EERA section 3543.5(a), declares that it shall be “unlawful for a public school employer to impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter.”
To establish a prima facie case of retaliation under Section 3543.5(a), the charging party must show that: (1) the employee exercised rights under EERA; (2) the employer had knowledge of the exercise of those rights; and (3) the employer imposed or threatened to impose reprisals, discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced the employee because of the exercise of those rights. Novato Unified School District (1982) PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89 (Carlsbad).)
The third element of the Novato test is often the lynchpin in a charge of retaliation. This element speaks to the employer’s “unlawful motive” in pursuing its chosen course of action. The “unlawful motive” element represents the “specific nexus required in the establishment of a prima facie case.” (Novato) Time and again, the Board has recognized the difficulty of providing direct proof of a retaliatory motive. The Board has thus concluded that
“unlawful motive can be established by circumstantial evidence and inferred from the record as a whole.” (Ibid.; Carlsbad).
The timing of an employer’s adverse action is an important indicator of unlawful motive. North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento).) However, adverse action taken in close temporal proximity to an employee’s engagement in protected activity is not, by itself, sufficient to establish a prima facie case of retaliation. Moreland Elementary School District (1982) PERB Decision No. 227. Facts establishing one or more of the following additional factors must also be present: (1) the employer’s disparate treatment of the employee State of California (Department of Transportation) (1984) PERB Decision No. 459-S (Transportation I)); (2) the employer’s departure from established procedures and standards when dealing with the employee (Santa Clara); (3) the employer’sinconsistent or contradictory justifications for its actions (State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S (Parks and Recreation)): (4) the employer’s cursory investigation of the employee’s misconduct; (5) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union Elementary School District) (1986) PERB Decision No. 572 (Cupertino)): or (7) any other facts which might demonstrate the employer’s unlawful motive. (Novato; North Sacramento.)
If the charging party establishes a prima facie case of retaliation, the burden then shifts to the employer “to prove that its action(s) would have been the same despite the protected activity.” Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-30.
In the so-called “dual motive” case, where it appears that adverse action taken against an employee was motivated by both valid and invalid reasons, “the question becomes whether the adverse action would not have occurred ‘but for’ the protected activity.” (Martori Brothers) Under this “but for” test, once the burden has shifted to the employer, the employer must show that it would have pursued its chosen course of action regardless of the employee’s engagement in protected activity. (Id at p. 730.) If the employer fails to carry this burden, the Board is entitled to find the adverse action improper. (Ibid.)
An employer may never require an employee to forego or refrain from exercising protected rights as a quid pro quo of continued employment. (See Waterbury Hotel Mgmt. LLC (2001) 333 NLRB 482.