Decision 2516E – Berkeley Unified School District


Decision Date: February 23, 2017

Decision Type: PERB Decision (Non-Precedential)

Description:  Charging party, a public school employee, appealed the dismissal of her unfair practice charge which alleged her employer violated the EERA by:  (1) removing certain accommodations from charging party’s job duties, and (2) preparing and issuing an unsatisfactory performance evaluation of charging party, allegedly in retaliation for charging party’s protected activity.  The Office of the General Counsel dismissed all allegations as either untimely and/or for failure to state a prima facie case of an unfair practice.  On appeal, charging party argued that the Office of the General Counsel’s investigation had ignored certain material information.

Disposition:  The Board adopted the dismissal.  The information ostensibly neglected by the Office of the General Counsel was either untimely, if considered as its own adverse action, or, would not support an inference of unlawful motive as it occurred before the charging party had engaged in protected activity.  Employer actions that predate an employee’s protected activity cannot serve as either adverse actions or as evidence of unlawful motive in a discrimination case, because they could not have been motivated by protected activity which had not yet occurred.

Perc Vol: 41
Perc Index: 137

Decision Headnotes

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