Decision 2207M – City and County of San Francisco
SF-CE-671-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 terminating his employment.
Disposition: The Board upheld the dismissal of the charge for failure to state a prima facie case of discrimination/retaliation, concluding that there was no nexus between the protected activity and the retaliatory act.
Perc Vol: 36
Perc Index: 60
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.
300.05000 – Grievances
The filing of a grievance is 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.
503.07000 – Discharge; Layoffs; Constructive Discharge; Rejection During Probation
Dismissal of an employee is an adverse action.
504.14000 – Other/In General
Mere legal conclusions are not sufficient to state a prima facie case; charging party’s burden was not met where he alleged that his negative performance evaluation was “disparate hostile and deceptive treatment unlike or inconsistent with that imposed on any other staff” without providing a factual basis for this statement.
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.