Decision 2281M – City of Berkeley

Request for second extension of time to file appeal pending conclusion of proceedings before Equal Employment Opportunity Commission denied.

In cases involving allegations that an employee was terminated from employment for having engaged in protected activities, the statute of limitations begins to run on the date of actual termination, rather than the date of notification of the intent to terminate Retaliation charge filed more than six months after date of termination is untimely. Because charging party failed to provide PERB with copy of grievance procedure or grievances, nor to allege in what manner allegations of retaliation for having engaged in protected activity involve the “same dispute” as issue before arbitrator, i.e., whether City was entitled to terminate her employment upon failure to return from approved leave of absence, six-month limitations period was not subject to equitable tolling.

In cases involving allegations that an employee was terminated from employment for having engaged in protected activities, the statute of limitations begins to run on the date of actual termination, rather than the date of notification of the intent to terminate. Retaliation charge filed more than six months after date of termination is untimely.

Because charging party failed to provide PERB with copy of grievance procedure or grievances, nor to allege in what manner allegations of retaliation for having engaged in protected activity involve the “same dispute” as issue before arbitrator, i.e., whether City was entitled to terminate her employment upon failure to return from approved leave of absence, six-month limitations period was not subject to equitable tolling.

Even if charging party were to prevail on repugnancy claim in establishing that PERB should not exercise its discretion to defer to arbitrator’s award on termination grievance, underlying allegations in unfair practice charge relevant to discrimination/retaliation violation are nonetheless untimely.