State of California (Department of Motor Vehicles, Unemployment Insurance Appeals Board, State Personnel Board and Department of Justice) (PERB 1497S)

STATE OF CALIFOR.NIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CARLOS A. VELTRUSKI,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
MOTOR VEHICLES, UNEMPLOYMENT
INSURANCE APPEALS BOARD, STATE
PERSONNEL BOARD & DEPARTMENT OF
JUSTICE),
Respondent.
Case No. LA-CE-573-S
PERB Decision No.
	149
7-S
August 	27,
	2002
Appearance: Carlos A. Veltruski, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Carlos A. Veltruski (Veltruski) from a Board agent's dismissal (attached)
of
his
unfair practice charge. The charge alleged that various departments
of
the State
of
California
violated section 3519(a)
of
the Ralph C. Dills Act (Dills Act)1
by denying him employment
because
of
his protected conduct.
After reviewing the entire record in this case, including the original and amended unfair
practice charges, the Board agent's warning and dismissal letters and V eltruski' s appeal, the
1The Dills Act is codified at Government Code section 3 512 et seq.

Board adopts the dismissal letter as the decision of the Board itself as the reasoning in the
warning and dismissal letters is consistent with the Board's recent decision in State of
California (2002) PERB Decision No. 1484-S.
ORDER
The unfair practice charge in Case No. LA-CE-573-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
2

[	STATE OF CALIFORNIA 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
l03l
18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-7242
Fax: (916) 327-6377
February 25, 2002
Linda Nelson, Labor Relations Counsel
Department
of
Personnel Administration
1515 "S" Street, North Building, Suite 400
Sacramento, CA 95814-7243
Carlos A. Veltruski
603 N. Ford Boulevard
Los Angeles, CA 90022
Re: 	Carlos A. Veltruski v. State
of
California (Department
of
Motor Vehicles,
Unemployment Insurance Appeals Board, State Personnel Board & Department
of
Justice)
Unfair Practice Charge No. LA-CE-573-S
DISMISSAL LETTER
Dear Mr. Veltruski:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 7, 2001. You allege that the State
of
California
(Department
of
Motor Vehicles, Unemployment Insurance Appeals Board, State Personnel
Board & Department
of
Justice) violated the Ralph C. Dills Act (Dills Act) 1 by refusing to
consider your application on its merits.
I indicated to you in my attached letter dated February 11, 2002, 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 February 22, 2002, the charge would
bedismissed.
On February 13, 2002, you filed an amended charge that contained information that duplicated
the charges made in LA-CE-573-S, and also contained new information regarding the harmyou allegedly suffered, and additional charges against State actors and agents
of
the City of
Huntington Park.
As to the harm you allegedly suffered, you have not shown that you were eligible for
employment by complying with the application process for any State job. Instead, you allege
1 The Dills Act is codified at Government Code section 3512 et seq. The text
of
the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

-
LA-CE-573-S
February 25, 2002
Page 2
that because you were once hired as an independent contractor for the State (a title which you
dispute), that you should be considered an applicant for reinstatement, and exempted from the
examination requirements
of
other applicants. 	Your argument is flawed in two ways. 	First,
you have not shown that you were ever an employee
of
the State-- you must show that at one
time you held a position as a permanent or probationary employee. Second, assuming you
were at one time an employee
of
the State, you have not shown that you were separated from
your position for a reason that maintains your eligibility for State service. Under these
circumstances, it
is
not shown that you were ever eligible for State service; this fact precludes
your having suffered harm by any refusal to consider your application for State employment or
reinstatement.
Also in your amended charge, you argue that your rights were violated when Sara Luque and
Rosario Marin refused to consider your application for employment. At the time that you were
allegedly discriminated against, Both Ms. Luque and Ms. Marin were employees
of
the State
of
California, and were acting as agents
of
the State. Because both Ms. Luque and Ms. Marin
are currently agents for the City
of
Huntington Park, you claim that your charge arises under
the Meyers-Milias-Brown Act. However, under the MMBA, an employer is "any public
agenc[y] ... which has been held to include only local governmental entities." Sacramento
County Employees Organization
v.
County
of
Sacramento (1988) 201 Cal.App.3d 845, 850.
Applying this definition, the State and its agents cannot be considered an "employer" for the
purposes
of
the MMBA. Because Ms. Luque and Ms. Marin were agents
of
the State
of
California at the time they allegedly discriminated against you, and were not subject to the
MMBA, you have failed to show how you were discriminated against by an employer subject
to the MMBA. This failure is fatal to your charge
of
discrimination under the MMBA.
Therefore, I am dismissing the charge based on the facts and reasons contained in this letter
and my February 11, 2002 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge
byfiling an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 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.
(Regulations 32135(a) and 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 Regulation 32135(d), provided the filing party also places the
- PERB's Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

LA-CE-573-S
February 25, 2002
Page 3
original, together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 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. 	(Regulation 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 Regulation 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. (Regulation 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. (Regulation 32132.)

(
LA-CE-573-S
February 25, 2002
Page4
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
General Counsel
By
i4l1 ((
[{/	
~1itt/vr
Alicia A. Clement
Board Agent
Attachment
AAC

(
STATE OF CALIFORNIA 	GRAY DA VIS, Governor
PUBLIC EMPLOYlVIENT RELATIONS BOARD
,.,~i4'/'/.
i'
l
d'_,.
....
"eoF#q.~
Sacramento Regional Office
1031
18th Street
Sacramento,
CA
95814-4174
Telephone: (916) 327-7242
Fax: (9 I 6) 327-63 77
February 11, 2002
Carlos A. V eltruski
603 N. Ford Boulevard
Los Angeles,
CA
90022
Re: 	Carlos A. Veltruski v. State
of
California (Department
of
Motor Vehicles,
Unemployment Insurance Appeals Board, State Personnel Board & Department
of
Justice)
Unfair Practice Charge No. LA-CE-573-S
WARNING LETTER
Dear Mr. Veltruski:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB
or
Board) on December 7, 2001. You allege that the State
of
California
(Department
of
Motor Vehicles, Unemployment Insurance Appeals Board, State Personnel
Board & Department
of
Justice) violated the Ralph C. Dills Act (Dills Act) 1
by refusing to
consider your application on its merits.
In your charge, you name six employees
of
the state
of
California that allegedly discriminated
against you.
	Of
those six individuals, only four
of
them appear in the "attached explanation"
and various other documents you supplied. The employees who are not mentioned except on
the Unfair Practice Charge form are Michael DiSanto and Sylvia Diaz. Accordingly,
allegations regarding those two individuals will be dismissed unless you can provide factual
evidence that they took an adverse action against you that was motivated
by
your participation
in protected conduct. Allegations
of
discrimination against you involving the other four
individuals named in your charge are deficient in the following ways.
You allege that Kaye Krumenacker
of
the Department
of
Motor Vehicles failed to consider
your application for employment during a phone conversation you had with her. 	This phone
conversation took place in December
of
2001, within the six month statute
of
limitations.
You allege that Jimmy Gomez,
of
the Department
of
Motor Vehicles, Commerce Office,
discriminated against you when he refused to allow you to take an oral examination for various
1 The Dills Act is codified at Government Code section 3 512 et seq. 	The text
of
the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-573-S
February 11, 2002
Page 2
positions that were available, and for which you had applied. 	You also allege that Mr. Gomez
refused
to
provide you with a Workers' Compensation form.
You allege that Kathy Martinez
of
the State Personnel Board refused to hire you or
consider your application for employment on its merits between November and December
of
2001.
You allege that Judge Zaida Hackett
of
the Unemployment Insurance Appeals Board
discriminated against you. In your charge, you state that you have made previous charges
against Judge Hackett with Judge Peterson and myself. After reviewing all the charges you
previously filed with PERB, I am unaware
of
any outstanding charges concerning conduct by
or on behalf
of
Judge Hackett. Your current charge contains only a reference to Judge Hackett
in an unidentified previous charge.
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,
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.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), 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
(State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) theemployer's inconsistent or contradictory justifications for its actions (State
of
California
(Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S; (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, orambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. 	(Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
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:
2

LA-CE-573-S
February 11, 2002
Page 3
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.]
As a threshold matter in a charge under the Ralph C. Dills Act, you must show that you were
harmed by the State employer at the time that you were refused employment. In order to show
harm occurred because
of
a State employee's refusal to consider your application, you
must
show that the State employer was under a duty to consider your application at the time you
presented it. This can be shown by providing evidence that there was a position available for
which you were qualified, (you must specifically name that position in your unfair practice
charge), and that you applied for that specific position. You must also show that you complied
with the requirements for consideration in each application, (you took the required exam for
each position, and you were placed on the list
of
eligible applicants for State employment).
	If
you do not show that you complied with the requirements for State employment prior to
submitting an application, you have not shown that you were harmed, since an applicant who
fails to comply with eligibility requirements will not be considered for employment no matter
how qualified they may be for a position with the state.
You must also show evidence
of
discrimination by a State actor. The Ralph C. Dills
Act
provides applicants and employees
of
the State with a remedy against discrimination
by
the
State.	
It
does not provide a remedy against individual employees
of
the State. However, an
employee acts as an agent
of
the State when they act in an authorized capacity on
behalf
of
the
State.	
It
is critical that you indicate that each employee was authorized to act under State
authority, and how each employee was acting in an official capacity at the time the alleged
discrimination took place.
In the matter
of
your charge against Kaye Krumenacker, you have provided me with evidence
that you requested employment from Ms. Krumenacker, and that Ms. Krumenacker refused to
consider your application on its own merits. You have not indicated what position you were
applying for, and whether you had complied with the eligibility requirements for that position.
As such, your charge does not show how you were harmed by her decision. You allege that
Ms. Krumenacker had knowledge
of
your protected activity because on your application for
employment, you were required to disclose that you had previously worked for the State, and
give your reason for leaving employment with the State. In explaining the reason why you no
longer work for the State
of
California, you indicate that you were retaliated against for you
efforts to unionize interpreters. 	However, you have not shown that Ms. Krumenacker was
authorized to make employment decisions for the State at the time that you requested
employment from her, nor have you provided a nexus between Ms. Krumenacker's decision to
refuse your application and her knowledge of your protected activities. You must provide facts
that tend to indicate that Ms. Krumenacker's decision not to accept your application was
motivated by her knowledge of your protected activities.
3

LA-CE-573-S
February 11, 2002
Page 4
In the matter
of
Jimmy Gomez, you allege that he was made aware
of
your protected activities
in much the same way that Ms. Krumenacker was made aware
of them-that
you were obliged
to disclose them on your application as an explanation
of
why you left employment with the
State. 	You have not indicated what position you were applying for and whether you had
complied with the eligibility requirements for that position. As such, your charge does not
show how you were harmed by his decision. You have also not shown that Mr. Gomez was
authorized to make employment decisions for the State at the time that you requested
employment from him, nor have you shown that Mr. Gomez based any employment related
decisions on your protected activities. You must show the nexus between the adverse act and
Mr. Gomez's knowledge
of
your protected activity.
In the matter
of
Kathy Martinez, you have provided me with evidence
of
Ms. Martinez's
knowledge that you engaged in protected activities, as she is reviewing a charge that you filed
with the State Personnel Board. You have not indicated what position you were applying for,
and whether you had complied with the eligibility requirements for that position. As such,
your charge does not show how you were harmed by his decision. Again, you have not
provided any facts that tend to indicate that Ms. Martinez was authorized to make employment
decisions for the State at the time that you requested employment from her, or that her decision
not to consider your application on its merits was motivated by your protected acts.
	The
nexus
between the adverse acts and Ms. Martinez's knowledge
of
your protected activity is a
necessary element in every allegation
of
unfair labor practices.
In the matter
of
Judge Hackett, you have not shown that Judge Hackett was aware that you
engaged in protected activity, or that Judge Hackett was authorized to and did make an adverse
employment decision against you. You state in your charge that you have made allegations
against Judge Hackett in the past. I have reviewed your past charges with PERB, and I am
unaware
of
any unresolved charges with our office against Judge Hackett.	
If
you are able to
show that you engaged in protected activity, and that Judge Hackett was aware
of
your
protected activity, you must also provide evidence that Judge Hackett made an adverse
employment decision because
of
your protected activity.
Finally, in your charge you name Rosario Marin and Sara Luque, both
of
whom are currently
employees
of
"the City
of
Huntington Park." I am unable to consider their actions in this
charge because you have not indicated whether the parties were State employees or City of
Huntington Park employees at the time they allegedly discriminated against you. The letter
you sent to PERB on December 31, 2001 did not correct this deficiency.	
If
you wish for me to
consider their actions as unfair labor practices, you must show either that they were acting as
State employees at the time they allegedly took adverse actions against you, or you may file a
separate charge that shows that they were acting as City of Huntington Park employees at the
time that they allegedly took adverse actions against you. Please note that PERB will consider
charges against a city employer under the Meyers-Milias-Brown Act. I urge you to take
careful notice of the differences between the two statutes if you choose to file a charge under
the Meyers-Milias-Brown Act rather than the Ralph C. Dills Act.
4

LA-CE-573-S
February 11, 2002
Page 5
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 that 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 have the case number written on the top right hand
comer
of
the charge form. 	The amended charge must be served on the respondent's
representative and the original
proof
of
service must be filed with PERB.	
If
I do not receive an
amended charge or withdrawal from you before February 22, 2002, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
CG
-/+fJLJ1;Uivr--
Alicia A. Clement
Board Agent
AAC
5