Orange County Employees Association (Hamilton) (PERB 2674MB)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
VANESSA K. HAMILTON,
Charging Party, 	Case No. LA-CO-215-M
v. 	Request for Reconsideration
PERB Decision No. 2674a-M
PERB Decision No. 2674b-M
May 28, 2020
ORANGE COUNTY EMPLOYEES
ASSOCIATION,
Respondent.
Appearance: Vanessa K. Hamilton, on her own behalf.
Before Banks, Shiners, and Krantz, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations
Board (PERB or Board) on Vanessa K. Hamilton’s request for reconsideration of the
Board’s decision in Orange County Employees Association (2019) PERB Decision
No. 2674a-M. In the underlying decision in this case, Orange County Employees
Association (2019) PERB Decision No. 2674-M, we affirmed an administrative law
judge’s (ALJ) conclusion that the Orange County Employees Association (OCEA)
breached its duty of fair representation under the Meyer-Milias-Brown Act (MMBA)1 by
failing to file a grievance signed and approved by Hamilton that included race and
gender discrimination and retaliation claims, and instead, without informing Hamilton,
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1 The MMBA is codified at Government Code section 3500 et seq.

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filing a different grievance on her behalf that omitted the discrimination and retaliation
claims. We disagreed, however, with the portion of the ALJ’s proposed remedy
ordering OCEA to pay reasonable attorney fees Hamilton incurred pursuing a lawsuit
over the termination of her employment.
In Orange County Employees Association, supra, PERB Decision No. 2674a-M,
we denied Hamilton’s request to reconsider our decision not to order OCEA to pay her
attorney fees, finding that Hamilton failed to establish either of the grounds for
reconsideration under PERB Regulation 32410.2 Hamilton now attempts to cure the
defects of her first request for reconsideration. For the following reasons, we deny
Hamilton’s second request for reconsideration.
DISCUSSION
A “party may file only one request for reconsideration of a Board decision,
except in those cases where a prior request for reconsideration has resulted in the
issuance of a completely revised decision.” (County of Santa Clara (2013) PERB
Order No. Ad-398-M, p. 5; Bassett Unified School District (1979) PERB Order
No. Ad-67, p. 4.) Our denial of Hamilton’s request for reconsideration in Orange
County Employees Association, supra, PERB Decision No. 2674a-M resulted in no
revisions to the Board’s underlying decision. Thus, Hamilton’s second request for
reconsideration does not fall under the narrow exception allowing a party to file such a
request.
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2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

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Furthermore, Hamilton’s second request does not satisfy either of the grounds
for reconsideration under PERB Regulation 32410. Under subdivision (a) of the
regulation, the grounds for requesting reconsideration of a final Board decision are
limited to claims that: “(1) the decision of the Board itself contains prejudicial errors of
fact, or (2) the party has newly discovered evidence which was not previously
available and could not have been discovered with the exercise of reasonable
diligence.” (PERB Reg. 32410, subd. (a).)
Hamilton first contends the Board’s underlying decision contains a prejudicial
error of fact because it inferred from evidence showing Hamilton obtained a “right to
sue” letter that she intended to sue her employer, the County of Orange (County), over
her termination, as opposed to the earlier acts of discrimination and retaliation alleged
in her original, unfiled grievance. Hamilton points to other evidence in the record to
establish that her right to sue letter related to the earlier discrimination and retaliation
allegations, not her termination. As we stated in our denial of Hamilton’s first request
for reconsideration, a party may not use the reconsideration process to re-litigate
issues that have already been decided or simply to ask the Board to “try again.”
(Jurupa Unified School District (2015) PERB Decision No. 2450a, p. 3; Chula Vista
Elementary School District (2004) PERB Decision No. 1557a, p. 2; Redwoods
Community College District (1994) PERB Decision No. 1047a, pp. 2-3.) We thus find
no basis to reconsider our factual findings regarding the right to sue letter.
Attempting to satisfy the second ground for reconsideration, Hamilton provides
a copy of the complaint in her civil lawsuit against the County, with a declaration under
penalty of perjury explaining why the civil complaint could not have been discovered

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prior to the underlying hearing and was not presented to PERB until now. Specifically,
Hamilton declares the civil complaint was filed on June 21, 2018—over seven months
after the November 28, 2017 hearing in this case—and she did not obtain a copy of
the complaint from her attorney until November 1, 2019. She further declares that the
civil complaint shows the allegations in her lawsuit against the County are the same as
those in the unfiled grievance, and therefore she should be awarded attorney fees
under Dutrisac v. Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270.
“A request for reconsideration based upon the discovery of
new evidence must be supported by a declaration under the
penalty 	of 	perjury 	which 	establishes 	that 	the 	evidence:
(1) was not previously available; (2) could not have been
discovered 	prior 	to 	the 	hearing 	with 	the 	exercise 	of
reasonable diligence; (3) was submitted within a reasonable
time of its discovery; (4) is relevant to the issues sought to
be reconsidered; and (5) impacts or alters the decision of the
previously decided case.”
(PERB Reg. 32410, subd. (a).) We need not address whether Hamilton’s declaration
establishes the first four elements because it fails to establish the fifth—that the civil
complaint “impacts or alters the decision of the previously decided case.”
The civil complaint alleges the County discriminated against Hamilton because
of her race when it canceled her vacation in May 2016 but did not cancel the vacations
of other employees of different races. Substantively, this allegation is similar to the
discrimination allegations in the grievance OCEA failed to file on Hamilton’s behalf.
The civil complaint alleges this conduct violated the California Fair Employment and
Housing Act (FEHA)3 and 42 U.S.C. § 1981, which prohibits race discrimination in the
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3 The FEHA is codified at Government Code section 12900 et seq.

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creation and enforcement of contracts. Thus, there is a colorable argument that the
civil complaint seeks to enforce Hamilton’s right under the OCEA-County
Memorandum of Understanding (MOU) not to be subject to discriminatory application
of the MOU’s terms—the same right she sought to enforce through the unfiled
grievance.
The complaint also alleges, however, that the County terminated Hamilton’s
employment in retaliation for her prior discrimination lawsuit against the County and
for protesting the cancellation of her vacation as discriminatory, and that this conduct
also violated FEHA and 42 U.S.C. § 1981. As noted in the underlying decision, OCEA
was willing to pursue through arbitration the grievance it filed over Hamilton’s
termination, but Hamilton chose to withdraw the grievance and instead pursue a civil
lawsuit. (Orange County Employees Association, supra, PERB Decision No. 2674-M,
pp. 6-7, 11.) The civil complaint thus encompasses the allegations in both the
grievance OCEA failed to file on Hamilton’s behalf and the grievance OCEA filed over
Hamilton’s termination.
When a plaintiff prevails on a FEHA claim, the court “may award to the
prevailing party . . . reasonable attorney’s fees and costs.” (Gov. Code, § 12965,
subd. (b).) “‘Attorneys fees need not be apportioned between distinct causes of action
where plaintiff’s various claims involve a common core of facts or are based on related
legal theories.’ [Citation.] [Nor is] [a]pportionment . . . required when the issues in the
fee and nonfee claims are so inextricably intertwined that it would be impractical or
impossible to separate the attorney’s time into compensable and noncompensable
units.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 159

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(Graciano).) “Employment discrimination cases, by their very nature, involve several
causes of action arising from the same set of facts.” (Wysinger v. Automobile Club of
Southern California (2007) 157 Cal.App.4th 413, 431, citation and brackets omitted.)
Because they are based on the same core set of facts, the civil complaint’s
discrimination causes of action that mirror the allegations OCEA omitted from the first
grievance are inextricably intertwined with the retaliation causes of action challenging
the termination of Hamilton’s employment. Therefore, it would be “impractical or
impossible” to apportion the time her attorney spends on the discrimination causes of
action versus the retaliation causes of action. (Graciano, supra, 144 Cal.App.4th at
p. 159.) Because of the inability to isolate time spent on the allegations mirroring
those in the unfiled grievance, ordering OCEA to pay Hamilton’s attorney fees
necessarily would require OCEA to pay the cost of litigating her termination claims,
which OCEA was willing to pursue in arbitration. Thus, even assuming that Hamilton
is obligated to pay her attorney out of pocket, ordering OCEA to pay the cost of
litigating Hamilton’s termination claims is not necessary to make her whole.4 Nor is
such a broad remedy essential to deter OCEA from engaging in future violations like
the one found here. Under these circumstances, ordering OCEA to pay attorney fees
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4 Because there is no evidence before us of any fee agreement between
Hamilton and her attorney, we need not address whether such an agreement might
impact a charging party’s ability to obtain attorney fees as damages for a breach of the
duty of fair representation. Similarly, given our finding in the underlying decision that
we need not determine whether the grievance OCEA failed to file was meritorious
because Hamilton did not meet the threshold requirement for an award of attorney
fees (Orange County Employees Association, supra, PERB Decision No. 2674-M,
p. 10, fn. 8), we need not address whether a potential award of attorney fees under a
fee-shifting statute such as FEHA might impact a charging party’s ability to obtain
attorney fees as damages for a breach of the duty of fair representation.

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Hamilton incurs in her civil lawsuit against the County would not effectuate the
purposes of the MMBA. (See Sonoma County Superior Court (2017) PERB Decision
No. 2532-C, p. 30, citing San Diego Teachers Assn. v. Superior Court (1979) 24
Cal.3d 1, 13 [PERB “has discretion to withhold various remedies at its disposal when
doing so effectuates the purpose of the labor relations statute”].)
In sum, this request for reconsideration does not fall under the narrow
exception in County of Santa Clara, supra, PERB Order No. Ad-398-M permitting a
second reconsideration request in the same case. We also find no prejudicial error of
fact in the underlying Board decision, nor does the newly-submitted civil complaint
warrant reversal of our decision not to order OCEA to pay attorney fees Hamilton
incurs in her civil lawsuit against the County. Because Hamilton has not established a
basis for reconsideration under PERB Regulation 32410, her request is denied.
ORDER
Vanessa K. Hamilton’s request for reconsideration of the Public Employment
Relations Board’s decision in Orange County Employees Association (2019) PERB
Decision No. 2674a-M is DENIED.
Members Banks and Krantz joined in this Decision.