City of Berkeley (PERB 2281M)

DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD F
RAGNI LARSEN-ORTA,
Charging Party,
V.
CITY OF BERKELEY,
Respondent.
Case No. SF-CE-426-M
PERB Decision No. 2281-M
August 17, 2012
Appearance: 	Ragni Larsen-Orta, on her own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Ragni Larsen-Orta (Larsen-Orta)
of
the Office
of
the General
Counsel's dismissal
of
her unfair practice charge. The charge, as amended, alleged that the
City
of
Berkeley (City) violated the Meyers-Milias-Brown Act (MMBA)1 by terminating her
from her employment because
of
her protected activity. The Office
of
the General Counsel
dismissed the charge, concluding that certain
of
the allegations were untimely and the
remaining allegations failed to state a prima facie case.
We have reviewed the entire record in this matter and given full consideration to the
issues raised on appeal. 	on this review, the Board affirms 	dismissal for the reasons
below.
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

DISCUSSION
Pursuant to PERB Regulation 32635, subdivision (a),2 an appeal from dismissal of an
unfair practice charge shall:
(1) State the specific issues of procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the page or part of the dismissal to which each
appeal is taken;
(3) State the grounds for each issue stated.
To satisfy the requirements of PERB Regulation 32635, subdivision (a), the appeal
must sufficiently place the Board and the respondent "on notice of the issues raised on appeal."
(State Employees Trades Council United (Ventura, et al.) (2009) PERB Decision No. 2069-H;
City & County of San Francisco (2009) PERB Decision No. 2075-M.) An appeal that does not
reference the substance of the Board agent's dismissal fails to comply with PERB
Regulation 32635, subdivision (a). (United Teachers of Los Angeles (Pratt) (2009) PERB
Order No. Ad-381; Lodi Education Association (Huddock) (1995) PERB Decision No. 1124;
United Teachers - Los Angeles (Glickberg) (1990) PERB Decision No. 846.) Likewise, an
appeal that merely reiterates facts alleged in the unfair practice charge does not comply with
PERB Regulation 32635, subdivision (a). (Contra Costa County Health Services Department
(2005) PERB Decision No. 1752-M; County of Solano (Human Resources Department) (2004)
Decision No. 1598-M.) An appeal that does not comply 	requirements of
Regulation 32635, subdivision (a), is subject to dismissal. (City of Brea (2009) PERB
Decision No. 2083-M.)
In response to the dismissal, Larsen-Orta filed a document with the Board dated
March 12, 2012, entitled "Request for Extension of Time for Appeal of Dismissal and Request
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

for Reconsideration" (Request for Extension). By letter dated March 13, 2012, the Board's
Appeals Assistant informed the parties that "the new date for filing an appeal ... will be
Monday, April 9, 2012." On April 4, 2012, Larsen-Orta filed a document with the Board
entitled "Request for Tolling of Statute of Limitations for Appeal of Dismissal and Request for
Reconsideration." We construe this document to be Larsen-Orta's appeal from the dismissal of
her unfair practice charge under PERB Regulation 326353 and refer to it herein as the "appeal."
Attached to the appeal is a copy of a discrimination charge filed by Larsen-Orta with
the California Department of Fair Employment & Housing (DFEH) on March 15, 2012. In the
appeal, Larsen-Orta refers to this DFEH charge in stating that she "further reactivate[s]
requests filed with PERB on March 13, 2012 due to subsequent availability of the federal
discrimination charge." The March 13, 2012, request to which Larsen-Orta refers is that
contained in the March 12, 2012 request for extension, i.e., "that the Board extend the time for
me to appeal dismissal of the charge until outcome of the federal discrimination charge." As
stated above, in response to the request for extension, Larsen-Orta' s deadline for filing an
appeal was extended to April 9, 2012.
Larsen-Orta contends that the deadline for filing an appeal of the dismissal should be
"tolled" during the pendency of her Equal Employment Opportunity Commission (EEOC)
proceedings. Larsen-Orta received one extension of the deadline for filing an appeal to date.
To the extent Larsen-Orta intends by 	filing 	appeal to
the deadline for filing an appeal until such 	as the EEOC charge proceedings are
concluded, such request is hereby denied.
Requests for reconsideration are governed by PERB Regulation 32410, which
allows a party to a decision of the Board itself to file a request for reconsideration based on
extraordinary circumstances. Here, Larsen-Orta is challenging the dismissal of her charge.
She is not challenging a decision of the Board itself. Therefore, her appeal falls under PERB
Regulation 32635 governing review of dismissals rather than PERB Regulation 32410
governing requests for reconsideration.
3

By the appeal, Larsen-Orta also seeks "corrections/clarifications" of factual statements
contained in the dismissal letter. Because we are not adopting the warning and dismissal
letters as the decision of the Board itself, we need not address Larsen-Orta's contentions on
appeal that certain factual statements contained in the dismissal letter require correction or
clarification. Instead, we review the unfair practice charge, as amended, to determine whether
it states a prima facie case.
In the initial charge, Larsen-Orta alleged that the City retaliated against her because of
her protected activities; that her union, SEIU Local 535, grieved her termination through
arbitration; and the City, by its conduct at the arbitration, engaged in unfair practices. In the
amended charge, Larsen-Orta alleged that the arbitrator's award is repugnant. In dismissing the
charge, the Office of the General Counsel concluded that certain of Larsen-Orta' s allegations
were untimely filed and the others failed to state a prima facie case of repugnancy.
A repugnancy claim4 is analyzed under the post-arbitration deferral standard set forth in
Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81 a. PERB will
exercise its discretion to defer to an arbitrator's award if (1) the matters raised in the unfair
practice charge were presented to, and considered by, the arbitrator, (2) the arbitral
proceedings were fair and regular, (3) all parties to the arbitration proceedings agreed to be
bound by the arbitral award, and (4) the award is not repugnant to the purposes of the labor
relations statutory scheme. 	arbitration award [that] has failed to observe any of
foregoing criteria would be inherently repugnant to the purposes of [the statutory scheme]."
(Ibid.) 	purpose of deferral is to encourage 	voluntary
purpose would not be served if PERB "were to give effect to an ... award [that] does not
consider the underlying unfair practice, or in which a party was denied due process." (Ibid.)
4 See PERB Regulation 32661.
4

The problem with this case, however, is that even if Larsen-Orta were to prevail on her
repugnancy claim in establishing that PERB should not exercise its discretion to defer to the
arbitrator's award,5 the underlying allegations in Larsen-Orta's unfair practice charge relevant
to the discrimination/retaliation violation are nonetheless untimely.
PERB is prohibited 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.
(Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment
Relations Bd. (2005) 35 Cal.4 th 1072.) 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.) A charging party bears the
burden of demonstrating that the charge is timely filed. 	(State of California (Department of
Insurance (1997) PERB Decision No. 1197-S.) In cases involving allegations that an
employee was terminated from employment in retaliation 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. (Regents of the University of California
(2004) PERB Decision No. 1585-H.)
On October 12, 2005, Larsen-Orta's termination became effective. At most, Larsen-
Orta had until April 12, 2006, six months from the date of termination, by which to file her
unfair practice charge. Larsen-Orta filed her unfair practice charge on February 23, 2007.
5 Larsen-Orta alleges that the City "ratified prior unfair practices" at the arbitration of
August 23, 2006, by "entering testimony and documents into evidence falsely stating
insubordination, poor work performance, and disciplinary action against me for non-existent
misconduct." Larsen-Orta 	alleges that "these documents were created
misrepresentationally, and illegally under state law." While Larsen-Orta's allegations are
vague, to the extent she is alleging that the City's conduct at the arbitration proceedings
constitutes an independent violation of the MMBA, we conclude that, although these
allegations were timely filed, Larsen-Orta has failed to establish the elements of an
interference or discrimination/retaliation case. (See Novato Unified School District (1982)
PERB Decision No. 210; Carlsbad Unified School District (1979) PERB Decision No. 89.)
5

Accordingly, we agree with the Office of General Counsel that Larsen-Orta's allegations of
discrimination/retaliation occurring during her employment with the City are untimely. 6
ORDER
The unfair practice charge in Case No. SF-CE-426-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND~
Members Dowdin Calvillo and Huguenin joined in this Decision.
6 The issue of whether the statute of limitations was equitably tolled during the
pendency of the grievance proceedings is arguably presented by the factual allegations of the
charge. The doctrine of equitable tolling applies to cases under the MMBA. (Solano County
Fair Association (2009) PERB Decision No. 2035-M.) Under the doctrine of equitable tolling,
the statute of limitations is tolled if the following elements are met: ( 1) the dispute resolution
procedure is contained in a written agreement negotiated by the parties; (2) the procedure is
being used to resolve the same dispute that is the subject of the unfair practice charge; (3) the
charging party reasonably and in good faith pursues the procedure; and (4) tolling does not
frustrate the purpose of the statutory limitations period by causing surprise or prejudice to the
respondent. (Long Beach Community College District (2009) PERB Decision No. 2002.) It is
charging party's burden to establish that 	statute oflimitations has been equitably tolled.
Here, Larsen-Orta did not provide PERB with a copy of the grievance procedure or grievances,
nor allege in what manner her allegations of retaliation for having engaged in protected activity
involve the "same dispute" as the issue before the arbitrator, i.e., whether the City was entitled
to terminate her employment upon failure to return from an approved leave of absence.
Accordingly, we conclude that the six-month limitations period was not subject to equitable
tolling.
6