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.

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Perc Vol: 43
Perc Index: 126

Decision Headnotes

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
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.)

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.)

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.)

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
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.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
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.)