Decision 2692M – * * * JUDICIAL APPEAL PENDING * * * City of South Pasadena

LA-CE-1180-M

Decision Date: January 30, 2020

Decision Type: PERB Decision

Description:  Respondent City of South Pasadena excepted to a proposed decision finding that it violated the Meyers-Milias-Brown Act by terminating Owen Cliff Snider (Snider) in retaliation for his protected activities.

Disposition:  The Board adopted the ALJ’s proposed decision.

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Decision Headnotes

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

To demonstrate that an employer discriminated or retaliated against an
employee in violation of the MMBA, a charging party must prove that: (1) the employee exercised rights under the 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. (p. 10.)

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.13000 – Holding Union Office

Employee’s service as Association President was protected activity under the MMBA. (p. 11.)

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.13000 – Holding Union Office

MMBA section 3502.1’s prohibition against retaliation includes an employee’s service as an executive officer of a union, membership on an exclusive representative’s bargaining team, and participation in a joint labor-management committee. (p. 11.)

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.13000 – Holding Union Office

Association President’s vigorous and vocal activism was exactly the type of activity MMBA section 3502.1 was intended to protect. (p. 12.)

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.02000 – Disparate Treatment

The weight of the evidence suggested that employee’s termination was inconsistent with the employer’s historical use of a progressive discipline policy on both informal and formal levels. (p. 13.)

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.02000 – Disparate Treatment

Employer did not rebut the employee’s examples of disparate treatment and instead relied on comparators that were vague and/or dissimilar. (pp. 13-14.)

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.06000 – Meritorious or Satisfactory Work Record; Prior Promotion or Wage Increase

Employer’s decision to proceed directly to termination was striking when considered against the background of employee’s good standing in the department. Employee had recently received an overall rating of excellent in his performance evaluation, and had been encouraged by his immediate supervisor to take a promotional test. (p. 14.)


504.14000 – Other/In General

Because PERB assesses all facts and circumstances relevant to an employer’s motivation, the Board may also consider, as part of the overall set of facts, whether the employer’s departure from the law or its own Skelly practices contribute to evidence of unlawful motivation. Although the Board expressed no opinion and made no finding as to whether the employer violated constitutionally-mandated pre-deprivation safeguards required under Skelly, as the issue was not before it, the Board noted the following facts: manager initiated the underlying investigation into employee, was substantially involved in determining which witnesses the investigator should interview, issued the Intent of Notice to Terminate, served as the Skelly officer without any other manager reviewing the matter at the pre-deprivation stage, and ultimately issued the Notice of Termination. (pp. 14-15.)

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

Employer’s investigation was neither independent nor thorough where interviewee selection process only involved finding department employees of different ranks and excluded people not employed at the department who likely had valuable details about employee’s condition and the reasonableness of his actions. Employer’s investigator made no attempt to speak with employee’s physician or to examine employee’s medical records. Since one of the charges was that employee violated a prohibition against engaging in physical activities while on disability leave, understanding what activities, if any, employer’s doctors considered appropriate seemed to be not only an obvious, but a critical component of employer’s investigation. (Adopting proposed decision at p. 17.)

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

Timing of employer’s investigation was suspicious where managers knew of employee’s alleged wrongdoing and did not take any immediate action to investigate the matter. Managers did not mention employee’s alleged misconduct to department chief until nearly three months later, around the same time employee became engaged in a dispute about light duty with the department. (Adopting proposed decision at p. 18.)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.02000 – Reinstatement

Appropriate remedy for unlawful termination is appropriate make-whole relief including reinstatement. (p. 15.)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

Appropriate remedy for unlawful termination is appropriate make-whole relief including backpay. (p. 15.)

1200.00000 – REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS
1200.01000 – In General

Appropriate remedy for unlawful termination includes a cease and desist order. (p. 15.)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.05000 – Dishonesty or Disloyalty to Employer

Employer did not meet its burden of proving it would have terminated employee even if he had not engaged in protected activities since employer did not adequately establish that employee engaged in the misconduct he was accused of. (Adopting proposed decision at p. 24.)