By Jim Cline and Peter Haller
In Tiffany Diggins v. Seattle Housing Authority, a PERC Examiner ruled that the complaining employee failed to prove employer discrimination when she alleged that her employer interfered with her connectivity and access to computer software required for work. The Examiner held that her IT access issues did not rise to the level of being an “adverse action” upon which a discrimination charge could be based.
An office administrator for the Seattle Housing Authority, Tiffany Diggins, became irritated with her employer when she started running into issues accessing computer systems necessary for work. Diggins formally complained to the Employer about the issues, and in July of 2022, she filed a ULP complaint related to her interactions with her supervisors. The complaint did not allege any facts regarding system access. In August of 2022, Diggins amended her ULP complaint. The amended complaint alleged that the Employer interfered with connectivity and access to the system, and that these issues were intentionally increased as a form of retaliation against her for filing a ULP complaint.
The Examiner noted that a claim of discrimination requires proof of three elements. Diggins was able to prove the first element, that she participated in a protected activity when she filed her ULP complaint. However, Diggins was not able to persuade the Examiner that the other two required elements were satisfied. The Examiner summed up his conclusion by stating,
“While Diggins engaged in protected activity by filing an unfair practice complaint, she did not prove that the employer deprived her of an ascertainable right, benefit, or status. Similarly, Diggins did not prove that there was a causal connection between the filing of the July 15, 2022, unfair labor practice complaint and the employer’s alleged adverse actions.”
The Examiner did not consider access to work systems to be an ascertainable right or benefit, such as wages or a condition of employment. Diggins offered no evidence of loss of pay or any other adverse action. The Examiner also noted that technical issues predated the filing of Diggins’ complaint. Diggins failed to offer any proof of the alleged “increase” in the technical issues. Further, her supervisors were unaware she had filed a ULP complaint. Thus, the Examiner dismissed the case because Diggins failed to show sufficient proof required to satisfy the elements of a discrimination claim.
An “adverse action” is a necessary element to proving unlawful union discrimination. PERC has often wrestled with what type of changes in working conditions are needed to establish this element. In a recent newsletter we discussed the requirement that the employer change have some type of substantive impact on employee working conditions. In the recent City of Seattle decision, the Commission overturned its Examiner decision that administrative leave did not rise to the level of an adverse action, noting that the leave directly led to loss overtime.
It is important to note that framing the issue the correct way also matters. Employer actions of statements that involve threats or other retaliatory actions, may still give rise to an “interference ULP.” Interference charges can be easier to prove and do not contain the adverse impact requirement.
Our premium website includes a table of PERC decisions finding sufficient or insufficient “adverse action.” We also track PERC rulings on what employer actions are sufficient to establish unlawful “interference.
**Visit our Premium Website for more information on General Elements of Discrimination and Specific Proof of Discrimination**
