Decision 2634E – San Diego Unified School District

EERA section 3543 protects public school employees’ right to “form, join, and participate in the activities of employee organizations” in matters concerning employer employee relations. PERB’s interference test does not require evidence of unlawful motive, only that the employer conduct at issue has a tendency to create at least “slight harm” to employee rights. (Los Angeles Community College District (2014) PERB Decision No. 2404, p. 5; Simi Valley Unified School District (2004) PERB Decision No. 1714, p. 17.) To establish a prima facie case, the charging party must demonstrate that the employer’s conduct tends to or does result in harm to employee rights. (Carlsbad Unified School District (1979) PERB Decision No. 89, p. 10 (Carlsbad).) If the prima facie case is established, PERB balances the degree of harm to protected rights against any legitimate business interest asserted by the employer. (Hilmar Unified School District (2004) PERB Decision No. 1725, p. 17, citing Carlsbad, supra, at pp. 10-11.) “Where the harm is slight, the Board will entertain a defense of operational necessity and then balance the competing interests.” (Ibid.) “Where the harm is inherently destructive [of protected rights], the employer must show the interference was caused by circumstances beyond its control.” (Ibid.)

In the area of employer rules and directives, PERB does not look favorably on broad, vague directives that might chill lawful speech or other protected conduct. (Los Angeles Community College District (2014) PERB Decision No. 2404, p. 6 (LACCD).) In LACCD, the employer placed an employee on leave while it initiated a fitness-for-duty examination. (Id. at p. 2.) In doing so, it issued the employee a letter that stated, “You are hereby directed not to contact any members of the faculty, staff or students.” (Ibid.) The Board held the directive interfered with the employee’s rights under EERA because it could reasonably be construed to prohibit the employee from participating in a variety of protected activities, including discussing his working conditions with his coworkers. (Id. at p. 9.) It further held the employer did not meet its burden to establish why the directive was necessary to preserve the integrity of its investigation. (Id. at p. 13.)

School district’s directive to teacher prohibiting teacher from discussing a pending investigation with any staff member constitutes interference because it can reasonably be construed as prohibiting protected activity, such as teacher’s right to speak to her coworkers about her working conditions. Directive causes at least slight harm to teacher’s protected rights under EERA and school district did not establish any operational necessity for its directive, and accordingly teacher established a prima facie case for interference.

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. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 8.) Under Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 423-424 (Campbell), 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.) In the absence of evidence sufficient to trigger the Campbell standard, we apply the Novato analysis of nexus factors. (Los Angeles County Superior Court, supra, at pp. 14-15, citing Novato Unified School District (1982) PERB Decision No. 210, pp. 5-6 (Novato).) The Novato factors have undoubtedly become the primary avenue for proving discrimination or retaliation allegations. Board relies on them where, as here, the employer’s conduct is not inherently discriminatory and neither party argued that the adverse action was discriminatory on its face under Campbell and its progeny. (County of Santa Clara, supra, PERB Decision No. 2629-M, pp. 8-9.)

When it appears that the employer’s adverse action was motivated by both lawful and unlawful reasons, “the question becomes whether the [adverse action] would not have occurred ‘but for’ the protected activity.” (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730 (Martori Bros.); Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 22. Thus, in a “mixed motive” case in which the charging party has proven that discrimination or retaliation contributed to the employer’s decision, but the employer asserts that one or more other nondiscriminatory reasons also exist, the burden shifts to the employer to establish as an affirmative defense that it would have taken the same action(s) even absent any protected activity. (NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 395-402; Martori Bros., supra, 29 Cal.3d at pp. 729-730; Wright Line (1980) 251 NLRB 1083, 1089.) The employer must establish the “but for” affirmative defense by a preponderance of the evidence. (McPherson v. PERB (1987) 189 Cal.App.3d 293, 304.)

While a respondent is free to assert the “but for” affirmative defense in any case in which it claims it took adverse action for a reason other than protected activity, it is often appropriate to separately analyze the affirmative defense when the evidence reveals mixed motives. Ultimately, however, the interplay between the charging party’s burden to establish nexus and the respondent’s burden to prove an affirmative defense is less formulaic than it may appear from the Board’s usual articulation of the Novato Unified School District (1982) PERB Decision No. 210, standards. In some cases, there is no need to separately assess the employer’s affirmative defense, if the charging party has already disproven the defense in the course of establishing nexus.

In determining whether an employer’s action is adverse, the Board uses an objective test and will not rely upon the subjective reactions of the employee. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 24-25.) “The test which must be satisfied is not whether the employee found the employer’s action to be adverse, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment.” (Id. at p. 25, quoting Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12.)

In evaluating whether an involuntary reassignment of duties effectuated while misconduct allegations are pending is objectively adverse to employment, “the charging party must ‘present facts demonstrating that a reasonable employee would consider the transfer an adverse action.’” (Coachella Valley Unified School District (2013) PERB Decision No. 2342, adopted proposed decision at p. 17 (internal citation omitted).) Where charging party had been a certified, secondary math teacher for approximately three decades and a classroom math teacher at the high school for most of that time, no reasonable person under these circumstances would find that an involuntary transfer from a classroom teaching position to a non-classroom tutoring assignment was anything but adverse. (Id. at p. 18 [transferring biology and chemistry teacher to a program where he was no longer able to teach laboratory sciences constituted adverse action].)

In applying the Novato standard (Novato Unified School District (1982) PERB Decision No. 210), we often compare the employer’s proffered reasons with the parties’ evidence regarding any alleged wrongdoing “to determine if the employer exaggerated or otherwise mischaracterized what occurred, thereby evidencing an unlawful motivation.” (Adelanto Elementary School District (2019) PERB Decision No. 2630, p. 11.)

In analyzing “mixed motive” case, Board affirmed ALJ’s finding that school district established its affirmative defense that it would have taken adverse actions against teacher whether or not she had participated in protected activities. There was sufficient evidence of procedural irregularities by the school district to find that teacher’s protected activity contributed to the school district’s actions. However, there was also sufficient evidence that the school district had other, stronger motivations, thereby leading Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s actions.

In analyzing “mixed motive” case, Board affirmed ALJ’s finding that school district established its affirmative defense that it would have taken adverse actions against teacher whether or not she had participated in protected activities. There was sufficient evidence of procedural irregularities by the school district to find that teacher’s protected activity contributed to the school district’s actions. However, there was also sufficient evidence that the school district had other, stronger motivations, thereby leading Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s actions.