State of California (Department of Mental Health) (PERB 1406S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JUANITA 	COLEMAN,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF MENTAL HEALTH),
Respondent.
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) 	Case No. 	LA-CE-553-S
PERB Decision No. 	1406-S
September 	26, 	2000
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Appearances: 	Juanita Coleman, 	on her own behalf; 	State of
California 	(Department 	of 	Personnel Administration) 	by Barrett 	W.
McInerney, Labor Relations 	Counsel, 	for State 	of 	California
(Department of Mental Health).
Before Dyer, 	Amador and Baker, 	Members.
DECISION AND 	ORDER
AMADOR, 	Member: 	This 	case 	comes before 	the 	Public
Employment 	Relations 	Board 	(Board) 	on appeal 	by Juanita 	Coleman
(Coleman) 	of 	a Board agent's 	dismissal 	(attached) 	of her unfair
practice 	charge. 	Coleman 	filed a 	charge 	alleging 	that 	the 	State
of 	California 	(Department 	of Mental 	Health) 	violated 	section
3519(a) 	and 	(b) 	of the Ralph C. 	Dills Act 	(Dills Act)1 by
1The 	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

terminating her 	employment 	in 	retaliation 	for her 	exercise 	of
protected activity. 	After 	investigation, 	the 	Board agent
dismissed 	the 	charge 	for 	failure 	to 	establish 	timeliness.
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
The Board has 	reviewed the 	entire 	record 	in this 	case, 	and
finds 	the warning and dismissal 	letters 	to be 	free 	of 	prejudicial
error and adopts 	them as 	the 	decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CE-553-S 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Dyer 	and Baker 	joined 	in 	this 	Decision.
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STATE OF CALIFORNIA 	. 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)439-6940
PERB
May 19, 	2000
Juanita 	Coleman
Re: 	Juanita Coleman v. 	Metropolitan State Hospital
Unfair Practice 	Charge No. 	LA-CE-553-S
Dismissal 	Letter 	and Refusal 	to 	Issue 	a 	Complaint
Dear Ms. 	Coleman:
I 	indicated to you, 	in my attached letter dated May 	10, 	2000,
that 	the 	above-referenced 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. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew it 	prior to
May 17, 	2000, 	the charge would be dismissed. 	On May 10, 	2000, 	we
spoke on the 	telephone, 	and 	I 	explained the 	statute 	of
limitations 	and 	the 	reasoning 	in my 	letter.
I 	have 	not 	received 	either 	an amended 	charge 	or 	a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing the 	charge based on the
facts and reasons 	contained in my May 10, 	2000 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	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. 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the 	Board must 	contain
the case name 	and number, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be provided 	to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received before
the 	close 	of business 	(5 	p.m.) 	on the 	last day set 	for filing or
when mailed by certified or Express 	United States 	mail, 	as 	shown
on the postal 	receipt 	or postmark, 	or delivered to 	a 	common
carrier promising 	overnight 	delivery, 	as 	shown on the 	carrier's
receipt, 	not 	later than the 	last 	day set 	for filing. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32135(a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of 	business 	on 	the 	last 	day 	for

LA-CE-553-S
Dismissal 	Letter
Page 2
filing 	together 	with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided the 	filing party also places 	the 	original, 	together with
the 	required number of copies 	and proof 	of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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
copies 	of 	a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	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 Cal. 	Code Regs., 	tit. 	8,
sec. 	32140 	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. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(c) .)
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. 	(Cal. 	Code Regs., 	tit. 	8, 	sec. 	32132.)

LA-CE-553-S
Dismissal 	Letter
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.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
Tammy L. 	Samsel
Regional 	Director
Attachment
cc: 	Barrett McInerney

STATE OF CALIFORNIA 	. 	. 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)439-6940
May 	10, 	2000
Juanita 	Coleman
Re: 	Juanita 	Coleman v. 	Metropolitan State Hospital
Unfair Practice Charge No. 	LA-CE-553-S
Warning 	Letter
Dear Ms. 	Coleman:
In 	the 	above-referenced charge 	you 	allege 	the 	Metropolitan 	State
Hospital 	(State 	or Hospital) 	violated the 	Ralph C. 	Dills Act
(Dills Act or Act) 	§ 	3519(a) 	and 	(b) 	by retaliating against you.
On or about May 4, 	I 	spoke with you regarding this 	charge, 	and
requested that 	you 	fax me 	the 	documents 	that 	the 	State 	sent 	to
you. 	You 	indicated 	that you would provide 	this 	additional
information. 	I 	have not yet 	received these documents. 	My
investigation 	revealed 	the 	following 	information.
The Charging 	Party, 	Juanita Coleman, 	filed this 	charge on
April 	28, 	2 000. 	The charge alleges 	that 	the State terminated
Coleman on November 4, 	1999. 	Prior to her termination, 	Coleman
filed a 	racial 	discrimination complaint 	against 	the 	State.
Coleman alleges 	she 	did not 	attend the 	State 	Personnel 	Board
appeal 	hearing 	regarding her 	termination due 	to 	illness.
Coleman alleges:
The 	accusations made 	against me 	were 	false,
[and] 	blown out of proportion. 	The
accusations 	were 	retaliation 	for 	filing 	a
complaint 	for 	racial 	and physical
discrimination.
The 	above-stated 	information 	fails 	to 	state 	a prima 	facie
violation within 	the 	jurisdiction of 	PERB 	for 	the 	reasons 	that
follow.
Dills Act 	§ 	3514.5(a)(1) 	provides 	the 	Public 	Employment 	Relations
Board shall 	not, 	"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," 	It 	is your burden, 	as
the 	charging party 	to 	demonstrate 	the 	charge 	has 	been 	timely
filed. 	(See Tehachapi Unified School 	District 	(1993) 	PERB
Decision No. 	1024.)

Coleman filed this 	charge on April 	28, 	2000. 	Although the charge
alleges 	that 	she 	was 	"officially terminated" 	on November 4, 	1999,
the 	facts 	indicate 	that 	the 	State 	notified Coleman of 	her
termination on July 	16, 	1999, 	and scheduled an SPB hearing
regarding the 	adverse 	action on October 	12, 	1999. 	As 	the 	charge
was 	filed on April 	28, 	1999, 	the 	statute of 	limitations period
would date 	back 	to 	include 	events 	occurring 	on or 	after
October 28, 	1999. 	As 	it 	appears 	that 	the 	State acted to
terminate 	Coleman on or about 	July 	16, 	1999, 	approximately nine
months prior to 	the 	filing of 	this 	charge, 	the charge 	is 	outside
the 	jurisdiction of 	PERB. 	Thus, 	this 	charge must be dismissed.
If 	there 	are 	any 	factual 	inaccuracies 	in this 	letter or
additional 	facts 	which would 	correct 	the 	deficiencies 	explained
above, 	please 	amend the charge. 	The 	amended charge 	should be
prepared on a 	standard 	PERB unfair practice 	charge 	form, 	clearly
labeled First Amended Charge, 	contain all 	the 	facts 	and
allegations you wish to make, 	and be 	signed under penalty of
perjury by 	the 	charging party. 	The 	amended 	charge 	must 	have 	the
case 	number written on 	the 	top 	right 	hand 	corner of 	the 	charge
form. 	The 	amended 	charge 	must 	be 	served on 	the 	respondent's
representative 	and 	the 	original 	proof 	of 	service 	must 	be 	filed
with PERB. 	If 	I 	do not 	receive 	an amended charge or withdrawal
from you before May 17, 2 000, I shall dismiss your charge. If
you have any questions, 	please call me at 	(415) 	439-6944.
Sincerely,
TAMMY 	SAMSEL
Regional 	Director