December 2019 Newsletter – Community College Districts

Adverse Action Following an Employee’s Exercise of EERA Protected Rights Can Be Evidence of Discrimination, but is Does Not Result in De Facto Immunity to the Employee; PERB Has Discretion to Consider Amended Filings

In a recent decision, Padilla v. Adelanto Elementary School District (PERB Decision No. 2630, March 1, 2019), the Public Employment Relations Board (PERB) included several procedural determinations that clarified the scope of its discretion in accepting supplemental filings and dismissing procedural errors that have no bearing on the outcome of the case. PERB also affirmed and clarified the standard for finding that an employer has retaliated against an employee for exercising rights protected under the Education Employment Relations Act (EERA.)

The facts in Padilla were largely undisputed. Ms. Padilla filed an unfair practice charge alleging that she was disciplined in retaliation for filing a grievance against her principal for reneging on an agreement to assign her to teach first grade for the following year. The district claimed that it disciplined her because she was subsequently involved in an altercation where she allegedly shook a student, yelled at the student and another teacher, and entered the other teacher’s classroom after hours, after which several items went missing. Following the altercation, the principal interviewed the students and the other teacher involved in the altercation, as well as several student witnesses, and the custodian who let Padilla into the other teacher’s room after hours. Two days later, Padilla was suspended. The principal also made a report to the sheriff’s department. The district then hired an outside investigator who, after interviewing Padilla and all relevant witnesses, found that the allegations against Padilla were substantiated.

Although the facts of this matter are not necessarily novel or unique, there were two holdings in this matter that are of note.  First, Padilla filed an amended statement of exception after the filing deadline. In its opinion, PERB stated that because PERB regulations do not expressly permit or prohibit reply briefs, it had the discretion to consider such amended filings. While in this case, PERB did not consider Padilla’s supplemental filing because it was determined to have no bearing on the outcome of the case, the impact of this determination is potentially significant. Specifically, if PERB regulations do not expressly permit or preclude a matter, it is within PERB’s discretion to consider.

On the issue of retaliation, PERB also ruled for the district, finding that Padilla failed to state a prima facie claim of retaliation because she did not present sufficient evidence that the district had an unlawful motive for issuing the discipline. Specifically, while PERB recognized that an employer taking adverse action against an employee soon after the employee engages in protected conduct may create an inference of unlawful motive, it confirmed that this alone is not determinative. In its decision, PERB found that the timing of the district’s action against Padilla supported an inference that the district was motivated by Padilla’s protected activity, because the district began investigating Padilla for misconduct a day after she filed the grievance and had issued the notice of discipline thirteen days after Padilla met with the governing board. However, PERB found no other evidence of unlawful intent. Specifically, PERB found that the district’s investigation was not perfunctory, cursory, or inadequate under the circumstances. PERB further determined that while the district did not interview every student who witnessed the altercation, it did interview all parties who were involved in the altercation, as well as three or four student witnesses and the custodian. PERB further gave weight to the fact that the investigation was conducted by an outside investigator, and took six months to complete, which suggested that the investigation was neither cursory nor rushed. Finally, PERB found that, under the circumstances, the district’s allegations against Padilla were not exaggerated.

From this, it can be gleaned that although adverse action that coincidentally follows an employee’s exercise of an EERA protected right can be viewed as evidence of unlawful motive, it is not dispositive or result in de facto immunity to the employee, and should not necessarily prevent the district from proceeding with legitimate and warranted disciplinary action. Nevertheless, before proceeding, districts should take extra care to conduct a thorough and detailed investigation, including interviewing all relevant parties and witnesses involved or affected by the alleged misconduct, identifying and reviewing all pertinent documents, and reaching an objective, thoughtful, and well-reasoned conclusion supported by the evidence. If appropriate, the use of an outside investigator to conduct an independent investigation may also contribute to a determination that the action taken was reasonable and appropriate.

For more information regarding this article, please contact Antonina Saburova-Ng at asaburovang@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@erickson.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice. If you would like further information on this matter, please contact our office.

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