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PERB Dismisses Employee’s Unfair Practice Charge Filed Against County
LCW Partner Adrianna Guzman and Associate Attorney Lars Reed obtained a victory for a County after a former employee filed an unfair practice charge with the Public Employment Relations Board (PERB).
The former employee alleged that the County violated the Meyers-Milias-Brown Act (MMBA) by retaliating and discriminating against her. The employee’s allegations stemmed from a Child Protective Services referral regarding the children of her boyfriend, with whom she lived. A social worker issued a final investigation report against the employee and her boyfriend that substantiated allegations of general child neglect. The County’s Program Director then added a paragraph to the employee’s performance report indicating that she would not be able to work in a certain assignment. This was because County policy prohibited employees with a “substantiated” allegation from working in a particular unit. The County provided the employee with a final copy of the report.
Subsequently, the employee submitted a rebuttal to her performance report as authorized by County policy. The County attached her rebuttal to the report, and placed both documents in her personnel file. Shortly thereafter, the employee provided three weeks’ notice of her resignation. The employee then filed an unfair practice charge with PERB three days before her last day of employment.
In order to demonstrate that an employer discriminated or retaliated against an employee in violation of the MMBA, PERB requires the employee to show that: (1) the employee exercised rights under the MMBA; (2) the employer had knowledge of the exercise of those rights; (3) the employer took adverse employment action against the employee; and (4) the employer took the action because of the exercise of those rights. PERB concluded that the former employee could not show those elements. PERB reasoned that the employee failed to allege with specificity that she participated in any conduct protected under the MMBA or that the County took an adverse employment action against her. It also noted that even if the County took adverse action against her, the employee did not allege sufficient facts to show there was any unlawful motivation. Thus, PERB concluded the employee could not demonstrate a prima facie case of retaliation or discrimination.
While PERB gave the employee the opportunity to amend her claims, she failed to do so. Accordingly, PERB dismissed the unfair practice charge against the County.
An employee who files an unfair practice charge must establish all of the necessary elements of the claim. If the employee does not, PERB will dismiss the charge and no complaint issues. LCW attorneys strategically challenge unfair practice charges before they reach the complaint stage.