San Francisco Employment Law Firm Blog
In most retaliation cases, the California Public Employment Relations Board (PERB) applies the framework established in Novato Unified School District (1982) PERB Decision No. 210 (Novato USD).
Under the Novato USD framework, the charging party must first establish a prima facie case by proving four elements: (1) The employee engaged in an activity protected by a labor relations statute enforced by PERB; (2) The employer knew of the employee’s protected activity; (3) The employer took an adverse employment action against the employee; and (4) There was a causal connection, or “nexus,” between the protected activity and the adverse action—that is, the protected activity was a substantial or motivating factor in the employer’s decision. (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.)
Once the charging party establishes a prima facie case, the burden shifts if the evidence also demonstrates a legitimate, non-discriminatory reason for the employer’s decision. In such circumstances, the employer may assert, as an affirmative defense, that it would have taken the same action even in the absence of the employee’s protected activity. The employer bears the burden of proving this defense by a preponderance of the evidence. (City and County of San Francisco, supra, at p. 15.)
These are commonly referred to as “mixed-motive” cases. The ultimate inquiry becomes whether the adverse employment action would have occurred “but for” the employee’s protected activity. (Id. at p. 16.)
Importantly, an employer does not escape liability merely because it possessed the legal authority to take the challenged action. Even where an employer is legally permitted to take an employment action—such as declining to reelect a probationary employee—it may not base that decision on an unlawful motive, intent, or purpose within PERB’s unfair practice jurisdiction. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 13; Berkeley Unified School District (2003) PERB Decision No. 1538, p. 5.)
Consistent with this principle, PERB has repeatedly held that a decision not to reelect a probationary employee constitutes an adverse employment action under the Novato USD retaliation framework. (Oakland Unified School District (2007) PERB Decision No. 1880, pp. 7–8; Golden Plains Unified School District (2002) PERB Decision No. 1489, p. 7.)
PERB has likewise long recognized that placing an employee on paid administrative leave pending an investigation constitutes an adverse employment action. (San Mateo County Community College District (2008) PERB Decision No. 1980, p. 9.)
Similarly, PERB has held that denying employees meaningful access to a negotiated grievance procedure may constitute an adverse employment action because it interferes with their ability to enforce contractual rights. By depriving employees of the ability to vindicate rights protected under the Educational Employment Relations Act (EERA), such conduct effectively strips them of statutory protections and constitutes what PERB has described as a “classic adverse action.” (Jurupa Unified School District (2013) PERB Decision No. 2309, pp. 8–9.)