Decision 2314H – Regents of the University of California (University of California Davis Medical Center)

SA-CE-296-H

Decision Date: March 21, 2013

Decision Type: PERB Decision

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Decision Headnotes

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.11000 – Hours and Overtime, Work Schedules

Changing an employee’s work schedule constitutes adverse action for a discrimination/retaliation analysis.

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

The premise of a retaliation case is that the employer has taken adverse action against an employee because of the employee’s exercise of protected rights; therefore, temporally, the protected activity must precede the adverse action; where the initial adverse action occurs prior to the protected activity, but the adverse action changes substantially after the protected activity, the protected activity will be found to have preceded the adverse action, thus establishing the correct temporal relationship for retaliation purposes.

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

The proximity in time between the protected activity and the adverse action goes to the strength of the inference of unlawful motive, but is not determinative by itself; there is no “bright line” rule for determining how close in time the protected activity must be to the adverse action in order to establish a strong inference of unlawful motive based on “close” temporal proximity; a seven month gap in time between the protected activity and the adverse action created a “minimally sufficient temporal proximity” sufficient to establish an inference of unlawful motive, albeit a weak one.