Subtle Footnote … Has PERB Changed its Discrimination Standard?

Fontana Unified School District (2010) PERB Decision No. 2147-E (Issued on 12/10/10)

This case is a run-of-the-mill appeal of a Board agent’s dismissal. What caught my attention was what the Board put in a footnote:

“The Board does not adopt the references to Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 and San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553 at p.3 dismissal letter and pp. 3-4 warning letter, as support for the well-established discrimination test set forth in Novato Unified School District (1982) PERB Decision No. 210 (Novato).”

The footnote was in reference to the following statement by the Board agent in the warning and dismissal letters:

… to state a prima facie case for unlawful retaliation, the charging party must show: (1) the employee exercised rights under EERA; (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. (Novato Unified School District (1982) PERB Decision No. 210 (Novato); Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 (Campbell); San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553 (San Leandro).

The Board agent cited to Campbell and San Leandro as support for PERB’s standard on establishing a prima facie case of discrimination. This was nothing new. A quick Westlaw search reveals that the exact language used by the Board agent in this case has been used in at least 27 ALJ and Board decisions in the past few years. In fact, the exact language used by the Board agent has been cited by the Board in at least 7 precedential decisions (See PERB Decisions Nos. 2112, 2091, 2086, 2065, 2057, 2021, 2020.) So what does this footnote mean?  It’s not entirely clear. 

Certainly, Campbell and San Leandro don’t enumerate the elements for establishing a prima facie case of discrimination.  Campbell and San Leandro arguably deal more with how to establish a case of interference, as opposed to discrimination.  So I think the Board is just saying that in the future Campbell and San Leandro should not be cited as support for the Novato elements.  The confusing part is that there still remain at least 7 precedential decisions using the exact same language the Board chose not to adopt in this case.  The Board didn’t explicitly overrule those prior decisions.  So without a more thorough explanation it’s difficult to tell what the Board intended to be the effect of the footnote.

My personal opinion is that the footnote is just an instructional comment from the Board to its Board agents.  I don’t think there is any intent to change the Novato standard or somehow alter it by removing Campbell and San Leandro as supporting decisions.  I think the Board just realized, perhaps belatedly, that Campbell and San Leandro are unnecessary citations to support the Novato elements.

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