By Jim Cline
In Washington State Department of Children, Youth, and Families, Examiner Casillas dismissed the case, holding that Complainant failed to prove her employer had discriminated against her for engaging in a protected activity. Examiner Casillas found that management had engaged in multiple non-disciplinary attempts to correct Complainant’s behavior over several years and that Complainant failed to provide any evidence such corrective attempts were the result of union animus.
Complainant worked for the Department of Children, Youth, and Families (DCYF) in their Yakima office. In 2019, Complainant was informed her recent behavior was inconsistent with the employee ethic and conduct policy and was given a Performance Meeting Record (PMR). Over the next several months, Complainant was confronted with allegations of improper behavior, including raising her voice, describing a supervisor using a derogatory term, and sending an email which discussed preferential treatment of employees and an alleged lack of transparency in case assignments to several Yakima office. Complainant received a Memo of Concern related to the email, which management alleged showed escalating inappropriate behavior.
An administrative investigation into Complainant occurred in the following months, centering on two email exchanges in which Complainant accused management of gross mismanagement, being unethical, and suppressing her first amendment right. The complainant was issued a Notice of Pre-Disciplinary Meeting, after which she notified management that she would grieve any findings. The complainant was disciplined and her union, the Washington Federation of State Employees, grieved the matter, of which the outcome is unknown.
Complainant later alleged she was bypassed for promotional opportunities, received a reduction in pay, and was denied overtime opportunities. Such actions, Complainant alleged, were DCYF discriminating against her for advocating for employees at the Yakima office and notifying them she intended to file a grievance, which constitutes as a protected activity.
However, evidence found that the Complainant was granted each overtime request she submitted and did not apply for promotional opportunities. Further, the allegation that Complainant’s advocacy subjected her to discipline lacked proof and was deemed irrelevant, as that doesn’t qualify as a protected activity. As well, Complainant did not provide evidence that she experienced any deprivation because of the investigations, as her testifying to a reduction in pay was not sufficient and it was further discovered her union had reduced that penalty to an undisclosed amount.
DCYF, over several years, sought to correct Complainant’s behavior through escalating non-disciplinary actions before she expressed any intent to engage in a protected activity. As Examiner Casillas noted,
“[t]he cart was, indeed, before the proverbial horse, and in this situation that undermines any causal connection.”
Because there lacked a causal connection between Complainant’s alleged deprivations and her discipline, she failed to establish a prima facie case. Further, Examiner Casillas reasoned, even if a prima facie case had been established, DCYF established a legitimate, nondiscriminatory reason for disciplining Complainant. The complaint was dismissed.
Announcing that you are unhappy with your treatment and intent to file grievances over it, isn’t going to grant immunity against discipline. Untangling these unhappy work situations can be complex but here the examiner concluded that the Department had valid reasons for the discipline and that it wasn’t the least bit triggered by grievance announcement.
PERC has adopted a standard that adverse employment actions that are “substantially” motivated in retaliation for union protected activity can state a basis for a discrimination ULP. In this case, too many other issues in the workplace pointed to a nondiscriminatory cause for the employer action.
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