Decision 2704H – * * * JUDICIAL APPEAL PENDING * * * Regents of the University of California

LA-CE-1291-H & LA-CE-1292-H

Decision Date: April 14, 2020

Decision Type: PERB Decision

Description:  In this case about alleged retaliation in violation of the Higher Education Employment Relations Act, the Board reversed a proposed decision and found the University retaliated against two employees because of protected activity.

Disposition:  Reverse

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Decision Headnotes

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

An inadequate or cursory investigation supports an inference of unlawful motive because it reveals an employer’s disinterest in whether misconduct truly occurred and thus that the stated reasons for the adverse action are not the actual motivating reasons.

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

The indicium “cursory investigation” does not apply only to hasty or perfunctory investigations. Rather, an investigation also signals unlawful motive where an employer makes an allegation of misconduct against an employee but fails to investigate critical elements of the accusation, and where an investigation is tailored to produce a predetermined outcome.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.13000 – Unusually Harsh Treatment

A disproportionate punishment is an indicia of unlawful motive. The Board found termination excessive in light of employee’s long positive work history and plausible interpretation of instructions and thus concluded employer’s decision to terminate employee who engaged in protected union activity rather than employ lesser discipline indicated unlawful motive.