Decision 2865E – Mt. San Jacinto Community College District

The Board has long held that EERA protects an employee’s pursuit of a safety related complaint through their union. (Oakdale Union Elementary School District (1998) PERB Decision No. 1246, p. 17 (Oakdale), citing Regents of the University of California (1983) PERB Decision No. 319-H, p. 15, fn. 6.) EERA also protects employees’ right to report safety concerns to their employer (Pleasant Valley School District (1988) PERB Decision No. 708, p. 15), as well as an individual employee’s right report safety concerns to a third party (Oakdale, supra, PERB Decision No. 1246, p. 18). Here, EERA protects the employees’ complaints regarding the lab safety and related staffing concerns and their related e-mailed complaints to District management and their union. (p. 19.)

EERA allows employee and union speech on protected topics to be impulsive, intemperate, disparaging, or inaccurate, and thereby engender ill feelings and strong responses, unless the employer meets its burden to prove such speech was maliciously dishonest or so insubordinate, opprobrious, or flagrant as to cause substantial disruption in the workplace. (Carpinteria Unified School District (2021) PERB Decision No. 2797, pp. 13-14, 16; Mt. San Jacinto Community College District (2018) PERB Decision No. 2605, pp. 9-14; County of Riverside (2018) PERB Decision No. 2591, p. 9; Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 16.) Where an employer claims that speech was so flagrant or insubordinate as to disrupt operations, PERB conducts a fact-intensive inquiry that considers all relevant circumstances, including but not limited to: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of what occurred; and (4) the extent to which the speech or conduct at issue can fairly be said to have been provoked by the employer. (Carpinteria, supra, PERB Decision No. 2797, p. 14.) When the speech at issue occurred by text message, e-mail, social media, or in another manner that was not face-to-face, there tends to be less likelihood of disruption. (Id. at p. 14, fn. 10.) In the instant matter, the Board found each of these factors favored the protected nature of Gibbons’s May 4 and May 5 e mails. (pp. 21-22.)

The Board found EERA protects on its face Firtha’s communication to the Academic Senate that she and another employee lost their department chair positions in retaliation for safety complaints. (City of Santa Maria (2020) PERB Decision No. 2736-M, p. 26.) If an employer challenges the accuracy of speech, the employer faces a heightened burden, and it must prove by clear and convincing evidence that the speech was maliciously false, meaning that the speaker either knew of its falsity or recklessly disregarded whether it was true or false. Gross or extreme negligence as to a statement’s truth does not rise to the level of actual malice. The District’s assertion that Brown believed the comments were untrue does not establish by clear and convincing evidence that the statements were maliciously false. (pp. 23-24.)

Except for cases involving alleged facial discrimination, PERB considers a charging party’s discrimination or retaliation claim under the framework set forth in Novato Unified School District (1982) PERB Decision No. 210 (Novato) and its progeny. (San Diego Unified School District (2019) PERB Decision No. 2634, p. 12 & fn. 6.) Under the Novato framework, the charging party’s prima facie case requires each of the following four elements: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (City of San Diego (2020) PERB Decision No. 2747-M, p. 26; City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If a charging party establishes a prima facie case of retaliation, and the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent may prove, by a preponderance of the evidence as an affirmative defense, that it would have taken the exact same action even absent protected activity. (Ibid.) (pp. 17-18.)

PERB uses an objective test to determine whether an employer’s action is adverse. (City of San Diego (2020) PERB Decision No. 2747-M, p. 27.) “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.” (Ibid.) Context is highly relevant in determining whether non-punitive directives are adverse. (Ibid.) (p. 24.)

PERB has found that a reasonable employee would view the loss of compensation, including paid release time, as an adverse action. (Fresno County Office of Education (2004) PERB Decision No. 1674, pp. 13-14.) In this matter, the employees’ positions as Department chairs included the opportunity for paid release time and extra duty time that they lost when the District decided they would no longer serve as chairs.

PERB case law has also found an adverse action when an employer strips an employee of duties. (San Diego Unified School District (2019) PERB Decision No. 2683, pp. 9-10.) The Board has found the mere threat of assigning an employee to a position that was “a step down” was adverse. (Trustees of the California State University (2009) PERB Decision No. 2038-H, pp. 11-12.) The employees, senior chemistry faculty members, suffered a loss of compensation, prestige, and duties when the District removed them from their departmental leadership positions via a department-wide e mail, and replaced them with without an Academic Senate election. A reasonable employee serving as a department chair would find a public removal from an elected and compensated position adverse. (pp. 24-25.)

The Board found that two employees’ reassignment to teach Introductory Chemistry for the Fall 2020 schedule constituted an adverse action. A reasonable employee would find a unilateral assignment to teach unfamiliar classes with more students to be adverse. (p. 26.)

The Board finds departure from established procedures when an employer takes an adverse action in a way that is inconsistent with the way it normally goes about doing so. (Lake Elsinore Unified School District (2019) PERB Decision No. 2671, p. 7.) We may infer unlawful motive from a respondent’s departure from existing practices in its dealings with the charging party. (Garden Grove Unified School District (2009) PERB Decision No. 2086, adopting dismissal letter at p. 4.) To establish such an inference, the charging party must demonstrate what the respondent’s practice is and how the respondent deviated from that practice. (Ibid.; Los Angeles Unified School District (2014) PERB Decision No. 2390, pp. 11-12 & adopting proposed decision at p. 16.) In the instant matter, the Board found the District departed from established procedures in several ways when it removed Gibbons and Firtha as chairs, refused to recognize their reelection, and assigned them to Introductory Chemistry for the Fall 2020 semester. (pp. 29-30.)

If an employer takes adverse action shortly after an employee’s protected activities, this tends to suggest more strongly that the two are linked, and the inference of discrimination weakens as the gap in time grows. (City of Santa Monica (2020) PERB Decision No. 2635a-M, p. 45.) However, timing alone is typically not determinative, and there is no bright line rule for determining how close in time the protected activity must be to the alleged retaliatory conduct. (Id. at p. 46.) Thus, while a charging party typically needs more than just timing evidence to prevail, if the timing inference is weak a charging party will normally need to marshal a stronger array of other, non-timing facts. (Ibid.) Here, all of the adverse actions occurred within 2 months of protected activities, supporting a strong inference of nexus. (pp. 27-29.)

Removing two employees as department chairs for missing a single, hastily-scheduled meeting without asking them their availability reflects a disproportionate response to the circumstances, which supports unlawful motive. (p. 32.)

While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, we have 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 relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures or standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 21.) (pp. 26-27.)

The Board found it relevant to nexus that the District removed two employees from their department chair positions, without notice, warning, or progressive discipline, for a single alleged act of insubordination and despite significant mitigating circumstances. (p. 31.)

If a charging party establishes a prima facie case of retaliation, and the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent may prove, by a preponderance of the evidence as an affirmative defense, that it would have taken the exact same action even absent protected activity. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Id. at p. 16.) 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. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 19; Rocklin Unified School District (2014) PERB Decision No. 2376, p. 14; Palo Verde Unified School District (2013) PERB Decision No. 2337, p. 33.) 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. (See Novato Unified School District (1982) PERB Decision No. 210, p. 14.) Even direct evidence of unlawful motivation does not bar a respondent from proving that an employee’s protected activity was not the true motivation for its action. (Regents of the University of California (2012) PERB Decision No. 2302-H, p. 4.) (p. 35.)

Because the remedy did not not fully restore the status quo for two employees who lost their department chair positions in retaliation for protected activity, and particularly because the District’s pervasive retaliatory conduct likely harmed their reputations in a way which could impact their ability to compete in future chair elections, the Board supplemented the remedy to include a verbal reading of the notice posting by a District representative to those District employees in the bargaining unit.

A spoken notice reading is one example of a non-standard remedy that is warranted “whenever customary remedies are insufficient.” Here, however, declining to reinstate the employees as chairs—out of concern for innocent incumbents—could leave employees chilled by Brown’s retaliatory acts. The Board therefore found that this case called for a non-standard remedy. “Notice reading is a way to let in a ‘warming wind of information’ to not only alert employees to their rights but also impress upon them that, as a matter of law, their employer or union must and will respect those rights in the future. Reading the notice (and any explanation of rights) aloud disseminates that information through the work force in a clear and effective way.” (Noah’s Ark Processors, LLC D/B/A WR Reserve (2023) 372 NLRB 80, p. 6, citations omitted.) (pp. 42-43.)

The Legislature has vested PERB with broad authority to decide what remedies are necessary to effectuate the purposes and policies of EERA and the other acts we enforce. (EERA, § 3541.5, 1st par. & subd. (c); Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189.) PERB remedies must serve the dual purposes of compensating for harms that an unfair practice causes and deterring further violations. (County of San Joaquin v. Public Employment Relations Bd. (2022) 82 Cal.App.5th 1053, 1068; The Accelerated Schools (2023) PERB Decision No. 2855, p. 16 (Accelerated Schools); Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 26.) Our de novo review on exceptions to a proposed decision includes review of the proposed remedy. (Accelerated Schools, supra, PERB Decision No. 2855, pp. 16-31).) Here, in reviewing the remedy de novo, the Board modified the Order to correct an error and supplemented the remedy to include a verbal reading of the notice posting by a District representative to those District employees in the bargaining unit. (pp. 39-43.)