Decision 2302H – Regents of the University of California

LA-CE-1120-H

Decision Date: December 21, 2012

Decision Type: PERB Decision

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Decision Headnotes

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

In assessing the evidence presented in a retaliation case, PERB’s task is to determine whether the employer’s true motivation for taking the adverse action was the employee’s protected activity. PERB weighs the employer’s justifications for the adverse action against the evidence of the employer’s retaliatory motive. Once PERB determines that the employer did not take action for an unlawful reason, its inquiry is at an end; PERB has no authority to determine whether adverse action not motivated by protected activity was just or proper. PERB does not determine whether the employer had just cause to take adverse action, nor whether it was correct in its determination that the employee engaged in misconduct. Although there was direct evidence that the employer was motivated in part by employee’s protected activity in deciding to take adverse action, employer established that it would have taken the same action even if employee had not engaged in the protected activity. The evidence further failed to establish that the employer’s true motivation in deciding to suspend and terminate employee was based upon his protected activity rather than on its expressed concerns over his behavior in the workplace.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

In assessing the evidence presented in a retaliation case, PERB’s task is to determine whether the employer’s true motivation for taking the adverse action was the employee’s protected activity. PERB weighs the employer’s justifications for the adverse action against the evidence of the employer’s retaliatory motive. Once PERB determines that the employer did not take action for an unlawful reason, its inquiry is at an end; PERB has no authority to determine whether adverse action not motivated by protected activity was just or proper. PERB does not determine whether the employer had just cause to take adverse action, nor whether it was correct in its determination that the employee engaged in misconduct. Although there was direct evidence that the employer was motivated in part by employee’s protected activity in deciding to take adverse action, employer established that it would have taken the same action even if employee had not engaged in the protected activity. The evidence further failed to establish that the employer’s true motivation in deciding to suspend and terminate employee was based upon his protected activity rather than on its expressed concerns over his behavior in the workplace.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.01000 – Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord

In assessing the evidence presented in a retaliation case, PERB’s task is to determine whether the employer’s true motivation for taking the adverse action was the employee’s protected activity. PERB weighs the employer’s justifications for the adverse action against the evidence of the employer’s retaliatory motive. Once PERB determines that the employer did not take action for an unlawful reason, its inquiry is at an end; PERB has no authority to determine whether adverse action not motivated by protected activity was just or proper. PERB does not determine whether the employer had just cause to take adverse action, nor whether it was correct in its determination that the employee engaged in misconduct. Although there was direct evidence that the employer was motivated in part by employee’s protected activity in deciding to take adverse action, employer established that it would have taken the same action even if employee had not engaged in the protected activity. The evidence further failed to establish that the employer’s true motivation in deciding to suspend and terminate employee was based upon his protected activity rather than on its expressed concerns over his behavior in the workplace.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint

Consideration of protected acts not described in the PERB complaint is appropriate where those activities are related to the claims in the complaint and where the parties have had the full opportunity to litigate all issues.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.01000 – In General

The admission of facts in a pleading “is a conclusive concession of the truth of a matter which has the effect of removing it from the issues.” Employer’s admission in answer of three alleged instances of protected activity is sufficient to establish that these three activities took place and that each constitute protected activity under HEERA.