Decision 2359E – Los Angeles Unified School District

LA-CE-5656-E

Decision Date: March 19, 2014

Decision Type: PERB Decision

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Perc Vol: 38
Perc Index: 136

Decision Headnotes

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.01000 – In General

Reversing in part Long Beach Community College District (2009) PERB Decision No. 2002, the Board held that while the charging party has the duty to provide the Office of the General Counsel with sufficient facts upon which to make a determination of timeliness, once a complaint issues, the statute of limitations becomes a true affirmative defense, which the respondent has the burden to plead and prove; if the respondent fails to plead the statute of limitations as a defense by raising it in the answer, the defense is waived; if the statute of limitations defense is properly raised, the respondent has the initial burden of going forward with evidence on the timeliness issue and the burden of proving by a preponderance of evidence that the charge is untimely.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.06000 – Statutory and Equitable Tolling

Where the tolling issue is raised by the filing of a grievance, in satisfying its burden of proof on the statute of limitations defense, the respondent must prove that the charge was filed outside the six month limitations period and that the tolling exception does not apply; placing the burden on the respondent of proving that the statute of limitations is not subject to tolling is warranted given the respondent’s knowledge of the grievance and status as a participant in the grievance machinery.

1109.00000 – CASE PROCESSING PROCEDURES; ISSUES ON APPEAL
1109.02000 – Statute of Limitations

Reversing in part Long Beach Community College District (2009) PERB Decision No. 2002, the Board held that while the charging party has the duty to provide the Office of the General Counsel with sufficient facts upon which to make a determination of timeliness, once a complaint issues, the statute of limitations becomes a true affirmative defense, which the respondent has the burden to plead and prove; if the respondent fails to plead the statute of limitations as a defense by raising it in the answer, the defense is waived; if the statute of limitations defense is properly raised, the respondent has the initial burden of going forward with evidence on the timeliness issue and the burden of proving by a preponderance of evidence that the charge is untimely.