Oakdale Union Elementary School District (PERB 0548E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DAISY FAY ARMSTRONG,
Charging 	Party,
v.
OAKDALE UNION ELEMENTARY SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	S-CE-920
PERB 	Decision 	No. 	548
December 	16, 	1985
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Appearances; 	Daisy Fay Armstrong, 	on her own behalf; 	Finkle &
Stroup by Mary Beth de 	Goede 	for 	Oakdale 	Union 	Elementary School
District.
Before Hesse, 	Chairperson; Jaeger, 	Morgenstern, 	Burt and Porter,
Members.
DECISION
This 	case 	is 	before 	the Public 	Employment 	Relations 	Board
on appeal 	by 	charging party of 	the 	Board 	agent's 	dismissal,
attached hereto, 	of her 	charge 	alleging 	that 	the 	Oakdale 	Union
Elementary School 	District 	violated 	section 	3543.5(a) 	and 	(b)
of the Educational 	Employment 	Relations Act 	(EERA) 	(Gov. 	Code
sec. 	3540 et seq.).
We have 	reviewed 	the 	dismissal 	and 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it as 	the Decision of the Board
itself, 	in that 	the 	charge was 	not 	timely 	filed pursuant 	to
EERA section 	3541.5.
ORDER
The unfair practice charge 	in Case No. 	S-CE-920 	is
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By the BOARD.
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STATE Of CALIFORNIA 	GEORGE€ 	DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET, SUITE 102
SACRAMENTO, CALIFORNIA 	95814
(916) 322-3198
October 16, 	1985
Daisy 	Fay 	Armstrong
Re: 	Armstrong v. 	Oakdale Elementary School 	District
Unfair 	Practice 	Charge 	S-CE-920
Dear Ms. 	Armstrong:
The 	above-referenced 	charge 	alleges 	that 	the 	Oakdale Elementary
School District 	(District) 	dismissed Ms. 	Armstrong for
exercising 	protected 	rights. 	This 	conduct 	is 	alleged 	to
violate 	section 3543.5(a) 	and 	(b) 	of 	the Educational 	Employment
Relations 	Act 	(EERA).
After writing you on August 	23, 	1985, 	I 	received 	the 	following
information. 	The Petition 	for Writ 	of 	Mandamus 	filed 	by
Ms. 	Armstrong does 	not 	state 	that 	the 	reason for Ms.
Armstrong's 	dismissal 	was 	her 	participation 	in union 	activity.
Rather, 	it 	argues 	that 	her 	dismissal violated Education Code
section 45101 	and Article 	21.5 	of 	the District's 	Employee 	Rules
which 	require 	that 	a valid 	cause 	for 	discipline 	be 	no 	more 	than
two years 	old. 	(See Attachment 	1.) 	Ms. 	Armstrong did 	not 	file
a 	grievance 	under 	the 	collective 	bargaining 	agreement 	despite
the 	existence 	of Article 	3.2 which 	prohibits 	discrimination
against 	employees 	because 	of 	the 	exercise 	of 	their 	rights 	to
engage 	or 	not 	engage 	in association activity.1 In addition,
Ms. 	Armstrong 	states 	that 	the 	instant 	charge 	is 	the 	first 	time
it 	is 	alleged 	that 	the District 	terminated Ms. 	Armstrong
because 	of 	her 	filing 	of 	a 	grievance 	in 	1980. 	On April 	4,
1985, 	Ms. 	Armstrong filed 	a charge of discrimination with the
California 	State Department 	of 	Fair 	Employment 	and 	Housing.
This 	charge 	alleges 	that 	her 	termination was 	because 	of 	her 	sex.
Based 	on 	the 	facts 	described 	above 	as well 	as 	those 	contained
in ray August 23 	letter 	(Attachment 2 ) . 	this 	charge does not
state 	a 	prima 	facie violation of 	the EERA for 	the 	reasons which
follows.
1There 	is 	a 	factual 	dispute 	over whether Ms. 	Armstrong
was 	covered 	by 	the 	collective 	bargaining 	agreement 	because 	of
alleged 	confidential 	status.

Daisy 	Fay 	Armstrong
October 16. 	1985
Page 2
EERA section 3541.5(a) 	states:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice charge, 	except 	that 	the
board 	shall 	not do 	either 	of 	the 	following:
(1) 	issue a complaint 	in respect of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring more 	than 	six months 	prior 	to 	the
filing of the charge; 	. 	. 	.
This 	charge was 	filed 	on July 9, 	1985, 	which means 	that 	the
six-month 	statutory period 	began 	on January 	9. 	1985.
Ms. 	Armstrong was 	dismissed 	from her 	position 	by 	the 	District
on April 	5. 	1984. 	approximately ten months prior 	to the
beginning 	of 	the 	statutory period. 	The 	Public 	Employment
Relations 	Board 	(PERB) 	recognizes 	the 	doctrine 	of 	equitable
tolling as 	described 	in the 	case 	of 	Elkins v. 	Derby 	(1974) 	12
Cal.3d 	410. 	This 	doctrine does 	not 	provide 	for 	unlimited
tolling of 	the statute of 	limitations, 	rather, 	tolling 	is
permissible 	only when 	a 	party 	has 	pursued 	reasonable
alternative 	administrative 	remedies 	which 	provide 	the
respondent 	with 	sufficient 	notice 	to 	preserve 	relevant
evidence. 	Los Angeles Unified 	School District 	(1982) 	PERB
Decision No. 	237. 	In this case Ms. 	Armstrong did not pursue
claims 	which 	notified 	the District 	that 	the 	essence 	of 	her
charge was 	that 	the District 	dismissed 	her 	for 	participation 	in
union activity. 	Under 	similar 	facts 	the 	PERB 	refused 	to 	toll
the 	statute 	in 	Los Angeles Unified 	School 	District, 	supra.
Accordingly, 	this 	charge 	cannot 	be 	considered 	timely.
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulation
section 	32635 	(California Administrative 	Code, 	title 	8,
part 	III), 	you may appeal 	the refusal 	to 	issue a 	complaint
(dismissal) 	to 	the Board 	itself.
Right 	to Appeal
You may obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by
filing 	an 	appeal 	to 	the 	Board 	itself within 	twenty 	(20)
calendar 	days 	after 	service 	of 	this 	dismissal
(section 32635(a)). 	To be timely filed, 	the 	original 	and 	five
(5) 	copies 	of 	such appeal must 	be 	actually received 	by 	the
Board 	itself 	before 	the close 	of 	business 	(5:00 	p.m.) 	on
November 	5, 	1985, 	or 	sent by telegraph or 	certified United
States 	mail 	postmarked 	not 	later 	than November 	5. 	1985 	(section
32135). 	The Board's address 	is:

Daisy 	Fay Armstrong
October 16. 	1985
Page 3
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento. 	CA 95814
If you file a 	timely appeal 	of 	the refusal 	to 	issue a
complaint, 	any 	other 	party may 	file with 	the 	Board 	an 	original
and 	five 	(5) 	copies 	of 	a 	statement 	in 	opposition within twenty
(20) 	calendar 	days 	following 	the date 	of 	service 	of 	the appeal
(section 32635(b)).
Service
All 	documents 	authorized 	to 	be 	filed 	herein must 	also 	be
"served" upon all parties 	to 	the proceeding, 	and 	a 	"proof 	of
service" 	must 	accompany each copy of 	a 	document 	served 	upon a
party or 	filed with the 	Board 	itself 	(see 	section 	32140 	for 	the
required contents 	and 	a 	sample 	form). 	The document will 	be
considered 	properly 	"served" 	when 	personally 	delivered 	or
deposited 	in 	the 	first-class 	mail 	postage 	paid 	and 	properly
addressed.
Extension of Time
A request 	for 	an extension of 	time 	in which to 	file a 	document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the
Board 	at 	the 	previously noted 	address. 	A request 	for 	an
extension must 	be 	filed 	at 	least 	three 	(3) 	calendar 	days 	before
the 	expiration of 	the 	time 	required 	for 	filing 	the 	document.
The request must 	indicate good 	cause 	for and, 	if 	known, 	the
position of 	each 	other 	party 	regarding 	the 	extension, 	and 	shall
be accompanied 	by proof 	of 	service 	of 	the 	request upon each
party 	(section 32132).
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final 	when the 	time 	limits 	have 	expired.
Very truly yours.
JEFFREY SLOAN
Acting 	General 	Counsel
By
Robert 	Thompson
Regional 	Attorney

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JAMES J. 	MILAM
Attorney 	at 	Law
1211 	K 	Street
Modesto, 	CA 	95354
Tel: 	(209) 	529-5186
Attorney 	for 	Petitioner
SUPERIOR COURT 	OF 	CALIFORNIA, 	COUNTY OF STANISLAUS
DAISY 	ARMSTRONG,
Petitioner,
vs.
THE 	OAKDALE 	UNION 	SCHOOL DISTRICT,
Respondent,
and
KENNETH 	WRYE, 	SUPERINTENDENT 	OF
THE 	OAKDALE 	UNION 	SCHOOL DISTRICT,
Real 	Party 	In Interest.
NO .	NO. 200231
PETITION 	FOR WRIT 	OF 	MANDATE,
OR IN THE ALTERNATIVE, 	WRIT
OF ADMINISTRATIVE MANDAMUS 	•
The petitioner 	alleges:
1. 	That the OAKDALE UNION 	SCHOOL DISTRICT 	is 	a 	school
district existing in the County of Stanislaus, 	State of California;
under 	the 	authority 	of 	the 	California 	Education 	Code 	and 	the
Constitution of 	the 	State 	of 	California.
2. 	Ever since 	1975 the petitioner has been a classified
employee of 	the 	Respondent, 	OAKDALE UNION 	SCHOOL DISTRICT. 	The
petitioner 	has 	the 	status 	of 	a permanent employee 	of 	the 	OAKDALE
UNION 	SCHOOL DISTRICT with all 	the 	rights 	accruing 	to 	a 	permanent
employee.
3. 	Ever 	since 	1980 	the 	Real Party in 	Interest, 	KENNETH
WRYE, has been and now is, 	the superintendent of the OAKDALE
UNION 	SCHOOL DISTRICT.
4. 	On April 5, 	1984, 	the Petitioner, 	DAISY ARMSTRONG,
was 	dismissed 	from 	her 	employ with 	the 	OAKDALE 	UNION 	SCHOOL
DISTRICT. 	Said dismissal 	followed 	a dismissal hearing 	held before
the 	Board 	of 	Trustees 	of 	the 	OAKDALE 	UNION 	SCHOOL DISTRICT 	on
ATTACHMENT I

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April 5, 	1984.
5. 	The 	dismissal 	of 	Daisy Armstrong was 	based 	upon 	the
"Notice 	of 	Charges Against 	Permanent 	Classified Employee 	and
Recommendation 	for 	Dismissal 	from Position." 	A copy 	of 	said
document 	is 	attached 	hereto marked 	as 	Exhibit 	"A". 	Said 	dismissal
was 	based 	upon 	an 	alleged violation 	of 	Government Code 	Section 	109
In short, 	the basis of 	the 	dismissal was 	that DAISY ARMSTRONG
purchased materials 	for 	the 	OAKDALE 	UNION 	SCHOOL 	DISTRICT 	at
"grossly exaggerated prices". 	The dismissal 	order 	was 	further
based 	upon the 	theory 	of 	the 	real 	party 	in 	interest 	that 	DAISY
ARMSTRONG purchased 	the 	goods 	in 	order 	to 	obtain 	gratuities 	for he
own 	use. 	The 	charges were 	denied 	and 	the 	hearing held thereupon.
The events which were 	the 	basis 	for 	the dismissal took place during
1980. 	The 	dismissal took place 	in 	1984. 	Notice of 	the 	intended
dismissal was 	served upon Mrs. 	Armstrong in 	1984.
6. 	Education Code 	Section 	45101 	and Section 	21.5 of
Article 	21 of 	the 	Employee 	Rules 	of 	the 	OAKDALE UNION 	SCHOOL
DISTRICT 	require 	that 	a 	valid 	cause 	for 	discipline 	can 	be 	no more
than two 	(2) 	years 	preceding the 	date 	of 	the 	filing of 	the 	"notice
of 	intended 	disciplinary 	action". 	DAISY 	ARMSTRONG 	did 	not 	conceal
any of 	the 	actions which are 	the 	basis 	for 	her 	termination.
DAISY ARMSTRONG denies 	any violation 	of 	Section 	1090 	of 	the
California 	Government 	Code.
7. 	At 	the 	hearing held before 	the 	Board 	of 	Trustees 	of
the 	OAKDALE UNION 	SCHOOL DISTRICT, 	DAISY ARMSTRONG was 	denied
due 	process 	and 	a 	fair 	hearing 	due 	to the 	reception 	of 	incompetent
and 	inadequate 	evidence.
8. 	A transcript of the 	hearing of 	dismissal will be
filed 	in 	this 	proceeding 	as 	soon 	as 	copies 	of 	that 	transcript are
certified by 	the 	attorneys 	for 	the 	parties 	to 	this 	proceeding.
9. 	The 	OAKDALE UNION 	SCHOOL DISTRICT made 	no 	findings
of 	fact 	in this 	case. 	The 	OAKDALE UNION 	SCHOOL DISTRICT 	simply
dismissed 	the 	Petitioner, 	DAISY ARMSTRONG, 	from her 	permanent
employment.
10. 	The 	petitioner 	is 	in 	doubt whether 	the 	proper
remedy 	in 	her 	case 	is 	ordinary mandamus 	or 	administrative
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mandamus. 	Therefore, 	the 	petitioner 	asks 	the 	court 	to 	treat 	this
petition 	in 	the 	alternative 	as 	either 	ordinary 	mandamus, 	or
administrative 	mandamus, 	whichever may, 	in 	the 	court's 	discretion
be 	deemed 	appropriate.
11. 	As 	a 	result 	of 	her 	loss 	of 	employment, 	the
petitioner 	will 	continue 	to 	lose 	income, 	and 	has 	lost 	income 	in
the 	past 	and 	will 	continue 	to 	lose 	that 	income 	until 	she 	is
re-employed 	by 	the 	respondent.
12. 	As 	a 	result 	of 	her 	termination 	and 	the 	charges
brought 	against 	her 	by 	the 	OAKDALE 	UNION 	SCHOOL 	DISTRICT 	the
petitioner 	has 	been 	compelled 	to 	employ 	the 	services 	of 	an
attorney 	and 	has 	paid 	sums 	to 	her 	attorney 	for 	his 	services 	and
will 	become 	in 	the 	future 	obligated 	to 	pay 	further 	sums 	for 	his
services 	and 	the 	cost 	of 	those 	proceedings. 	The 	petitioner 	alleges
that 	she 	is 	entitled 	to 	reasonable 	attorney's 	fees 	according 	to
proof 	made 	at 	the 	time 	of 	the 	trial 	of 	this 	matter.
WHEREFORE, 	petitioner 	prays 	that 	the 	court 	issue 	an
alternative 	writ 	of 	mandamus 	to 	the 	OAKDALE 	UNION 	SCHOOL 	DISTRICT
commanding 	it 	to:
1. 	Pay 	the 	petitioner 	all 	past 	benefits 	and 	other
emoluments 	of 	her 	office 	accruing 	and 	due 	to 	the 	Petitioner,
DAISY ARMSTRONG, 	from the 	date 	of 	her 	termination 	up 	to 	the 	time 	o:
the 	hearing 	before 	the 	Superior 	Court 	of 	this 	matter, 	or 	until the
time 	the 	petitioner 	is 	re-employed 	by 	the 	OAKDALE 	UNION 	SCHOOL
DISTRICT.
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2. 	That 	petitioner 	be 	awarded 	reasonable 	attorney's
fees 	according 	to 	proof.
3. 	That 	petitioner 	recover 	her 	costs 	of 	suit 	incurred
herein.
4. 	That 	petitioner 	recover 	her 	damages 	incurred 	to 	the
proof 	presented 	at 	the 	time 	of 	the 	hearing 	of 	this 	petitioner.
5. 	For 	such 	other 	and 	further 	relief 	as 	the 	court deems
oroper.
DATED: 	J u n e 	27 	, 	19 84
JAMES J. 	MILAM,
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STATE Of 	CALIFORNIA 	GEORGE 	DEUKMEJIAN
PUBLIC EMPLOYMENT 	RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET SUITE 102
SACRAMENTO. CALIFORNIA 	95814
(916) 332-3198
August 23, 	1985
Daisy 	Fay 	Armstrong
Re: 	Armstrong 	v. 	Oakdale 	union 	Elementary 	School 	District
Unfair 	Practice 	Charge 	No. 	S-CE-920
Dear 	Ms. 	Armstrong:
The 	above-referenced 	charge 	alleges 	that 	the 	Oakdale 	Union
Elementary 	School 	District 	(District) 	dismissed 	Ms. 	Armstrong
for 	exercising 	protected 	rights. 	This 	conduct 	is 	alleged 	to
violate 	sections 	3543.5(a) 	and 	(b) 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA).
My 	investigation 	revealed 	the 	following 	facts. 	In
September 	1980 	Ms. 	Armstrong 	filed 	a 	grievance 	against 	the
District 	concerning 	out-of-class 	pay. 	She was 	successful 	in
pursuing 	her 	grievance 	and 	received 	a 	$2,500 	award 	in
June 	1981. 	Approximately one 	month 	later 	the 	District 	board
passed 	a 	resolution 	removing 	her 	classification 	from 	the
bargaining 	unit. 	In 	February 	1984 	Ms. 	Armstrong was 	the
subject 	of 	a 	District 	investigation 	concerning 	gifts 	sent 	to
District 	employees 	by 	a 	company 	which 	had 	been 	doing 	business
with 	the 	District. 	On April 	5, 	1984, 	Ms. 	Armstrong was
dismissed 	by 	the 	District 	for 	allegedly 	accepting 	these 	gifts.
On June 	1, 	1984, 	Ms. 	Armstrong 	filed 	a writ 	of mandamus with
the 	Stanislaus 	County Superior 	Court. 	On 	March 	27, 	1985, 	the
court 	issued 	an 	order 	denying 	the 	writ 	of 	administrative
mandamus. 	The 	instant 	unfair 	practice 	charge 	was 	filed 	on
July 9, 	1985.
Based 	on 	the 	facts 	described 	above 	this 	charge 	fails 	to 	state 	a
prima 	facie 	violation 	of 	the 	EERA 	for 	the 	reasons 	which 	follow;
To 	establish 	a violation of 	section 	3543.5(a), 	a 	charging 	party
must 	show 	that 	(1) 	the 	employee 	has 	exercised 	rights 	under 	the
EERA, 	(2) 	the 	employer 	had knowledge 	of 	the 	exercise 	of 	those
rights, 	and 	(3) 	the employer 	imposed 	or 	threatened 	to 	impose
reprisals, 	discriminated or 	threatened 	to 	discriminate, 	or
otherwise 	interfered with, 	restrained 	or 	coerced 	the 	employee
because 	of 	the 	exercise 	of 	those 	rights. 	Novato 	Unified 	School
District 	(1982) 	PERB Decision 	No. 	210; 	Carlsbad 	Unified 	School
District 	(1979) 	PERB Decision No. 	89.
ATTACHMENT 	II

Daisy 	Fay 	Armstrong
August 23, 	1985
Page 	2
There 	is 	evidence 	in 	this 	case 	that 	Ms. 	Armstrong 	exercised
protected rights by filing a grievance 	in 	1980, 	however,
Charging 	Party 	stated 	that 	Ms. 	Armstrong 	had 	not 	participated
in 	any other 	forms 	of 	protected 	conduct 	since 	that 	time.
Although 	the 	employer 	did 	take 	adverse 	action 	in 	form 	of
dismissal 	in 	1984, 	there 	is 	insufficient evidence 	to
demonstrate 	a 	nexus 	or 	connection 	between 	this 	adverse 	action
and Ms. 	Armstrong's 	participation 	in 	the 	grievance 	procedure
approximately 	three years 	earlier. 	This 	is 	especially 	true 	in
light 	of 	the 	serious 	allegations 	relied upon 	by 	the 	District 	at
the 	time 	of 	the 	dismissal 	which 	essentially 	were 	not 	challenged
by 	the 	Charging 	Party. 	Sacramento 	City 	Unified 	School 	District
(1984) 	PERB Decision No. 	421.
In 	the absence 	of 	close 	timing between 	the employee's 	protected
conduct 	and 	the 	employer's 	adverse 	action, 	facts 	concerning 	two
or 	more 	of 	the 	following 	factors 	may be relevant 	in 	evaluating
whether 	an adequate 	"nexus" 	exists: 	(1) 	the employer's
disparate 	treatment of 	other 	employees, 	(2) 	the 	employer's
departure 	from 	established 	procedures 	and 	standards 	when
dealing with 	the 	alleged discriminatee, 	(3) 	the 	employer's
inconsistent 	or 	contradictory 	justifications 	for 	its 	actions,
(4) 	the 	employer's 	cursory 	investigation of 	the 	alleged
discriminatee's misconduct, 	(5) 	the employer's 	failure 	to offer
the 	alleged 	discriminatee 	justification at 	the 	time 	it 	took
action or 	the offering of 	exaggerated, 	vague, 	or 	ambiguous
reasons, 	or 	(6) 	any other 	factors which might 	demonstrate 	the
employer's 	unlawful 	motive. 	Novato 	Unified 	School 	District,
supra; 	North 	Sacramento 	School 	District 	(1982) 	PERB 	Decision
No. 264.
For 	these 	reasons, 	charge 	number 	S-CE-920, 	as 	presently
written, 	does 	not 	state 	a prima 	facie 	case. 	If you 	feel 	that
there 	are 	any 	factual 	inaccuracies 	in 	this 	letter 	or 	any
additional 	facts 	which 	would 	correct 	the 	deficiencies 	explained
above, 	please 	amend 	the 	charge 	accordingly. 	The 	amended 	charge
should 	be 	prepared 	on 	a 	standard 	PERB 	unfair 	practice 	charge
form 	clearly 	labeled 	First 	Amended 	charge, 	contain 	all 	the
facts 	and 	allegations 	you 	wish 	to make, 	and be 	signed 	under
penalty 	of 	perjury 	by 	the 	charging 	party. 	The 	amended 	charge
must 	be 	served 	on 	the 	respondent 	and 	the 	original 	proof 	of
service 	must 	be 	filed with 	PERB. 	If 	I 	do not 	receive 	an
amended charge or 	withdrawal 	from you before August 	30, 	1985, 	I

Daisy 	Pay 	Armstrong
August 23, 	1985
Page 	3
shall 	dismiss 	your 	charge, 	if 	you 	have any questions 	on 	how 	to
proceed, 	please call me at 	(916) 	322-3198.
Sincerely 	yours,
Robert 	Thompson
Regional 	Attorney