State of California (Consumer Affairs) (PERB 1066S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GENE 	KAPLAN,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT
OF 	CONSUMER AFFAIRS),
Respondent.
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)
) 	Case No. 	SF-CE-119-S
PERB Decision No. 	1066-S
November 	8, 	1994
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Appearance; 	Gene Kaplan, 	on his own behalf.
Before Blair, 	Chair; 	Carlyle and Garcia, 	Members.
DECISION AND 	ORDER
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on an appeal 	filed by Gene 	Kaplan
(Kaplan) 	of a Board agent's dismissal 	(attached hereto) 	of his
unfair practice 	charge. 	In his 	charge, 	Kaplan alleged that 	the
State 	of 	California 	(Department 	of 	Consumer Affairs) 	engaged 	in
reprisals 	against 	him because 	he 	filed 	grievances 	and 	raised
other 	complaints 	about working 	conditions 	in violation 	of 	section
3519 	of 	the Ralph C. 	Dills Act 	(Dills Act).1
1The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et 	seq. 	Section 3519 	states, 	in pertinent part:
It 	shall be unlawful 	for the 	state 	to do any
of 	the 	following:
(a) 	Impose 	or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.

The 	Board has 	reviewed 	the 	warning 	and dismissal 	letters,
the unfair practice 	charge and Kaplan's 	appeal. 	The Board finds
the warning and dismissal 	letters 	to be 	free 	of prejudicial 	error
and adopts 	them as 	the decision of 	the 	Board 	itself.
The unfair practice 	charge 	in Case No. 	SF-CE-119-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Member 	Carlyle 	joined 	in 	this 	Decision.
Member Garcia's 	concurrence begins 	on page 	3.
2
2

GARCIA, 	Member, 	concurring: 	At page 6 	of the warning
letter, 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
agent 	concluded that Gene 	Kaplan 	(Kaplan) 	had 	failed to allege
violations 	occurring within 	6 months 	of 	the 	date he 	filed his
unfair practice 	charge. 	Thus, 	the Board agent 	concluded that,
"For these reasons 	the charge, 	as presently written, 	does not
state a prima 	facie 	case."1
I 	concur 	separately 	to 	remind Board agents 	not 	to mix apples
with oranges. 	The 	Board does 	not 	have 	jurisdiction over 	this
case because 	it was not 	timely filed. 	Once 	that 	finding 	is
established 	there 	is 	no 	need 	to 	inquire 	into whether a prima
facie 	case was 	established. 	Our agents 	should distinguish
between 	the 	Board's 	obligation 	to 	investigate 	whether a 	charging
party has 	established a prima 	facie 	case pursuant 	to 	PERB
Regulation 	326402 and 	the 	Board's 	duty under 	the 	Educational
1The Board agent 	did not 	address 	the merits 	of 	Kaplan's
charge, 	since he planned to dismiss 	it as untimely.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 et seq. 	PERB Regulation
32640 provides, 	in pertinent part:
(a) 	The Board agent 	shall 	issue a complaint
if 	the 	charge 	or the 	evidence 	is 	sufficient
to establish a prima facie 	case. 	The
complaint 	shall 	contain a 	statement 	of 	the
specific 	facts 	upon which 	Board 	jurisdiction
is based, 	including the 	identity of 	the
respondent, 	and shall 	state with
particularity 	the 	conduct 	which 	is 	alleged 	to
constitute 	an unfair practice. 	The 	complaint
shall 	include, 	when known, 	when and where the
conduct 	alleged 	to 	constitute 	an unfair
practice 	occurred or is 	occurring, 	and the
name(s) 	of the person(s) 	who allegedly
committed the acts 	in question. 	The Board
33

Employment Relations Act 	(EERA) 	to determine 	PERB jurisdiction.
The 	issue 	of 	timeliness 	is 	separate and distinguishable 	from the
issue 	of whether the 	elements 	of a prima 	facie 	case 	exist.
may disregard any 	error 	or defect 	in 	the
complaint 	that 	does 	not 	substantially affect
the rights 	of 	the parties. 	[Emphasis added.]
EERA requires us 	to dismiss 	a 	charge 	for 	lack 	of 	Board
jurisdiction 	if 	a party has 	filed an untimely charge 	or 	fails 	to
make 	a prima 	facie 	case 	for 	the 	charge 	filed. 	Timeliness 	for 	the
purpose 	of 	establishing 	PERB 	jurisdiction 	should be 	inquired 	into
by the Board agent. 	If 	found, 	the Board agent would then 	inquire
into the 	existence of a prima facie 	case. 	In this 	case, 	the
Board 	lacks 	jurisdiction because 	Kaplan's 	charge 	was 	untimely
filed.
Case 	Law on 	"Continuing Violation" 	Theory
PERB has 	followed the National 	Labor Relations 	Board
approach of 	strongly disfavoring 	stale 	claims. 	The 	cases 	cited
by 	the 	Board 	agent 	demonstrate 	that 	Kaplan 	failed 	to provide
evidence 	or allege 	facts 	that 	established a violation 	that
occurred 	subsequent 	to an alleged prior violation. 	In UCLA Labor
Relations Division 	(1989) 	PERB Decision No. 	735-H, 	the Board held
that 	a 	continuing violation will 	only be 	found where 	active
conduct 	or grievances 	occur within 	the 	limitations 	period 	that
independently constitute an unfair practice. 	The burden 	is
clearly on 	the 	charging party to provide 	the 	facts which 	show a
violation within 	6 months 	of 	filing a charge. 	Reliance 	on a
44

vague 	theory 	of 	continuing violation will 	not 	suffice 	and 	the
concept 	is, 	for good reasons, 	losing its vitality.3
3See 	Chambersburg 	County Market 	(1989) 	293 	NLRB 	654
[131 LRRM 1057] 	and A & L 	Underground 	(1991) 	302 NLRB 467
[137 	LRRM 1033] 	for an explanation of 	the 	rationale.
55

STATE OF CALIFORNIA 	( 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)557-1350
January 31, 1994
Gene 	Kaplan
Re: 	DISMISSAL 	OF UNFAIR PRACTICE 	CHARGE/REFUSAL TO 	ISSUE
COMPLAINT
Gene Kaplan v. 	State 	of 	California 	(Department 	of 	Consumer
Affairs)
Unfair Practice Charge No. 	SF-CE-119-S
Dear Mr. 	Kaplan:
The above-referenced unfair practice 	charge, 	filed on
November 12, 	1993, 	alleges that the State of California
(Department 	of 	Consumer Affairs) 	(Department) 	has 	engaged in
reprisals 	against Gene 	Kaplan because he 	filed grievances 	and
raised other complaints 	about working 	conditions. 	This 	conduct
is alleged to violate Government Code sections 	3519(a) 	and 	(d) 	of
the Ralph C. 	Dills Act 	(Dills Act).
I 	indicated to you, 	in my attached letter dated January 20, 	1994,
that 	the 	above-referenced 	charge 	did not 	state 	a prima 	facie
case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should amend 	the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew 	it 	prior 	to
January 28, 	1994, 	the charge would be dismissed.
I 	have 	not 	received either an amended 	charge 	or a 	request 	for
withdrawal. 	Therefore, 	I am dismissing the 	charge based on the
facts and reasons 	contained in my January 20, 	1994 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment Relations 	Board regulations, 	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. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be 	timely filed, 	the 	original 	and five 	copies
of 	such 	appeal 	must 	be 	actually 	received by 	the 	Board 	itself
before the close of business 	(5 p.m.) 	or sent by telegraph,

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Dismissal, etc.
SF-CE-119-S
January 31, 	1994
Page 2
certified or Express United States 	mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall apply.
The Board's address 	is:
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
copies 	of 	a 	statement 	in opposition within 	twenty 	(20) 	calendar
days 	following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

Dismissal, etc.
SF-CE-119-S
January 31, 	1994
Page 3
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By DONN GINOZA
Regional Attorney
Attachment
cc: 	Linda A. Mayhew
( 	(

STATE OF CALlFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)557-1350
January 20, 	1994
Gene 	Kaplan
Re: 	WARNING LETTER
Gene Kaplan v. 	State 	of 	California 	(Department 	of 	Consumer
Affairs)
Unfair Practice Charge No. 	SF-CE-119-S
Dear Mr. 	Kaplan:
The above-referenced unfair practice 	charge, 	filed on
November 12, 	1993, 	alleges that the State of California
(Department of Consumer Affairs) 	(Department) 	has 	engaged in
reprisals 	against Gene 	Kaplan because he 	filed grievances 	and
raised other complaints 	about working conditions. 	This 	conduct
is alleged to violate Government Code sections 	3519(a) 	and 	(d) 	of
the Ralph C. 	Dills Act 	(Dills Act).
Investigation of 	the 	charge 	revealed the 	following. 	The 	charge
consists 	of 	105 	single-spaced, 	typewritten pages 	and attached
documentation. 	The 	following contains 	a 	summary of 	the
allegations 	contained therein. 	Gene Kaplan is 	a Senior
Investigator, 	Division of 	Investigation for the Department. 	He
is 	assigned to 	the 	San Mateo 	Field Office and 	is 	a member of 	a
bargaining unit 	exclusively 	represented by 	the 	California 	Union
of Safety Employees 	(CAUSE). 	In December 1987, 	Kaplan attempted
to 	file 	a grievance 	concerning his 	failure 	to be promoted 	to
Senior Investigator. 	Kaplan confided in Laura Campos, 	a Senior
Investigator, 	who represented that she was CAUSE steward. 	Warren
Wolfe was 	the Deputy Chief 	of 	the Division at 	that 	time. 	In
April 	1988, 	Kaplan complained about harassment 	and a work speed-
up. 	Wolfe 	refused to meet with him in person. 	In June 	1988,
CAUSE agreed 	to 	represent 	Kaplan 	regarding his 	denial 	of
promotion and harassment. 	In September 	1988, 	co-worker Linda
Rudkin was promoted 	to 	Field Office 	Supervisor. 	Sometime
thereafter, 	Rudkin sent 	a memorandum to Wolfe warning him that
Kaplan 	intended 	to 	file 	a grievance 	and described activities 	of
employees attempting to dominate 	those 	in CAUSE. 	In early 1989,
Wolfe was promoted to Chief 	of 	the Division. 	In April 	1989,
Wolfe advised Kaplan of 	his promotion to Senior 	Investigator. 	In
early 1990, 	John Lancara became Deputy Chief.
In January 	1990, 	Rudkin's behavior 	toward Kaplan 	changed abruptly
and she 	threatened 	to have 	him removed 	if 	he 	did not 	meet 	her

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Warning 	Letter
SF-CE-119-S
January 20, 	1994
Page 2
production expectations. 	Several 	incidents 	of 	sexual 	harassment
by Rudkin 	toward 	Kaplan occurred which were 	of 	a physical 	and
verbal 	nature. 	In March 1990, 	Rudkin threatened to prevent
Kaplan 	from 	returning 	to work without 	a medical 	clearance 	after
he had taken a brief sick leave. 	On May 17, 	1990, 	Kaplan
participated 	in an 	informal 	grievance 	discussion with Lancara.
On May 23, 	1990, 	Kaplan was one of four investigators who
complained 	to 	CAUSE about 	Rudkin's physical 	and verbal 	abuse 	of
men in the office. 	On May 25, 	1990, 	Rudkin demanded that Kaplan
retract 	the statements he made to CAUSE. 	On July 25, 	1990,
Rudkin pushed Kaplan. 	On July 30, 	1990, 	Kaplan filed a grievance
against Rudkin's pushing, 	threats, 	and unwanted physical 	contact.
On August 2, 	1990, 	Lancara rejected Kaplan's grievance and
ordered Rudkin's 	immediate 	supervisor not 	to discuss 	the
grievance. 	Around this 	time, 	Lancara and Wolfe began assembling
a 	"reprisal" 	file against Kaplan. 	In August 	1990, 	Lancara and
Wolfe met with the 	Consumer Affairs 	Legal 	Office and, 	using 	the
"reprisal" 	file, 	attempted to have 	formal 	disciplinary action
taken against 	Kaplan. 	Lancara and Wolfe 	drafted adverse 	action
documents. 	The Legal Office declined to approve 	the request 	for
disciplinary 	action.
On September 28, 	1990, 	Kaplan was ordered to submit 	to a
psychological 	examination by Dr. 	Kenneth Hood. 	The 	"reprisal"
file was 	given to Hood for his examination. 	In April 	1993,
Kaplan 	learned 	that Wolfe 	failed to verify 	the 	accusatory
information contained in the 	file. 	In February 1991, 	some months
after the 	examination, 	Kaplan obtained a 	copy of Hood's
October 	8, 	1990 	evaluation report and determined that 	it was
based on the 	"reprisal" 	file. 	The evaluation has been the basis
for preventing 	Kaplan from returning 	to work at 	the present 	time.
Hood's 	report 	apparently 	concluded 	that 	Kaplan 	suffered 	from
depression and anxiety, 	and relied, 	in part, 	on Kaplan's 	call 	to
the police 	department 	following a physical 	assault 	by Rudkin 	in
August 	1990 	during a 	time 	in which CAUSE had advised Kaplan 	to
contact 	the 	police 	if Rudkin assaulted him again.
On October 25, 	1990, 	Wolfe notified Kaplan that he was 	to be
removed 	from duty without pay due 	to a medical 	condition. 	Kaplan
then wrote 	to request a copy of Hood's 	report, 	which was at 	first
denied. 	He was not 	able 	to view the 	report until 	February 	1991.
In August 	1991, 	Rudkin was placed on administrative 	leave 	for
physically 	assaulting 	four different 	employees 	on 	eight 	different
occasions 	and was 	subsequently demoted 	for 	these 	acts. 	Despite
Rudkin's 	demotion, 	the Department 	refuses 	to retract adverse
documents 	in the 	"reprisal" 	file. 	These documents 	include 	(1) 	a
July 30, 	1990 memorandum by Laura Campos, 	(2) 	Wolfe's draft
adverse action based on the Campos memorandum, 	(3) 	a July 31,

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Warning 	Letter
SF-CE-119-S
January 20, 	1994
Page 3
1990 memorandum by Rudkin, 	(4) 	a second draft adverse action by
Wolfe dated July 31, 	990, 	(5) 	an August 8, 	1990 Wolfe memorandum,
(6) an August 23, 	1990 Rudkin memorandum, 	(7) 	an August 23, 	1990
incident report by Rudkin, 	(8) 	an August 27, 	1990 Lancara
memorandum, 	(9) 	a third draft disciplinary document in the form
of a "letter of warning" written by Wolfe, 	and 	(10) 	Hood's
October 8, 	1990 evaluation. 	Kaplan contends that he was denied
his rights to inspect the documents prior to their placement 	in
his 	"reprisal" 	file and to include written rebuttals in the file.
Kaplan asserts that these failures by the Department violate
Chapter 7 of the Division's Administrative Policy Manual as well
as the Government Code.
In September 1991, 	Kaplan wrote to Jim Conran, 	Director of the
Department, 	to complain about the 	"reprisal" file. 	In December
1991, 	after discussions with the Department's Legal Office, 	the
Department continued to reject Kaplan's 	complaints about the file
and the Department's refusal to return him to work.
In mid-1993, 	Lancara told Kaplan that he placed him on leave
because Kaplan had disagreed with him during the May 17, 	1990
informal grievance discussion, 	reported Rudkin's assault to the
police, 	and because of another incident where a security guard
was disrespectful to Kaplan at a building where he was to
interview a witness. 	Kaplan alleges that Lancara knew that
Kaplan had been advised by CAUSE to contact the police if Rudkin
assaulted him again.
Kaplan alleges: 	"On May 18 through May 19, 	1993 I was compelled
to deal with the fact that management's 	reprisal 	file branding me
as a problem employee because of union activity was still their
'de facto' 	job description for me." 	Kaplan indicated to the
undersigned that he suffered physical 	symptoms 	of his emotional
distress 	(thus a legally cognizable injury under tort law
principles) 	after learning that he was required to appear for a
periodic Worker's Compensation medical 	review. 	Kaplan contends
that 	it 	is the Department's goal to prove through a medical
examination, 	based on the "reprisal" 	file, 	that he suffers a
permanent and stationary disability. 	Such a finding, 	he
contends, 	will make him unemployable for life in his customary
occupation. 	Kaplan indicated to the undersigned that on May 20,
1993 he was required to submit to the periodic psychological
examination. 	Kaplan acknowledges that he has a right to request
from the Department medical clearance to return to work but
asserts that such a right is a nullity so long as the 	"reprisal"
file 	is maintained by Department.
Based on the facts stated above, 	the charge as presently written
fails to state a prima facie violation of the Dills Act for the

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Warning 	Letter
SF-CE-119-S
January 20, 	1994
Page 4
reasons that follow.
Government Code section 3514.5(a)(1) 	of the Dills Act states that
the Public Employment Relations Board 	(PERB) 	shall not 	"issue a
complaint 	in respect of any charge based on an alleged unfair
practice occurring more than six months prior to the filing of
the charge." 	PERB has held that 	the six month period commences
to run when the charging party knew or should have known of 	the
conduct giving rise to the alleged unfair practice. 	(Regents of
the University of California 	(1983) 	PERB Dec. No. 	359-H.) 	The
charge was filed on November 12, 	1993. 	For a violation to be
timely Kaplan must have known or should have known of the conduct
giving rise to the unfair practice on or after May 12, 	1993.
The only events alluded to in the charge which occurred on or
after May 12, 	1992 concern 	(1) 	the Department's continuing
maintenance of the 	"reprisal" 	file, 	which contains an illegal 	"de
facto job description," 	(2) 	the Department's order that Kaplan
submit to another psychological evaluation on or about May 20,
1993, 	and 	(3) 	the emotional distress injury he suffered in the
days preceding the May 20 examination, 	which were precipitated by
having to consider how to respond to the adverse material 	in the
"reprisal" file.
The 	claim that 	the Department 	continues 	to maintain the
"reprisal" 	file attempts to invoke the notion of a continuing
violation. 	This 	claim would appear to be clearly controlled by
PERB's decision in Pasadena Unified School District 	(1977) 	PERB
Dec. No. 	16. 	In that case, 	PERB held that the public school
employer's 	refusal 	to remove certain letters 	from employee
personnel 	files, 	which criticized employees for protected
activity and made 	threats 	concerning future protected activity,
did not constitute grounds 	for applying the theory of a
continuing violation. 	PERB cited a National Labor Relations
Board case, 	N.L.R.B. v. 	Pennwoven 	(3rd Cir. 	1952) 	194 F.2d 521
[29 LRRM 2307], 	involving the discriminatory refusal to rehire
striking employees, 	noting that the violation was held to occur
"only at the time of discharge and not to continue thereafter
during the employee's term of unemployment or at the time of the
employee's 	request 	for reinstatement." 	(Pasadena Unified School
District, supra. PERB Dec. No. 16, at. p. 4.)
Kaplan alleges that he discovered the existence of the 	"reprisal"
file 	in February 1991 when he read Hood's 	evaluation for the
first time. 	At that time, 	he knew or should have known that the
Department had violated its own policies and the Government Code
by not permitting him prior inspection of 	the documents or a
right to rebuttal. 	The charge alleges that he protested the
contents of the file in September 1991 and continuing through
(
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Warning 	Letter
SF-CE-119-S
January 20, 	1994
Page 5
December 1991, 	and that the Department refused to provide him
relief as late as December 1991. 	There is no evidence that
Kaplan was deprived of 	evidence necessary for him to conclude
that his rights under the Dills Act 	in this regard had been
violated prior to May 12, 	1993. 	Thus, 	the charge establishes
that Kaplan was aware prior to the six months period of the
contents of the 	"reprisal" 	file and the Department's retaliation
against him for filing grievances and complaining about his
working conditions as evidenced by those documents.
In contrast to the claim regarding the maintenance of the
"reprisal" 	file, 	the claim that the Department has caused Kaplan
to undergo another psychological examination that 	involved yet
another review of the 	"reprisal" 	file and that the notice of the
examination caused him to suffer an emotional 	distress 	injury
both rely on the notion of an independent violation as opposed to
a continuing violation. 	But this argument 	is rejected for two
reasons.
First, 	in El Dorado Union High School District 	(1984) 	PERB Dec.
No. 	382, 	PERB, 	in discussing the continuing violation theory,
held that a 	timely violation would not be 	found where the
employer's 	conduct during the limitations period constitutes an
unfair practice based on a necessary relation to 	the original
offense. 	In cases where there is a relation back to previous
conduct, 	some new conduct which is sufficiently independent of
the original offense is required that will 	"revive the viability
of the unfair practice." 	In the context of a unilateral change
case, 	PERB held, 	the first implementation of the policy commences
the six month period and subsequent occasions when employees are
required to adhere to the policy, 	so long as it does not change,
do not revive the violation.
In the instant case, 	the use of the "reprisal" 	file in the
Worker's Compensation case is not sufficiently independent of the
original offense. 	In February 1991, 	Kaplan read Hood's report
and discovered that it was based on the 	"reprisal" 	file. 	Kaplan
acknowledges that the May 20 evaluation was part of a periodic
medical 	review within the Worker's Compensation process. 	The
Department's position in this litigation that Kaplan is unfit 	for
duty is consistent with its reasons 	for placing him on leave in
October 1990. 	Although Kaplan also asserts that the Department
continually updates the file with new information, 	there is
insufficient 	evidence to establish that 	they differ sufficiently
in kind so as to constitute independently offending conduct.
Similarly, 	the claim that Kaplan suffered emotional distress
prior to the May 20 evaluation is not sufficiently distinct 	from
his experiences 	dealing with other prior psychological
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Warning 	Letter
SF-CE-119-S
January 20, 	1994
Page 6
evaluations. 	Furthermore, 	the emotional distress 	is a personal
manifestation 	of 	a 	reaction to 	the Department's 	conduct 	of
maintaining a 	"reprisal" 	file, 	as distinguished from the
Department's 	conduct 	of 	creating 	the 	file which objectively
constitutes 	the adverse action. 	While 	the notion of 	an
independent 	violation might 	be 	sustained were 	the 	emotional
distress 	claim to be analyzed under the 	law of 	torts, 	that
analysis 	is 	not 	appropriate 	in the 	instant 	case where 	the 	labor
law authorities 	noted above must 	be 	applied.
Second, 	construing 	the new injuries 	as 	timely would adopt 	a rule
allowing 	charging parties 	to manipulate 	events 	so 	as 	to
circumvent 	the statute of limitations 	rule. 	In this 	case, 	the
impetus 	giving 	rise 	to 	the alleged new injuries was 	the 	result 	of
conduct 	on Kaplan's part 	rather that 	the Department's. 	The
psychological 	examination 	is 	a 	requirement 	of 	the prosecution 	of
Kaplan's Worker's 	Compensation claim against 	the Department. 	The
act 	of 	filing and prosecuting 	such a 	claim is 	a volitional 	act 	on
his part. 	It 	is 	similar to the employee 	request 	for
reinstatement 	subsequent 	to a 	discriminatory 	firing 	to which
Pasadena Unified School District, 	supra. 	PERB Dec. 	No. 	16
alludes, 	i.e., 	an attempt 	to obtain a legal 	entitlement 	from the
employer. 	Although Kaplan contends 	that he was 	"forced" 	to 	file
for disability benefits because 	the Department 	refuses 	to 	return
him to work, 	this argument 	is unpersuasive. 	The statute of
limitations 	has 	been applied so as 	to prevent 	the 	charging party
from engaging 	in a volitional 	act 	which would 	create 	facts 	that
might 	establish 	a new or 	independent violation within 	the 	six
months period. 	For example, 	in N.L.R.B. 	v. 	Pennwoven. 	supra. 	194
F.2d 	521, 	the NLRB 	rejected the notion that 	letters written after
the 	initial 	refusal 	to hire, 	which demanded reemployment under
threat 	of 	a unfair labor practice 	charge, 	were 	sufficient 	to
commence a new statute 	of 	limitations period. 	Finding 	that 	the
new 	injuries 	are 	timely 	is 	rejected as 	it would undermine 	the
policies 	embodied 	in 	the rule, 	which seek to prevent 	unfairness
to 	the 	respondent 	as 	a result 	of 	having 	to 	litigate 	stale 	claims.
For these reasons 	the charge, 	as presently written, 	does not
state a prima 	facie 	case. 	If 	there are any factual 	inaccuracies
in 	this 	letter 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	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 January 28. 	1994. 	I
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Warning 	Letter
SF-CE-119-S
January 20, 	1994
Page 7
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN GINOZA
Regional Attorney
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