Peralta Community College District (PERB 1418E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MILDRED NICOLE BRYANT,
Charging Party, Case No. SF-CE-2145-E
Vv. PERB Decision No. 1418
PERALTA COMMUNITY COLLEGE DISTRICT, February 26, 2001
Respondent.

Appearance: Mildred Nicole Bryant, on her own behalf.
Before Amador, Baker and Whitehead, Members.
DECISION
BAKER, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Mildred Nicole Bryant (Bryant) of a Board agent's dismissal
(attached) of her unfair practice charge.
The charge alleged that the Peralta Community College District violated section 3543.5

(a) and (b) of the Educational Employment Relations Act (EERA)' by failing to respond to the

' EERA is codified at Government Code section 3540 et seq. Section 3543.5 provides,
in pertinent part:
It shall be unlawful for a public school employer 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. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.

parties' grievance arbitration procedures and by issuing an improper performance evaluation to
Bryant.
The Board has reviewed the entire record in this case, including the unfair practice
charge, the warning and dismissal letters and Bryant's appeal. The Board finds that because
Bryant failed to meet her burden
of
supplying sufficient facts to show that the alleged unlawful
conduct occurred within six-months
of
the filing date
of
her charge, it must be dismissed as
untimely.
DISCUSSION
Bryant's charge stated, in its entirety:
Failure to respond to grievance arbitration procedures.
Violation
of
evaluation process. Another classified staff person
(Dena Semmons) was allowed to perform, conduct an evaluation
of
	She was not my 1st level manager. Nor was the
evaluation period valid.
EERA section 3541.5 (a) (1) provides that the Board shall not, "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." The Board has held that it is the charging party's burden to
demonstrate the charge has been timely filed. (Tehachapi Unified School District (1993)
PERB Decision No. 1024.) As Bryant's charge failed to provide any dates, it failed to supply
sufficient facts to show that the alleged unlawful conduct occurred within six-months
of
the
filing
of
the charge.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
2

In her appeal, Bryant requests that the Board consider new supporting evidence offered
for the first time in her appeai. Consideration of new supporting evidence on appeal is
controlled by PERB Regulation 326352 which provides, in pertinent part:
(b) Unless good cause is shown, a charging party may not present
on appeal new charge allegations or new supporting evidence.
Interpreting this regulation, the Board has been reluctant to find that good cause existed to
allow a party to raise new allegations or new evidence for the first time on appeal. The reason
for this reluctance is stated in South San Francisco Unified School District (1990) PERB
Decision No. 830:
The purpose of PERB Regulation 32635(b) is to require the
charging party to present its allegations and supporting evidence
to the Board agent in the first instance, so that the Board agent
can fully investigate the charge prior to deciding whether to issue
a complaint or dismiss the case.
When a party has the opportunity to cure defects in a prima facie case at earlier stages and does
not do so, the Board is reluctant to allow a party to raise such facts or evidence later. 	(Oakland
Education Association (Freeman) (1994) PERB Decision No. 1057.)
In support of her appeal, Bryant states that, "Due to a series of unavoidable and
uncontrollable circumstances" she was forced to move out of state and relocate to East
Carondelet, Illinois. Bryant claims in her appeal that she, "communicated (by phone) my
situation to Ms. Tammy Samsel, Regional Director of the San Francisco office, during a
conversation with her sometime in July." There is only one reference in the record of a phone
call in July of 2000. Board Agent Tammy Samsel noted in her August 1, 2000 warning letter
to Bryant that a phone call was placed to Bryant on July 12, 2000. The purpose of this call was
2 PERB regulations are codified at California Code of Regulation, title 8, section
31001, et seq.
3

to let Bryant know that her charge did not state a prima facie violation of EERA and that more
information was needed. Had Bryant communicated her impending move out of state to the
Board agent during this phone call on July 12, 2000 or any other time in July, it would be
reflected in the record. Bryant's claim that she informed the Board agent of her impending
move is not supported by the record.
Bryant claims she did not receive the Board agent's August 1, 2000, warning letter until
after her charge was dismissed by the Board agent. Bryant claims she had her mail forwarded
to Illinois which resulted in a one-week to 14-day delay in receiving her mail. Even if Bryant
did not receive the August 1, 2000, warning letter until she reached Illinois on August 11,
Bryant has not demonstrated good cause to allow for the consideration of new evidence to
support her charge. The warning letter was mailed from the Board's San Francisco regional
office on Tuesday, August 1, 2000. Bryant did not move out of state until Sunday, August 6,
2000. Bryant provided no indication in her appeal as to when she submitted her change of
address card to the Post Office, no effective date for the forwarding of her mail, and most
importantly, no reason why she could not have apprised the Board agent of her new address or
even that she was moving.
In light of the July 12, 2000, phone call wherein the Board agent explained that Bryant's
charge was deficient, Bryant's failure to keep PERB informed of her current address and to
communicate with PERB in an effective and timely manner does not constitute good cause
under PERB Regulation 32635(b). The remainder of her appeal is an attempt to overcome
deficiencies in timeliness and establish a prima facie case for her charge. This portion of
Bryant's appeal is not addressed as no good cause exists to consider the new supporting
evidence on appeal.
4

ORDER
The unfair practice charge in Case No. SF-CE-2145-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Amador and Whitehead joined in this Decision.
5

OF 	GRAY DAVIS,
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
7 7 Post 	9th Fioor
San Francisco, CA 94108-4737
(41 5) 439-6940
August 	11, 	2000
Mildred 	Nicole 	Bryant
3004 	1/2 	Martin 	Luther 	King 	Jr 	Way
Oakland 	CA 	94609
Re: 	Mildred 	Nicole 	Bryant 	v. 	Peralta 	Community 	College
District
Unfair 	Practice 	Charge 	No. 	SF-CE-2145
Dismissal 	and 	Refusal 	to 	Issue 	a 	Complaint
Dear 	Ms. 	Bryant:
I 	indicated 	to 	you, 	in my 	attached 	letter 	dated August 	1, 	2000,
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
August 	8, 	2000, 	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 August 	1, 	2000 	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 	Regs., 	tit. 	8,
sec. 	32635(a) .) 	Any 	document 	filed 	with 	the 	Board must 	contain
the 	case 	name 	and 	number, 	and 	the 	original 	and 	five 	(5) 	copies 	of
all 	documents 	must 	be 	provided 	to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received 	before
the 	close 	of 	business 	(5 	p.m.) 	on 	the 	last 	day 	set 	for 	filing 	or
when 	mailed 	by 	certified 	or 	Express 	United 	States 	mail, 	as 	shown
on 	the 	postal 	receipt 	or 	postmark, 	or 	delivered 	to 	a 	common
carrier 	promising 	overnight 	delivery, 	as 	shown 	on 	the 	carrier's
receipt, 	not 	later 	than 	the 	last 	day 	set 	for 	filing. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	see 	also 	Cal. 	Code 	Regs., 	tit. 	8,
sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received 	by 	facsimile
transmission 	before 	the 	close 	of 	business 	on 	the 	last 	day 	for
filing 	together 	with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets 	the 	requirements 	of 	Cal. 	Code 	Regs., 	tit. 	8, 	sec. 	32135(d),
LIFORNIA
OF THE
RELATIONS BOAR
LIFORNIA
OF THE
RELATIONS BOAR

SF-CE-2145
Dismissal
	Letter
Page
	2
provided 	the
	filing
	party 	also
	places 	the
	original,
	together
	with
the
	required
	number
	of
	copies
	and
	proof
	of
	service, 	in
	the
	U.S.
mail.
	(Cal.
	Code.
	Regs.,
	tit.
	8,
	secs.
	32135
(b),
	(c)
	and
	(d);
see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
	secs.
	32090
	and 	32130.)
The
	Board's 	address
	is:
Public
	Employment
	Relations
	Board
Attention:
	Appeals
	Assistant
1031
	18th
	Street
Sacramento,
	CA
	95814-4174
FAX:
	(916)
	327-7960
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
Regs.,
	tit.
	8,
	sec.
	32635(b).)
Service
All
	documents
	authorized 	to
	be
	filed
	herein
	must
	also
	beupon
	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
	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.
	A
document
	filed
	by
	facsimile 	transmission
may
	be
	concurrently 	served
	via 	facsimile 	transmission
	on
	all
parties
	to 	the 	proceeding.
	(Cal.
	Code
	Regs.,
	tit.
	8,
	sec.32135(c).)
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
	Regs.,
	tit.
	8,
	sec. 	32132.)
Final 	Date
If
	no 	appeal 	is 	filed 	within 	the 	specified 	time 	limits, 	the
dismissal 	will
	become
	final
	when 	the 	time 	limits 	have 	expired.

SF-CE-2145
Dismissal 	Letter
Page 	3
Sincerely,
ROBERT 	THOMPSON
Deputy 	General 	Counsel
By
Tammy L. Samsel
Regional Director
Attachment
cc: 	Clinton 	Hilliard

==============
STATE OF CALIFORNIA 	GRAY DAVIS, Governor	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
August 	1, 	2000
Mildred 	Nicole, Bryant
3004 	1/2 	Martin 	Luther 	King 	Jr 	Way
Oakland 	CA 	94609
Re: 	Mildred 	Nicole 	Bryant 	v. 	Peralta 	Community 	College
District
Unfair 	Practice 	Charge 	No. 	SF-CE-2145
Warning 	Letter
Dear 	Ms. 	Bryant:
In 	the 	above-referenced 	charge 	you 	allege 	Peralta 	Community
College 	District 	violated 	the 	Educational 	Employment 	Relations
Act 	(EERA 	or Act) 	3543.S(a) 	and 	(b). 	On 	or 	about 	July 	12,
2000, 	I 	called you 	and 	indicated 	that 	I 	would 	need 	additional
information 	regarding 	this 	charge. 	I 	have 	not 	yet 	received 	any
additional 	information. 	The 	charge 	states 	in 	its 	entirety:
Failure 	to 	respond 	to 	grievance 	arbitration
procedures.
Violation 	of 	evaluation process. 	Another
classified 	staff 	person 	(Dena 	Demmons) 	was
allowed 	to 	perform, 	conduct 	an 	evaluation 	of
me. 	She 	was 	not 	my 	1st 	level 	manager. 	Nor
was 	the 	evaluation 	period 	valid.
The 	above-stated 	information 	fails 	to 	state 	a 	prima 	facie
violation 	for 	the 	reasons 	that 	follow.
EERA 	§ 	3541.S(a) (1) 	provides 	the 	Public 	Employment 	Relations
Board 	shall 	not, 	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." 	It 	is 	your 	burden, 	as
the 	charging 	party 	to 	demonstrate 	the 	charge 	has 	been 	timely
filed. 	(See 	Tehachapi 	Unified 	School 	District 	(1993) 	PERB
Decision 	No. 	1024.) 	As 	the 	charge 	does 	not 	provide 	any 	dates, 	it
fails 	to 	demonstrate 	that 	it 	is 	timely 	filed. 	Thus, 	the 	charge
must 	be 	dismissed 	as 	outside 	the 	jurisdiction 	of 	PERB.
Even 	if 	the 	charge 	is ,timely 	filed, 	the 	charge 	fails 	to 	state 	a
prima 	facie 	violation. 	A charging 	party 	should 	allege 	the
what, 	when, 	where, 	and 	of 	an 	unfair 	practice. 	(United
Teachers-Los 	Angeles 	(Ragsdale) 	(1992) 	PERB 	Decision 	944.) 	Mere
legal 	conclusions 	are 	insufficient. 	(See 	State 	of 	California
(Department 	of 	Food 	and 	Agriculture 	(1994) 	PERB 	Decision No.
LIFORNIA
OF THE
RELATIONS BOAR
LIFORNIA
OF THE
RELATIONS BOAR

SF-CE-2145
Warning 	Letter
Page 	2
1071-S.) 	The 	charge 	as 	it 	is 	presently written 	does 	not 	provide
the 	requisite 	information. 	Thus, 	the 	charge 	must 	be 	dismissed.
To 	demonstrate 	a 	violation 	of 	section 	3543.S(a), 	the
charging 	party 	must 	show 	that: 	(1) 	the 	employee 	exercised 	rights
under 	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 	employees
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; 	Department 	of 	Developmental
Services 	(1982) 	PERB 	Decision No. 	228-S; 	California 	State
University 	(Sacramento) 	(1982) 	PERB 	Decision No. 	211-H.)
The 	charge 	does 	not 	include 	facts 	indicating 	that 	you 	exercised
rights 	under 	the 	EERA or 	engaged 	in 	protected 	activities 	prior 	to
receiving 	the 	performance 	evaluation. 	Thus, 	the 	charge 	does 	not
meet 	the 	above-described 	test 	for 	a 	prima 	facie 	retaliation
violation.
Although 	the 	timing 	of 	the 	employer's 	adverse 	action 	in 	close
temporal 	proximity 	to 	the 	employee's 	protected 	conduct 	is 	an
important 	factor, 	it 	does 	not, 	without 	more, 	demonstrate 	the
necessary 	connection 	or 	"nexus" 	between 	the 	adverse 	action 	and
the 	protected 	conduct. 	(Moreland 	Elementary 	School 	District
(1982) 	PERB 	Decision No. 	227.) 	Facts 	establishing 	one 	or 	more
of 	the 	following 	additional 	factors 	must 	also 	be 	present:
(1) 	the 	employer's 	disparate 	treatment 	of 	the 	employee; 	(2) 	the
employer's 	departure 	from 	established procedures 	and 	standards
when 	dealing 	with 	the 	employee; 	(3) 	the 	employer's 	inconsistent
or 	contradictory 	justifications 	for 	its 	actions; 	(4) 	the
employer's 	cursory 	investigation 	of 	the 	employee's 	misconduct;
(5) 	the 	employer's 	failure 	to 	offer 	the 	employee 	justification at
the 	time 	it 	took 	action 	or 	the 	offering 	of 	exaggerated, 	vague, 	or
ambiguous 	reasons; 	or 	(6) 	any 	other 	facts 	which 	might 	demonstrate
the 	employer's 	unlawful 	motive. 	(Novato 	Unified 	School 	District,
supra; 	North 	Sacramento 	School 	District 	(1982) 	PERB 	Decision
\	
• /
Although 	the 	charge 	alleges 	that 	the 	District 	failed 	to 	follow
proper 	evaluation 	procedures, 	the 	charge 	does 	not 	present 	facts
indicating 	the 	alleged 	adverse 	action 	occurred 	close 	in 	time 	to
any 	protected 	activities. 	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

SF-CE-2145
Warning
	Letter
Page
	3
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
	have
	thecase
	number
	written
	on
	the 	top
	right
	hand
	corner 	of 	the
	charge
form.
	The
	amended
	charge
	must 	be
	served
	on
	the 	respondent's
renresentative
	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
	8, 	2000,
	I
	shall
	dismiss
	your
	charge.
	If
you
	have 	any
	questions, 	please
	call
	me
	at
	(415)
	439-6944.
Sincerely,
TAMMY
	L.
	SAMSEL
Regional
	Director