State of California (Department of Consumer Affairs) (PERB 0394S)

STATE 	OF 	CALIFORNIA
DECISION 	OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM THOMAS 	FLINT,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF CONSUMER AFFAIRS),
Respondent.
Case No. 	S-CE-186-S
PERB Decision No. 	394-S
August 10, 	1984
Appearances; 	William Thomas Flint, 	in propria persona;
Christopher W. 	Waddell, 	Attorney 	(Department 	of Personnel
Administration) 	for 	the State of California 	(Department of
Consumer Affairs).
Before Hesse, Chairperson; 	Tovar and Burt, Members.
DECISION
BURT, 	Member: 	This case 	is before 	the Public Employment
Relations Board 	(PERB 	or Board) 	on charging 	party's 	appeal of
the 	regional 	attorney's 	dismissal 	of 	charges 	alleging 	that 	the
State of California 	(Department 	of 	Consumer Affairs) 	unlawfully
discharged William Thomas Flint 	discriminatorily or 	in 	reprisal
for protected activity, 	thereby 	violating 	subsection 3519(a) 	of
the State Employer-Employee Relations Act 	(SEERA).1
After 	a 	review of 	the 	entire 	record 	in 	this matter, 	the
Board 	adopts 	the 	attached 	dismissal 	as 	the 	decision of 	the
1The 	SEERA 	is 	codified 	at Government Code 	section 	3512
et 	seq.
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Board 	itself. 	Additionally, 	with 	regard 	to 	the 	propriety of
the late 	amendment 	sought 	by Flint, 	we 	note that the 	regional
office 	dismissed 	the 	charge 	for 	failure 	to 	state 	a prima 	facie
case. 	The charging party was 	given seven days 	in which 	to
amend 	or 	withdraw 	the charges, 	and 	he 	failed 	to do so.
PERB 	has 	indicated 	that mitigating 	circumstances 	will
sometimes 	excuse 	a party for 	missing 	a deadline 	to 	amend 	a
charge. 	But 	in Hanford Joint Union High School District
(2/1/78) 	PERB 	Decision No. 	46, 	the Board 	refused 	to allow a
late 	amendment where 	the 	filing 	party offered 	no explanation
for 	its 	tardiness. 	Since 	the 	charging party 	in 	the 	instant
case 	offered 	no explanation 	for 	failing 	to 	amend 	his 	charge
within 	the 	time 	allowed, 	he 	will 	not 	be 	permitted 	to do 	so on
appeal.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in this 	case, 	the Public Employment
Relations Board 	hereby DISMISSES 	the 	charges 	filed 	by
William Thomas 	Flint 	against 	the State 	of 	California
(Department of Consumer Affairs).
Chairperson Hesse 	and Member Tovar 	joined 	in 	this Decision.
N2

STATE OF 	CALIFOR 	GEORGE DEUKMEJIAN. Governor	NIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 	18th Street, Suite 102
Sacramento, California 95814
(916) 322-3198
July 26, 	1983
William Thomas 	Flint
2755 Hyannis Way
Sacramento, 	CA 	S5827
Re: 	Flint v. 	State of California 	(Department of
Consumer 	Affairs)
Charge No. 	S-CE-18&-S
Dear Mr. Flint:
I 	indicated to you in ray letter dated July 18, 	1983, 	that the
above-referenced charge did not 	state 	a prima 	facie case, 	and
that unless you amended 	the charge 	to 	state 	a prima facie case
or withdrew it prior to July 25, 	1983, 	it would be dismissed.
I 	have not received either 	a 	request for 	withdrawal or 	an
amended charge 	from you 	and 	am 	therefore dismissing 	this charge
for the reasons 	stated 	below.
The above 	referenced charge alleges 	that you were 	rejected 	from
probation and dismissed by the State of California, 	Department
of Consumer Affairs, 	(State) 	without notice prior 	to the
effective date of the dismissal, 	without materials upon which
the dismissal was based and without an opportunity 	to 	respond
prior 	to the effective date of 	the dismissal. 	This conduct 	is
alleged to violate section 3519 	and 	3519.5 of 	the State
Employer-Employee Relations Act 	(SEERA).
My 	investigation revealed 	the 	following: 	On December 	9, 	1982,
you began working 	with 	the 	State 	in the Board 	of Accountancy 	as
an Associate Governmental Program Analyst. 	You were to be on
probation for 	the 	first six months of 	employment. 	On
February 	8, 	1983 	you were given your 	first report of
performance 	for 	probationary employee 	which 	contained 	ratings
of 	either 	unacceptable 	or 	improvement needed 	with 	the 	over-all
rating being unacceptable. 	On February 22, 	1983, 	your
supervisor, 	Delia Bousquet, 	wrote a personal and confidential
memorandum to 	the department's 	legal office 	enclosing 	a copy 	of
your 	initial evaluation and your 	rebuttal and 	stating, 	"I wish
to proceed 	with 	rejection on probation,"
On April 8, 	1983, 	you 	received a 	second 	report of performance
for probationary 	employee 	which 	contained 	ratings 	of

William Thomas 	Flint
July 26, 	1983
Page 	2
unacceptable. 	On April 	29, 	1983, 	you were served with a Notice
of 	Rejection During 	Probation 	and 	ordered 	to 	leave 	the building
with your possessions 	by 	5:00 p.m. 	that evening. 	The Notice of
Rejection During Probation contains, 	among other 	things, 	the
following:
4. 	You have 	failed, 	refused or otherwise .
been 	unable 	to communicate effectively
with or 	to be 	responsive 	to your
supervisor. 	For example, 	you had been
instructed 	verbally and 	in writing on 	at
least 	three 	occasions prior 	to
March 24, 	1983 	that your handwritten
draft 	letters were 	to be 	reviewed by
your 	supervisor prior 	to 	typing.
Thereafter, 	you continued 	to refuse to
comply with 	this 	instruction. 	When
asked 	for an explanation 	for 	your
failure to 	follow 	instructions, 	you 	told
your 	supervisor 	that 	she 	should 	contact
your 	union 	representative 	regarding 	any
"agreement" 	you 	had made concerning 	such
instructions. 	The next day, on
March 29, 	1983, 	you 	informed your
supervisor 	that you 	had 	never 	"agreed"
to allow her 	to 	review your 	draft
letters prior 	to 	typing. 	Although you
finally did 	agree 	to 	follow your
supervisor's 	instructions, 	you informed
her 	that 	further 	questions 	concerning
this matter 	should 	be directed 	to your
union 	representative.
Your 	inability to discuss 	simple
instructions with your 	supervisor, 	without
the 	intervention of third parties, 	prevent
you 	from performing 	your 	job 	in a
professional and 	efficient 	manner.
Based on 	these 	facts, 	the 	above-referenced 	unfair practice
charge does 	not 	state a prima 	facie violation of 	the SEERA for
the 	reasons explained 	below.
Although 	you 	allege 	that 	sections 	3519 	and 	3519.5 of 	the SEERA
have been violated, 	only violation of section 	3519 	will be
discussed 	as 	section 	3519.5 	relates 	to 	unfair 	practices
committed 	by employee organizations, 	and 	the 	facts of 	this
charge do not 	support such 	a violation. 	Based on my review of

. ..
William 	Thomas 	Flint
July 26, 	1983
Page 3
the case, 	it 	appears that 	the only theory under which your case
could 	proceed 	would 	be that of discrimination which 	would 	be 	a
violation of 	section 	3519(a), 	Violation of that section
requires allegations that: 	(1) 	an employee has exercised
rights under 	the SEERA; 	(2) 	the employer has 	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 	rights
guaranteed by the SEERA. ' Carlsbad Unified School District
(1/30/79) PERB Decision Ho. 	39; 	Novato Unified School District
(4/30/82) 	PERB Decision No. 	210. 	State of California
(Department of Developmental 	Services) 	(7/18/82) 	PERB Decision
No. 	228-S. 	Thus, 	the charging party must demonstrate a
connection 	between 	the 	employee's 	protected 	activity 	and 	the
employer's 	adverse 	action against 	the 	employee.
Although you 	have 	demonstrated 	that you had 	been 	involved 	with
an employee organization, 	there 	is no evidence 	that 	this
involvement played 	a 	role 	in your 	rejection 	from probation.
Both of your performance 	reports 	showed 	several areas 	in which
your 	supervisor 	found your work 	to be less 	than acceptable. 	In
fact, 	according 	to the February 22 memorandum, your 	supervisor
had made 	the decision 	to 	terminate you at 	that point. 	The fact
that 	two months 	later 	she mentioned your 	involvement with 	an
employee organization 	in 	the 	final notice of 	rejection 	is
insufficient 	to establish 	the 	"because of" connection 	necessary
to make out a prima 	facie case.
Pursuant 	to Public 	Employment 	Relations Board 	regulation
section 	32635 	{California Administrative Code, 	title 8,
part III), you may appeal the 	refusal to issue a complaint
(dismissal) 	to 	the Board 	itself.
Right 	to Appeal
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
(section 32635(a)). 	To be 	timely filed, 	the original and five
(5) 	copies 	of 	such 	appeal must be actually received by 	the
Board 	itself 	before 	the close of 	business 	(5:00 p.m.) 	on
August 15, 	1983, 	or 	sent 	by 	telegraph or certified United
States mail postmarked 	not 	later 	than August 15, 	1983 	(section
32135). 	The Board's address 	is:
Public Employment 	Relations 	Board
1031 	18th Street
Sacramento, CA 95814
•

William Thomas 	Flint
July 26, 1983
Page 4
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 	(5) 	copies of a statement 	in opposition within 	twenty
(20) 	calendar 	days following 	the date of 	service of 	the appeal
(section 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 	the 	document 	filed with 	the Board
itself 	(see 	section 	3214C 	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 	(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 	(section 32132).
1
Final 	Date
If no appeal 	is 	filed within the 	specified 	time limits, 	the
dismissal will become 	final when 	the 	time 	limits have expired.
Very 	truly yours,
DENNIS M. 	SULLIVAN
General 	Counsel
By
Robert 	Thompson
Regional 	Attorney
.. .