Decision 2630E – Adelanto Elementary School District

LA-CE-6240-E

Decision Date: March 1, 2019

Decision Type: PERB Decision

Description:  Charging Party Teresa Padilla excepted to a proposed decision dismissing her complaint which alleged that the District violated the Educational Employment Relations Act by issuing her a Notice of Unprofessional Conduct in retaliation for her grievance activity.  The ALJ concluded that Padilla failed to prove the District was unlawfully motivated in issuing her the Notice.

Disposition:  The Board adopted the ALJ’s proposed decision, supplemented by discussion of Charging Party’s exceptions.

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Perc Vol: 43
Perc Index: 147

Decision Headnotes

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 non-compliance with PERB Regulation 32300. Although charging party’s exceptions did not cite to relevant portions of the record, they did identify the portions of the proposed decision to which she excepted and the reasons for each exception, and often described the evidence (or lack thereof) that supported the exception. The Board therefore considered the merits of charging party’s exceptions.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

To establish a prima facie case of retaliation under the Educational Employment Relations 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.


504.14000 – Other/In General

Unlawful motive is the required nexus between the employee’s protected activity and the adverse action.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.04000 – Timing of Action

Employer’s initiation of its investigation into employee’s alleged misconduct the day after she filed a grievance, coupled with its issuance of a notice of unprofessional conduct 13 days after employee’s fourth level grievance meeting with the employer’s governing board, supported an inference that the notice was motivated by employee’s protected grievance activity.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications

An employer offering exaggerated, inconsistent, or vague reasons may be an indicator of the employer’s discriminatory intent. Although the Board’s task is not to determine whether an employer had just cause to discipline an employee, it must nonetheless consider evidence of the alleged wrongdoing to determine if the employer exaggerated or otherwise mischaracterized what occurred, thereby evincing an unlawful motivation.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.08000 – Cursory Investigation

An employer’s cursory or limited investigation of an employee’s alleged misconduct may be an indicator of the employer’s discriminatory intent. Employer’s investigation—which took several months and entailed collecting 4 to 5 witness statements, hiring an outside investigator, interviewing employee and multiple witnesses, and reporting to law enforcement—was adequate even though it may have relied in part on hearsay statements.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.08000 – Cursory Investigation

In determining whether a charging party established a prima facie case of retaliation, the Board is not concerned with the truth of witness’ statements to investigators; rather, the pertinent inquiry for the Board is whether the employer’s investigation was perfunctory, cursory, or inadequate under the circumstances. The fact that some of the statements upon which the employer relied in issuing employee a notice of unprofessional conduct were hearsay does not render its investigation cursory, so as to support an inference of unlawful motivation.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

An employer may not rely solely on hearsay evidence to prove its affirmative defense under Novato Unified School District (1982) PERB Decision No. 210.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.03000 – Misconduct

The reliability of statements relied upon by the employer is one consideration in determining whether the employer proved its affirmative defense that it would have taken the same adverse action in the absence of the employee’s protected activity.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

An employer may not rely solely on hearsay evidence to prove its affirmative defense under Novato Unified School District (1982) PERB Decision No. 210.