criticism in a disciplinary memo to satisfy the burden of proof, but there must be sufficient independent evidence for Board to conclude that the disciplinary action based on hearsay criticisms would have occurred notwithstanding the employee’s protected activity. Burden of proof is on union to demonstrate unlawful motivation for adverse action. Union failed to establish that criticisms contained in a written reprimand concerning his comments at a staff meeting concerning his PERB charge and other matters and for moving a co-worker’s tools were exaggerated or embellished. Absent evidence casting suspicion on the employer, reliance on direct supervisors’ reports for disciplinary actions is not evidence of unlawful motivation. Burden of proof is on charging party to demonstrate knowledge of protected activity. Knowledge was established by the fact that one of the persons responsible for imposing discipline after an employee filed a charge with PERB filed a notice of appearance with PERB and participated in the preparation of disciplinary memoranda.

Temporal proximity between protected activity and disciplinary suspension of three and one-half months is sufficient to support inference of retaliation.

Failure to conduct adequate investigation of employee’s involvement in unauthorized barbecue prior to disciplining employee for allegedly organizing the event established nexus between protected activity and disciplinary actions. Reliance of second-line supervisor on first-line supervisors to conduct investigation of employee performance in preparing disciplinary memos did not cast suspicion on employer’s motives.

Burden of proof is on union to demonstrate unlawful motivation for adverse action. Union failed to establish that criticisms contained in a written reprimand concerning his conduct at a staff meeting and for moving a co-worker’s tools were exaggerated or embellished. Absent evidence casting suspicion on the employer, reliance on direct supervisors’ reports for disciplinary actions is not evidence of unlawful motivation. No unlawful motivation can be found based on discipline for acts cited in previous disciplinary memos, given employer’s progressive disciplinary system. Disciplinary notice and suspension merely carried out earlier recommendations consistent with progressive discipline policy.

Burden of proof is on charging party to demonstrate knowledge of protected activity. Knowledge was established by the fact that one of the persons responsible for imposing discipline after an employee filed a charge with PERB filed a notice of appearance with PERB and participated in the preparation of disciplinary memoranda.

Where an employer’s adverse action was motivated by both valid and invalid reasons, the employer failed to meet burden of proof that it would have issued memo and disciplined employee for alleged performance deficiencies notwithstanding filing of unfair practice charge. Criticisms justifying discipline were hearsay and, without independent evidence supporting them, cannot suffice to meet employer’s burden of proof. An employer need not justify each and every criticism in a disciplinary memo to satisfy the burden of proof, but there must be sufficient independent evidence for Board to conclude that the disciplinary action based on hearsay criticisms would have occurred notwithstanding the employee’s protected activity. Burden of proof is on union to demonstrate unlawful motivation for adverse action. Union failed to establish that criticisms contained in a written reprimand concerning his comments at a staff meeting concerning his PERB charge and other matters and for moving a co-worker’s tools were exaggerated or embellished. Absent evidence casting suspicion on the employer, reliance on direct supervisors’ reports for disciplinary actions is not evidence of unlawful motivation. Burden of proof is on charging party to demonstrate knowledge of protected activity. Knowledge was established by the fact that one of the persons responsible for imposing discipline after an employee filed a charge with PERB filed a notice of appearance with PERB and participated in the preparation of disciplinary memoranda.

Employer failed to meet burden of proof that it would have issued memo and disciplined employee notwithstanding filing of unfair practice charge. Criticisms justifying discipline were hearsay and, without independent evidence supporting them, cannot suffice to meet employer’s burden of proof. An employee need not justify each and every criticism in a disciplinary memo to satisfy the burden of proof, but there must be sufficient independent evidence for Board to conclude that the disciplinary action based on hearsay criticisms would have occurred notwithstanding the employee’s protected activity.

The Board declined to address alleged retaliatory issuance of improvement plan that were not alleged in complaint because there was no notice to the employer of a need to defend and the unalleged violation was not fully litigated.