Solano County Community College District (PERB 2708E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GINGER LYNN CAIN,
Charging Party,
v.
SOLANO COUNTY COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. SF-CE-3254-E
PERB Decision No. 2708
April 16, 2020
Appearances: Law Offices of Randal M. Barnum by Randal M. Barnum, Attorney, for
Ginger Lynn Cain; Erickson Law Firm by Joshua Taylor, Attorney, for Solano County
Community College District.
DECISION
This case is before the Public Employment Relations Board (PERB or Board)
on appeal by the Solano County Community College District (District) of an
administrative law judge’s (ALJ) notice of withdrawal and dismissal of complaint. The
District contends that the ALJ improperly granted charging party Ginger Lynn Cain’s
(Cain) request for withdrawal of her unfair practice charge without determining
whether it was with or without prejudice, as expressly required by PERB Regulation
32625.1 For the following reasons, we grant the appeal.
Cain, a faculty member of the District, filed the original charge on December 11,
2017, alleging that the District discriminated against her because she engaged in
1 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

2
statutorily protected activities. On April 10, 2019, after the filing of amended charges
and an investigation that resulted in the dismissal of certain allegations, PERB’s Office
of the General Counsel (OGC) issued a complaint alleging two discrete instances of
discrimination, one occurring in 2017 and the other in 2018. When settlement
discussions failed, the matter was set for hearing on November 6, 2019.
Cain filed a request to withdraw her charge five days before hearing. In her
request, Cain did not indicate whether she intended the withdrawal to be with or
without prejudice. Without clarifying Cain’s request or soliciting the District’s position,
the assigned ALJ granted that request in a notice dated November 4, 2019, which also
did not indicate whether the withdrawal was with or without prejudice. The District
requested that the ALJ clarify whether the withdrawal was with or without prejudice. In
subsequent correspondence with the ALJ, Cain responded that she intended the
withdrawal to be without prejudice. The ALJ refused to clarify her notice and instead
instructed the District to file an appeal with the Board if it was dissatisfied with the
dismissal.
PERB Regulation 32625 provides, in pertinent part:
“Any request for withdrawal of the charge shall be in writing,
signed by the charging party or its agent, and state whether
the 	party 	desires 	the 	withdrawal 	to 	be 	with 	or 	without
prejudice. 	Request 	for 	withdrawal 	of 	the 	charge 	before
complaint has issued shall be granted. Repeated withdrawal
and 	refiling 	of 	charges 	alleging 	substantially 	identical
conduct may result in refusal to issue a complaint. If the
complaint 	has 	issued, 	the 	Board 	agent 	shall 	determine
whether the withdrawal shall be with or without prejudice.”
(Emphasis added.)

3
Here, the ALJ’s notice of withdrawal did not comply with the express
requirements of Regulation 32625 because it failed to indicate whether the withdrawal
was with or without prejudice.2 This was clear error insofar as the regulation gave the
ALJ no authority to grant withdrawal of the charge without such a determination. (See,
e.g., UPTE, CWA Local 9119 (Booth, et al.) (2006) PERB Decision No. 1831-H,
pp. 3-4.) At a minimum, the ALJ should have solicited Cain’s intent and the District’s
position before granting the withdrawal. Similarly, when the District brought the error
to her attention, the ALJ should have undertaken the required determination and
corrected the notice to comply with the regulation. Since the ALJ did not do so, we
must grant the District’s appeal.
However, rather than remand the matter to the ALJ, we will make the necessary
determination ourselves. In the statement filed in response to the District’s request for
clarification, Cain stated that she intended her withdrawal to be without prejudice.
Under the circumstances present here, which include the fact that Cain received no
consideration from the District in exchange for her withdrawal, we will give effect to her
desire to withdraw her charge without prejudice. We note, however, that in this case
(like most cases except those involving a continuing violation), the distinction between
a withdrawal with prejudice and one without prejudice is meaningless because the
underlying claims were already more than six-months old at the time of the withdrawal,
and thus could not form the basis for a new complaint. (See Gov. Code, § 3541.5,
subd. (a)(1) [PERB shall not “(i)ssue a complaint in respect of any charge based upon
2 We also note that Cain’s November 1, 2019 withdrawal request did not comply
with Regulation 32625 because it failed to “state whether the party desires the
withdrawal to be with or without prejudice.”

4
an alleged unfair practice occurring more than six months prior to the filing of the
charge”].)3 In addition to being subject to dismissal for untimeliness, OGC could
decline to issue a complaint should Cain file a new charge alleging substantially
identical conduct. (PERB Reg. 32625.)
ORDER
The appeal by Solano County Community College District is GRANTED. The
unfair practice charge in Case No. SF-CE-3254-E is hereby DISMISSED WITHOUT
PREJUDICE.
PER CURIAM
3 Of course, PERB may consider evidence of events lying outside the limitations
period to “show the true character” of the events at issue in an unfair practice case,
including “whether [the] respondent acted for an unlawful purpose in cases where
motive is an issue.” (City of Oakland (2014) PERB Decision No. 2387-M, p. 34.)
Thus, even a dismissal with prejudice would not bar Cain from alleging the facts in her
withdrawn charge as evidence of the District’s unlawful motive in a future charge
based on different conduct by the District.