Los Banos Unified School District (PERB 2063E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CHARLES
E.
ULMSCHNEIDER,
Charging Party,
V.
LOS BANOS UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SA-CE-2508-E
PERB Decision No. 2063
September 25, 2009
Appearance: 	Charles E. Ulmschneider, on his own behalf.
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
NEUWALD, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Charles E. Ulmschneider (Ulmschneider)
of
a Board agent's
dismissal
of
his unfair practice charge. The charge alleged that the Los Banos Unified School
District (District) violated the Educational Employment Relations Act (EERA)1 by retaliating
against him. The Board agent dismissed the charge on the grounds that it was untimely filed
and failed to state a prima facie case
of
retaliation.
The Board reviewed the entire record, including but not limited to, the unfair practice
charge, the District's position, the warning and dismissal letters, and Ulmschneider's appeal.
Based on this review, the Board affirms the dismissal subject to the following discussion.
1EERA is codified at Government Code section 3540, et seq.

BACKGROUND
Ulmschneider alleges that, from 2004 forward, the District engaged in "intensified
forms
of
reprisals" against him after he filed numerous grievances, PERB complaints, and
other governmental complaints, and participated in union activities. He further alleges that
these reprisals culminated in his suspension without pay or benefits on January
1,
2008, which,
following a hearing, became a final dismissal from employment with the District on
September 11, 2008. He further alleges that, since his dismissal, he has been unable to obtain
employment as a teacher because he is now "blackballed" throughout the State
of
California.
On December 5, 2007, the District issued a "Statement
of
Charges" charging that there
existed causes, as permitted by Education Code sections 449322 and 44939,3 for the immediate
suspension without pay and for the dismissal
of
Ulmschneider. The "Statement
of
Charges"
further states:
It is accordingly requested and directed that procedures be
implemented so that Mr. Ulmschneider be suspended
immediately without pay and dismissed from employment at the
expiration
of
thirty (30) days from the date
of
service
of
a notice
of
intention to dismiss, unless he demands a hearing.
2Education Code section 44932 sets forth causes for dismissal
of
a permanent
certificated employee and authorizes a school district to suspend an employee without pay for
a specified period
of
time on grounds of unprofessional conduct, pursuant to procedures
specified in sections 44933, 44934, 44935, 44936, 44937, 44943, and 44944 of the Education
Code.
3Education Code section 44939 authorizes the governing board of a school district to
immediately suspend a permanent employee charged with specified misconduct and give the
employee notice that, 30 days after service of the notice, he will be dismissed, unless he
demands a hearing.
2

Ulmschneider exercised his option to demand a hearing, which was held on numerous
dates between July 16 and 24, 2008, before the Commission on Professional Competence of
the District (Commission).4
On September 11, 2008, the Commission issued a decision finding that Ulmschneider
had engaged in unsatisfactory performance, unprofessional conduct, persistent violation of or
refusal to obey the school laws of the state or reasonable regulations, and was unfit for service
as a teacher, and ordered that he be dismissed as a permanent certificated employee of the
District.
DISCUSSION
Timeliness
EERA section 3541.5, subdivision (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
Joint Community College District (1996) PERB Decision No. 1177.) A charging party bears
the burden of demonstrating that the charge is timely filed. (Tehachapi Unified School District
(1993) PERB Decision No. 1024; 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 (Regents);
The charge erroneously asserts that the hearing took place between August 16 and 24,
2008.
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Los Angeles Unified School District (2005) PERB Decision No. 1754.) Where, however, the
employee is not terminated and the employment relationship is not severed, the Board has
declined to apply the Regents rule. (Yuba Community College District (2007) PERB Decision
No. 1936 (charge was untimely filed as to notice ofnonrenewal of contract, where employment
was not terminated but employee was instead offered a probationary position, which he
declined.)
The charge was filed on March 11, 2009. Therefore, all allegations of unlawful
conduct occurring prior to September 11, 2008, are barred by the six-month statute of
limitations set forth in EERA. Accordingly, the charge is untimely with respect to
Ulmschneider's allegations that the District engaged in reprisals against him between 2004 and
September 10, 2008.
The allegation that the District engaged in reprisal by suspending Ulmschneider without
pay effective January 1, 2008, is likewise untimely. However, Ulmschneider was not actually
terminated from employment with the District until September 11, 2008, when the
Commission on Professional Competence issued its decision dismissing him from
employment. Therefore, under Regents, the charge was timely filed only with respect to the
allegation that Ulmschneider was dismissed in retaliation for having engaged in protected
activity.
Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in
violation of EERA section 3543.5, subdivision (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; (3) the employer took adverse action against the employee; and (4) the employer
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took the action because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210; Campbell Municipal Employees Assn. v. City of Campbell (1982) 131
Cal.App.3d 416; San Leandro Police Officers Assn. v. City of San Leandro (1976) 55
Cal.App.3d 553.) In determining whether evidence of adverse action is established, the Board
uses an objective test and will not rely upon the subjective reactions of the employee.
(Palo Verde Unified School District (1988) PERB Decision No. 689.) 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 Dec. No. 864; emphasis added; fnt. omitted.)
We agree with the Board agent that the charge fails to allege a prima facie case of
retaliation under EERA. As set forth in the Board agent's warning letter:
Charging Party provided no facts but rather legal
conclusions that the District was retaliating against him
due to his actions of filing grievances, PERB complaints,
and other filings. 	Yet there is nothing that ties those
activities to the suspension and ultimate termination of the
Charging Party. 	Without those facts, this charge fails to
state a prima facie case of discrimination.
Nothing in the information and documents provided by the charging party in response
to the warning letter sets forth any facts establishing a causal connection between the
grievances and complaints he filed and the District's decision to terminate him. 	Accordingly,
the charge fails to state a prima facie case that the District dismissed Ulmschneider in
retaliation for having engaged in protected activity.
5

The Board further notes that, in his appeal, Ulmschneider presents new supporting
evidence for the first time on appeal. PERB Regulation 32635, subdivision (b) provides:
"Unless good cause is shown, a charging party may not present on appeal new charge
allegations or new supporting evidence." It is clear from the appeal that Ulmschneider was
aware of the newly provided information prior to the filing of his charge. Ulmschneider fails
to demonstrate good cause. Accordingly, the Board did not consider the new evidence on
appeal.
ORDER
The unfair practice charge in Case No. SA-CE-2508 is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Acting Chair Dowdin Calvillo and Member McKeag joined in this Decision.
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