By Jim Cline
In City of Seattle, Examiner Christopher Casillas dismissed a complaint after finding the Complainant failed to satisfy each element necessary for a discrimination prima facie case. The Complainant had been placed on administrative reassignment while the City investigated an incident involving Complainant; however, he did not lose any pay, leave, or benefits while on reassignment, and thus, failed to prove a deprivation of rights.
Complainant worked for the City as a Street Use Inspector for 17 years when the rotational overtime system was changed. Complainant filed an unfair labor practice (ULP) complaint against the City, but the complaint was dismissed because Complainant didn’t have standing.
A few months later, the City’s Lead Inspector received a complaint alleging that Complainant had made statements inconsistent with workplace expectations. While conducting initial discussions regarding the alleged statements, City supervisors discovered another, earlier complaint against Complainant. The City decided to place Complainant on administrative reassignment pending investigation, providing Complainant with a formal letter which specified he wouldn’t suffer any loss in pay, paid leave, or benefits during this period.
Complainant argued the City discriminatorily retaliated against him for filing a ULP. Complainant had engaged in a protected activity when he filed a complaint against the City, and the City placed him on administrative reassignment only five months later, fulfilling two elements of a prima facie case: engagement in a protected activity and a causal connection between the protected activity and the employer’s action.
The City, however, argued it did not factor Complainant’s ULP complaint into its decision to place him on reassignment. The City demonstrated that administrative reassignment pending an investigation was a commonly utilized tool in similar scenarios. Further, the City specified to Complainant that he would not be deprived of any pay, paid leave, or benefits while on reassignment, meaning the final element of a prima facie discrimination case – deprivation of rights – was not met.
Examiner Casillas further noted that, even if Complainant had fully established the third element of a prima facie discrimination case, the City had an obligation to investigate potential work policy violations and regularly used administrative reassignment to fulfill that obligation. Because Complainant failed to prove all three elements of a prima facie discrimination case and the City had a legitimate, nondiscriminatory reason for placing Complainant on administrative reassignment, the complaint was dismissed.
This Examiner decision is on appeal to the Commission and may well be overturned. In fact, it probably should be. The Examiner claimed that the administrative assignment had not adverse impact on the employee, ignoring the facts in plain sight. The version issue that the employe at issue was objecting to leading to the retaliation claimed involved the assignment of overtime. Certainly, being placed on administrative leave triggered a loss of overtime which should be recognized as an adverse impact. The Examiner claims that the employer had a “right” to investigate misconduct missed the point of whether the decision was substantially motivated by retaliation
The requirement in discrimination case that an “adverse impact” occurred is an important element over which the employee bears the burden of proof. PERC will not find discrimination occurs where no substantial impact on employee working conditions occurred. There has been some recent confusion in Commission case law about meeting that standard, but it should have been met on these facts.
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