State of California (PERB 1459S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CARLOS A. VELTRUSKI,
Charging Party,
V.
STATE OF CALIFORNIA,
Respondent.
Case No. LA-CE-556-S
PERB Decision No. 	1459-S
August 	29, 	2001
Appearances: 	Carlos A. Veltruski, on his own behalf; State of California (Department of
Personnel Administration) by Linda M. Nelson, Labor Relations Counsel, for State of
California.
Before Amador, Baker and Whitehead, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Carlos A. Veltruski (Veltruski) of a Board agent's denial ( attached) of his
motion to amend an unfair practice complaint. The complaint alleged that the State of
California (State) violated section 3519(a) of the Ralph C. Dills Act (Dills Act/ by denying
Veltruski the opportunity for employment based on his protected activity.
1The Dills Act is codified at Government Code section 3512 et seq. Section 3519
reads, 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 ofrights guaranteed by this chapter. For

The Board has reviewed the entire record in this case, including the motion to amend,
all supporting and opposing papers thereto, the Board agent's decision on the motion to amend,
Veltruski's appeal and the State's opposition. The Board finds the Board agent's decision on
the motion to amend to be free from prejudicial error and adopts it as the decision of the Board
its elf.
ORDER
The motion to amend the unfair practice charge and complaint in Case
No. LA-CE-556-S is hereby DENIED.
Members Amador and Baker joined in this Decision.
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CARLOS A. VEL TRUSKI,
Charging Party,
V.
STATE OF CALIFORNIA,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-556-S
DECISION ON MOTION TO AMEND
May 11, 2001
Appearances: 	Carlos A Veltruski as the Charging Party and Linda M. Nelson, Labor Relations
Counsel, for the Respondent.
Before Marc
S.
Hurwitz, Regional Attorney.
HISTORY
The initial unfair practice charge was filed by the Charging Party on June 23, 2000
alleging that agencies
of
the State
of
California denied Charging Party
as
an applicant the
opportunity for employment beginning in 1991 based on his protected activity in violation
of
the Ralph
C.
Dills Act (Dills Act) (Government Code section 3512 et sec.) After several
amended charges were filed, a Complaint issued on February 22, 2001 alleging discrimination
by State agencies. 	Also, in a separate Partial Dismissal letter, other allegations were dismissed
as untimely. That Partial Dismissal is presently on appeal to the Board.
On March 20, 2001, Charging Party filed a Motion to Amend the Complaint which
states the following,
This is a Request to Move LA PERB Marc Hurwitz to consider
adding detailed and specific charges to the already existing
COMPLAINT issued by Attorney Bernard McMonigle on 2-22-
2001. 	Please read attached 17 pages and exhibits and
summarizing: These issues are part of original filing. 	1) On
allegations 4 and 5 [
of the Complaint involving the California

Department
of
Justice (DOJ)] please mention incident with
MATTHEW BOTTING [Dep. A.G. representing the State in
Federal litigation filed by Charging Party in February 2000] who
was supervised directly by Sylvia Diaz, incorporate letter signed
by BOTTING on 2-29-00 that was letter resent [several months
later] on copy
by
current Attorney Tom Scheerer [latest Dep.
A.G. defending the State in the litigation] that is also under direct
supervision
of
Sylvia Diaz
of
the LA-AG Office. 2) On
allegation 6 and 7 [
of
the Complaint involving the
Unemployment Insurance Appeals Board (UIAB)], please
mention the connection with what happened at their Inglewood
office on 6-15-00 and in 2nd semester 96 involving P.J.[Presiding
Judge Hugh] Harrison (96) and Mrs. Folsoi and P.J. Knipe
FACTS
Department
of
Justice - In February 2000, Charging Party filed a lawsuit against the
Department
of
Motor Vehicles (DMV) and the California Unemployment Insurance Appeals
Board (UIAB) in the United States District Court, and filed other actions before administrative
agencies to secure economic benefits for prior employment. He also sought to take action
against UIAB and DMV before the State Personnel Board. The actions assert that in the
l 990's, Charging Party should have been treated as an employee
of
the State [not as an
independent contractor] and that he was incorrectly denied his rights to equal pay and
employee benefits.
The PERB Complaint issued February 22, 2001 states that Supervising Deputy
Attorney General Sylvia Diaz took adverse action against Charging Party in February 2000 by
denying him the opportunity for employment ·with the DOJ because
of
his protected activity.
Charging Party points out that his initial charge filed on June 23, 2000 also describes
how Deputy Attorney General Botting refused to consider Charging Party for employment
beginning in February 2000 because of Charging Party's protected activity. By letter dated
February 29, 2000, Mr. Botting (defending the Charging Party's personal injury - civil rights
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litigation against the State
of
California et al. in U.S. District Court), advised Charging Party
that the complaint was not properly served, that permanent residence status
is
not something
any agency
of
the State can grant, that the Court cannot force State agencies to file forms and
petitions with the Immigration and Naturalization Service for employment-based immigration,
that there was no employment relationship, only that
of
a sub-contracting vendor, that the suit
was untimely, and suggesting that the Complaint be dismissed since not doing so could
potentially expose Charging Party
to
attorney's fees for pursuing a frivolous lawsuit.
In or about July 2000, Charging Party learned that Mr. Botting was no longer working
there and that Deputy Attorney General Thomas M. Scheerer was now representing the State in
the federal lawsuit. 	Charging Party discussed his situation with Mr. Scheerer and Mr. Scheerer
reiterated what Mr. Botting indicated previously. He also wrote to Charging Party and
enclosed a copy
of
Mr. Batting's February 29, 2000 letter.
Unemployment Insurance Appeals Board - Allegations concerning the Inglewood
Office, at page 6
of
the Statement
of
Charge
of
the Initial Charge filed June 23, 2000, states
as
follows,
I also went in person to the Inglewood Office
of
Appeals
of
the
CA UIAB on Thursday, June 15, 2000 and I requested to be
appointed as a state employee to perform services, but the acting
PJ [Presiding Judge Judy Folsoi was very rude with me (she is the
same judge that is so rude with interpreters that she forgot to
swear me in as the official interpreter at the beginning
of
the
recorded hearing and would NOT permit me to tell her that she
had forgotten to swear me in as the official interpreter at the
beginning
of
the recorded hearing and would NOT permit me to
tell her that she had forgotten to swear me into the record and
then the transcriber realized the interpreter had not been sworn
into the record by the judge and the hearing had to be conducted
all over again), and she instructed other employees not to pay
attention to what I was saying. 	I informed her that I was on a
mission to fight for the rights of interpreters and their wages and
working conditions and terms of employment. 	I left a letter for
the presiding judge Knipe but he has not responded to me yet.
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In or about 1996, Charging Party was an interpreter for the Inglewood Office
of
the
UL'-\B
where Presiding Judge Hugh Harrison and Judge Judy Folsoi were working. 	At that
time, Charging Party advised UIAB that he claimed he was actually an employee
of
the UIAB.
On June 15, 2000 Charging Party informed Acting Presiding Judge Fo lsoi that he wished to
apply for State employment and that he was going to improve the working conditions
of
the
interpreters. Charging Party had also filed actions against the UIAB before administrative
agencies for employment benefits. On June 15, 2000, Charging Party also asked Judge Folsoi
and a secretary why he had been removed from the list
of
qualified interpreters. Judge Folsoi
did not answer but she advised Charging Party she was not going to give him a job and she
then directed several employees present not to pay attention to Charging Party. Before
departing, Charging Party left a letter for Presiding Judge Knipe requesting to be given a
position as an interpreter/auditor in order to issue a report on how interpreters can better
perform their services, and expressing his desire to unionize interpreters and improve their
working conditions. 	On June 23, 2000 Judge Knipe advised Charging Party by letter that there
was no current need for any additional interpreters in the office.
ISSUES
1.
Has the Respondent retaliated against Charging Party as an applicant by the actions
of
Deputy Attorneys General Botting and Scheerer in violation
of
Dills Act section 3519(a)?
2. Has the Respondent retaliated against Charging Party as an applicant by the actions
of
officials at the Inglewood office of the UIAB in violation of Dills Act section 3519(a)?
ANALYSIS
To demonstrate a violation of Dills Act section 3519(a), the charging party must show
that: 	(1) the employee exercised rights under the Dills Act; (2) the employer had knowledge of
the exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
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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 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Evidence
of
adverse action is also required to support a claim
of
discrimination or
reprisal under the Novato standard. (Palo Verde Unified School District (1988) PERB
Decision No. 689.)
In
determining whether such evidence is established, the Board uses an
objective test and will not rely upon the subjective reactions
of
the employee. (Ibid.)	
In
a later
decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
PERB Regulation 32647 allows the Charging Party, after issuance
of
a complaint, to
move to amend the complaint by filing a request to amend the complaint and an amended
charge meeting the requirements
of
section 32615. PEF"R Regulation 32615(a)(5) requires,
inter alia, that an unfair practice charge include a "clear and concise statement
of
the facts and
conduct alleged to constitute an unfair practice." Thus, the charging party's burden includes
alleging the "who, what, when, where and how" of an unfair practice. (State
of
California
(Department
of
Food and Agriculture) (1994) PERR Decision No. 1071-S, citing United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions
are not sufficient to state a prima facie case. 	(Ibid.; Charter Oak Unified School District
(1991) PERB Decision No. 873.)
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Department
of
Justice - Charging Party has demonstrated he engaged in protected
activity. 	But Charging Party has not alleged with a clear and concise statement in the Motion
to Amend and the attached documents (or in the initial Charge) that Mr. Botting or Mr.
Scheerer were Supervisors acting for the State employer, in a position to hire Charging Party. 1
Only Sylvia Diaz
of
the Enforcement, Regulation and Administration Section
of
the Civil Law
Division, who had contact with Charging Party, is a Supervising Deputy Attorney General.
Both attorneys Botting and Scheerer were DOJ employees merely defending the State
in the lawsuit brought by Charging Party. An adverse action regarding an applicant's
prospective employment has not been taken merely by defending a lawsuit, and pointing out
defects in the suit, and that the losing party may be subject to paying attorney's fees.
Accordingly, the Motion
to
Amend the complaint as to Mr. Botting and Mr. Scheerer is
denied.
Unemployment Insurance Appeals Board - The request to amend and attachments
references conduct by the State occurring in or about 1996. The Dills Act states that PERB
may not issue a complaint on an underlying charge based upon an alleged unfair practice
occurring more than six months before the filing
of
the charge. (Government code section
3514.5(a)(l).) This limitations period is mandatory; it is a jurisdictional bar to charges filed
outside the six-month period. 	(California State University, San Diego (1989) PERB Decision
No. 718-H.) The limitations period begins to run once a charging party knows or should have
known of the conduct underlying the charge. (Fairfield-Suisun Unified School District (1985)
PERB Decision No. 547.) PERB has determined that a charging party's belated discovery of
1 The party seeking to establish agency bears the burden of proving agency by a
preponderance of the evidence. 	Inglewood Unified School District (1990) PERB Decision No.
792, affd Inglewood Teachers Assn. v. Public Employment Relations Board (1991) 227 Cal.
App. 3d 767, 780.
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the legal significance
of
the underlying conduct does not excuse an otherwise untimely filing.
(California State Employees' Association (Darzins) (1985) PERB Decision No. 546-S.)
The doctrine
of
equitable tolling, under which the statutory limitations period is tolled,
while a charging party pursues an alternative legal remedy, is not applicable to the statutes
administered by PERB. 	(San Diego Unified School District (1991) PERB Decision No. 885;
The Regents
of
University
of
California (1990) PERB Decision No. 826-H.) 	Even
if
the
conduct in question occurred in late December 1996, the statute
of
limitations began at that
time, and the Charging Party had until the latter part
of
June 1997 to file a charge. 	The initial
charge in this case was not filed until June 23, 2000.
Accordingly, the Request to Amend the Complaint is denied
as
to allegations occurring
in 1996, well outside the statutory period.
Charging Party has demonstrated that he engaged in protected activity prior to the
incident on June 15, 2000 and Judge Knipe's reply on June 23, 2000. However, a prima facie
violation has not been stated. First, Charging Party has not demonstrated that a position as an
interpreter or auditor was announced or available at the time he sought to be considered for
employment in June 2000. No information has been provided suggesting that Judge Knipe was
in error when he advised Charging Party on June 23, 2000 that his office had no current need
for any new interpreters. An employer is not under any obligation to create for a prospective
applicant a position or the kind
of
position being sought.
Accordingly, the Motion to Amend as to this incident is denied as well.
Dated: 	May 11, 2001
Marc S. Hurwitz
Regional Attorney
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