Decision 2624S – State of California (Department of Social Services (Service Employees International Union Local 1000)
SA-CE-2073-S
Decision Date: February 5, 2019
Decision Type: PERB Decision
Description: Charging Party SEIU excepted to a proposed decision dismissing its complaint which alleged that the Department violated the Ralph C. Dills Act by demoting an employee because of her participation in protected activity. The ALJ concluded that the demotion was based upon the employee’s repeated policy violations and not her service as a union officer or her use of union leave.
Disposition: The Board adopted the ALJ’s proposed decision.
Perc Vol: 43
Perc Index: 128
Decision Headnotes
501.01000 – In General; Elements of Prima Facie Case
To establish a prima facie case of retaliation under the Dills Act, the charging party must prove that: (1) the employee exercised rights under the Act; (2) the employer had knowledge of the employee’s exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the adverse action because of the employee’s exercise of those rights.
501.02000 – Burden of Proof; Evidence
Once the charging party establishes a prima facie case of retaliation, the burden shifts to the employer to prove it would have taken the same adverse action even if the employee had not engaged in protected activity. To prevail, the employer must show that it had an alternative non-discriminatory reason for imposing the adverse action and that it acted because of this alternative non-discriminatory reason, not because of the employee’s protected activity.
504.02000 – Disparate Treatment
No disparate treatment found where employee’s demotion was commensurate with penalties imposed on other employees who had demonstrated similar performance issues.
505.01000 – In General
Employer established that it had an alternative, non-discriminatory reason for demoting employee and that it acted for this reason; specifically, employer demoted employee because of her repeated violations of departmental policy.
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions
Although the Board applies a de novo standard of review and is free to draw its own conclusions from the record, it recognizes that “a hearing officer who has observed the testimony of witnesses under oath is better positioned than the Board itself to make credibility determinations based on observational factors, such as the demeanor, manner, or attitude of witness[es].”
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions
The Board does not accord deference to aspects of a credibility determination that are not based on an ALJ’s firsthand observations.
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions
The Board will normally defer to an ALJ’s findings of fact involving credibility determinations “unless they are unsupported by the record as a whole.”
1405.01000 – In General
The Board may grant collateral estoppel effect to a State Personnel Board (SPB) decision if it resolved one or more disputed issues of fact properly before the SPB that are also before the Board, and the SPB afforded the parties an adequate opportunity to litigate such issue(s).
1405.01000 – In General
Nothing precludes the Board and the State Personnel Board (SPB) from reaching contrary findings based on the evidence before the respective agencies. That the SPB reached a different finding based on the evidence before it did not automatically render the ALJ’s finding erroneous.