State of California (Department of Youth Authority) (Janowicz) (PERB A275S)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	E:M.PLOYMENT
	RELATIONS
	BOA.RD
FRANK
	D. 	JANOWICZ,
Charging
	Party,
v.
STATE
	OF
	CALIFORNIA
	(DEPARTMENT
OF 	YOUTH
	AUTHORITY) ,
Respondent.
)
)
)	
Case
	No.
	LA-CE-257-S
Administrative
	Appeal
PERB
	Order
	No.
	Ad-275-S
Hay 	22 1 	1996
)
)
)
)
)
)
)
)
Appearances:	
Frank
	D.
	Janowicz,
	on
	his
	own
	behalf; 	State
	of
California
	(Department
	of 	Personnel 	Administration)
	by
	Joan
	E.
Branin,
	Labor
	R~lations
	Counsel,
	for 	State
	of
	California
(Department
	of
	Youth
	Authority).
Before 	Caffrey,
	Chairman;
	Garcia
	and
	Johnson,
	Members.
DECISION
GARCIA,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	a
	request
	by
	Frank
	D.
	Janowicz
(Janowicz)
	that
	the
	Board
	accept 	his
	late 	filed
	request
	for
reconsideration
	of
	the 	Board's 	decision 	in 	State
	of
	California
(Department 	of
	Youth
	Authority)
	(1995)
	PERB
	Decision
	No.
	1080-S
(Youth
	Authority).
BACKGROUND
Janowicz,
	employed
	as
	a
	permanent
	intermittent 	teacher,
alleged 	in
	Youth
	Authority 	that 	the 	California
	Department
	of
Youth
	Authority
	(CYA)
	retaliated 	against
	him
	for 	participating 	in
protected 	activity
	when
	it
	refused 	to 	call
	him
	for 	teaching
assignments.
	On
	January 	12, 	1995,
	the
	Board 	issued
	its
	decision
in 	Youth 	Authority 	in 	which
	it
	affirmed 	the 	dismissal 	of 	the

complaint
	and
	unfair 	practice
	charge
	on
	the
	grounds
	of
	collateral
estoppel.
PERE
	Regulation
	32410
1	
requires
	that
	a
	request
	for
reconsideration
	be
	filed
	with 	the
	Board
	within
	20
	days
	of
	service
of
	the 	decision.
	The
	filing
	deadline
	may
	be
	extended
	pursuant 	to
PERE
	Regulation
	32130(c) 	which
	provides
	a
	five-day 	extension 	for
documents
	filed
	by
	mail.
	Accordingly,
	a
	request 	for
reconsideration
	of
	the·Board's 	decision
	in
	Youth
	Authority	
was
due
	to
	be
	filed
	no
	later
	than 	February
	6,
	1995.
On
	January
	31,
	1996,
	Janowicz
	filed
	the
	instant
	request
	that
the
	Board
	accept
	his
	late 	filed
	reconsideration 	request.
	To
substantiate
	his 	request 	to
	excuse
	the
	late 	filing,
	Janowicz
explains
	that
	the
	U.S. 	Equal
	Employment
	Opportunity
	Commission
(EEOC)
	recently 	issued
	a
	ruling
	on
	charges
	he
	filed
	in
	1992
	which
11
proves
	Charging
	Party's
	claim
	of
	retaliation.
112	
Janowicz
	now
asserts 	that
	the
	EEOC's
	recent 	"finding" 	of
	retaliation
	by
	the.
CYA
	justifies
	the 	Board's
	reconsideration
	of 	the
	retaliation
charge 	considered 	in
	Youth
	Authority.
DISCUSSION
PERB
	Regulation
	32136
	provides
	that:
A
late 	filing
	may
	be 	excused
	in 	the
discretion
	of 	the
	Board
	for
	good
	cause 	only.
1PERB
	regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et
	seq.
2
In
	1992, 	Janowicz
	filed
	charges 	with 	the
	EEOC
	alleging 	that
he 	was
	laid 	off 	as
	a
	permanent
	intermittent 	teacher 	as
	a
	result
of 	age 	discrimination 	and
	in 	retaliation 	for 	filing 	prior 	charges
against 	the
	CYA
	with 	the
	EEOC.
2

A
late 	filing
	which
	has 	been 	excused
	becomes
a
	timely
	filing
	under
	these
	regulations.
The
	Board's 	previous
	decisions
	which
	apply
	this
	regulation
primarily
	concern
	problems
	related
	to
	the
	mechanical
	process
	of
filing
	documents
	with
	PERB.
	In
	California
	School
	Employees
Association
	(Simeral)
	(1992)
	PERB
	Order
	No.
	Ad-233,
	the
	Board
excused
	a
	late 	filing
	that
	was
	inadvertently
	misaddressed
	and
delayed
	by
	the
	postal 	service.
	In
	Regents
	of
	the 	University
	of
California
	(Davis,
	Los
	Angeles,
	Santa 	Barbara
	and
	San
	Diego)
(1989)
	PERB
	Order
	No.
	Ad-202-H,
	the
	Board
	excused
	a
	filing
	that
was
	inadvertently
	sent
	by
	regular
	mail
	rather
	than
	by
	certified
mail;
	and,
	in 	Trustees
	of
	the
	California 	State
	University
	(1989)
PERB
	Order
	No.
	Ad-192-H,
	the
	late 	filing
	was
	excused
	due
	to
	an
inadvertent
	clerical
	error.
	By
	contrast,
	good
	cause
	was
	not
found
	in
	cases
	where
	the
	Board 	found
	that
	the
	party
	had
	failed
	to
make
	a
	conscientious
	effort
	to 	timely
	file
	or 	request
	an
extension
	of 	time.
This 	case
	more
	closely
	resembles 	unexcused
	cases 	because 	of
the 	reason
	Janowicz
	offers 	to
	justify
	his
	late 	filing:
	he
	waited
to
	file
	until
	he
	received
	a
	rulin~
	from
	another
	forum
	involving
different 	statutes.
	While
	there
	is
	no
	PERB
	precedent
	directly
	on
point,
	it
	is
	helpful 	to
	look
	at
	factors 	that 	California 	appellate
courts
	have 	used
	in 	resolving
	late 	filing
	requests. 	In 	general,
the 	cases 	hold
	that 	if
	an 	excuse
	is
	reasonable
	and
	credible, 	the
court 	will 	then 	focus
	on
	whether 	permitting
	a
	late 	filing
	would
3

be
	prejudicial
	to
	the
	opposing
	party.
3	
PERB's
	opinions
	have
	been
consistent
	with
	the 	court 	cases
	on
	this
	point.
4	
One
	reason
courts
	are
	willing
	to 	exercise
	leniency
	in
	this
	area
	is
	the 	well-
established
	doctrine
	that
	an
	appellate
	body
	is
	reluctant 	to
permit
	minor
	procedural
	defects 	to
	preclude
	an
	examination
	of
	a
controversy
	on
	its
	merits.
5
3
See,
	e.g.,
	Putnam
v.
	Clague
	(1992)
	3
	Cal.App.4th
	542
[5
	Cal.Rptr.2d
	25]
	(Putnam), 	which
	discussed 	the
	need
	to
	weigh
all
	factors.
	The
	court
	gave
	great
	weight
	to 	the
	fact 	that
	the
defendant
	had
	not
	shown
	actual 	prejudice
	from
	the 	delay
	and
	held
that:
If
	the
	excuse
	is
	credible
	and
	not
	clearly
unreasonable	
~	
..
	the 	court
	should
	consider
all
	other 	factors,
	including 	prejudice 	to
	the
defendant, 	before 	ordering 	dismissal
..
[Id.
	at
	557.]
Furthermore,
	the 	court 	refused
	to
	imply
	prejudice 	to
	the
defendant
	from
	a
	mere
	delay
	in 	service, 	since 	prejudice
	may
	be
inferred
	only
	from 	an
	unjustified
	and
	protracted
	delay
	in
service, 	particularly
	when
	the 	defendant 	has
	actual
	knowledge
	of
existence
	of
	the
	action.
	Discussing 	the 	defendant's
	failure
	to
show
	prejudice,
	the 	court 	noted
	that
	the 	defendant 	could
	not
	show
that
	a
	single
	item 	of 	evidence
	was
	lost
	due
	to
	the 	delay, 	nor
that
	a
	single
	witness
	was
	unable
	to
	recall
	material 	events:
	"All
he
	has
	actually
	shown
	is 	that
	time 	has
	passed.
	and
	'the
trial
	court
	may
	not
	presume
	prejudice
	simply
	by
	the 	passage 	of
time.'"
	[Id.
	at
	565-566;
	citations
	omitted.)
4
See,
	for
	example,
	University
	of
	California,
	Los
	Angeles
(1992)
	PERB
	Decision
	No.
	961-H, 	where
	the
	Board
	allowed
	a
	late
filing
	because,
	among
	other 	reasons, 	doing 	so 	posed
	no
	prejudice
to
	opposing 	counsel.
	See
	also,
	San 	Diego 	Adult 	Educators
	v.
Public
	Employment
	Relations
	Board
	(1990) 	223
	Cal.App.3d 	1124,
1131-1132
	[273
	Cal.Rptr. 	53], 	in
	which
	the
	Court 	of
	Appeal
	upheld
PERB's
	decision 	to
	allow
	late 	service 	of 	an
	unfair 	practice
charge 	since 	there
	was 	no 	showing 	of 	prejudice 	to 	the 	respondent.
5
See 	Pesce 	v. 	Deot. 	Alcoholic
	Bev.
	Control
	(1958) 	51
	Cal.2d
310, 	313 	[333
	P.2d 	15). 	This
	principle 	is 	also
	followed
	in
administrative 	agencies. 	Gibson v.
	Unemployment
	Ins. 	Appeals
	Bd.
(1973) 	9
	Cal.3d
	494 	[108
	Cal.Rptr.
	1]
	discusses 	cases 	which 	hold
that
	"whether 	good 	cause
	is
	shown
	for 	relief
	from an appeal
deadline 	depends 	upon 	the 	factual 	circumstances 	of-each 	case."
4

(Id.
	at
	498, 	fn. 	5;
	citations 	omitted.)
	See
	also, 	Flores 	v.
Unemployment
	Ins. 	Appeals 	Bd. 	(1973) 	30
	Cal.App.3d 	681
[106
	Cal.Rptr. 	543]).
In
	this
	case,
	the
	following
	factors
	were 	weighed
	in
	deciding
that
	good
	cause 	has
	not
	been
	shown.
	First,
	Janowicz
	made
	no
conscientious
	effort
	to
	file
	on
	time
	or 	request
	an
	extension 	of
time.
	Second,
	the
	merits
	of
	the
	case
	he
	presented
	in
	Youth
Authority
	were
	considered
	in
	Superior
	Court
	and
	a
	decision
	was
issued 	in
	favor
	of
	CYA.
	Third,
	in
	Youth
	Authority
	PERB
	again
considered
	and
	dismissed 	Janowicz's
	unfair practice
	charge 	and
complaint 	based
	on
	collateral
	estoppel.
	To
	reconsider 	those
rulings
	yet 	again
	because 	of
	a
	decision
	rendered
	by
	another
	forum
under
	provisions
	of
	a
	different 	statute
	would
	be 	unduly
burdensome
	to
	CYA
	and
	we
	exercise
	our
	discretion 	against
	excusing
the
	late
	filing.
ORDER
Frank
	D.
	Janowicz's 	request 	to
	accept
	his
	late 	filed
	request
for 	reconsideration
	of 	the 	Board's
	decision 	in 	State
	of
California
	(Department
	of
	Youth
	Authority)
	(1995)
	PERB
	Decision
No,	
1080-S
	is
	hereby
	DENIED.
Member
	Johnson
	joined 	in
	this
	Decision.
Chairman
	Caffrey's
	concurrence 	begins
	on page 	6.
5

CAFFREY,
	Chairman,
	concurring:
	I
	concur
	in
	the 	denial
	of
the
	request
	by
	Frank
	D.
	Janowicz
	(Janowicz)
	that
	the
	Public
Employment
	Relations
	Board
	(PERB
	or
	Board)
	accept
	his
	late 	filed
request 	for 	reconsideration
	of
	the 	Board's
	decision
	in State
	of
California
	(Department
	of
	Youth
	Authority)
	(1995)
	PERB
	Decision
No"
	1O80-S 	(Youth
	Authority).
	I
	write 	separately 	to
	clearly
state
	the
	reasons
	for
	my
	decision.
PERE
	Regulation
	32136
	provides,
	in 	part, 	that:
A
late 	filing
	may
	be
	excused
	in
	the
discretion
	of
	the
	board
	for
	good
	cause
	only.
Janowicz
	asserts 	that
	a
	ruling
	by
	the
	United
	States
	Equal
Employment
	Opportunity
	Commission
	(EEOC)
	supports
	his
	allegation
that
	the 	California
	Department
	of
	Youth
	Authority
	retaliated
against
	him
	for
	his 	protected
	activity
	in 	violation
	of
	section
3519(a) 	of
	the
	Ralph
	C.
	Dills
	Act
	(Dills
	Act)
. 1	
The
	Board
	in
Youth
	Authority 	dismissed 	Janowicz's
	unfair 	practice
	charge
	which
was
	based
	on
	that 	allegation.
	Janowicz 	argues
	that
	good
	cause
1
The
	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. 	For 	purposes 	of
this 	subdivision,
	"employee"
	includes 	an
applicant 	for
	employment
	or 	reemployment.
6

exists to excuse his late filed request for reconsideration
because the EEOC ruling only recently became available.
The documents presented by Janowicz indicate that the recent
EEOC ruling deals with his allegation that his employer
retaliated against him for filing a previous EEOC charge.
Janowicz has provided no information to indicate how that ruling
is relevant to his allegation before PERB that his employer
retaliated against him for his exercise of rights protected by
the Dills Act. Therefore, Janowicz has failed to demonstrate
that good cause exists to excuse his late filed request for
reconsideration of the Board's decision in Youth Authority.
7