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County of Orange (2013) PERB Decision No. 2350-M (Issued on 12/23/13)

In this case, an employee alleged that he was laid off in retaliation for filing a grievance in which he prevailed.  The union’s theory of retaliation was interesting.  As set forth in the decision, the theory was that the employee was given insubstantial assignments that deprived him of the opportunity to promote to a higher position, which in turn left him in the lower position which was subject to layoff.  The administrative law judge (ALJ) found that the county was not motivated by unlawful animus.  The ALJ also found that even if the employee had established a prima facie case of retaliation, the county met its burden of proving that retaliation was not the true cause of the employee’s layoff.  The Board agreed with both these findings.

What I found interesting was that the Board spent about three pages in its decision to discuss the employer’s affirmative defense in retaliation cases.  In the proposed decision, the ALJ said that, “it cannot be said that ‘but for’ [the employee’s] protected activities, he would have been promoted and therefore protected from layoff.”  The ALJ then cited to Baker Valley Unified School District (2008) PERB Decision No. 1993 for the proposition that, “the focus of this analysis ‘is not whether the employer had a lawful reason for the action but whether it took the action for an unlawful reason.'”

In its decision, the Board highlighted the standard set forth in its recent Palo Verde Unified School District (2013) PERB Decision No. 2337 case:

Once a charging party establishes a prima facie case of retaliation, the burden shifts to the respondent to establish both: (1) that it had an alternative non-discriminatory reason for the challenged action; and (2) that it acted because of this alternative non-discriminatory reason and not because of the employee’s protected activity.

The Board noted that the Palo Verde case had not yet been issued when the ALJ issued the proposed decision in this case.  The Board emphasized that under Palo Verde, an employer has to prove two things: 1) that it had a non-discriminatory reason for the adverse action; and 2) that it acted because of the non-discriminatory reason.  The Board appeared concerned that the language from Baker utilized by the ALJ could be interpreted as only requiring the second element and not the first.


  1. I’m not entirely sure I understand why the Board felt compelled to discuss this issue in such detail.  It’s seems fairly obvious to me that if you have to prove you were motivated by a non-discriminatory reason that you first have to establish such a non-discriminatory reason.  Perhaps the Board was worried that advocates like me might try to read something into this decision that the Board did not intend.  I can appreciate that.
  2. However, when it comes to the employer’s affirmative defense that it would have done it anyway there remains a major unaddressed issue in PERB jurisprudence.  In employment litigation, it’s called a “mixed motive” case.  Basically, what if unlawful animus play a role, but was not a “but for” causal factor.  For example, let’s say the adverse action was 30% motivated by unlawful animus, but 70% motivated by a non-discriminatory reason.  What happens?  As I read the language from the Baker decision, in this situation the unfair practice charge has to be dismissed because the unlawful animus was not a “but for” causal factor.  However, when I read the Palo Verde standard it’s not as clear, particularly the second element which requires the employer to prove, “that it acted because of this alternative non-discriminatory reason and not because of the employee’s protected activity.”  (Emphasis added.)  It’s the phrase “not because of the employee’s protected activity” that caught my attention.  Does that mean that unlawful animus can’t have played a role at all?  Or does the “but for” causal factor analysis still apply.
  3. This issue comes to mind because of the Harris v. City of Santa Monica (2013) 56 Cal.4th 203 decision that came out last year.  The Harris case involved a claim of discrimination under the Fair Employment and Housing Act.  Basically, the California Supreme Court held that where unlawful animus was a substantial motivating factor in the adverse action, the employer can avoid economic damages if it can prove it would have taken the adverse action anyway.  However, the employer is still on the hook for a “violation” and may have to pay attorneys’ fees and be subject to injunctive relief.
  4. So is the Board looking to adopt the principles in Harris?  It wouldn’t surprise me at all if we got such a decision in the next year or two.  Basically, the Board could expand Palo Verde to say that if unlawful animus was a substantial motivating factor, the employer will be subject to a cease and desist order and posting, even if it can show that it would have taken the same action anyway.  So the employee in such a situation may not get a remedy since the employer would have taken the action anyway.  But the Board could find that the fact unlawful animus was a substantial motivating warrants some remedial action by the Board, such as a cease and desist order and posting.

This entry was posted in PERB Decision.

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