Decision 2090M – County of Riverside * * * OVERRULED IN PART by Walnut Valley Unified School District (2016) PERB Decision No. 2495

LA-CE-261-M

Decision Date: December 31, 2009

Decision Type: PERB Decision

 * * * OVERRULED IN PART by Walnut Valley Unified School District (2016) PERB Decision No. 2495 * * *

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Perc Vol: 34
Perc Index: 45

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.04000 – Individual/Concerted/Activities/Self-Representation

While individual complaints related to employment matters made by an employee to a superior are protected, this right of self representation is not unlimited. Employee complaints to employers are protected when those complaints “are a logical continuation of group activity.” (Los Angeles Unified School District (2003) PERB Decision No. 1552.) Thus, where an employee’s complaint is undertaken alone and for his/her sole benefit, that individual’s conduct is not protected. Employee’s complaints regarding the use of non-engineers to direct the work of engineers and to perform engineering-related work were neither undertaken alone nor taken for his sole benefit; consequently, they were a logical continuation of a group activity and, therefore, constituted protected activity.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.12000 – Insistence on Union Representation

Employee had no right to representation by a private attorney at an investigatory interview.

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.01000 – In General

Employee had no right to representation by a private attorney at an investigatory interview.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

The test for adverse action is not whether the action would reasonably lead an employee to fear for his job, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.03000 – Warning Letters, Reprimands, Evaluations

An employer’s action is adverse if a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment. Employer’s memorandum was an adverse action where it made several changes to employee’s working conditions, including altering his work hours; imposing additional conditions when calling in sick; prohibiting him from leaving his work station or even the floor without permission, going to the floor where his wife worked, using his personal laptop and cell phone, discussing specified issues with staff, socializing with other employees, and having public contact. However, a memorandum simply informing an employee of the employer’s expectations and advising him that failure to abide by those expectations may result in disciplinary action was not an adverse action. Issuance of directive instructing employee to provide a doctor’s certificate upon his return to work and to contact his supervisor within an hour of his start time when calling in sick was not an adverse action, where a reasonable person under the same circumstances would not consider the directive to have an adverse impact on his or her employment and the directive did not give unequivocal notice that the employer had made a firm decision to take adverse action.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.07000 – Discharge; Layoffs; Constructive Discharge; Rejection During Probation

Termination of employee was taken in retaliation for protected activities, where accusations were not supported by independent evidence presented at hearing and employer engaged in cursory investigation of alleged misconduct.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.14000 – Involuntary Leaves

Placing employee on administrative leave following allegations of workplace violence was an adverse action.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.03000 – Departure from Past Practices or Procedures

Factors that support a finding of nexus include the employer’s departure from established procedures and standards, its cursory investigation of the employee’s alleged misconduct, and its failure to offer any justification for its actions. County failed to establish any legitimate justification for the issuance of a memo changing working conditions; decision to reassign employee and the imposition of new and onerous restrictions on his working conditions were taken in retaliation for employee’s exercise of protected rights.

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

Reassignment of employee less than two months after employee filed unfair practice charge and presented complaints concerning the workplace established timing element of nexus. Although protected activities began one year earlier, they continued until employer began taking adverse actions.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications

Failure to provide justification for imposing new and onerous restrictions on employee’s working conditions, issuance of administrative memoranda, placement of employee on administrative leave and termination of employee support finding of unlawful retaliation for employee’s exercise of protected rights.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.08000 – Cursory Investigation

Finding of nexus is supported by the employer’s cursory investigation of the alleged misconduct prior to initiating disciplinary action. Employer failed to conduct an adequate investigation of the alleged misconduct and relied on unsubstantiated allegations of misconduct. Moreover, by refusing to allow a short postponement of the investigatory interview, it failed to afford employee a reasonable opportunity to provide information that would have aided in its investigation.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

Given that percipient witnesses did not testify to explain basis for adverse actions, the employer failed to establish any legitimate justification for its actions, and adverse actions culminating in termination were taken in retaliation for employee’s exercise of protected rights. Because virtually none of the percipient witnesses to the alleged incidents testified, there was no independent evidence in the record to support nearly all of the allegations of employee misconduct and the hearsay testimony presented was discredited on numerous points. Therefore, the employer failed to establish that it would have taken the adverse action even if the employee had not engaged in protected activity.) (Accordingly, the employer failed to meet its burden of proof under the “but for” test, and unlawfully retaliated against the employee for having engaged in protected activity.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.12000 – Lack of Knowledge of Protected Activity

Knowledge established, when human resources officer and supervisors learned of employee’s complaints about working conditions. Employer also had knowledge when it was served with the unfair practice charge in the instant case.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses

Given that percipient witnesses did not testify to explain basis for adverse actions, the employer failed to establish any legitimate justification for its actions, and adverse actions culminating in termination were taken in retaliation for employee’s exercise of protected rights. Because virtually none of the percipient witnesses to the alleged incidents testified, there was no independent evidence in the record to support nearly all of the allegations of employee misconduct and the hearsay testimony presented was discredited on numerous points. Therefore, the employer failed to establish that it would have taken the adverse action even if the employee had not engaged in protected activity. Accordingly, the employer failed to meet its burden of proof under the “but for” test, and unlawfully retaliated against the employee for having engaged in protected activity.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

Given that supervisor did not testify to explain his actions and the only evidence on the basis for a counseling memo came in the form of uncorroborated hearsay testimony, the employer failed to establish any legitimate justification for the memo and the decision to reassign the employee and the imposition of new and onerous restrictions on his working conditions were taken in retaliation for exercise of protected rights. Likewise, in the absence of any testimony by percipient witnesses to underlying alleged incidents of workplace violence, the decision to place employee on administrative leave and terminate him were pretextual and taken in retaliation for exercise of protected rights.