By Jim Cline and Peter Haller
In City of Seattle, [City of Seattle, Decision 137535-A (PECB, 2024)] the PERC Commission overturned an errant Examiner ruling and held that the complaining employee suffered an “adverse action” upon which a discrimination claim could be made when he was placed on administrative leave with pay pending an investigation. The Commission partially overturned the prior dismissal of the case on these grounds by the Examiner who held that administrative leave could not be the basis for a discrimination charge. Nonetheless, the employee won that battle but lost the war when the Commission dismissed the complaint for lack of adequate proof of discriminatory intent.
Kirk Calkins, a Street Use Inspector employed by the Seattle Department of Transportation, was placed on administrative leave with pay pending an investigation into allegations that he used threatening language against a contractor. The investigation ultimately led to his termination.
Calkins filed a discrimination action against the Employer alleging that the decision to place him on administrative leave was form of retaliation against him for previous complaints he filed against the Employer. Calkin’s complaint was initially dismissed on the grounds that he failed to show a deprivation of a benefit, right, or status. Calkins appealed this decision to the PERC Commission.
The Commission revived Calkin’s complaint and further considered it because the hearing Examiner incorrectly ruled that Calkin’s failed to demonstrate a prima facie case for discrimination. The Commission reasoned that,
“When an employer places an employee on administrative leave with pay, the employee’s wages are not affected, but the employee’s hours and working conditions are impacted… Moreover, an employer continuing to pay an employee has “little bearing on the effect” of placing an employee on administrative leave, which can include other losses, such as the loss of opportunity for overtime.”
Thus, the initial decision to dismiss the complaint on these grounds was incorrect.
In further considering the complaint, the Commission was persuaded by the Employer that the decision to place Calkin’s on administrative leave motivated by a non-discriminatory purpose; to investigate workplace policy violations. Calkins was unable to demonstrate that this legitimate purpose was nonetheless pretextual. Thus, the Employer prevailed, and the complaint was again dismissed.
While Calkin’s did not prevail in his discrimination claim, this Commission clarification is an important win for all the other employees covered by the State Collective Bargaining law. In an earlier decision by the Examiner, which we criticized, the complaint was dismissed on the grounds that no “adverse impact” had occurred upon which a discrimination charge could be based.
The state collective bargaining law contains a prohibition on retaliation and discrimination for those employees engaged in protected union activities. As applied, PERC will not sustain a discrimination charge when the impact on the employee is non-substantive. PERC precedent holds that there must be a sufficient “adverse impact” on the employee.
As this is a basic element of any discrimination charge, Cline and Associates has developed a detailed case table of PERC rulings on which employer acts are or are not sufficient to meet this requirement. Typically, any economic loss such as loss of pay meets the requirement. The Examiner had concluded that there was no loss of pay with an administrative assignment, so the standard wasn’t met. The problem with that reasoning is that it ignored the obvious loss of overtime opportunities.
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