Decision 1484S – State of California

LA-CE-556-S, LA-CE-562-S, LA-CE-564-S, LA-CE-566-S

Decision Date: June 6, 2002

Decision Type: PERB Decision

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Perc Vol: 26
Perc Index: 33077

Decision Headnotes

200.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYEE? (SEE 502 AND 1309)
200.01000 – In General

Charging party never held a civil service position and was not a civil service employee within the meaning of Section 3513(c) where there is no evidence that he was hired into a civil service classification with a classification code number, that he applied for an announced vacancy, participated in testing procedure, was paid as a civil service employee, received health benefits, paid retirement or social security, or has taxes withheld from check. Additionally, when the various state agencies decided to no longer use charging party’s services, there was no evidence he was terminated through the normal due process procedures provided to state employees, he was simply not asked to serve as an interpreter.

502.00000 – EMPLOYER DISCRIMINATION; PERSONS PROTECTED
502.01000 – In General

Where there is no evidence in the record to suggest that charging party ever held a civil service position and was a civil service employee within the meaning of Section 3513(c) and charging party failed to establish he was a bona fide applicant for a vacant civil service position within the meaning of Section 3519(a), charging party has not established that the decisions made by various agencies to no longer purchase his services as an interpreter were covered by the Dills Act.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.01000 – In General; Conduct of Hearing

Charging party not denied due process before ALJ when provided opportunity to present testimonial evidence, documentary evidence, and an ordinate amount of “background” evidence of marginal relevance. The right of a charging party to cross examine a respondent’s witnesses or present a closing oral argument assumes that the charging party presents a prima facie case and the proceeding moves beyond charging party’s case-in-chief. Denial of charging party’s request to review transcript proper when it came more than two months after he was told he would need to make a request to review the transcript and came after the extended date for submission of written argument had passed.

200.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYEE? (SEE 502 AND 1309)
200.06000 – Independent Contractors

Factors such as documentary evidence that indicates charging party was assigned a vendor’s number and received payment based on invoices, receipt of a Form 1099, Miscellaneous Income, and evidence that the state always treated charging party as an independent contractor argue in favor of finding charging party provided services to the state as an independent contractor.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.06000 – Blacklisting; Hire; Refusal to Recommend

Charging party failed to establish he was a bona fide applicant for a vacant civil service position within the meaning of Section 3519(a). Charging party failed to state a prima facie case because there is no evidence he suffered an adverse action, an essential element of a prima facie case of discrimination in hiring. Charging party offered no evidence he submitted an application for employment, interviewed, competed in any way for a civil service position, or was on an eligibility list. Additionally, no evidence was presented to show that any of the state agencies were in a hiring mode or had jobs available or that other applicants were hired in place of charging party.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Any claim that charging party was denied access to the Board’s file while appeal was pending before the Board would not alter outcome of case as failure to establish a prima facie case in hearing before ALJ could not be cured through further argument. Argument referencing transcript is not necessary in helping the Board decide what weight to give evidence as all evidence is viewed in the light most favorable to charging party on appeal.