Regents of the University of California (Smith) (PERB 0858H)

STATE 	OP 	CALIFORNIA
DECISION OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JAN 	SMITH,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	LA-CE-275-H
PERB Decision No. 	858-H
December 17, 	1990
Appearances: 	Jan Smith, 	on her own behalf; 	Anthony A. 	Giorgio,
Labor Relations Manager, 	for Regents 	of the University of
California.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION AND 	ORDER
CAMILLI, 	Member: 	This case is before the Public 	Employment
Relations 	Board 	(Board) 	on appeal by Jan Smith 	(Smith) 	of 	a Board
agent's 	dismissal 	(attached hereto) 	of her charge that the
Regents 	of 	the University of California 	(University) 	violated
section 	3571(a) 	and 	(b) 	of the Higher Education Employer-Employee
Relations Act 	(HEERA).1 Specifically, 	Smith alleges 	that the
HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to 	the
Government Code. 	Section 3571 	states 	in pertinent part:
It 	shall 	be unlawful 	for the higher 	education
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.
)
)
)
)
)
)
)
)
)
)
________________ )

University 	engaged 	in retaliatory 	conduct when 	it 	terminated 	her
employment on February 	1, 	1989, 	allegedly because Smith contacted
the 	University Ombudsman 	concerning harassment 	by 	a 	supervisor.
We have reviewed the dismissal 	and, 	finding 	it to be 	free of
prejudicial 	error, 	adopt it as 	a Decision of the Board itself.2
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
The unfair practice 	charge 	in Case No. 	LA-CE-275-H 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
2In adopting the dismissal, 	the Board notes 	that the Board
agent 	incorrectly 	cites 	California 	State 	University. 	San Diego
(1989) 	PERB Decision No. 	178-H. 	The correct cite for the
jurisdictional 	requirement 	that 	a 	complaint 	may 	not 	be 	issued 	on
any 	charge 	based 	upon an 	alleged 	unfair practice 	occurring 	more
than 	six 	months prior to the 	filing 	of 	the 	charge 	is 	California
State University. 	San Diego 	(1989) 	PERB Decision No. 	718-H.
22

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
@
' Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
August 29, 	1990
Jan 	Smith
RE: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-275-H, 	Jan Smith v. 	Regents of the
University 	of 	California
Dear Ms. 	Smith:
I 	indicated to you 	in my attached 	letter dated August 	15, 	1990,
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 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	further 	advised 	that 	unless 	you
amended the 	charge 	to 	state a prima 	facie 	case, 	or withdrew 	it
prior to August 22, 	1990, 	the charge would be dismissed.
On August 20, 	1990, 	you filed 	(by certified mail) 	a First Amended
Charge. 	In this amended charge, 	you argue 	in part that the
statute 	of 	limitations 	in your 	case 	should be 	tolled pursuant 	to
Government Code 	section 	3541.5(a)(2) . 	As 	indicated 	in my August
15 	letter, 	however, 	your case 	is 	subject to Government Code
section 	3563.2(a) 	of 	the 	Higher 	Education Employer-Employee
Relations Act 	(HEERA), 	which does 	not provide 	for tolling.
Government Code 	section 	3541.5(a)(2) 	is part of 	the Educational
Employment Relations Act 	(EERA), 	which applies 	to employees 	of
school districts. 	HEERA, 	not EERA, 	applies to employees of 	the
University 	of 	California.
In the amended 	charge, 	you make 	reference 	to 	an adverse 	action of
which 	you became 	aware 	for 	the 	first 	time within 	the 	six 	months
before you 	filed your charge: 	an 	adverse memo 	in your personnel
file 	that you 	saw for the 	first time on March 	26, 	1990. 	When we
discussed this 	memo 	in a 	telephone 	conversation on July 	23, 	1990,
however, 	you told me that the 	adverse memo was 	dated April 	29,
1988, 	and therefore preceded your 	supervisor's 	first 	knowledge
(in October, 	1988) 	of your contact with the University Ombudsman.
You also mention that 	in April, 	1990 	(within the 	six months
before your 	filed your 	charge), 	University Affirmative Action
Officer 	Peggy 	Kerley would 	not 	allow you 	to 	get 	a 	statement 	from
University 	Student Affairs 	Officer 	Poinka 	Wong 	about 	a 	position
Wong had offered you 	in November, 	1988. 	You 	contend that 	this
was 	"interference." 	It 	is 	not apparent, 	however, 	how this was
interference with any rights 	you 	had under 	HEERA. 	It does 	not
·
{

Dismissal 	and 	Refusal 	to
Issue 	Complaint
LA-CE-275-H
August 28, 	1990
Page 2
appear 	to have been 	interference with 	your 	right 	to present 	your
grievance effectively, 	since the processing of 	your grievance
apparently had come to an end on March 	1, 	1990, 	when you were
sent 	notice 	that 	the 	grievance would not 	go to 	arbitration.
You 	seem to 	argue 	generally 	that 	the 	statute 	of 	limitations
should 	be 	satisfied because within 	the 	six 	months 	before 	you
filed 	your 	charge 	additional 	events 	and 	information 	confirmed
your belief 	that your 	termination was 	retaliatory. 	It 	is 	clear,
however, 	that you had reason to believe that your termination was
retaliatory by November 	1, 	1989, 	when you wrote a 	letter 	so
asserting. 	Your 	limited 	opportunity 	to 	file 	an unfair practice
charge within 	six 	months 	is 	not 	extended by 	later 	events 	and
information 	that 	neither 	constituted 	nor 	revealed 	additional
adverse 	actions 	against 	you.
The 	other 	issues 	mentioned 	in 	the 	amended 	charge 	shall 	not 	be
addressed 	in 	this 	letter, 	either because 	they were 	dealt with 	in
my August 	15 	letter 	or because they 	fall 	outside 	the 	six-month
statute 	of 	limitations. 	I 	am therefore dismissing the 	charge
based 	on the 	facts 	and 	reasons 	contained 	in this 	letter 	and 	in my
August 	15 	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 	(California Administrative Code, 	title
8, 	section 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 	(5:00 p.m.) 	or 	sent by
telegraph, 	certified 	or Express 	United States 	mail 	postmarked 	no
later 	than the 	last 	date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 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 	calendar 	days
following 	the date 	of 	service of 	the 	appeal 	(California
Administrative Code, 	title 8, 	section 32635(b)).

Dismissal 	and 	Refusal 	to
Issue 	Complaint
LA-CE-275-H
August 28, 	1990
Page 	3
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 	California Administrative 	Code,
title 	8, 	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 	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 	(California
Administrative Code, 	title 8, 	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.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By Thomas J. 	Allen
Regional 	Attorney
TJA:rdw
Attachment
cc: 	Edward M. 	Opton, 	Jr.
Anthony 	Giorgio

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governo
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard. Suite 650
Los Angeles, CA 90010-2334
(213)736-3127	PER
August 15, 	1990
Jan 	Smith
RE: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-275-H, 	Jan
Smith v. 	Regents of 	the University of California
In 	the 	above-referenced 	charge, 	you allege 	that 	the 	University 	of
California 	(University) 	retaliated against you, 	in alleged
violation of Government Code 	sections 	3571(a) 	and 	(b) 	of 	the
Higher Education Employer-Employee 	Relations Act 	(HEERA).
My 	investigation of 	this 	charge revealed the 	following 	facts.
You were 	employed by 	the 	University 	as 	a 	Senior Clerk. 	When you
were 	harassed 	by your 	supervisor, 	you 	contacted 	the 	University
Ombudsman. 	Your 	supervisor 	learned of 	this 	contact 	in October,
1988, 	when the Ombudsman contacted her. 	Thereafter, 	your
supervisor 	increased her harassment of you. 	On February 	1, 	1989,
you 	received a 	termination notice, 	and you 	later 	filed a
grievance 	challenging the 	termination. 	Although 	the 	grievance
procedure provided 	for binding 	arbitration, 	the 	exclusive
representative finally decided, 	on March 	1, 	1990, 	not to take
your 	grievance 	to 	arbitration.
You 	filed your unfair practice 	charge on June 	27, 	1990. 	You had
previously 	filed 	a 	complaint 	of 	physical 	handicap 	discrimination
with 	the U.S. 	Department 	of 	Labor. 	You allege 	that 	in January,
1990, 	the University 	lied about you to the Department of 	Labor
during 	the 	investigation 	of 	your 	complaint.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state 	a
prima 	facie violation of 	the 	HEERA, 	within the 	jurisdiction of
the Public Employment Relations Board 	(PERB), 	for the reasons
that 	follow.
Government Code 	section 	3563.2(a) 	provides 	in part that PERB
"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." 	PERB has 	held that this 	six-month
limit 	is 	jurisdictional 	and 	cannot be waived. 	California 	State
University. 	San Diego (1989) 	PERB Decision No. 	178-H. 	On July 	3,
1990, 	PERB held that the 	six-month 	limit 	is 	not 	tolled by the
@:
fi>11r

Warning 	Letter
LA-CE-275-H
August 	15, 	1990
Page 	2
pursuit of 	a grievance 	concerning the 	same dispute. 	Regents 	of
the University of California 	(1990) 	PERB Decision No. 	826-H.
Your 	termination and 	the 	harassment 	that preceded 	it 	occurred
over 	sixteen months 	before you 	filed your unfair practice 	charge.
You 	allege 	that within the 	six 	months 	before 	you 	filed your
charge 	the 	University 	lied 	about you 	to 	the 	Department 	of 	Labor,
which was 	investigating 	your 	complaint 	of 	physical 	handicap
discrimination. 	You 	contend 	that 	this was 	in 	further 	retaliation
for 	your 	contact with 	the 	Ombudsman.
To demonstrate 	retaliation, 	a 	charging party must 	show that:
(1) 	the employee exercised 	statutory rights, 	(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; 	Department of Developmental Services 	(1982) 	PERB
Decision No. 	228-S; 	California State University 	(Sacramento)
(1982) 	PERB Decision No. 	211-H. 	The timing of the employer's
adverse 	action 	in close 	temporal 	proximity 	to 	the 	employee's
protected conduct 	is 	an 	important factor, 	but 	it does 	not,
without more, 	demonstrate 	a violation of 	the EERA. 	Moreland
Elementary School District 	(1982) 	PERB Decision No. 	227.
In the present case, 	there 	is 	no close temporal proximity between
the 	alleged 	lies 	to the Department 	of 	Labor 	(in January, 	1990)
and 	your 	contact with the 	Ombudsman 	(which became 	known 	to 	your
supervisor over a year earlier, 	in October, 	1988). 	Furthermore,
the 	University's 	motive 	in 	lying 	to 	the 	Department 	of 	Labor would
presumably 	be 	a 	desire 	to 	cover up 	the 	alleged physical 	handicap
discrimination that 	the 	Department was 	investigating. 	If 	the
University was 	not 	covering 	up physical 	handicap 	discrimination,
then 	it 	is 	not 	apparent how what 	it 	told the Department 	could
actually harm you. 	There 	are 	no 	facts 	that 	show that 	the
University's 	alleged 	lies 	to the Department were, 	or were
intended to be, 	retaliatory in themselves, 	as well as part of a
possible 	cover-up.
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 any additional 	facts 	that 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

--
Warning 	Letter
LA-CE-275-H
August 15, 	1990
Page 3
Charge, 	contain all 	the 	facts 	and allegations 	you wish to make,
and 	must 	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 22, 	1990, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney
---- --