Los Angeles Unified School District (Allums) (PERB 0237E)

STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HENRIENE ALLUMS,
Charging 	Party,
v.
LOS 	ANGELES 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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Case 	No. 	LA-CE-1267
PERB 	Decision No. 	237
September 	20, 	1982
____________________ )
Appearances: 	Henriene 	Allums, 	in 	pro 	per~ 	Harris 	E. 	Kershnar,
Attorney 	(O'Melveny 	& Meyers) 	for 	Los 	Angeles 	Unified 	School
District.
Before 	Jensen, 	Morgenstern 	and 	Jaeger, 	Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB) 	on 	appeal 	of 	the 	administrative 	law 	judge's
dismissal 	of 	a 	charge 	filed 	by Henriene 	Allums 	(hereafter
Allums) 	against 	the 	Los 	Angeles 	Unified 	School 	District
(hereafter 	District). 	Allums 	alleged 	that 	the 	District
violated 	subsection 	3543.S(a) 	of 	the 	Educational 	Employment
Relations 	Act 	(hereafter 	EERA)l 	by 	discriminating 	against 	her
lEERA 	is 	codified 	at 	Government 	Code 	sections 	3540 	et
seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	noted. 	Subsection 	3543.S(a) 	provides 	as
follows: It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to

in 	retaliation 	for 	filing 	a 	workers 	compensation 	claim. 	As
noted 	by 	the 	administrative 	law 	judge, 	the 	charge 	was 	filed 	on
December 	1, 	1980, 	and 	was 	based 	upon 	conduct 	occurring
approximately 	12 	months 	earlier. 	The 	District 	filed 	a 	timely
motion 	to 	dismiss 	the 	charge, 	based 	upon 	EERA's 	statute 	of
limitations 	contained 	at 	subsection 	3541.S(a} (1).2 	The
administrative 	law 	judge 	dismissed 	the 	charge, 	finding 	that 	the
statute 	of 	limitations 	applied. 	Allums 	appealed, 	arguing 	that
the 	statute 	of 	limitations 	was 	tolled 	by 	the 	filing 	of 	a 	charge
against 	the 	District 	with 	the 	U.S. 	Equal 	Employment 	Opportunity
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
2subsection 	3541.S(a} (1) 	provides, 	in 	pertinent 	part, 	as
follows:
The 	initial 	determination 	as 	to 	whether 	the
charges 	of 	unfair 	practices 	are 	justified,
and, 	if 	so, 	what 	remedy 	is 	necessary 	to
effeptuate 	the 	purposes 	of 	this 	chapter,
shall 	be 	a 	matter 	within 	the 	exclusive
jurisdiction of 	the 	board. 	Procedures 	for
investigating, 	hearing, 	and 	deciding 	these
cases 	shall 	be 	devised 	and 	promulgated 	by
the 	board 	and 	shall 	include 	all 	of 	the
following:
(a} 	Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	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 	.•••
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Commission 	within 	six 	months 	of 	the 	allegedly 	violative
District 	conduct. 	She 	placed 	primary 	reliance 	upon 	the 	case 	of
Elkins 	v. 	Derby 	(1974) 	12 	Cal.3d 	410 	[115 	Cal.Rptr. 	641] 	and
the 	doctrine 	of 	equitable 	tolling 	expressed 	therein. 	That
argument 	was 	considered 	by 	the 	administrative 	law 	judge 	in 	his
ruling 	on 	the 	motion 	to 	dismiss. 	For 	the 	reasons 	set 	forth 	by
the 	administrative 	law 	judge, 	we 	find 	the 	doctrine 	of 	equitable
tolling 	inapplicable 	in 	the 	circumstances 	of 	this 	case. 	Thus,
we 	affirm 	the 	dismissal 	of 	the 	charges. 	We 	note 	that 	the
administrative 	law 	judge 	dismissed 	with 	leave 	to 	amend.
Because 	the 	charges 	here 	are 	barred 	by 	the 	statute 	of
limitations, 	there 	is 	no 	reason 	to 	grant 	leave 	to 	amend. 	We
shall 	modify 	the 	administrative 	law 	judge's 	order 	accordingly.
ORDER
Upon 	the 	foregoing 	decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board 	ORDERS 	that:
The 	charges 	filed 	by 	Henriene 	Allums 	in 	Case 	No. 	LA-CE-1267
are 	hereby 	DISMISSED 	in 	their 	entirety, 	without 	leave 	to 	amend.
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PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE 	OF 	CALIFORNIA
.HENRIENE 	ALLUMS,
Charging 	Party,
v.
LOS 	ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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__________________ )
Unfair 	Practice
Case 	No. 	LA-CE-1267
NOTICE OF 	REFUSAL
TO 	ISSUE COMPLAINT
AND 	DISMISSAL WITH
LEAVE 	TO AMEND
(1/29/81)
NOTICE 	IS 	HEREBY GIVEN 	that 	no 	complaint 	will 	be 	issued 	in
the 	above-captioned 	unfair 	practice 	charge 	and 	that 	it 	is
dismissed 	with 	leave 	to 	amend 	within 	twenty 	(20) 	calendar 	days
after 	service 	of 	this 	Notice.
This 	char-ge 	was 	filed 	on 	December 	1, 	1980. 	The 	Charging
Party 	alleged 	a 	violation 	of 	Government 	Code 	section 	3543.S(a),
under 	which 	it 	is 	unlawful 	for 	a 	public 	school 	employer 	to
"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 	[EERA]."
Specifically, 	the 	Charging 	Party 	alleged 	"denial of
transfer, 	harrassment, 	and 	intimidation" 	by 	the 	Respondent
District 	as 	a 	result 	of 	her 	filing 	of 	a 	workers' 	compensation
claim 	based 	on 	"constant 	exposure 	to 	nervous 	stress 	and
strain." 	She 	claimed 	that 	two 	doctors 	had 	recommended 	a

transfer 	as 	a 	possible 	solution 	to 	her 	problem, 	but 	that 	the
Los 	Angeles 	Unified 	School 	District 	(hereafter 	District) 	denied
her 	the 	opportunity 	to 	transfer 	to 	another 	school 	in September
of 	1979. 	She 	cited 	her 	willingness 	to 	relocate 	and 	her 	efforts
to 	find 	placement 	and 	claimed 	that 	the 	District 	would 	not
permit 	her 	to 	interview 	at 	one 	school 	and 	prevented 	her
acceptance 	at 	another. 	As 	a 	result, 	she 	did 	not 	work 	from
September 	to 	December 	1979, 	with 	loss 	of 	pay 	and 	seniority.
The 	alleged 	harrassment 	and 	intimidation 	also 	involved 	a 	threat
to 	"send 	my 	credentials 	to 	Sacramento 	for 	suspension" 	if 	the
Charging 	Party 	did 	not 	accept 	reassignment 	to 	her 	existing
position.
The 	District 	moved 	to 	dismiss 	on 	the 	grounds 	that 	the
charge 	was 	time 	barred. 	Under 	Government 	Code 	section
3541.S(a), 	the 	Public 	Employment 	Relations 	Board 	(hereafter
Board) 	may 	not 	"issue 	a 	complaint 	in 	respect 	of 	any 	charge
based 	upon 	an 	alleged 	unfair 	practice 	occurring 	more 	than 	six
(6) 	months 	prior 	to 	the 	filing 	of 	the 	charge." 	The 	District
contends 	that 	the 	Charging 	Party 	has 	not 	met 	this 	six-month
limitation 	because 	she 	filed 	a 	charge 	on
December 	1, 	1980, 	based 	on 	events 	which 	occurred 	before 	or
during 	the 	period 	September 	through 	December 	1979.
The 	Charging 	Party's 	response 	to 	this 	motion 	lists 	a 	number
of 	steps 	she 	has 	taken 	in 	"exhausting 	all 	of 	the 	resources
available" 	to 	her. 	The 	list 	includes 	letters 	to 	legislators
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and 	other 	public 	officials 	and 	filings 	with 	the 	Office 	of 	Civil
Rights 	(hereafter 	OCR) 	and 	the 	Equal 	Employment 	Opportunity
Commission 	(hereafter 	EEOC). 1
The 	question 	at 	hand 	is 	whether 	any 	of 	these 	measures
sufficies 	to 	toll 	the 	six-month 	limitation. 	An 	express
provision 	for 	tolling 	is 	found 	in 	section 	3541.S(a) 	for 	cases
in 	which 	the 	Charging 	Party 	is 	making 	use 	of 	grievance
machinery 	under 	an 	agreement. 	But 	nothing 	in 	the 	record 	here
indicates 	that 	the 	Charging 	Party 	has 	attempted 	to 	use
grievance 	procedures.
Another 	possible 	ground 	for 	tolling 	the 	limitation 	derives
from 	the 	case 	of 	Elkins 	v. 	Derby 	(1974) 	12 	Cal.3d 	410 	[525 	P.2d
81, 	115 	Cal.Rptr. 	641]. 	In 	Elkins, 	the 	California 	Supreme
Court 	was 	presented 	with 	the 	issue 	of 	whether 	the 	filing 	of 	a
workers' 	compensation 	claim 	tolled 	the 	statute 	of 	limitations
for 	a 	tort 	action. 	The 	settled 	policy 	had 	been 	that 	the
statute 	of 	limitations 	for 	a 	civil 	action 	was 	tolled 	during 	the
time 	-caken 	up by 	the 	exhaustion 	of 	adminis-crative 	re::r,edies
prerequisite 	to 	the 	action. 	In 	Elkins, 	the 	Court 	expanded 	this
principle 	and 	held 	that 	where 	a 	party 	has 	two 	alternative
remedies 	for 	a 	single 	injury 	and 	pursues 	one 	in 	good 	faith, 	the
statute 	of 	limitations 	is 	tolled 	for 	the 	second 	remedy. 	The
Court 	reasoned 	that 	the 	filing 	of 	the 	first 	claim was
1see 	42 	u.s.c. 	sec. 	2000 	et 	seq.
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sufficient 	to 	provide 	timely 	notice 	to 	the 	defendant 	of 	his
need 	to 	preserve 	relevant 	evidence. 	Since 	such 	timely 	notice
is 	the 	primary 	purpose 	of 	limitation 	statutes, 	there 	was 	no
need 	to 	require 	the 	plaintiff 	to 	file 	two 	actions 	at 	the 	outset.
In 	the 	instant 	case, 	however, 	none 	of 	the 	steps 	listed 	by
the 	Charging 	Party 	satisfies 	Elkins. 	Letters 	to 	public
officials 	do 	not 	constitute 	administrative 	remedies. 	The 	OCR
proceedings 	were 	closed 	on 	January 	25, 	1980,· more 	than 	six
months 	prior 	to 	the 	filing 	of 	the 	charge. 	The 	EEOC 	proceedings
appear 	not 	to 	have 	been 	closed, 	but 	they 	also 	do 	not 	constitute
an 	alternative 	remedy 	for 	the 	matters 	which 	form 	the 	subject 	of
the 	unfair 	practice 	charge. 	Harrassment 	and 	denial of 	a
transfer 	for 	filing 	a 	workers' 	compensation 	claim 	do 	not 	form
the 	basis 	of 	EEOC proceedings. 	Accordingly, 	the 	charge 	should
be 	dismissed 	for 	failure 	to 	file 	within 	the 	six-month
limitation 	period.
This 	refusal 	to 	issue 	a 	complaint 	is 	made 	pursuant 	to 	PERB
Regulation 	32630(a). 	If 	the 	Charging 	Party 	chooses 	to 	amend,
the 	amended 	charge 	must 	be 	filed 	within 	twenty 	(20) 	calendar
days. 	(PERB 	Regulation 	32630(b).) 	Such 	amendment 	must 	be
actually 	received 	at 	the 	Los 	Angeles 	Regional 	Office 	of 	the
PERB 	before 	the 	close 	of 	business 	(5:00 	p.m.} 	on
February 	18, 	1981, 	in 	order 	to 	be 	timely 	filed. 	(PERB
Regulation 	32135.)
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If 	the 	Charging 	Party 	chooses 	not 	to 	amend, 	she 	may 	obtain
review 	of 	this 	Refusal 	to 	Issue 	Complaint 	by 	filing 	an 	appeal
to 	the 	Board 	itself 	within 	twenty 	(20) 	calendar 	days 	after
service 	of 	this 	Notice. 	(PERB 	Regulation 	32630(b}.) 	Such
appeal 	must 	be 	actually 	received 	by 	the 	Executive Assistant 	to
the 	Board 	before 	the 	close 	of 	business 	(5:00 	p.m.) 	on
February 	18, 	1981, 	in 	order 	to 	be 	timely 	filed. 	(PERB
Regulation 	32135.} 	Such 	appeal 	must 	be 	in 	writing, 	must 	be
signed 	by 	the 	Charging 	Party 	or 	her 	agent, 	and 	must 	contain 	the
facts 	and 	arguments 	on 	which 	the 	appeal 	is 	based. 	(PERB
Regulation 	32630(b}.) 	The 	appeal 	must 	be 	accompanied 	by 	proof
of 	service 	upon 	all 	parties. 	(PERB 	Regulation 	32135, 	32142 	and
32630 (b) • )
Dated: 	January 	29, 	1981
Bruce 	Barsook
Hearing 	Officer
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