Decision 2642M – City of Sacramento

SA-CE-915-M

Decision Date: May 1, 2019

Decision Type: PERB Decision

Description:  Charging parties Sacramento Area Fire Fighters, Local 522 and Jed Kircher, appealed from an ALJ’s proposed decision dismissing unfair practice complaint. The complaint alleged that the City violated by MMBA by discriminating and retaliating against Kircher, a former union official, as well as by interfering with his employee rights and the union’s employee organization rights.   Charging parties appealed the ALJ’s dismissal of its retaliation claims, but did not file exceptions to the ALJ’s dismissal of the interference claims.

Disposition:  The Board affirmed the dismissal of the complaint, albeit on different ground than the ALJ.  With respect to the retaliation claims, the Board found that charging parties did not establish a nexus between Kircher’s protected activity and the adverse actions.

View Full Text (PDF)

Perc Vol: 43
Perc Index: 179

Decision Headnotes

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

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.)

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

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.)

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

An employer action can constitute adverse action absent discipline and even absent any threat of discipline. (See, e.g., County of Riverside (2009) PERB Decision No. 2090-M, pp. 28, 30 [action need not specifically threaten discipline if it otherwise has an adverse impact on the employee’s employment]; State of California (Department of Youth Authority) (2000) PERB Decision No. 1403-S, pp. 32-33 [adverse action found where employer demeaned employee by issuing a substandard rating for “relationships with people,” and by imposing a documented requirement that a fellow employee had to review budget requests].)


504.14000 – Other/In General

While Board considers all relevant facts and circumstances in assessing an employer’s motivation, Board 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. (Santa Clara, supra, PERB Decision No. 2629-M, pp. 9-10; County of Yolo (2009) PERB Decision No. 2020-M, pp. 12-13; Novato Unified School District (1982) PERB Decision No. 210, pp. 6-7.)


504.14000 – Other/In General

While some of the employer’s allegedly adverse actions were in close temporal proximity to employee’s protected activity, timing alone is not determinative. (Adelanto Elementary School District (2019) PERB Decision No. 2630, p. 9.) The record as a whole does not lead PERB to conclude that employer conducted investigatory interview of employee, delayed processing employee’s supplemental employment application, or lost employee’s Departmental personnel files because he engaged in protected activity. No evidence introduced suggesting employer was motivated by protected activity, where asserted adverse actions were mistakes or caused by breakdown in communication.