Los Angeles Unified School District (PERB 1754E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MITCHELL K. DORFMAN,
Charging Party, Case No. LA-CE-4810-E

Vv. PERB Decision No. 1754

LOS ANGELES UNIFIED SCHOOL DISTRICT, February 17, 2005

Respondent.

Appearances: United Teachers Los Angeles Adult and Occupational Education Committee by
Ernest Kettenring, Representative, on behalf of Mitchell K. Dorfman.

Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal of a Board agent’s dismissal (attached) of Mitchell K. Dorfman’s
(Dorfman) unfair practice charge. The unfair practice charge alleged that the Los Angeles
Unified School District (District) violated the Educational Employment Relations Act (EERA)!
by the non-granting of tenure to and termination of Dorfman.

We have reviewed the entire record, including the original unfair practice charge, the
first and second amended charges, the Board agent’s warning and dismissal letters, and the
appeal filed by Dorfman. We find the warning and dismissal letters to be free of prejudicial

error and adopt them as the decision of the Board itself, pursuant to the following discussion.

‘EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

BACKGROUND
The charge filed by Dorfman stated:
Gloria Martinez, a recently fired administrator, vindictively
sabotaged my tenure application. As well, the district's tenure
procedure is amorphous and arbitrary, violating Amendment XIV
of the U.S. Constitution requiring due process and equal
protection under the law. My union has exhausted its options for
redress.
On November 8, 2004, Dorfman was sent a warning letter by the Board agent. In the
letter the Board agent advised that the unfair practice charge, as written, failed to state a prima
facie case as no facts were provided to support the violation.
Under PERB Regulation 32615(a)(5)2 an unfair practice charge must include, "[a] clear
and concise statement of the facts and conduct alleged to constitute an unfair practice."
The warning letter also advised Dorfman that facts were needed to show the charge had
been timely filed. The Board agent noted that "EERA section 3541.5(a)(l) prohibits PERB
from issuing a complaint with respect to 'any charge based upon an alleged unfair practice
occurring more than six months prior to the filing of the charge."'
Dorfman was further advised by the Board agent that PERB was not the correct forum
for allegations that his constitutional rights had been violated. The Board agent also stated that
if Dorfman made a claim of retaliation, that could be pursued as a violation of EERA
section 3543.5(a).
On November 17 and December 3, 2004, Dorfman filed amended charges. The first
continued to assert a violation of his constitutional rights. The second amended charge was
filed on behalf of Dorfman by United Teachers Los Angeles and included the allegation of a
violation of EERA sections 3543.5 and 3543.6.
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
2

The Board agent advised Dorfman in the warning letter that he must provide additional
facts in a concise statement. He laid out the elements of the Novato3 test for Dorfman.
The charge was then amended two times. The constitutional claims were still plead
even though the Board agent had advised him that PERB was not the correct forum.
3Novato Unified School District (1982) PERB Decision No. 210 (Novato). To
demonstrate a violation of EERA section 3543.5(a), the charging party must show that: (1) the
employee exercised rights under EERA; (2) the employer had knowledge of the exercise of
those rights; and (3) the employer imposed or threatened to impose reprisals, discriminated or
threatened to discriminate, or otherwise interfered with, restrained or coerced the employees
because of the exercise of those rights. (Novato; Carlsbad Unified School District (1979)
PERB Decision No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264 (North Sacramento)), it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more of the following additional factors must also be present: (1) the employer's disparate
treatment of the employee (State of California (Department of Transportation) (1984) PERB
Decision No. 459-S); (2) the employer's departure from established procedures and standards
when dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. 104); (3) the employer's inconsistent or contradictory justifications for its actions (State of
California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the
employer's cursory investigation of the employee's misconduct; (5) the employer's failure to
offer the employee justification at the time it took action or the offering of exaggerated, vague,
or ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento.)
Evidence of adverse action is also required to support a claim of discrimination or
reprisal under the Novato standard. (Palo Verde Unified School District (1988) PERB
Decision No. 689.) In determining whether such evidence is established, the Board uses an
objective test and will not rely upon the subjective reactions of the employee. (Ibid.) In a later
decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; fn. omitted.]
3

The additional information that was provided indicated that the employer, through the
principal and assistant principal at North Hollywood Community Adult School, terminated
Dorfman's employment in September 2002 by altering his evaluation. Dorfman alleged he did
not know until June 2004 that the employer also directed students not to enroll in his fall 2002
class.
The Board agent advised Dorfman in the warning letter that he must show his charge
was timely filed. He also noted that the time begins to run when the charging party "knew or
should have known of the conduct underlying the charge."4
The dismissal letter of December 10, 2004, noted that the Board has ruled in retaliation
cases involving termination that the time begins to run on the actual date of termination. In
this case, that would have been in 2002.5 The charge was not filed until October 2004, more
than two years after the termination itself.
Under EERA, as indicated above, the statute of limitations is six months.
APPEAL
Dorfman's appeal alleges that "[w]hile there is the appearance that [his] actual
termination was the unfair practice, it was also the underlying acts of unsubstantiated changes
to Mr. Dorfman's application for tenure and the false manufacture of a reason for his
dismissal."
The appeal also indicates Dorfman was told specifically that he was being terminated
for failure to meet the criteria of Article XXI. 70b of the collective bargaining agreement
(CBA). This document, however, was not provided with the appeal and was not included with
4Gavilan Joint Community College District (1996) PERB Decision No. 1177 (Gavilan).
5Regents of the University of California (2004) PERB Decision No. 1585-H
(UC Regents).
4

the original unfair practice charge or either of the two amended charges. We note that in the
second amended charge Dorfman stated:
While not an explicit section of the [CBA], the district's practice
was written, these practices were acknowledged by both the
district and union, and had been practiced for a number of years,
thus constituting a past practice and an implicit part of the
contractual relationship between employees and employer.
This appears to contradict the allegation that this is covered by a specific section of the CBA.
Further, on appeal, Dorfman raises for the first time allegations that Gloria Martinez
violated Section 32603(a), (f) and (g). We assume he is referring to PERB Regulation 326036
which refers to matters under the Meyers-Milias-Brown Act (MMBA).7
Dorfman requests, in the alternative, that if the statute of limitations has run, that his
charges be accepted as a late filing under (apparently) PERB Regulation 32136. This also is
raised for the first time on appeal.
PERB Regulation 32136 allows for a late filing for good cause only at the discretionof
the Board. While this is a flexible standard, it has generally been allowed when a late filing is
6PERB Regulation 32603(a), (f) and (g) states:
32603. Employer Unfair Practices under MMBA.
It shall be an unfair practice for a public agency to do any of the
following:
(a) Interfere with, intimidate, restrain, coerce or discriminate
against public employees because of their exercise of rights
guaranteed by Government Code section 3502 or by any local
rule adopted pursuant to Government Code section 3507.
(f) Adopt or enforce a local rule that is not in conformance with
MMBA.
(g) In any other way violate MMBA or any local rule adopted
pursuant to Government Code section 3507.
7The MMBA is codified at Section 3500, et seq.
5

related to a time frame of very short duration with no prejudice to the other party or parties.
An example of such is a one day delay in the documents being received at PERB but timely
served on the other party. (Fullerton Elementary School District (2004) PERB Decision
No. 1671.) That is not the situation in this case.
On appeal, Dorfman reiterates his argument that the statute of limitations has not run.
He argues that he did not know the real reason for his 2002 dismissal until June of 2004 when
he and another dismissed former employee were bemoaning their fates in a series of telephone
calls and the former employee advised Dorfman of a conversation he allegedly overheard in
which an unknown person made statements to another employee to stop registering students in
Dorfman's classes. His argument then follows that the six-month time period of the statute
should not have begun to run until June 2004, when this telephone conversation took place,
rather than at the time of his termination.
TIMELINESS
EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The limitations period begins to run once the charging party knows, or
should have known, of the conduct underlying the charge. (Gavilan.) The statute of
limitations is an affirmative defense which has been raised by the respondent in this case.
(Long Beach Community College District (2003) PERB Decision No. 1564.) Therefore,
charging party now bears the burden of demonstrating that the charge is timely filed.
(Cf. Tehachapi Unified School District (1993) PERB Decision No. 1024; State of California
(Department oflnsurance) (1997) PERB Decision No. 1197-S.)
6

On appeal, Dorfman challenges the application of Gavilan, stating that he did not
know the real reason for his termination until June 2004. He ignores the applicability of
UC Regents, cited by the Board agent in the dismissal letter.
In cases of termination the statute begins to run at the date of the actual termination, as
the Board agent indicated in the warning and dismissal letters sent to Dorfman. (UC Regents.)
At the time of his termination Dorfman should have investigated the reasons given to him.
We agree with the Board agent that this case was not timely filed.
NEW ISSUE ON APPEAL
Late Filing Under PERB Regulation 32136
On appeal, Dorfman raised for the first time that his unfair practice charge should be
accepted as a late_ filing if the Board finds the statute of limitations has run.
This regulation refers to filings before the Board itself. The unfair practice charge itself
is two years late under the six-month statute of limitations required under EERA
section 3541.5.
Unless good cause is shown, a charging party may not present new charge allegations
or new supporting evidence on appeal. (PERB Regulation 32635(b); Sonoma Valley Unified
School District (2003) PERB Decision No. 1522.) Dorfman has not provided any information
that shows good cause and has filed the charge untimely.
ORDER
The unfair practice charge in Case No. LA-CE-4801-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Shek joined in this Decision.
7

STATE OF CALIFORNIA 	==============t("''•-. 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMEN ·!{ELATIONS BOARD 	'
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916)327-6377
December 10, 2004
Mitchell K. Dorfman
26526 Bighorn Way
Valencia, CA 91354
Ernest Kettering, UTLA Representative
,Evans Adult School
717 N. Figueroa Street
Los Angeles, CA 90012
Re: 	Mitchell K. Dorfman v. Los Angeles Unified School District
Unfair Practice Charge No. LA-CE-4810-E
DISMISSAL LETTER
Dear Sirs:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 29, 2004. Mitchell K. Dorfman alleges that the Los
Angeles Unified School District violated the Educational Employment Relations Act (EERA)1
by denying him tenure.
I indicated to you in my attached letter dated November 8, 2004, that the above-referenced
charge did not state a prima facie case. 	You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to November 15, 2004, the charge would be
dismissed.
I received Mr. Dorfman's amended charge on November 17 and a second amended charge
from Mr. Kettering on November 30, 2004.
In the first amended charge, you continue to assert that Mr. Dorfman's constitutional rights
have been violated. As discussed in my letter of November 8, redress for such a violation will
need to be sought in another forum.
In both amended charges it is also asserted that the employer, through the Principal and
Assistant Principal at North Hollywood Community Adult School, took a reprisal against Mr.
Dorfman by terminating his employment in September 2002. They did so by altering his
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4810-E
December 10, 2004
Page 2
r l.
evaluation and, as Mr. Dorfman learned from a colleague in June 2004, directing staff to not
enroll students in his fall 2002 class.
However, as stated in my prior letter,
EERA section 3541.5(a)(l) prohibits PERB from issuing a
complaint with respect to "any charge based upon an alleged
unfair practice occurring more than six months prior to the filing
of the charge."
The Board has ruled that in retaliation cases involving termination, the actual date of
termination triggers the running of the statutory limitations period. Regents of the University
of California (2004) PERB Decision No. 1585-H. The original charge in this matter was filed
in October 2004; Mr. Dorfman's employment was terminated in 2002. Accordingly, this
allegation is untimely.
I am dismissing the charge based on the facts and reasons contained herein and in my
November 8 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-4810-E
December 10, 2004
Page 3
(
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By 	1k Q.. 	h--~ 11Bernard McMonigle
Regional Attorney
· 	/
Attachment
cc: Betty Morin

STATE OF CALIFORNIA 	r··===========ad. 	==========~-=-
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
November 8, 2004
Mitchell K. Dorfman
26526 Bighorn Way
Valencia, CA 91354
Re: 	Mitchell K. Dorfman v. Los Angeles Unified School District
Unfair Practice Charge No. LA-CE-4810-E
WARNING LETTER
Dear Mr. Dorfman:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 29, 2004. Mitchell K. Dorfman alleges that the Los
Angeles Unified School District violated the Educational Employment Relations Act (EERA)1
by denying him tenure.
The factual statement of your charge, in its entirety, contains the following,
Gloria Martinez, a recently fired administrator, vindictively
sabotaged my tenure application. As well, the district's tenure
procedure is amorphous and arbitrary, violating Amendment XIV
of the U.S. Constitution requiring due process and equal
protection under the law. My union has exhausted its options for
redress.
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practiee charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice.'.'
Thus, the charging party's burden includes alleging the "who, what, when, where and how" of
an unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
You do not provide the facts necessary to support your allegations.
Any additional facts which you provide must also demonstrate that your charge is timely filed.
EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to "any
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4810-E
November 8, 2004
Page 2
\_
( 	(
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of the charge." The limitations period begins to run once the charging party knows, or should
have known, of the conduct underlying the charge. 	(Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The statute oflimitations is an affirmative defense which
has been raised by the respondent in this case. (Long Beach Community College District
(2003) PERB Decision No. 1564.) Therefore, charging party now bears the burden of
demonstrating that the charge is timely filed. (cf. Tehachapi Unified School District (1993)
PERB Decision No. 1024; State of California (Department oflnsurance) (1997) PERB
Decision No. 1197-S.)
You allege that your constitutional rights have been violated. To pursue such a claim in the
courts you may need to seek legal counsel. PERB' s jurisdiction is limited to enforcing the
labor laws entrusted to it. You may have a claim under EERA section 3543.5(a) if you are able
to demonstrate illegal retaliation by your employer.
To demonstrate a violation of EERA section 3543.5(a), the charging party must show that:
(1) the employee exercised rights under EERA; (2) the employer had knowledge of the
exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the e_xercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation of the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or(7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
Evidence of adverse action is also required to support a claim of discrimination or reprisal
under the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No.
689.) In determining whether such evidence is established, the Board uses an objective test

(
LA-CE-4810-E
November 8, 2004
Page 3
and will not rely upon the subjective reactions of the employee. (Ibid.) In a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circm.p.stances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, dearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penaltyof perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be ,filed with PERB. If I do not receive an
amended charge or withdrawal from you before November 15, 2004, I shall dismiss your
charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Bernard McMonigle
Regional Attorney
BMC