Decision 2211M – City of Santa Monica

LA-CE-523-M

Decision Date: October 24, 2011

Decision Type: PERB Decision

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Perc Vol: 36
Perc Index: 66

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

Use of union to file grievance is protected activity.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

Use of union to file grievance is protected activity.

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

Termination of probationary employee is an adverse action.

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

Failure to provide employee with reasons for releasing him on probation does not support inference of unlawful motive. Employer’s failure to give probationary, “at-will” employee a reason for dismissal does not indicate unlawful motive in the absence of evidence that employer was required by law, policy or past practice to do so. Where employer’s practice was not to give probationary employee a reason for releasing employee on probation, failure to do so did not support inference of unlawful motive.

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

Employer’s failure to interview an employee in connection with a disciplinary matter evidences unlawful motive only when the employer routinely interviews employees under such circumstances. No evidence that employer regularly interviewed probationary employees before releasing them. No evidence that employer had a practice of interviewing individuals who complained about a driver’s performance when a videotape of the incident was available. Therefore, failure to interview employees about incidents did not support inference of unlawful motive.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

Once a prima facie case is established, employer bears the burden of proving it would have taken the adverse action even if the employee had not engaged in protected activity. The issue before the Board is not whether the employer had just cause to discipline or terminate the employee, but rather whether the true motivation behind the employer’s decision was the employee’s exercise of protected activity. Thus, the Board does not determine whether the employer was correct in its determination that employee violated safety procedures, or whether good cause existed to terminate his employment. Weighing the evidence that probationary employee’s supervisors were dissatisfied with his performance throughout his employment against any possible inference of retaliatory motive, Board does not find that employee’s protected activity was the true motivation for the recommendation to terminate his probationary employment.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.03000 – Misconduct

Once a prima facie case is established, employer bears the burden of proving it would have taken the adverse action even if the employee had not engaged in protected activity. The issue before the Board is not whether the employer had just cause to discipline or terminate the employee, but rather whether the true motivation behind the employer’s decision was the employee’s exercise of protected activity. Thus, the Board does not determine whether the employer was correct in its determination that employee violated safety procedures, or whether good cause existed to terminate his employment. Weighing the evidence that probationary employee’s supervisors were dissatisfied with his performance throughout his employment against any possible inference of retaliatory motive, Board does not find that employee’s protected activity was the true motivation for the recommendation to terminate his probationary employment.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.11000 – Legitimate Business Purpose/Business Necessity

Once a prima facie case is established, employer bears the burden of proving it would have taken the adverse action even if the employee had not engaged in protected activity. The issue before the Board is not whether the employer had just cause to discipline or terminate the employee, but rather whether the true motivation behind the employer’s decision was the employee’s exercise of protected activity. Thus, the Board does not determine whether the employer was correct in its determination that employee violated safety procedures, or whether good cause existed to terminate his employment. Weighing the evidence that probationary employee’s supervisors were dissatisfied with his performance throughout his employment against any possible inference of retaliatory motive, Board does not find that employee’s protected activity was the true motivation for the recommendation to terminate his probationary employment.