STATESTATE OFOF CALIFORNIACALIFORNIA DECISIONDECISION OF OF THE THE PUBLICPUBLIC EMPLOYMENT EMPLOYMENT RELATIONS RELATIONS BOARD BOARD
KEVINKEVIN J. J. REDDINGTON,REDDINGTON,
ChargingCharging Party, Party, CaseCase No. SA-CE-1435-S
vv. . PERBPERB Decision No. No. 1690-S SeptemberSeptember 17, 17, 2004 2004 STATESTATE OFOF CALIFORNIA ( ( DEPARTMENT DEPARTMENT OF OF FORESTRY & FIREFIRE PROTECTION),PROTECTION),
Respondent.Res ondent.
Appearance:Appearance: KevinKevin J. J. Reddington, Reddington, on on his his own own behalf. behalf.
BeforeBefore Duncan,Duncan, Chairman;Chairman; WhiteheadWhitehead andand Neima,Neima, Members.Members.
DECISION
DUNCAN,DUNCAN, Chairman: Chairman: This This case case is is before before the the PublicPublic EmploymentEmployment RelationsRelations BoardBoard
(PERB(PERB oror Board)Board) onon appealappeal byby KevinKevin J. J. ReddingtonReddington (Reddington)(Reddington) ofof a a BoardBoard agent'sagent's dismissaldismissal
((attached) attached) of hishis unfair practicepractice charge. charge.
Reddington hadhad filed anan unfair practicepractice chargecharge againstagainst thethe State ofof California California
(Department(Department of ForestryForestry & FireFire Protection)Protection) (State)(State) alleging a violation ofof the the RalphRalph C.C. Dills Dills
1 Act (Dills(Dills Act) Act) section section 3519(a) 3519(a) byby the the State's State's actions actions inin terminating terminating his his employment, employment, takingtaking
otherother adverseadverse actions against him,him, and creatingcreating aa hostile hostile workwork environment.
The Board has reviewedreviewed the entire record in thisthis case,case, including thethe initialinitial and and amended amended unfairunfair practice practice charge, charge, warningwarning andand dismissaldismissal lettersletters and Reddington's appeal. TheThe Board
finds thethe warning and dismissal letters toto bebe withoutwithout prejudicial error error and and adoptsadopts themthem as thethe
decisiondecision ofof the the BoardBoard itself,itself, subject subject to to the the discussiondiscussion below.
1 TheThe DillsDills Act Act is is codified codified at at Government Government Code Code section section 3512, 3512, etet seq.seq. UnlessUnless otherwiseotherwise indicated,indicated, allall statutorystatutory referencesreferences hereinherein areare to the Government Code.Code. DISCUSSIONDISCUSSION
To demonstrate aa violationviolation of Dills Act Act section section 3519(a), 3519(a), the the chargingcharging party party mustmust showshow
that:that: (1)(1) the the employee employee exercisedexercised rightsrights underunder the Dills Act;Act; (2) (2) the the employer employer had had knowledgeknowledge ofof
thethe exerciseexercise of those those rights; andand (3)(3) thethe employeremployer imposed imposed or or threatened threatened toto imposeimpose reprisals,reprisals,
discriminated oror threatenedthreatened to discriminate, oror otherwise otherwise interferedinterfered with, with, restrained restrained or or coerced coerced
thethe employeesemployees because of of the the exercise exercise of of those those rights. rights. (Novato(Novato Unified SchoolSchool DistrictDistrict (1982) (1982)
PERBPERB DecisionDecision No.No. 210210 (Novato);(Novato); CarlsbadCarlsbad Unified SchoolSchool DistrictDistrict (1979) (1979) PERBPERB DecisionDecision
No.No. 89.)89.)
AlthoughAlthough the the timingtiming of of the the employer's employer's adverse adverse actionaction inin close close temporaltemporal proximityproximity to to the the
employee'semployee's protectedprotected conduct isis anan important factorfactor (North(North Sacramento Sacramento SchoolSchool DistrictDistrict (1982) (1982)
PERBPERB DecisionDecision No. No. 264 264 (North (North Sacramento)), Sacramento)), it it does does not, not, without without more, more, demonstrate demonstrate the the
necessarynecessary connection oror "nexus""nexus" betweenbetween the the adverseadverse actionaction andand thethe protectedprotected conduct.conduct.
(Moreland(Moreland ElementaryElementary SchoolSchool DistrictDistrict (1982) (1982) PERB PERB Decision Decision No. No. 227.) 227.) Facts Facts establishing establishing one one
or more of thethe followingfollowing additional additional factors factors must must also also be be present:present: (1)(1) the the employer's employer's disparate disparate
treatmenttreatment of thethe employee (State ofof California (Department(Department ofof Transportation) Transportation) (1984)( 1984) PERBPERB
Decision No.No. 459-S); 459-S); (2) (2) the the employer's employer's departure departure from from established established procedures procedures and and standards standards
whenwhen dealingdealing withwith thethe employeeemployee (Santa ClaraClara UnifiedUnified School District (1979)(1979) PERBPERB DecisionDecision
No.No. 104.);104.); (3)(3) the the employer'semployer's inconsistentinconsistent oror contradictorycontradictory justifications for for its its actions actions (State (State ofof
CaliforniaCalifornia (Department (Department of of Parks Parks andand Recreation)Recreation) (1983)(1983) PERBPERB DecisionDecision No.No. 328-S;328-S; (4)(4) thethe
employer'semployer's cursorycursory investigationinvestigation ofof the the employee'semployee's misconduct;misconduct; (5)(5) thethe employer'semployer's failure toto
offeroffer thethe employeeemployee justification at at the the timetime it it took took action action or or the the offering offering of of exaggerated, exaggerated, vague, vague,
oror ambiguousambiguous reasons;reasons; (6) employer animosity towardstowards unionunion activistsactivists (Cupertino(Cupertino Union Union
Elementary School District) (1986)(1986) PERBPERB DecisionDecision No.No. 572.);572.); oror (7) (7) anyany otherother factsfacts whichwhich mightmight demonstrate demonstrate thethe employer'semployer's unlawful motive.motive. (Novato;(Novato; North North Sacramento.) Sacramento.)
22 Evidence of adverse actionaction is also requiredrequired toto support a claimclaim of discriminationdiscrimination or or reprisalreprisal under under thethe NovatoNovato standard.standard. (Palo(Palo VerdeVerde UnifiedUnified School School District District (1988) (1988) PERB PERB
Decision No.No. 689.)689.) InIn determining determining whether whether such such evidence evidence is is established, established, the the Board Board uses uses anan
objective test and willwill notnot relyrely uponupon the subjective reactionsreactions ofof thethe employee.employee. (Ibid.)(Ibid.) InIn a a laterlater
decision,decision, thethe Board further explainedexplained that:that:
The test which mustmust bebe satisfiedsatisfied isis notnot whetherwhether the the employeeemployee foundfound thethe employer'semployer's action action to to be be adverse, adverse, but but whether whether a a reasonable personperson underunder thethe samesame circumstancescircumstances would would consider the action toto havehave anan adverseadverse impactimpact on on the the employee's employee's employment. [Newark[Newark Unified Unified School School District District (1991) (1991) PERB PERB DecisionDecision No.No. 864;864; emphasisemphasis added;added; fn. omitted.]omitted.]
The Board agent advised Reddington thatthat toto meetmeet thisthis testtest underunder thethe NovatoNovato standard standard he he
would needneed to includeinclude moremore thanthan justjust a a statementstatement that there was a "premeditated conspiracy"conspiracy"
against him. TheThe Board Board agent agent advisedadvised thatthat hehe mustmust showshow protected conduct, that the employer
knew ofof the the conduct conduct and and that that there there was was aa nexusnexus between between the the protected protected conduct conduct and and any any adverseadverse actions. AlthoughAlthough Reddington Reddington filed filed an an amended amended claimclaim hehe diddid notnot includeinclude evidenceevidence of
protected conductconduct prior to to events events hehe believedbelieved werewere adverseadverse actionsactions nornor diddid his his chargescharges containcontain
evidence that the employer knew of any any protectedprotected activity or or evidence evidence of of a a nexus nexus betweenbetween
adverse actions and protected conduct.
We believebelieve thatthat ReddingtonReddington has has failedfailed to to state state a a prima prima facie facie case case and and the the case case mustmust bebe
dismissed.dismissed.
ORDER
TheThe unfairunfair practicepractice chargecharge in CaseCase No. SA-CE-1435-S is hereby DISMISSED
WITHOUT LEAVELEAVE TOTO AMEND.AMEND.
Members Whitehead and NeimaNeima joinedjoined in thisthis Decision.Decision.
33 (~_ STATE=S=T=A=T=E=O=F=C=A=L=IF=O=RN=I=A=====·======--r OF CALIFORNIA ·:oLDOLD SCHWARZENEGGER, GovernorGovernor PUBLIC EMPLOYMENT EMPLOYMENT RELATIONS RELATIONS BOARD BQARD SacramentoSacramento Regional Regional Office Office 103118thStreet1031 18th Street Sacramento, CACA 95814-417495814-4174 Telephone: (916) 327-8383327-8383 PER.B Fax: (916)(916) 327-6377327-6377
AugustAugust 2, 2, 20042004
Kevin J.J. Reddington 5649 Monte Corita Circle Citrus Heights, CA 95621
Re: KevinKevin J. J. Reddington Reddington v. v. State State ofof California California (Department (Department ofof Forestry Forestry && FireFire Protection) Protection) Unfair Practice Practice ChargeCharge No.No. SA-CE-1435-SSA-CE-1435-S DISMISSAL LETTER LETTER
DearDear Mr. Reddington:Reddington:
TheThe above-referencedabove-referenced unfairunfair practice charge waswas filedfiled with thethe Public EmploymentEmployment RelationsRelations BoardBoard (PERB (PERB or or Board) Board) on on June June 21,21, 2004.2004. YouYou allege allege that that the the State State ofof California California (Department (Department of Forestry & FireFire Protection) violated the Ralph C. DillsDills ActAct (Dills(Dills Act)" Act) 1by by dismissing dismissing you you from youryour employment employment without without cause, cause, taking taking other other false false adverse adverse actions actions against against you, you, and and creating aa hostile workwork environment. environment.
II indicatedindicated to to you you in in my my attached attached letter letter dated dated July July 8, 8, 2004, 2004, that that the the above-referenced above-referenced chargecharge did not statestate a primaprima facie case. You werewere advisedadvised that, if there there werewere anyany factualfactual inaccuraciesinaccuracies oror additional factsfacts whichwhich would would correct correct the the deficiencies deficiencies explained explained in in that that letter, letter, you you should should amend amend the charge. YouYou were were further further advised advised that, that, unless unless you you amended amended the the charge charge to to state state a a prima prima facie casecase oror withdrewwithdrew it priorprior to to July July 16, 16, 2004, 2004, thethe chargecharge wouldwould bebe dismissed.dismissed. OnOn July July 13, 13, 2004, we discussed youryour chargecharge andand my my letterletter byby telephone.telephone. YourYour request request forfor additionaladditional time time in whichwhich to to amend amend the the charge charge waswas granted,granted, andand aa FirstFirst Amended Amended Unfair Unfair Practice Practice Charge Charge was was timely filedfiled on on July July 27, 27, 2004.2004.
The allegations of your originaloriginal charge charge werewere summarizedsummarized in my earlierearlier letterletter asas follows:
Your chargecharge includes the followingfollowing informationinformation and and allegations. allegations. You havehave been employedemployed byby thethe CaliforniaCalifornia Department of ForestryForestry && FireFire Protection Protection (State (State oror Department) Department) asas anan office techniciantechnician sincesince March 26,26, 2000.2000. YouYou allege allege that that certain certain named named managersmanagers inin the Department created aa hostilehostile work environment;environment; mademade falsefalse adverseadverse actions againstagainst youyou onon January January 9,9, 2002,2002, AugustAugust 22,22, 2002,2002, andand SeptemberSeptember 8,8, 2003;2003; abusedabused their power to thethe detriment of your wellwell being; being; and and used used theirtheir power power toto "fraudulently and and wrongfully"wrongfully" dismissing dismissing you you from from employment. employment.
1 TheThe Dills Dills Act Act is iscodified codified at atGovernment Government Code Code section section 3512 3512 et et seq.seq. TheThe texttext ofof the the Dills Act Act and and the the Board'sBoard's Regulations Regulations may may be be foundfound on on the the InternetInternet at at wwww.perb.ca.gov.ww.perb.ca.gov. ( SA-CE-1435-SSA-CE-1435-S August 2,2, 20042004 Page 22
You alsoalso reference thethe denialdenial ofof your request forfor voluntary transfertransfer onon MarchMarch 20, 20, 2003,2003, andand anan incidentincident on on January January 13,13, 2004,2004, where you contacted thethe CaliforniaCalifornia Highway PatrolPatrol andand werewere yelledyelled atat "for no no justifiedjustified reason" reason" byby twotwo ofof the the managers.managers. InIn FebruaryFebruary 2004,2004, youyou werewere firstfirst placed placed on on administrative administrative leave leave and and thenhen dismisseddismissed onon FebruaryFebruary 2222 basedbased on "contrived and and falsefalse allegations"allegations" contained contained in ina a memo memo written written on on January January 14, 14, 2004. 2004.
Finally,Finally, you you indicate indicate it it is is your your belief belief that that there there was was aa "premeditated"premeditated conspiracy"conspiracy" byby the the named named managersmanagers to give you bad reports, create aa hostile hostile workwork environment, set you up for failure,failure, and and dismiss dismiss youyou fromfrom employment. employment.
Your amendedamended chargecharge does not add any additional factsfacts toto thethe charge. charge. TheThe only only changes changes made made in the amended chargecharge involve involve thethe insertioninsertion of thethe comment "Protected Conduct" inin brackets brackets nextnext toto thethe paragraphsparagraphs regarding the denial of your your requestrequest forfor transfer transfer in in March March 2003 2003 and and the the January 20042004 incidentincident where youyou contactedcontacted thethe CaliforniaCalifornia Highway Patrol (CHP).(CHP). FromFrom our our telephonetelephone conversationconversation ofof July July 13, 13, 2004,2004, itit is is my my understanding understanding that that you you called called the the CHPCHP because thethe two two namednamed managers managers were were in in your your cubicle, cubicle, yelling yelling at youyou and preventingpreventing you from leaving thethe cubicle.cubicle.
Discussion
InIn mymy JulyJuly 1313 letter,letter, II reviewedreviewed thethe standards forfor findingfinding a violationviolation of DillsDills Act Act section section 3519(a) and concluded, inin relevantrelevant part,part, thatthat
Your chargecharge doesdoes not allegeallege evidenceevidence ofof protected protected conductconduct that that preceded any of the the adverseadverse actions,actions, nornor evidence evidence of of employer employer knowledge ofof such such conduct,conduct, nornor evidence evidence that that would would demonstrate demonstrate thethe necessary connectionconnection or "nexus" between between any any of of the the adverse adverse actions and the protectedprotected conduct.conduct. Thus,Thus, whilewhile the the charge charge doesdoes allege evidence of adverse adverse action, thethe chargecharge failsfails toto allege allege a a primaprima faciefacie case ofof discriminationdiscrimination inin violationviolation of the Dills Act.Act.
PERBPERB RegulationRegulation 32615(a)(5) 32615(a)(5) requires, requires, interinter alia, alia, thatthat an an unfairunfair practice practic'e charge charge includeinclude aa "clear and concise statement of the facts and conduct allegedalleged.to to constituteconstitute anan unfairunfair practice." practice." Thus, the charging party's burden includes alleging the "who,"who, what,what, when,when, wherewhere andand how"how" of of anan unfair practice.practice. (State(State ofof California California (Department (Department ofof Food Food andand Agriculture) (1994)(1994) PERBPERB Decision No.No. 1071-S,1071-S, citingciting United United Teachers-Los Teachers-Los Angeles Angeles (Ragsdale) (Ragsdale) (1992)(1992) PERB PERB Decision Decision No.No. 944.)944.) MereMere legal legal conclusions conclusions are are notnot sufficientsufficient to to state state aa primaprima faciefacie case.case. (Ibid.;(Ibid.; Charter Charter Oak Unified SchoolSchool DistrictDistrict (1991) (1991) PERB PERB DecisionDecision No. No. 873.) 873.).
Thus, labeling certaincertain conduct as "Protected"Protected Conduct"Conduct" is not sufficient toto establishestablish that it isis such under applicable precedent. InIn this this case, case, youyou areare apparentlyapparently allegingalleging that that the the protected protected conduct that precededpreceded and motivated thethe subsequentsubsequent adverseadverse action waswas youryour requestrequest forfor a a ( SA-CE-1435-SSA-CE-1435-S AugustAugust 2,2, 20042004 Page 33
voluntaryvoluntary transfertransfer inin March March 2003 2003 and and your your calling calling the the CHP CHP in in January January 2004. 2004. These These assertions assertions are insufficientinsufficient to support a primaprima faciefacie finding ofof a a violation for for the the following following reasons. reasons.
First, casecase lawlaw does notnot support finding thatthat aa requestrequest for aa transfer constitutesconstitutes protectedprotected conduct any more than, for example,example, wouldwould a a requestrequest byby anan employeeemployee forfor aa vacationvacation day, day, oror an an employee's application forfor aa promotion,promotion, or or a a request request toto workwork overtime. overtime.
Second, thethe incident incident withwith the CHP is not described inin sufficientsufficient detail toto supportsupport findingfinding thatthat you were engaged inin thethe exerciseexercise of of any any right right guaranteedguaranteed by by the the Dills Dills Act.Act. Further,Further, eveneven assumingassuming this incident constitutedconstituted protectedprotected activity,activity, itit would would stand stand as as the the only only such such evidence, evidence, and the charge still failsfails to to establish establish that that the the subsequent subsequent terminationtermination was was motivated motivated by by the the incident.incident. (Novato(Novato Unified Unified School School District District (1982) (1982) PERB PERB Decision Decision No. No. 210; 210; North North Sacramento Sacramento School DistrictDistrict (1982)(1982) PERBPERB DecisionDecision No.No. 264.)264.)
Therefore,Therefore, I amam dismissingdismissing the the charge charge basedbased onon thethe factsfacts andand reasonsreasons setset forth above,above, asas wellwell as as those containedcontained inin my July 8,8, 20042004 letter.letter.
Right toto AppealAppeal
Pursuant to PERB Regulations,"Regulations,2 youyou maymay obtainobtain aa reviewreview of of this this dismissal dismissal of of the the charge charge by by filingiling an an appeal appeal toto thethe BoardBoard itself itself within within twenty twenty (20) (20) calendar calendar days days after after service service of of this this dismissal. (Regulation(Regulation 32635(a).)32635(a).) AnyAny document document filed filed with with the the Board Board must must contain contain the the case case - namename and number, and the original andand fivefive (5)(5) copies copies ofof all all documents documents must must be be provided provided to to the Board.
A documentdocument is consideredconsidered "filed" when when actually actually received received before before the the close close of of business business (5(5 p.m.)p.m.) onon thethe lastlast day set forfor filing. (Regulations(Regulations 32135(a) 32135(a) and and 32130.)32130.) AA document document is is also also considered "filed""filed" whenwhen received received byby facsimile facsimile transmission transmission before before the the close close of of business business on on the the lastlast day for filingfiling together together with with a a Facsimile Facsimile Transmission Transmission Cover Cover Sheet Sheet whichwhich meets meets thethe requirements of Regulation 32135(d), provided the filing partyparty also also placesplaces thethe original,original, together with thethe requiredrequired number of copiescopies and proofproof of service, in the U.S. mail. (RegulationsRegulations 32135(b), 32135(b), (c) (c) and and (d); (d); see see also also Regulations Regulations 32090 32090 and and 32130.) 32130.)
The Board's addressaddress is:
PublicPublic EmploymentEmployment Relations Relations BoardBoard Attention: AppealsAppeals AssistantAssistant 10311031 18th18th Street Street Sacramento,Sacramento, CA 95814-4174958,14-4174 FAX:FAX: (916) (916) 327-7960 327-7960
2 PERB'sPERB's Regulations Regulations are are codifiedcodified at at California California Code Code ofof Regulations, Regulations, titletitle 8, 8, sectionsection 31001 etet seq. seq. ( SA-CE-1435-SSA-CE-1435-S August 2,2, 20042004 PagePage 44
IfIf you you filefile a a timelytimely appeal appeal of of the the refusal refusal to to issue issue aa complaint,complaint, anyany otherother partyparty maymay filefile withwith the the Board an original andand fivefive copiescopies ofof a a statementstatement in opposition within twenty twenty (20) (20) calendar calendar days days following the the datedate ofof service service ofof the the appeal.appeal. (Regulation(Regulation 32635(b).)32635(b).)
ServiceService
All documents documents authorizedauthorized toto bebe filedfiled herein herein must must also also bebe "served""served" uponupon allall parties parties to to thethe proceeding,proceeding, and a "proof of of service" service" must must accompany accompany each each copy copy of of a a document document served served upon upon a a partyparty oror filedfiled with with the the Board Board itself. itself. (See (See Regulation Regulation 32140 32140 for for the the required required contents contents and and aa samplesample form.) TheThe document document will will be be considered considered properly properly "served" "served" when when personally personally delivered delivered oror depositeddeposited in thethe first-classfirst-class mail,mail, postage postage paidpaid andand properly addressed.addressed. AA documentdocument filed filed by by facsimilefacsimile transmissiontransmission may may be be concurrentlyconcurrently served served viavia facsimile facsimile transmission transmission on on all all parties parties to to thethe proceeding. (Regulation(Regulation 32135(c).)32135(c).)
Extension of Time Time
A requestrequest for an extension ofof time,time, in which to file aa documentdocument with thethe Board itself,itself, mustmust bebe in writing and and filedfiled with with the the Board Board at at the the previously previously noted noted address. address. AA request request for for an an extension extension must be filed atat leastleast three (3) calendar days beforebefore thethe expirationexpiration of the time required for filingfiling the the document. document. TheThe request request must must indicateindicate goodgood causecause forfor and, ifif known, the position of eacheach otherother party regardingregarding thethe extension,extension, and shall be accompanied byby proofproof of serviceservice of the requestrequest uponupon eacheach party. (Regulation(Regulation 32132.) 32132.)
FinalFinal DateDate
If no no appealappeal is filed withinwithin the the specifiedspecified timetime limits,limits, the the dismissaldismissal willwill become become finalfinal whenwhen thethe time limitslimits havehave expired.expired.
Sincerely,
ROBERTROBERT THOMPSONTHOMPSON General CounselCounsel
By "-.--. LesLes ChisholmChisholm Regional Director
AttachmentAttachment· cc:cc: NaldaNaida Keller Keller STATESTA'fE OF OF CALIFORNIA CALIFORNIA (-~======-======--r ,OLDOLD SCHWARZENEGGER, GovernorGovernor PUBLIC EMPLOYMENTEMPLOYMENT RELATIONS RELATIONS BOARD BOARD Sacramento RegionalRegional OfficeOffice 1031 18th Street Sacramento, CACA 95814-417495814-4174 Telephone:Telephone: (916)(916) 327-8383 327-8383 PER.B Fax: (916)(916) 327-6377 327-6377
JulyJuly 8, 8, 20042004
Kevin J.J. ReddingtonReddington 5649 Monte Corita Circle Citrus Heights, CA 95621
Re: KevinKevin J. J.Reddington Reddington v. v. State State of of California California (Department (Department of of Forestry Forestry && Fire Fire Protection) Protection) Unfair Practice Practice ChargeCharge No. SA-CE-1435-SSA-CE-1435-S WARNINGWARNING LETTERLETTER
DearDear Mr. Reddington:Reddington:
TheThe above-referencedabove-referenced unfair practice charge was filedfiled with the the PublicPublic Employment Employment Relations Relations Board (PERB oror Board) onon JuneJune 21, 2004.2004. YouYou allege allege thatthat thethe StateState of California (Department (Department of Forestry & FireFire Protection) violated the RalphRalph C.C. DillsDills Act (Dills Act)'Act)1 by by dismissing dismissing you you from youryour employmentemployment without without cause, cause, taking taking other other false false adverse adverse actions actions against against you, you, and and creatingcreating aa hostilehostile workwork environment. environment.
YourYour charge charge includesincludes thethe following information information and and allegations. allegations. You You have have been been employed employed by by the California Department Department of ofF01;estry Forestry & & Fire Fire Protection Protection (State (State or or Department) Department) as as an an office office technician sincesince March 26,26, 2000.2000. YouYou allege allege that that certain certain named named managers managers in in the the Department Department createdcreated a hostile workwork environment; environment; made made false false adverse adverse actions actions against against you you on on January January 9, 9, 2002,2002, AugustAugust 22, 22, 2002,2002, andand SeptemberSeptember 8,8, 2003;2003; abusedabused their power toto thethe detrimentdetriment ofof your your well being;being; andand used theirtheir powerpower toto "fraudulently"fraudulently andand wrongfully" dismissing dismissing you you from from employment.employment.
You alsoalso referencereference the denial of your your requestrequest for voluntaryvoluntary transfer transfer on on March March 20, 20, 2003, 2003, and and an an incidentincident on on January January 13,13, 2004,2004, wherewhere youyou contactedcontacted the California Highway Highway Patrol Patrol and and were were yelledyelled atat "for"for no no justifiedjustified reason" reason" by by two two of of the the managers. managers. InIn February February 2004, 2004, you you were were firstfirst placed on administrative leave leave and and then then dismissed dismissed onon February February 22 22 based based onon "contrived"contrived and and falsefalse allegations"allegations" contained contained in in a a memomemo writtenwritten on on January January 14, 14, 2004.2004.
Finally, you you indicate indicate it it is is your your belief belief that that there there was was a a "premeditated "premeditated conspiracy" conspiracy" by by the the named named managers toto givegive youyou bad reports,reports, createcreate aa hostile hostile workwork environment, setset you up for failure,failure, and dismiss you fromfrom employment.employment.
1 TheThe Dills Dills Act Act is codifiedis codified at atGovernment Government Code Code section section 3512 3512 et et seq. seq. TheThe texttext ofof the the DillsDills Act Act and and the the Board's Board's Regulations Regulations may may be be found found on on the the Internet Internet at at w www.perb.ca.gov.ww.perb.ca.gov. SA-CE-1435-SSA-CE-1435-S JulyJuly 8, 8, 2004 2004 PagePage2 2
DiscussionDiscussion
ToTo demonstratedemonstrate a violationviolation ofof Dills Dills Act Act section section 3519(a), 3519(a), the the charging charging party party must must show show that: that: (1)(1) thethe employeeemployee exercisedexercised rights under the Dills Act; Act; (2) (2) the the employer employer had had knowledge knowledge of of the the exercise of those those rights; andand (3)(3) the the employer employer imposed imposed or or threatened threatened to to impose impose reprisals, reprisals, discriminated oror threatenedthreatened to discriminate,discriminate, oror otherwise otherwise interferedinterfered with, with, restrained restrained or or coerced coerced thethe employeesemployees because of of thethe exerciseexercise of of those those rights. rights. (Novato(Novato UnifiedUnified SchoolSchool DistrictDistrict (1982) (1982) PERBPERB Decision No.No. 210210 (Novato);(Novato); CarlsbadCarlsbad Unified SchoolSchool DistrictDistrict (1979) (1979) PERB PERB Decision Decision No.No. 89.) 89.)
AlthoughAlthough the the timing timing of of the the employer's employer's adverse adverse action action in in close close temporal temporal proximity proximity to to the the employee'semployee's protected conduct is an important factor (North(North Sacramento Sacramento SchoolSchool DistrictDistrict (1982) (1982) PERBPERB Decision Decision No. No. 264), 264), it itdoes does not, not, without without more, more, demonstrate demonstrate the the necessary necessary connection connection or or "nexus""nexus" betweenbetween thethe adverseadverse action and thethe protectedprotected conduct.conduct. (Moreland(Moreland Elementary Elementary School School DistrictDistrict (1982) (1982) PERB PERB Decision Decision No. No. 227.) 227.) Facts Facts establishing establishing oneone oror moremore of the following additionaladditional factors factors mustmust also also bebe present:present: (1)(1) the the employer's employer's disparate disparate treatmenttreatment ofof the the employeeemployee (State(State ofof California California (Department (Department of of Transportation) Transportation) (1984) (1984) PERB PERB Decision Decision No. No. 459-S); 459-S); (2) (2) the the employer'semployer's departure departure from from established established procedures procedures and and standards standards when when dealing dealing with with the the employeeemployee (Santa(Santa ClaraClara Unified School School District District (1979) (1979) PERB PERB Decision Decision No. No. 104.); 104.); (3) (3) the the employer'semployer's inconsistent or contradictory justifications for for its its actions actions (State (State of of California California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's cursorycursory investigation investigation of of the the employee's employee's misconduct;misconduct; (5)(5) the the employer's employer's failurefailure to to offer offer the the employeeemployee justification at at the the timetime it it took took action action or or the the offering offering of of exaggerated, exaggerated, vague, vague, oror ambiguousambiguous reasons;reasons; (6) employer animosity towards union activists (Cupertino(Cupertino UnionUnion ElementaryElementary School District) (1986)(1986) PERBPERB DecisionDecision No.No. 572.);572.); oror (7) (7) anyany otherother factsfacts whichwhich might demonstrate the employer's unlawful motive. (Novato; North Sacramento School might demonstrate the employer's unlawful motive. (Novato; North Sacramento School District, supra, PERB Decision No. 264.) District, supra, PERB Decision No. 264.)
YourYour charge charge does does not not allege allege evidence evidence of of protected protected conduct conduct that that preceded preceded any any of of the the adverse adverse actions,actions, nornor evidence evidence ofof employer employer knowledge knowledge of of such such conduct, conduct, nor nor evidence evidence that that would would demonstrate the necessarynecessary connection oror "nexus""nexus" between between any any of of the the adverse adverse actions actions and and the the protectedprotected conduct. conduct. Thus, Thus, while while the the charge charge does does allege allege evidence evidence of of adverse adverse action, action, the the charge charge failsfails to to allege allege a a primaprima facie facie casecase of discriminationdiscrimination inin violation violation of of the the Dills Dills Act. Act.
InIn addition, addition, Dills Dills Act Act section section 3514.5(a)(1) 3514.5(a)(l) prohibits prohibits PERB PERB from from issuing issuing a a complaint complaint with with respectrespect toto "any"ahy charge charge basedbased upon an alleged unfair practice occurringoccurring more more than than six six months months priorprior to to the the filingfiling of of the the charge." charge." The The limitations limitations period period begins begins to to run run once once the the charging charging party party knows,knows, or or should should have have known,known, ofof the the conductconduct underlying thethe charge.charge. (Gavilan(GavilanJoint Joint CommunityCommunity College College DistrictDistrict (1996) (1996) PERB PERB DecisionDecision No.No. 1177.)1177.) TheThe statute statute ofof limitations limitations is is an an affirmativeaffirmative defense defense which which may may be be raised raised byby the the respondent. respondent. (Long(Long Beach Beach Community Community College College DistrictDistrict (2003) (2003) PERB PERB Decision Decision No. No. 1564.) 1564.) If Ifraised raised as as an an affirmative affirmative defense, defense, charging charging party party bears thethe burdenburden ofof demonstratingdemonstrating thatthat thethe chargecharge is is timely timely filed.filed. (cf.(cf. TehachapiTehachapi UnifiedUnified SchoolSchool DistrictDistrict (1993) (1993) PERB PERB DecisionDecision No. No. 1024;1024; StateState of California California (Department (Department ofof Insurance)Insurance) (1997)(1997) PERB PERB Decision Decision No. No. 1197-S.) 1197-S.) In Inthis this case, case, the the alleged alleged adverse adverse actions actions taken taken SA-CE-1435-SSA-CE-1435-S JulyJuly 8, 8, 2004 2004 PagePage 3 3 inin January January andand AugustAugust 2002, 2002, and and March March and and September September 2003, 2003, would would be be subject subject to to dismissal dismissal as as untimely.
ForFor these these reasonsreasons the charge, as presentlypresently written,written, doesdoes not statestate a prima facie case.case. IfIf there there areare any factual inaccuraciesinaccuracies in thisthis letterletter oror additionaladditional facts facts thatthat would would correct correct the the deficiencies deficiencies explained above, above, pleaseplease amendamend thethe charge.charge. TheThe amended amended charge charge should should be be prepared prepared on on a a standardstandard PERB unfair practicepractice chargecharge form,form, clearlyclearly labeled labeled First First Amended Amended Charge, Charge. contain contain all all the facts and allegations you wishwish to to make,make, andand bebe signedsigned under penalty of perjury perjury by by the the charging party.party. TheThe amended amended charge charge must must have have the the case case numbernumber written written on on the the top top right right hand hand cornercomer of of the the charge charge form. form. The The amended amended charge charge must must be be served served on on the the respondent's respondent's representativerepresentative and thethe originaloriginal proof of serviceservice must bebe filedfiled with PERB.PERB. IfIf I Ido do not not receive receive an an amendedamended charge oror withdrawalwithdrawal from youyou beforebefore July 16,16, 2004, I shall dismiss your charge. If youyou have have any any questions, questions, please please call call me me at at the the above above telephone telephone number. number.
Sincerely,Sincerely, L- LesLes ChisholmChisholm RegionalRegional DirectorDirector