Decision 2666E – San Diego Unified School District

The evidence supporting the employer’s burden on the retaliation allegations is also sufficient to meet its burden in response to the concurrent interference allegations, i.e., that operational necessity justified any harm to charging party’s protected rights. (p. 7, fn. 6.)

The evaluation of evidence under the Novato Unified School District (1982) PERB Decision No. 210 framework, i.e., 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.” (Internal citation omitted.) The essence of the Novato test is to determine whether the employer acted for a discriminatory reason. To make this determination, we weigh the evidence supporting the employer’s justification for the adverse action against the evidence of the employer’s unlawful motive. As a result, the outcome of a discrimination or retaliation case ultimately is determined by the weight of the evidence supporting each party’s position. (pp. 5-6.)

The evaluation of evidence under the Novato Unified School District (1982) PERB Decision No. 210 framework, i.e., 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.” (Internal citation omitted.) The essence of the Novato test is to determine whether the employer acted for a discriminatory reason. To make this determination, we weigh the evidence supporting the employer’s justification for the adverse action against the evidence of the employer’s unlawful motive. As a result, the outcome of a discrimination or retaliation case ultimately is determined by the weight of the evidence supporting each party’s position. (pp. 5-6.)

The Board declined charging party’s request to consider new evidence that his criminal conviction for sending threatening communications to school administrators had been set aside because the evidence in the record did not suggest that the District “exaggerated or otherwise mischaracterized [the facts that led to the criminal charges], thereby evidencing an unlawful motivation.” That a court later set aside the conviction thus is irrelevant to our inquiry. (p. 8, fn. 7.)

The evaluation of evidence under the Novato Unified School District (1982) PERB Decision No. 210 framework, i.e., 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.” (Internal citation omitted.) The essence of the Novato test is to determine whether the employer acted for a discriminatory reason. To make this determination, we weigh the evidence supporting the employer’s justification for the adverse action against the evidence of the employer’s unlawful motive. As a result, the outcome of a discrimination or retaliation case ultimately is determined by the weight of the evidence supporting each party’s position. As the ALJ correctly observed, the evidence that the District was motivated by charging party’s protected activities is “sparse,” while the evidence supporting the employer’s legitimate, non-discriminatory reasons for the adverse actions is substantial. The District thus convincingly demonstrated that charging party’s erratic and non-protected behavior would have led to the same consequences even had it not been intermixed with charging party’s limited protected activity. (pp. 5-8.)

Although the Board reviews exceptions to a proposed decision de novo, to the extent
exceptions merely reiterate factual or legal contentions resolved correctly in the proposed decision, the Board need not further analyze those exceptions. The Board did not address the majority of charging party’s exceptions as they raised arguments the ALJ considered and resolved appropriately. The Board also declined to address arguments charging party made for the first time in his exceptions or that would have no impact on the outcome of the case. (p. 5.)