Decision 2337E – Palo Verde Unified School District

PERB lacks general authority to determine whether or not an employer was justified in dismissing an employee or whether its reasons were valid or not and is only concerned with such reasons, in order to determine whether or not they support an inference that the true motivation of such dismissal was the employees’ protected activities.

To establish a prima facie case of retaliation in violation of EERA section 3543.5(a), the charging party must show that: (1) the employee exercised rights guaranteed by EERA; (2) the employer had knowledge of the employee’s exercise of those rights; (3) the employer took action against or adverse to the interest of the employee; and (4) the employer acted because of the employee’s exercise of the guaranteed rights. Unlawful motive is the specific nexus required in the establishment of a prima facie case of retaliation. Direct proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus, unlawful motive can be established by circumstantial evidence and inferred from the record as a whole. Our statutes protect the right of at-will and probationary employees to engage in protected activity and to be free of discrimination or retaliation therefor.

Where the employer’s motive is the central issue, the fact finder must often rely heavily on circumstantial evidence and inferences. Only rarely will there be probative direct evidence of the employer’s motivation. An illegal purpose harbored by a discriminating employer may be inferred from the circumstances surrounding the discipline or discharge. These may include anti-union animus exhibited by the employer or its agents; the pretextual nature of the ostensible justification; or other failure to establish a business justification. In such cases, the Board is free to draw inferences from all the circumstances, and need not accept an employer’s self-serving declarations of intent, even if they are uncontradicted. Circumstantial evidence and inferences drawn from the record as a whole are sufficient to establish the employer knowledge element of a discrimination or retaliation violation. The NLRB relies on circumstantial evidence and inferences drawn from the record as a whole to establish employer knowledge of an employee’s protected activity and also will infer employer knowledge of employee protected activity from the small size of the employer’s plant or other facility.

Our statutes protect the right of at-will and probationary employees to engage in protected activity and to be free of discrimination or retaliation therefor.

An employer’s alleged practice of not providing reasons for discharge does not overcome credible testimony describing the reasons for discharge actually given an employee by the employee’s supervisor.

Where a supervisor who has displayed animus discharges an employee, with the support and ratification of the supervisor’s own supervisor, who himself displays animus, we attribute both supervisors’ actions and animus to the employer. Whether or not an employer is required to provide reasons for discipline or discharge, or has a practice thereof, where the employer does offer reasons, the reasons may be considered

Upon proof that anti-union animus played a part in the employer’s decision to act, the burden then shifts to the employer to prove that its actions would have been the same notwithstanding the employee’s having engaged in protected activity and the employer’s anti-union animus. In such cases, the employer has both the burden of going forward with the evidence and the burden of persuasion. Proof of an alternative, non-discriminatory reason for the challenged action is insufficient standing alone to overcome the prima facie case. The employer must prove that it had both an alternative non-discriminatory reason for its challenged action, and that the challenged action would have occurred regardless of the employee’s protected activity and the employer’s anti-union animus. Once a charging party establishes a prima facie case of retaliation, the burden shifts to the respondent to establish both: (1) that it had an alternative non-discriminatory reason for the challenged action, and (2) that it acted because of this alternative non-discriminatory reason and not because of the employee’s protected activity. A responding party must prove up its affirmative defense through persuasive evidence. To demonstrate an affirmative defense to unlawful discrimination, independent evidence is required to establish both the existence of an alternative, non-discriminatory reason for challenged discipline, and that the employer acted because of that reason and not because of the protected conduct of the employee. Because out-of-hearing statements describing employee’s alleged improper workplace conduct cannot be cross-examined, we find the hearsay and double hearsay testimony by District supervisors insufficiently reliable to establish the District’s affirmative defense. An employer defending against a prima facie case of retaliation cannot simply present a legitimate reason for its action, but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct. The crucial factor is not whether the justification put forward by the employer was good or bad, but whether it was honestly invoked and was, in fact, the cause of the employer’s challenged action. PERB must analyze thoroughly and completely the justification for the action presented by the employer in order to determine whether the justification constituting an employer’s affirmative defense was honestly invoked and whether the employer’s proof establishes that its justification was in fact the cause of the employer’s action. When the burden in a PERB hearing shifts to an employer to establish an affirmative defense to a charge of discrimination or retaliation, the employer must demonstrate that it exercised its statutory or common law discretion in a manner consistent with the employee’s rights under our statutes. We acknowledge that such demonstration imposes on an employer a greater burden of proof than would be required to sustain a routine discharge within its discretion where there has been no allegation of unlawful motivation. PERB’s duty is to analyze thoroughly and completely the justification for the action presented by the employer and that in so doing PERB may inquire fully into all issues bearing on the employer’s burden to establish that employer’s affirmative defense was honestly invoked and its justification was in fact the cause of the employer’s action. The employer’s defensive burden to a charge of discrimination or retaliation is not limited by the extent of the employer’s statutory or common law duty to the employee(s), but is measured rather by the extent and persuasiveness of the employee(s) prima facie case which a successful affirmative defense must either meet or exceed.

Once the charging party establishes that the responding party was motivated in whole or part by statutorily protected conduct, the burden shifts to the respondent to demonstrate that the employer had, and acted because of, an alternative non-discriminatory reason. Where such alternative reason is alleged to be improper workplace conduct of the charging party, which is claimed to give the employer cause for non-discriminatory discipline or discharge, the employer must prove through independent and competent evidence both the existence of such improper workplace conduct and that this conduct motivated the employer’s response. Recitation by employer agents of a litany of hearsay reports cannot, absent competent, direct and independent evidence, meet the employer’s burden of proof that it acted for a lawful, non-discriminatory reason.

Where a supervisor who has displayed animus discharges an employee, with the support and ratification of the supervisor’s own supervisor, who himself displays animus, we attribute both supervisors’ actions and animus to the employer.

We read Government Code section 11425.50(b) to provide that: (1) credibility may be determined on the basis of both observational factors, viz., demeanor, manner and attitude, and non-observational factors including those specified in Evidence Code section 780; (2) reviewing courts are obliged by section 11425.50(b) to give great weight to observational factors only when the proposed decision contains information specified by section 11425.50(b); and (3) when the proposed decision fails to contain this information, section 11425.50(b) does not come into play. An ALJ hearing a retaliation case, including one brought on behalf of an at-will or probationary employee, must inquire fully into all issues and obtain a complete record upon which the decision can be rendered and issue a written proposed decision.

Employee conduct asserted by a responding party to establish its affirmative defense must be proved by sufficient independent evidence, and where, as here, the independent evidence is insufficient, a proposed finding concerning the asserted conduct is properly refused. Hearsay may corroborate, but not serve in lieu of, admissible evidence. Although admissible, the role of hearsay remains supplementary. Hearsay may explain or support otherwise admissible evidence, but by itself, even in abundance, hearsay is insufficient for a finding either of the existence of an alternative, non-discriminatory reason or that a respondent acted therefor. Although admissible, hearsay testimony and documents are insufficient to support a finding. The Board requires sufficient independent, non-hearsay evidence to conclude that the challenged action would have occurred in the absence of the employee’s protected activity.

ALJs and the Board make credibility determinations based on both observational and non-observational factors. When reviewing a Board decision which assesses credibility based on non-observational factors, a court nonetheless approaches the Board’s findings, including credibility determinations, with deference. For those credibility determinations turning on observational factors, which are appropriately documented, as required by Government Code section 11425.50(b), the court must accord great weight to the Board’s findings as so determined.

The Board itself, not the ALJ, is the ultimate finder of fact. Findings of fact of PERB administrative law judges, who are mere delegates of the Board itself, are entitled to that amount of deference which the Board, in its discretion, wishes to afford them. In accordance with this rule, the Board has determined that it will normally afford deference to administrative law judges’ findings of fact involving credibility determinations unless they are unsupported by the record as a whole. While the Board will afford deference to the hearing officer’s findings of fact which incorporate credibility determinations, the Board is required to consider the entire record, including the totality of testimony offered, and is free to draw its own and perhaps contrary inferences from the evidence presented.

Where a supervisor who has displayed animus discharges an employee, with the support and ratification of the supervisor’s own supervisor, who himself displays animus, we attribute both supervisors’ actions and animus to the employer.