September 22, 2010

An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB

An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB
Public Employees Federation and New York, 30 PERB 3045

Suppose an employer gives one reason to explain an action and later offers a different explanation for its decision. The "real motive" for an action was among the issues raised by the Public Employee Federation [PEF] in its appeal of a PERB administrative law judge's [ALJ] ruling.

New York State Labor Department employee Ronald Goldstein was not permanently appointed to an associate economist's position after serving in the position as a provisional appointee. The PEF filed charges alleging that Labor violated Section 209-a.1(a) and (c) of the Public Employees' Fair Employment Act, contending that Goldstein was not made permanent because of his activities as a PEF officer.

PERB sustained its ALJ's dismissal of the complaint based on Department testimony that "deficiencies in Goldstein's job performance" was the reason why Goldstein was not appointed permanently to the title, rather than his union activities.

However, PEF argued that the Department initially gave a different reason for Goldstein's removal: that "the Department of Civil Service required his removal ... because a new eligibility list had been established." PEF argued the Department should not have been allowed to introduce "performance testimony" in its defense.

PERB upheld the ALJ's decision to allow the job-performance testimony, indicating that "a demonstrated discrepancy in the reasons for an action is clearly relevant to an assessment of a respondent's motive for an action, but not dispositive of that motive as a matter of law."

The citing of a particular reason, even if pretextual, by a party does not mean that there were not and cannot be other, lawful reasons for its actions, PERB said.

PERB held that the fact that an employer gave one reason but not another, or no reason whatsoever, does not prohibit it from submitting evidence of a reason, or additional reasons, at a later date, including at a hearing before an ALJ.
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