Tuesday, February 15, 2011

PERB: Poor Personnel Practices Do Not Prove Discrimination

City of Alhambra (2011) PERB Decision No. 2161-M (Issued 2/08/11)

This case involved an employee who was rejected during probation. The employee alleged that he was rejected during probation because of protected activities, in violation of the MMBA. Specifically, the employee argued that the City retaliated against him because of comments he made criticizing his supervisor during an employee meeting.

The Administrative Law Judge (ALJ) issued a proposed decision finding that the City rejected the employee during probation because of his protected activities. To establish unlawful motive, the ALJ found that the City decided to reject the employee less than eight hours after the employee’s complaints at the meeting. The ALJ also found that the decision-maker, who knew about the employee’s complaint, decided to reject the employee based on complaints from others even though no investigation was conducted. 

On exceptions filed by the City, the Board agreed that these facts could establish a prima facie case of retaliation.  However, the Board first questioned whether the employee even engaged in protected activity. The Board noted that under the MMBA, employees have the right to represent themselves individually in their employment relations with their employer. (Gov. Code, §3502.)  But individual employee complaints generally have been held to be unprotected when they are undertaken for the employee’s sole benefit or are the result of a personal grudge. (See Los Angeles Unified School District (2003) PERB Decision No. 1552.) Here, the Board found no evidence the employee’s complaints were related to group activity or intended to group action.

The Board also acknowledged that an employee’s reporting of workplace safety concerns is protected activity. However, the Board held that the employee’s references to safety concerns during the meeting involved safety to the public, not to employees. Accordingly, the Board reversed the ALJ’s finding that the employee engaged in protected activity.

Even if the employee had engaged in protected activity, the Board held that the City met its burden to demonstrate that it would have rejected the employee during probation even absent the protected activity.  In reaching its decision, the Board made several interesting findings. First, the Board found that an employer’s failure to give an "at will" employee a reason for dismissal does not indicate unlawful motive in the absence of evidence that the employer was required by policy or past practice to do so.  (Sacramento City Unified School District (2010) PERB Decision No. 2129.)

In addition, the Board found that the evidence established that the employee was rejected solely because of complaints about his attitude and work conduct. Acknowledging that the decision-maker did not investigate the complaints, the Board held that, “while this may demonstrate a poor personnel practice, it does not establish that [the decision-maker] rejected [the employee] on probation because of his complaints about being worked too hard.  Instead, the Board found that the decision-maker reasonably believed the employee’s performance would not improve.


  1. When it comes to proving discrimination, it’s very rare to have “smoking gun” evidence of discriminatory intent.  Therefore most discrimination cases involve circumstantial evidence. In this case, the Board clarified how it will treat circumstantial evidence that can be indicia of discriminatory intent.
  2. First, the Board held that, “[W]e find an employer’s failure to offer justification at the time it took action is not a reliable indicator of discriminatory intent unless the employer was required by law, policy, or past practice to give a reason.”  Practically, this will not apply often in the public sector as employees entitled to civil service protection have due process rights that include the right to know the grounds for any discipline. However, exceptions exist for probationary employees, limited-term employees, and other types of temporary employees.  In those situations, this holding may be helpful to employers.
  3. Board also affirmed that merely proving that the employer made a unwise or unjust decision to discipline or terminate an employee is not enough to find that there was discrimination.  This is a concept the Board has upheld before.  This case, however, provides a good illustration that an employer’s “poor personnel practice” does not establish unlawful discrimination.
  4. Finally, it is worth noting that this decision continues a trend of the Board reversing cases where the ALJ’s proposed decision has found a violation. Since July 1, 2010, the Board has considered seven (7) cases, including this case, where the ALJ’s proposed decision found a violation. The Board overturned, either partially or entirely, every one of those decisions.  During that same time, the Board considered seven (7) cases where the ALJ’s proposed decision found no violation. The Board affirmed every one of those decisions.