Decision 2622E – Cabrillo Community College District
SF-CE-2994-E
Decision Date: February 4, 2019
Decision Type: PERB Decision
Description: Charging party excepted to a proposed decision concluding that he did not prove his employer retaliated against him in response to his protected activities.
Disposition: The Board adopted the proposed decision, finding that the charging party failed to carry his burden of proof to establish the complaint allegations (i.e., that the District investigated and terminated his employment in retaliation for his protected activities) through competent and admissible evidence during the administrative hearing.
Perc Vol: 43
Perc Index: 126
Decision Headnotes
501.01000 – In General; Elements of Prima Facie Case
To demonstrate that an employer has retaliated against an employee in violation of the EERA, the charging party must prove that: (1) he exercised rights under the EERA; (2) the District had knowledge of his exercise of those rights; (3) the District took adverse action against him; and (4) the District took the adverse action because of his exercise of those rights. (p. 6.)
504.03000 – Departure from Past Practices or Procedures
When an employer initiates an investigation into an employee’s conduct prior to any knowledge of the employee’s protected activity and follows its customary practices in the investigation, it is difficult to demonstrate pretext, absent other factors raising an inference of unlawful motivation. However, retaliation may be shown if the employer alters its investigation practices or related employment decision in response to any intervening protected activity. (p. 7.) Here the District began its investigation before it learned of the employee’s protected activity and the evidence shows the protected activity did not influence the conduct or result of its investigation. (pp. 8-9.)
504.08000 – Cursory Investigation
An employee’s protected activities do not immunize the employee from otherwise legitimate employment decisions, including an employer’s workplace investigation. (p. 7.)
504.08000 – Cursory Investigation
When an employer initiates an investigation into an employee’s conduct prior to any knowledge of the employee’s protected activity and follows its customary practices in the investigation, it is difficult to demonstrate pretext, absent other factors raising an inference of unlawful motivation. However, retaliation may be shown if the employer alters its investigation practices in response to any intervening protected activity. (p. 7.) Here the District began its investigation before it learned of the employee’s protected activity and the evidence shows the protected activity did not influence the conduct of its investigation. (pp. 8-9.)
504.14000 – Other/In General
When an employer initiates an investigation into an employee’s conduct prior to any knowledge of the employee’s protected activity and follows its customary practices in the investigation, it is difficult to demonstrate pretext, absent other factors raising an inference of unlawful motivation. However, retaliation may be shown if the employer alters its investigation practices or related employment decision in response to any intervening protected activity. (p. 7.) The District began its investigation before it learned of the employee’s protected activity and the evidence shows the protected activity did not influence the conduct or result of its investigation. (pp. 8-9.)
505.01000 – In General
An employee’s protected activities do not immunize the employee from otherwise legitimate employment decisions, including an employer’s workplace investigation. (p. 7.)
505.11000 – Legitimate Business Purpose/Business Necessity
An employee’s protected activities do not immunize the employee from otherwise legitimate employment decisions, including an employer’s workplace investigation. (p. 7.)
1100.01000 – In General/Prima Facie Case
At the charge investigation stage, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie violation. (p. 4.)
1100.02000 – Investigation of Charge
At the charge investigation stage, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie violation. (p. 4.)
1100.05000 – Dismissal of Charge; Appeal
On appeal of dismissal of an unfair practice charge, the Board’s inquiry is limited to the legal sufficiency of the charging party’s allegations, i.e. whether the factual allegations, if accepted as true, would state a prima facie violation. It does not determine whether a preponderance of the evidence will ultimately establish the factual allegations as true. (p. 4.)
1100.05000 – Dismissal of Charge; Appeal
Following Board review of a dismissal, the Board remanded the case to the Office of the General Counsel for issuance of a complaint. (p. 2, citing Cabrillo Community College District (2015) PERB Decision No. 2453.) Following a formal hearing, the ALJ dismissed the complaint. (p. 1.) Charging party’s exception that the ALJ improperly departed from the Board’s prior decision is misplaced. The Board made no conclusive factual findings in its earlier decision directing OGC to issue a complaint. (pp. 4-5.) Once OGC issued the complaint, it was incumbent upon charging party to prove the complaint allegations during the hearing. (p. 5.)
1100.08000 – Pleading Requirements
At the charge investigation stage, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie violation. (p. 4.)
1103.02000 – Issuance of Complaint
Following Board review of a dismissal, the Board remanded the case to the Office of the General Counsel for issuance of a complaint. (p. 2, citing Cabrillo Community College District (2015) PERB Decision No. 2453.) Following a formal hearing, the ALJ dismissed the complaint. (p. 1.) Charging party’s exception that the ALJ improperly departed from the Board’s prior decision is misplaced. The Board made no conclusive factual findings in its earlier decision directing OGC to issue a complaint. (pp. 4-5.) Once OGC issued the complaint, it was incumbent upon charging party to prove the complaint allegations during the hearing. (p. 5.)
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Following Board review of a dismissal, the Board remanded the case to the Office of the General Counsel for issuance of a complaint. (p. 2, citing Cabrillo Community College District (2015) PERB Decision No. 2453.) Following a formal hearing, the ALJ dismissed the complaint. (p. 1.) Charging party’s exception that the ALJ improperly departed from the Board’s prior decision is misplaced. The Board made no conclusive factual findings in its earlier decision directing OGC to issue a complaint. (pp. 4-5.) Once OGC issued the complaint, it was incumbent upon charging party to prove the complaint allegations during the hearing. (p. 5.)
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board may exercise its discretion to address a party’s exceptions despite their technical noncompliance with PERB Regulation 32300 where they raise an important issue, such as the effect of a prior Board decision remanding a case for issuance of a complaint. (pp. 2-3.) However, even when it exercises such discretion, the Board need not consider arguments the ALJ adequately addressed in the proposed decision. (p. 3.)
1107.03000 – Remand for Further Hearing; Remand to General Counsel
Following Board review of a dismissal, the Board remanded the case to the Office of the General Counsel for issuance of a complaint. (p. 2, citing Cabrillo Community College District (2015) PERB Decision No. 2453.) Following a formal hearing, the ALJ dismissed the complaint. (p. 1.) Charging party’s exception that the ALJ improperly departed from the Board’s prior decision is misplaced. The Board made no conclusive factual findings in its earlier decision directing OGC to issue a complaint. (pp. 4-5.) Once OGC issued the complaint, it was incumbent upon charging party to prove the complaint allegations during the hearing. (p. 5.)
1107.06000 – De Novo Review; Standard of Review by Board
On appeal of dismissal of an unfair practice charge, the Board’s inquiry is limited to the legal sufficiency of the charging party’s allegations, i.e. whether the factual allegations, if accepted as true, would state a prima facie violation. It does not determine whether a preponderance of the evidence will ultimately establish the factual allegations as true. (p. 4.)
1107.13000 – Administrative and Judicial Notice
Certain records may be subject to permissive notice under Evidence Code section 452, subdivision (c), unless sufficient notice of the request for administrative notice was provided to each adverse party and there is “sufficient information” for the ALJ or Board to determine whether administrative notice is proper. (p. 10.) The Board lacked sufficient information, and thus was not required, to take notice of a federal agency report because the party requesting notice did not provide the Board or any other Board agent with a copy of the report. Moreover, the Board typically declines to take permissive notice of documents that are of no probative value to the issues before it. Without a copy of the report, the Board was not able to assess its probative value and declined to take permissive notice. (p. 10.)
1105.07000 – Administrative and Judicial Notice
Certain records may be subject to permissive notice under Evidence Code section 452, subdivision (c), unless sufficient notice of the request for administrative notice was provided to each adverse party and there is “sufficient information” for the ALJ or Board to determine whether administrative notice is proper. (p. 10.)
The Board lacked sufficient information, and thus was not required, to take notice of a federal agency report because the party requesting notice did not provide the Board or any other Board agent with a copy of the report. Moreover, the Board typically declines to take permissive notice of documents that are of no probative value to the issues before it. Without a copy of the report, the Board was not able to assess its probative value and declined to take permissive notice. (p. 10.)