State of California (Department of Health Services) (PERB 0269S)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DORIS MCKENNEY,
Charging 	party,
v.
STATE 	OF CALIFORNIA 	(DEPARTMENT 	OF
HEALTH SERVICES),
Respondent.
Case No. 	LA-CE-38-S
PERB Decision No. 	269-S
December 22, 	1982
Appearances; 	David Longstreet, 	Attorney 	(Bet Tzedek 	Legal
Services) 	for Doris McKenney; 	Barbara T. 	Stuart, Attorney for
State of California 	(Department of Health 	Services).
Before Gluck, Chairperson; 	Tovar and Jaeger, Members.
DECISION
TOVAR, 	Member: 	Doris McKenney appeals 	a hearing 	officer's
dismissal without 	leave 	to 	amend 	of her 	amended charge 	that 	she
was 	unlawfully 	dismissed 	from 	state 	service 	by 	the 	State 	of
California, 	Department of Health Services 	(Department). 	As
grounds 	for 	the dismissal, 	the hearing officer 	found 	that:
(1) 	the charge 	is 	based 	upon a matter 	which 	occurred more 	than
six months prior 	to 	the 	filing of 	the 	charge and 	is 	therefore
barred 	by 	the 	statute 	of 	limitations 	set 	forth 	at 	subsection
3514.5(a) 	of 	the 	State 	Employer-Employee 	Relations Act 	(SEERA
or 	Act);'1 (2) 	the charge 	fails 	to state a prima 	facie case of
1SEERA 	is 	codified 	at Government Code 	section 	3512
)
)
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any violation of 	SEERA; 	and 	(3) 	the 	amended charge was 	filed
more 	than 20 	calendar 	days 	after 	the 	issuance 	of 	the dismissal
et seq. 	All 	statutory references 	herein 	are 	to 	the Government
Code 	unless 	otherwise 	indicated.
Section 3514.5 	provides 	as 	follows:
The 	initial 	determination 	as 	to whether 	the
charges 	of 	unfair 	practices 	are 	justified,
and, 	if so, 	what remedy is necessary to
effectuate 	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; 	(2) 	issue a complaint
against 	conduct 	also 	prohibited 	by 	the
provisions 	of 	the 	agreement between 	the
parties 	until 	the 	grievance 	machinery 	of 	the
agreement, 	if 	it exists and covers 	the
matter 	at 	issue, 	has been exhausted, 	either
by settlement or 	binding 	arbitration.
However, 	when 	the charging party
demonstrates 	that resort 	to 	contract
grievance 	procedure 	would 	be 	futile,
exhaustion 	shall 	not be 	necessary.
The 	board 	shall 	have 	discretionary
jurisdiction 	to 	review 	such 	settlement or
arbitration 	award 	reached 	pursuant 	to 	the
grievance 	machinery 	solely 	for 	the 	purpose
of determining whether 	it 	is 	repugnant 	to
the purposes 	of 	this 	chapter. 	If 	the 	board
finds 	that 	such 	settlement or 	arbitration
award 	is 	repugnant 	to 	the 	purposes 	of 	this
chapter, 	it shall 	issue a complaint on the
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with 	leave 	to amend 	of 	the 	original 	charge. 	Appellant contests
each of 	these 	findings 	of 	the hearing 	officer. 	For 	the 	reasons
set 	forth below, 	the Public Employment Relations 	Board 	(PERB or
Board) 	finds 	that 	the 	instant charge 	is 	barred by 	the 	statute
of limitations set forth at subsection 3514.5(a), 	and should
therefore 	be 	dismissed.
DISCUSSION
Appellant's 	charge 	alleges 	that 	she 	was 	dismissed 	from
state 	service 	in January 1979, 	and 	that 	the 	State Personnel
Board 	issued 	a 	final 	decision 	upholding 	that 	dismissal 	on
August 	8, 	1979. 	The 	instant proceeding 	before PERB was
initiated on March 	6, 	1981, 	19 months 	after 	the 	State's 	final
action 	on Appellant's 	dismissal 	from 	service.
Section 	3514.5 	prohibits PERB 	from 	issuing 	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." 	The section provides, 	however, 	that 	the running of
the 	six-month period will 	be 	tolled 	during 	the 	time 	that 	a
complainant was 	pursuing 	grievance 	machinery which 	is 	provided
basis 	of a 	timely 	filed charge, 	and hear 	and
decide the case on the merits; 	otherwise, 	it
shall dismiss 	the charge. 	The board shall,
in determining whether 	the 	charge 	was 	timely
filed, 	consider 	the 	six-month 	limitation set
forth 	in 	this 	subdivision 	to 	have 	been
tolled during 	the 	time 	it 	took 	the 	charging
party 	to 	exhaust 	the 	grievance machinery.
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• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
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by agreement between 	the 	parties 	and which 	has 	culminated 	in
settlement or 	binding 	arbitration.
PERB has 	also 	approved 	application 	of 	the 	doctrine 	of
"equitable 	tolling" 	in appropriate 	cases. 	State 	of California,
Department of Water Resources, et al. 	(12/29/81), PERB Order
No. 	Ad-122-S. 	In 	recognition of 	the 	fact 	that 	the principal
purpose of a 	statute 	of 	limitations 	is 	to 	prevent surprise 	and
prejudice 	to 	a party 	from having 	to 	defend 	against 	stale
claims, 	the doctrine 	of equitable 	tolling provides 	that 	a
statute 	of 	limitations will 	not be 	imposed 	to 	bar 	a 	claim where
no 	such 	risk 	exists 	because 	the defendant has 	been 	kept on
sufficient notice 	by 	the 	plaintiff's 	pursuit 	of his 	claim 	in
another 	forum. 	The 	general 	rule 	is 	that 	the doctrine 	is
applicable 	where 	"an 	injured 	person 	has 	several 	legal 	remedies
and 	reasonably and 	in good 	faith 	pursues 	one." 	Elkins 	v. 	Derby
(1974), 	12 Cal.3d 410. 	See also, Addison v. 	State of
California 	(1978), 	21 Cal.3d 313. 	Thus, 	in State of
California, 	Department of Water 	Resources, 	supra, 	we 	found 	that
a 	complaint 	should 	issue 	even 	though 	more 	than 	six months 	had
passed 	since 	the 	alleged violation 	of 	SEERA because 	the
respondent had 	been 	placed 	on 	sufficient 	notice 	by 	the 	timely
filing 	and 	prosecution 	of 	a 	complaint 	involving 	the 	same 	issues
before 	the 	State 	personnel 	Board.
Appellant here 	argues 	that between 	the 	date 	of 	the 	State
Personnel 	Board's 	final 	approval 	of McKenney's 	termination 	and
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the 	filing 	of 	this 	action 	before PERB 	she 	was 	continuously
pursuing 	her 	claim against 	the 	Department 	through 	the 	offices
of Assemblywoman Teresa Hughes and Senator 	Green 	[sic] , 	and
through 	the 	"Labor 	Board 	[sic]." 	These 	activities 	are not 	the
kind of 	"legal 	remedies" 	contemplated 	by Elkins 	or 	by 	the 	Board
when 	it decided Department of Water 	Resources. 	We 	find,
therefore, 	that Appellant's 	consultations with 	elected
officials 	failed 	to 	toll 	the 	statute 	of 	limitations 	set 	forth
at subsection 3514.5 (a).
No 	reason 	appearing 	in 	the 	Act 	or 	in 	equity why 	the
six-month 	statue 	of 	limitations 	should 	be 	tolled 	for 	the 	period
at 	issue, 	the 	Board 	finds 	that Appellant's 	first amended
complaint 	is 	properly dismissed 	based 	upon 	Respondent's
affirmatively asserted 	defense 	of 	the 	statute 	of 	limitations.
Having 	so 	found, 	we 	see 	no purpose 	in 	considering 	the hearing
officer's 	remaining 	grounds 	for 	dismissal 	and Appellant's
exceptions 	thereto.
ORDER
Upon review of 	the 	entire 	record 	in 	this 	case, 	the 	Board
ORDERS that the charge 	filed 	in case N O . 	LA-CE-38-S is
DISMISSED without 	leave 	to 	amend.
Chairperson Gluck 	and Member 	jaeger 	joined 	in 	this 	Decision.
55

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
DORIS MCKENNEY,
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(DEPARTMENT 	OF
HEALTH SERVICES),
Respondent.
Case No. 	LA-CE-38-S
NOTICE 	OF 	REFUSAL
TO 	ISSUE COMPLAINT
AND 	DISMISSAL 	OF
CHARGE 	WITHOUT
LEAVE 	TO AMEND
NOTICE 	IS 	HEREBY GIVEN 	that 	no 	complaint 	will 	be 	issued 	in
the 	above-captioned 	unfair 	practice 	charge 	and 	that 	it 	is
hereby dismissed 	without 	leave 	to 	amend 	pursuant 	to 	PERB
Regulation 	section 	32630 	(California Administrative 	Code, 	title
8, part III).
The charge, 	as amended, 	is dismissed on the grounds 	that
(1) 	the 	conduct 	alleged 	to 	constitute 	the 	unfair 	practice 	took
place more 	than 	six months 	prior 	to 	the 	filing 	of 	the 	unfair
practice charge, 	(2) 	the charge fails 	to state 	a prima 	facie
unfair 	practice 	case, 	and 	(3) 	the 	amended 	charge was 	filed
more 	than 	20 	calendar 	days 	after 	the dismissal 	was 	issued.
PROCEDURAL 	HISTORY
The 	Charging 	Party 	filed 	the 	original 	charge 	in 	LA-CE-38-S
on March 	6, 	1981. 	The 	Respondent 	answered 	the 	original 	charge
and moved 	to dismiss 	it on March 	26, 	1981. 	On April 	21, 	1981,
)
)
)
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the charge was 	dismissed 	with 	leave 	to 	amend. 	The 	dismissal
set forth May 11, 	1981, 	as 	the last date 	the Charging Party
could file an amendment or 	an appeal. 	On May 21, 	1981, 	the
First Amended 	"Complaint" 	was 	filed. 	On June 16, 	1981,
Respondent 	filed 	a First Amended Answer, 	Motion 	to Dismiss
First Amended 	Complaint 	and Motion 	Requesting Amen dement of
Caption.
DISCUSSION
1. 	Six Month 	Statute 	of 	Limitations
Although 	the 	First Amended Complaint 	does 	not 	set 	forth 	any
dates, 	the 	subject 	is 	the 	same 	as 	the original 	charge—the
dismissal 	from 	state 	service 	of 	the 	Charging 	Party. 	The
original 	charge 	alleges 	such 	dismissal 	occurred 	in 	January 	1979
with 	a 	State 	Personnel Board 	(SPB) 	decision 	upholding 	such
dismissal 	on August 	8, 	1979. 	Although 	there 	are documents 	in
the 	original charge 	that 	refer 	to 	the 	filing 	of 	a 	petition 	for
rehearing 	the 	First 	Amended 	charge 	does 	not 	affirmatively
allege 	or 	even 	suggest 	that 	the 	subject decision was 	not 	a
final 	decision 	of 	the 	State 	Personnel 	Board 	on 	September 	7,
1979.
Section 3514.5 (a) 	Government Code prohibits 	the 	PERB 	from
issuing 	a 	complaint 	"in 	respect 	of 	any change 	based 	upon an
alleged 	unfair 	practice 	occurring 	more 	than 	six 	months 	prior 	to
the 	filing 	of 	the 	charge."
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2. 	Charge 	Fails 	to 	State 	a Prima Facie Unfair 	Practice
Case
The 	First Amended 	Complaint 	alleges 	Charging 	Party 	noticed
and 	reported 	specified 	activities 	of 	fellow 	employees.
She 	ultimately 	filed 	a 	grievance 	ostensibly 	on 	this 	same
or 	a related 	subject. 	She 	goes on 	to allege 	she was 	closely
scrutinized and 	a detailed 	account was 	compiled 	of 	her 	movements
in 	her 	workplace. 	She 	further 	alleges 	such 	compilation was
used 	to 	support 	her 	dismissal. 	The 	Charging 	Party concludes
that 	the 	complained 	of 	employer's 	activity was 	in violation of
Labor 	Code 	section 	98.6 	which 	generally 	states 	that 	no 	person
shall 	discharge 	or 	discriminate 	against 	any 	employee 	because
such 	employee 	has 	filed 	a 	bona 	fide 	complaint 	relating 	to 	his
rights.
There 	are 	no 	allegations 	of 	any 	violation of 	any 	sections
of 	the 	State 	Employer-Employee 	Relations Act 	nor 	can 	any 	such
violation 	be 	reasonably 	inferred 	from 	the 	facts 	as 	alleged. 	A
violation 	of 	Labor 	Code 	section 	98.6 	under 	the 	subject
circumstances, 	even 	if proven, 	would 	not 	support a 	finding of
an 	unfair 	practice.
3. 	Amended 	Charge 	Filed More 	Than 	20 	Calendar 	Days 	After
Dismissal Was 	Issued
On April 	21, 	1981, 	the Notice of Refusal 	to Issue Complaint
and 	Dismissal 	of 	Charge With 	Leave 	to Amend 	was 	issued. 	In 	the
conclusion of 	such 	decision, 	on page 	4, 	the Charging 	Party was
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informed 	she 	had 	until 	5:00 	p.m. 	on May 	11, 	1981 	to 	either 	file
an 	amended 	charge or 	an 	appeal 	to 	the 	Board 	itself 	(See 	PERB
Regulation 32630(b)). 	No 	such 	amendment or 	appeal was 	filed 	by
the 	specified 	time. 	The 	First Amended 	Complaint 	was 	received
and 	filed 	at 	the 	Los Angeles 	Regional Office 	at 	3:16 	p.m. 	on
May 21, 1981.
CONCLUSION
For 	all of 	the 	foregoing 	reasons, 	the 	charge 	in LA-CE-38-S
must be dismissed without 	leave 	to 	amend. 	It 	is 	apparent 	in
the 	two 	separate pleadings 	that 	the 	Charging 	Party's 	case
involves 	an 	allegedly 	improper 	dismissal 	from state 	service 	in
1979. 	All 	of 	the 	conduct 	complained 	of 	here 	took 	place well
before 	September 	6, 	1980 	(six months 	prior 	to 	the 	filing 	date
of 	the 	charge). 	Charging Party 	in 	two 	separate 	and distinct
charges 	has 	yet 	to allege 	any violation of 	a 	section 	in 	the
State 	Employer-Employee 	Relations Act. 	The 	First Amended
Complaint 	was 	not 	filed within 	the 	period 	of 	time 	set 	forth 	in
PERB Regulation 32630(b). 	The dismissal 	is without leave 	to
amend. 	No 	further 	allegations 	could 	cure 	the 	defects 	set 	forth
and 	discussed 	above.
This 	dismissal without 	leave 	to 	amend 	is 	pursuant 	to PERB
Regulation 32630 (a).
Charging 	Party may 	obtain 	review 	of 	the 	dismissal 	by 	filing
an 	appeal 	to 	the Board 	itself 	within 	twenty 	(20) 	calendar 	days
after 	service 	of 	this 	Notice. 	(PERB 	Regulation 	32630(b).)
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Such 	appeal must 	be 	actually 	received 	by 	the 	executive
assistant 	to 	the 	Board 	before 	the 	close 	of 	business 	(5:00 	p.m.)
on 	July 20, 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 	upon which 	the 	appeal 	is 	based. 	(PERB
Regulation 	32630(b).) 	The 	appeal must 	be 	accompanied 	by proof
of 	service upon all parties. 	(PERB Regulations 	32135, 	32142,
and 	32630(b).)
Dated: 	June 	29, 	1981 Alien R. 	Link
Hearing 	Officer
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