Decision 2629M – County of Santa Clara

Although the Board reviews exceptions to a proposed decision de novo, to the extent that a proposed decision adequately addresses issues raised by certain exceptions, the Board need not further analyze those exceptions. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.) The Board also need not address alleged errors that would not impact the outcome. (Ibid.) (p. 6.)

To the extent an ALJ assesses credibility based upon observing a witness in the act of testifying, we defer to such assessments unless the record warrants overturning them. (Los Angeles Unified School District (2014) PERB Decision No. 2390, p. 12.) (pp. 6-7)

To demonstrate that an employer has discriminated or retaliated against an employee in violation of MMBA sections 3506 and 3506.5 and PERB Regulation 32603, subdivision (a), the charging party must show that: (1) the employee exercised rights under MMBA; (2) the employer had knowledge of the exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the action because of the exercise of those rights. (Novato Unified School District (1982) PERB Decision No. 210, pp. 6-8; County of Yolo (2009) PERB Decision No. 2020-M, p. 10.) If the charging party establishes a prima facie case that protected activity was a motivating factor for the adverse action, the burden shifts to the employer to demonstrate that it would have taken the same action even in the absence of the protected conduct. (Novato, supra, PERB Decision No. 210, p. 14; Yolo, supra, PERB Decision No. 2020-M, p. 17.) (p. 7)

PERB generally analyzes allegations of employer reprisal and discrimination under two lines of cases, which can be distinguished primarily by the manner in which they permit the charging party to prove nexus. (City of Yuba City (2018) PERB Decision No. 2603-M, p. 10.) Under Campbell Municipal Employees Association v. City of Campbell (1982) 131 Cal.App.3d 416, 423-424, a charging party may establish “discrimination in its simplest form” via evidence of “employer conduct that is facially or inherently discriminatory, such that the employer’s unlawful motive can be inferred without specific evidence.” (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14 (LA Superior Court).) In the absence of evidence sufficient to trigger the Campbell standard, PERB applies the Novato analysis of nexus factors. (LA Superior Court, supra, PERB Decision No. 2566-C, pp. 14-15.) (p. 8)

Novato factors apply where adverse action was not discriminatory on its face. (Novato Unified School District (1982) PERB Decision No. 210, p. 6.) (p. 9)

While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, PERB has identified the following factors as being the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in close temporal proximity to the employee’s protected conduct is an important factor; (2) the employer’s disparate treatment of the employee; (3) the employer’s departure from established procedures and standards when dealing with the employee; (4) the employer’s inconsistent or contradictory justifications for its actions; (5) the employer’s cursory investigation of the employee’s misconduct; (6) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (County of Yolo (2009) PERB Decision No. 2020-M, pp. 12-13; Novato Unified School District (1982) PERB Decision No. 210, pp. 6-7.) (pp. 9-10)

When an adverse action advances a management interest—e.g., eliminating opposition to a management objective affecting the terms and conditions of employment—this fact may indicate the adverse action was motivated by the employer’s desire to further that interest. (See County of Yolo (2009) PERB Decision No. 2020-M, p. 13 [the nexus analysis may consider “any other facts that might demonstrate the employer’s unlawful motive”].) (p. 11)

Context is always relevant in assessing motive. (p. 11, citing proposed decision, at p. 30.) Here, employer’s managerial concerns about employee were directly related to the very matters employee had raised during course of collective bargaining negotiations.

Even when an employer has a managerial, statutory, or contractual right to take an employment action, its decision to act cannot be based on an unlawful motive, intent, or purpose. (County of Lassen (2018) PERB Decision No. 2612-M, p. 6; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5.) (p. 13)

Board ordered reinstatement of all duties and responsibilities transferred from medical division chief because of his protected activities. (p. 13)

The charging party has the initial burden of demonstrating the “because of” element, that is, a causal connection or “nexus” between the adverse action and the protected conduct. (MMBA, § 3506.5; PERB Regulation 32603, subd. (a); Novato Unified School District (1982) PERB Decision No. 210, pp. 5-6.) Because “retaliatory conduct is inherently volitional in nature,” where it is alleged that the employer has acted in reprisal against employees for participation in protected activity, evidence of unlawful motive is the specific nexus required to establish a prima facie case. (Id. at p. 6.) (p. 8.)

Under Novato, a charging party may prove unlawful motive, intent, or purpose through direct or circumstantial evidence, including evidence which tends to show that an employer’s proffered justification for its action was not its true motive or purpose. (Novato, supra, PERB Decision No. 210, p. 6.) Circumstantial evidence, including evidence under one or more of the nexus factors borrowed from Wright Line and other private-sector authority, can be equally as probative as direct evidence. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 20, fn. 13.) “[D]irect 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.” (Novato Unified School District (1982) PERB Decision No. 210, p. 6.) (p. 9)

Board rejects the employer’s argument that the ALJ was required to hold employee to a higher standard of proof in establishing a prima facie discrimination or retaliation case because employee (a medical doctor) was an at-will employee. See Los Angeles Unified School District (2016) PERB Decision No. 2479 (Los Angeles), where Board held that the elements of a prima facie case under Novato remain the same “regardless of the employee’s at-will or similar status or the procedural protections to which the employee may or may not be entitled to in a different forum,” and that “once the employee establishes a prima facie case, the employer’s Novato defensive legal burden attaches, regardless of the status of the employee.” (Id. at p. 14.) (p. 12.)

In Los Angeles Unified School District (2016) PERB Decision No. 2479, PERB disavowed the suggestion in County of Santa Clara that, with respect to a probationary employee, “[a]n employee alleging discrimination who is subject to dismissal without cause bears a heavier burden in overcoming the employer’s case for non-discriminatory motive.” (Los Angeles, supra, PERB Decision No. 2479, p. 14, quoting County of Santa Clara (2012) PERB Decision No. 2267-M, adopting ALJ proposed decision, at p. 21.) (p. 12)

County’s removal or weakening of certain medical division chief duties was an adverse action imposed because of doctor’s protected activity. (p. 13)

Under Novato, a charging party may prove unlawful motive, intent, or purpose through direct or circumstantial evidence, including evidence which tends to show that an employer’s proffered justification for its action was not its true motive or purpose. (Novato, supra, PERB Decision No. 210, p. 6.) Circumstantial evidence, including evidence under one or more of the nexus factors borrowed from Wright Line and other private-sector authority, can be equally as probative as direct evidence. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 20, fn. 13.) “[D]irect 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.” (Novato Unified School District (1982) PERB Decision No. 210, p. 6.) (p. 9)