Decision 2400H – Trustees of the California State University

LA-CE-1174-H

Decision Date: November 24, 2014

Decision Type: PERB Decision

Description:  The complaint alleged that the University had suspended an employee in retaliation for his protected conduct.  The proposed decision found that the evidence established a prima facie case of discrimination, but that the University had proved as an affirmative defense that it would have suspended the employee anyway, because he had made threatening statements and gestures, in violation of a “zero-tolerance” policy against workplace violence, and because the employee had previously been disciplined for similar instances of misconduct.  The charging party excepted to the proposed decision.

Disposition:  The Board affirmed the ALJ’s dismissal of the complaint and unfair practice charge.  Because the charging party’s exceptions focused on whether he had established a prima facie case rather than on the University’s affirmative defense, the Board affirmed the dismissal, reasoning that the charging party’s exceptions failed to identify any material error of fact, law, or procedure to warrant reversal.

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Perc Vol: 39
Perc Index: 71

Decision Headnotes

100.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA
100.01000 – In General

PERB has no jurisdiction over employee's wage dispute with employer.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

Failure of Board agent to inform charging party that respondent was entitled to file response to amended charge does not affect outcome of dismissal of charge. Extension of time granted to respond to amended charge did not violate PERB Regulation 32132(b), where there was no basis to conclude that Board agent did not find good cause for extension. Amended charge that attempted to cure the fatal subject matter jurisdictional defect by re-characterizing what is essentially a wage claim into a claim that the wage dispute arose in retaliation for EERA-protected activities does not state prima facie violation of EERA.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.04000 – Amendments

Failure of Board agent to inform charging party that respondent was entitled to file response to amended charge does not affect outcome of dismissal of charge. Extension of time granted to respond to amended charge did not violate PERB Regulation 32132(b), where there was no basis to conclude that Board agent did not find good cause for extension. Amended charge that attempted to cure the fatal subject matter jurisdictional defect by re-characterizing what is essentially a wage claim into a claim that the wage dispute arose in retaliation for EERA-protected activities does not state prima facie violation of EERA.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.11000 – Response to Charge

Failure of Board agent to inform charging party that respondent was entitled to file response to amended charge does not affect outcome of dismissal of charge. Extension of time granted to respond to amended charge did not violate PERB Regulation 32132(b), where there was no basis to conclude that Board agent did not find good cause for extension.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.07000 – Waiver; Estoppel

The doctrine of equitable estoppel does not cure timeliness issue. For the doctrine of equitable estoppel to apply, all of these elements must be alleged with factual specificity: (1) a representation or concealment of material facts; (2) made with the knowledge of the true facts; (3) to a party ignorant of the truth; (4) with the intention that the ignorant party acted on the representation or concealment; and (5) the party was in fact induced to act on the representation or concealment. As applied here, the allegations do not establish any of the elements necessary for an estoppel. The charge fails to allege any misrepresentatiion or concealment of material facts on the part of the employer to support charging party's claim that he was induced to delay the filing of an unfair practice charge in reliance thereon. Notwithstanding any of the alleged deceptive, false or misleading responses to charging party's inquiries charging party was not ignorant of the truth, and knew of the alleged wrongful act from which any claim based upon that act would lie.