Decision 2206M – City and County of San Francisco
SF-CE-665-M
Decision Date: October 5, 2011
Decision Type: PERB Decision
Description: The charge alleged that the City & County of San Francisco retaliated against charging party by stalking him and photographing him using a cell phone during work time.
Disposition: The Board upheld the dismissal of the charge for failure to state a prima facie case of discrimination/retaliation, concluding that the two instances of alleged camera-phone stalking did not constitute adverse action and, even if they did, there was no nexus, apart from close temporal proximity, between the protected activity and the retaliatory act.
Perc Vol: 36
Perc Index: 59
Decision Headnotes
300.04000 – Individual/Concerted/Activities/Self-Representation
Employee complaints impacting employees generally are considered protected activity; a “malpractice report” to various city officials alerting them to negative working conditions, including quantity of workload and failure to comply with overtime requirements, addressed matters of interest to other employees in the bargaining unit, and therefore entailed protected activity; on the other hand, a “malpractice report” in which charging party complained about the misuse of public funds at a staff party was devoid of facts demonstrating a collective employment-related concern shared by other bargaining unit members, and therefore did not entail protected activity.
300.17000 – Other
Employee complaints impacting employees generally are considered protected activity; a “malpractice report” to various city officials alerting them to negative working conditions, including quantity of workload and failure to comply with overtime requirements, addressed matters of interest to other employees in the bargaining unit, and therefore entailed protected activity; on the other hand, a “malpractice report” in which charging party complained about the misuse of public funds at a staff party was devoid of facts demonstrating a collective employment-related concern shared by other bargaining unit members, and therefore did not entail protected activity.
503.15000 – Other
Charging party must show as part of the prima facie case that a reasonable person under the same circumstances would view the action taken as adverse to charging party’s employment; where alleged adverse action consisted of a supervisor’s use of a cell phone camera in the workplace, charging party failed to establish the adverse action element of the prima facie case.
501.03000 – Knowledge of Protected Activity
Charging party’s prima facie burden includes showing that the employer, specifically, the decision-maker taking adverse action against the employee, had knowledge of the protected activity; where the protected activity consists of a whistle-blowing report to the mayor that was intercepted before it was sent, the charge failed to allege facts sufficient to establish that the city had knowledge of the protected activity or that knowledge of the report can be imputed to the decision-makers responsible for taking the adverse action.