Los Angeles Unified School District (Bracey) (PERB 0588E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
GLADYS M. 	BRACEY,
Charging 	Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-2307
PERB 	Decision 	No. 	588
September 25, 	1986
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Appearance: 	Gladys M. 	Bracey, 	on her own behalf.
Before Hesse, 	Chairperson; Morgenstern, 	Burt, 	Porter and Craib,
Members.
DECISION
This 	case 	is 	before 	the 	Public Employment 	Relations 	Board
(Board) 	on 	appeal 	by the charging 	party of 	the Board 	agent's
partial 	dismissal, 	attached hereto, 	of 	her charge 	alleging 	that
the 	Los 	Angeles 	Unified 	School 	District 	violated 	section 	3543.5
of 	the Educational 	Employment Relations Act 	(Gov. 	Code 	sec.
3540 	et 	seq.).
We 	have 	reviewed 	the 	partial 	dismissal 	and, 	finding 	it 	free
from prejudicial 	error, 	adopt 	it 	as 	the Decision of 	the Board
itself.
ORDER
That 	portion of 	the unfair 	practice 	charge 	in case
No. 	LA-CE-2307 	alleging violations 	of 	the Education Code 	is
hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
By 	the 	BOARD
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______________ )

STATE 	OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN. Govmer
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD.. SUITE 1001
LOS ANGELES, CALIFORNIA 	90010
(213) 734-3127
May 1, 1986
Gladys M. Bracey
Ret 	LA-CE-2307, Gladys M. Bracey v. Los Angeles Unified
School District,
PARTIAL DISMISSAL OF UNFAIR PRACTICE CHARGE
Dear Ms. Bracey:
The above-referenced charge alleges that you have not been paid
full disability pay under Education Code 44942 by the Los
Angeles Unified School District. 	The first amendment to charge
alleges 	that the District discriminated against you by claiming
you are mentally 	incompetent in retaliation for protected
activities, 	and that the District violated certain Education
Code provisions. 	This conduct is alleged to violate Government
Code section 3543.5 of the Educational Employment Relations Act
(EERA).
I indicated to you 	in my attached letter dated April 18, 	1986
that the 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 accordingly. 	You
were further advised that unless you amended these allegations
to state a prima facie case, 	or withdrew them prior to April
25, 1986, 	they would be dismissed.
On April 24, 1986, we agreed to an extension of time until
April 28, 	1986 to allow you to consult an attorney. 	You filed
a first amendment to the charge on April 28, 1986.
I am dismissing the charge because 	it fails to state a prima
facie case based on the facts and reasons contained in my April
18, 1986 letter.
The first amendment to the charge alleges additional violations
of the Education Code which this Board does not have

May 1, 	1986
LA-CE-2307
Page 	2
jurisdiction 	to 	remedy 	as 	you were 	previously 	advised. 	For
this 	reason 	these 	aspects 	of 	the 	first "amendment 	to 	the charge
will be 	dismissed.	will
You 	may 	obtain 	a 	review of 	this 	dismissal 	of 	the 	charge 	and
portions 	of 	the 	first 	amendment 	to 	charge 	by 	filing 	an appeal
to 	the Board 	itself 	within 	twenty 	(20) 	calendar 	days 	after
service 	of 	this 	dismissal 	(California Administrative 	Code,
title 8, part III, 	section 32635). 	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 May 	21, 	1986, 	or sent by telegraph or certified United
States mail postmarked 	not 	later 	than May 	21, 	1986 	(section
32135). 	The Board's address is:
Public Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 	95814
If you 	file a 	timely 	appeal of 	the 	refusal, 	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 	each copy 	of 	a document 	served 	upon 	a
party or 	filed with 	the Board 	itself. 	(See 	section 	32140 	for
the 	required 	contents 	and 	a 	sample 	form.) 	The documents 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 	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).

May 1, 	1986
LA-CE-2307
Page 3
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,
Jeffrey 	Sloan
Acting 	General 	Counsel
Barbara 	T. 	Stuart
Regional 	Attorney
cc: 	Richard N. 	Fisher, 	Esq.
Richard 	J. 	Schwab, 	Esq.
Attachment
BTS:eb

STATE 	OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN.
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 Wilshire Blvd., Suite' 1001
LOS 	ANGELES 	CALIFORNIA 	90010
(213) 736-3127
April 18, 1986
Gladys m. Bracey
Re: 	LA-CE-2307, Gladys M. Bracey y.
Los Angeles Unified School District
Dear Ms. Bracey:
The above-referenced charge alleges that you have not been paid
full disability pay under Education Code 44942 by the Los
Angeles Unified School District, 	This conduct is alleged to
violate Government Code section 3543.5 of the Educational
Employment Relations Act (EERA).
My investigation of the charge revealed the following facts.
On or about May 27, 	1985, the police delivered to your husband
at your home a letter dated May 20, 	1985 which read as follows:
Dear Ms. Bracey:
As set forth 	in the letter to you dated
May 13, 1985", the Board of Education has
voted to suspend you 	from service until
completion of the procedure set forth in
Education Code section 44942.
E	Thi	E 	s is to confirm that the aforementioned
letter advised you of an examination 	that
has been scheduled for you at 1:00 p.m. 	on
Tuesday, May 23, 1985 at the medical offices
located at 610 S. Euclid Avenue, Pasadena,
California. 91106.
As you were informed in the letter of
May 13, 	the Education Code provides that the
examination is to be conducted by three 	(3)
psychiatrists selected by you 	from the
following list:
1. 	R. Sloan, M.D.
2. 	R. Burgoyne, M.D.
3. 	Barry Kramer, M.D.
4. 	Tim Bottelo, M.D.
5. 	Javad 	Razani, 	M.D.

April 18, 	1986
LA-CE-2307
Page 	2
It 	is 	important 	that you contact 	me 	by
Hay 	23, 	1985 	to 	indicate 	the 	doctors you
have 	selected. 	My 	telephone 	number 	is 	(213)
625-6245, 	and my mailing 	address 	is
450 North Grand Avenue, 	Los Angeles,
California 	90012.
Very 	truly yours,
Robert Witter, Director
Employee 	Services 	Section
Personnel 	Division
You did not contact Mr. 	Witter or 	otherwise respond 	to 	the
letters 	Subsequently you 	received 	from 	the District 	three
checks which you describe 	as 	"half 	pay."
The District 	states 	that 	the checks 	were payment 	far 	690 	hours
of accrued 	sick 	leave.. 	The 	District placed you 	on unpaid
mandatory 	sick 	leave effective June 	4, 	1985 	for 	a 	two 	year
period ending 	June 3, 	1987.. 	This was done when you failed 	to
submit 	to 	the 	psychiatric 	evaluation provided 	for 	in Education
Code 	section 	44942.1
1Education 	Code 	section 	44942 provides 	in pertinent part:
Suspension 	of 	transfer 	of 	certificated 	employees 	on 	ground 	of
mental illness; 	Psychiatric 	examination; 	Mandatory 	sick
leave, 	(a) 	Any certificated 	employee may 	be 	suspended or
transferred 	to 	other 	duties 	by 	the 	governing 	board 	if 	the 	board
has 	reasonable cause 	to 	believe that the employee 	is 	suffering
from mental 	illness 	of 	such 	a degree as 	to 	render 	him
incompetent to perform his duties. . .
(b) 	The governing 	board shall forthwith, 	upon any suspension or
transfer 	hereunder, 	give to 	the employee 	a 	written statement of
the facts 	giving 	rise 	to 	the board's 	belief, 	and 	an opportunity
to 	appear 	before 	the 	board 	within 	10 	days 	to 	explain or 	refute
the charges.
(c) 	If, 	after 	the 	employee's appearance before 	the board, 	the
board 	decides 	to 	continue 	the 	suspension or 	transfer, 	or 	if 	the
employee chooses 	not 	to 	appear 	before 	the 	board, 	the 	employee
shall then be offered, 	in writing, 	the 	opportunity of 	being
examined, by 	a panel 	of 	three psychiatrists 	selected 	by him 	from
a 	list 	of 	psychiatrists 	to 	be 	provided 	by 	the 	board. 	To 	assist

April 13, 	1986
LA-CE-2307
Page 	3
the panel 	in making 	their determination, 	the 	governing board
shall 	supply 	to 	the panel, 	prior 	to 	the 	date 	scheduled 	for 	the
psychiatric examination, 	a 	list of 	the 	duties 	of 	the 	position
from which 	the 	employee was suspended 	or 	transferred. 	The
employee shall continue, to 	receive 	his 	regular 	salary 	and 	all
other 	benefits 	of 	employment during 	the period, dating 	from his
suspension 	to 	the 	filing of 	the 	report of 	the 	panel 	with the
governing 	board.
(d) 	The psychiatric 	examination shall be 	conducted 	at 	school
district 	expense within 15 	days of 	any 	suspension 	or 	transfer
ordered 	hereunder. 	The 	employee 	shall submit 	to 	the
examination, 	but 	shall 	be 	entitled 	to 	be 	represented by 	a
psychiatrist or physician 	of 	his 	own choice, 	and 	any 	report of
the psychiatrist 	or 	physician 	selected 	by 	him 	shall 	be 	filed
with 	the panel 	at 	the 	request 	of 	the 	employee.
A written 	report 	of 	the panel 	on 	the 	examination 	of 	the
suspended 	or 	transferred 	employee 	shall 	be 	submitted 	to 	the
governing 	board 	within 	10 	days 	after 	completion of 	the
examination. 	A copy 	shall 	be 	supplied 	to 	the 	employee 	upon
request. 	The 	report 	shall contain 	a 	finding 	on 	whether 	the
employee is 	suffering 	from 	mental 	illness 	of 	such 	a 	degree 	as
to 	render 	him incompetent 	to perform his 	duties.
(e) 	If 	a majority 	of 	the panel conclude 	that 	the 	employee
should 	be 	permitted 	to 	return 	to 	his 	duties, 	no 	written 	record
of 	the 	suspension 	or 	of 	the 	determination 	of 	the panel 	shall 	be
retained, 	and 	in 	all 	respects 	any 	written 	record 	concerning 	the
employee 	shall appear 	as 	it did 	before 	the 	suspension 	was 	made.
(f) 	If a 	majority 	of 	the panel 	find 	in their 	report 	that 	the
employee 	is 	suffering 	front mental 	illness 	of 	such 	a degree 	as
to 	render 	him 	incompetent 	to perform 	his 	duties, 	the governing
board may, 	upon 	receipt of 	the 	report, 	place 	the employee on
mandatory 	sick 	leave 	of 	absence. 	Any mandatory 	sick 	leave 	of
absence 	imposed 	under 	this 	section 	shall 	not 	exceed 	two 	years,
during 	which 	period 	the 	employee 	shall 	be 	entitled 	to 	sick
leave, 	hospital 	and 	medical 	benefits 	which 	he 	accrued 	during
his 	employment 	by 	the 	governing 	board 	but 	only 	to 	the 	extent
of 	such 	accrual. 	....
Subsection 	44942(c) 	provides 	that 	an enployee 	shall continue 	to
receive his 	regular 	salary 	and 	all 	other 	benefits 	of 	employment
until 	the 	filing 	of 	the 	psychiatric 	panel's 	report 	with 	the
District's 	governing 	board. 	However, 	subsection 	44942(d)

April 18, 	1986
LA-CE-2307
Page 	4
provides 	that 	the 	employee 	shall 	submit 	to 	the 	examination.
The 	District 	apparently placed you 	on, mandatory 	sick 	leave
under 	subsection 	44942(f) 	when 	you 	failed 	to 	respond 	to 	its May
20, 	1935 letter.
The 	collective 	bargaining 	agreement 	between your 	exclusive
representative, 	the United Teachers 	- 	Los Angeles and 	the
District 	does 	not 	contain 	any provision 	pertinent 	to 	your
situation 	or 	section 44942.
The 	Public 	Employment 	Relations Board does 	not 	have
jurisdiction 	to 	remedy 	alleged 	noncompliance 	with 	the 	Education
Code. 	Government 	Code 	section 	3541.3, 	defining 	the powers and
duties of 	the Board, 	authorizes the board 	in subsection 	(i):
To 	investigate 	unfair practice charges or
alleged 	violations 	of 	this 	chapter, 	and 	take
such 	action and stake such determinations 	in
respect 	of 	such charges 	or 	alleged
violations 	as 	the 	board 	deems 	necessary 	to
effectuate the policies 	of 	this chapter.
[Emphasis 	added.]
See 	also 	section 	3541.5 governing 	unfair practices; 	Los Angeles
Council 	of 	School 	Nurses 	v. 	Los Angeles Unified 	School 	District
(1980) 	113 	Cal.App.3d 	777; 	and 	Fresno Unified 	School District
v. 	National Education Association 	(1981) 	125 	Cal.App.3d 	259.
Since the 	Board 	does 	not 	have 	jurisdiction 	to remedy alleged
violations of 	the Education. Code, 	the charge will 	be dismissed.
A copy of 	this 	letter 	will 	be 	sent 	to your 	attorney, 	Richard 	J.
Schwab, 	Esq., 	who 	I understand 	is 	representing you regarding
the Education 	Code 	section 	44942 	issue.
Opportunity 	to 	Amend
For 	the 	reasons 	stated 	above, 	the charge 	as 	presently written
does 	not 	state 	a 	prima 	facie 	violation of 	the 	EERA. 	If 	you
feel 	that 	there are 	facts or legal arguments which, would
require 	a 	different conclusion, 	an 	amended charge 	should 	be
prepared 	on 	a 	standard 	PERB 	unfair 	practice 	charge 	form clearly
labeled 	First Amended Charge, 	should contain 	all 	the
allegations 	you 	wish 	to 	make 	and 	be 	signed 	under 	penalty 	of
perjury. 	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 	by

April 18, 	1936
LA-CE-2307
Page 	5
April 	25, 	1986, 	I 	shall dismiss your charge. 	If you have any
questions 	regarding 	how 	to 	proceed, 	please call me 	at 	(213)
736-3127.
Sincerely, JEFFREY SLOAN
Acting 	General 	Counsel
Barbara T. 	Stuart
Regional 	Attorney
cc: 	Richard J. 	Schwab, 	Esq.
BTS:eb