Los Angeles Unified School District (PERB 2011E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JOHN W. ADAMS,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5177-E
PERB Decision No. 	2011
March 13, 2009
Appearance: 	John W. Adams, on his own behalf
Before R ystrom, Chair; N euwald and Wesley, Members.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by John Adams (Adams) of a Board agent's partial dismissal of his
unfair practice charge. 	The charge alleged numerous acts of reprisal for protected activity by
the Los Angeles Unified School District (District), in violation of the Educational Employment
Relations Act (BERA). 1 Adams also alleged racial and disability discrimination, and violation
of his rights under the Education Code and the First Amendment of the United States
Constitution.
After reviewing the entire record in this matter, including the unfair practice charge, the
Board agent's partial warning and dismissal letters, and Adams' appeal, the Board affirms the
partial dismissal of the unfair practice charge.
1
EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all
statutory references herein are to the Government Code.

BACKGROUND
Adams was a certificated employee
of
the District, and most recently worked at Boyle
Heights High School. United Teachers Los Angeles (UTLA) is the exclusive representative
of
the certificated personnel employed by the District. The District and UTLA are currently
parties to a collective bargaining agreement (CBA).
Beginning around April through July 2006, while he was working at Garfield High
School, Adams filed several complaints against the District and/or the school site alleging
racial bias, and the failure to comply with state regulations. In October 2006, Adams received
a negative performance evaluation because his curriculum did not meet state teaching
standards. 	Around the same time, the District reassigned Adams from teaching an honors
history class to a subject with which he was unfamiliar, requiring him to develop new
curriculum. Also, sometime in 2006, the District accused Adams
of
striking three students.
Adams denied this conduct.
During the 2006-2007 school year, Adams transferred to Boyle Heights High School.
On April 17, 2007, he filed a grievance alleging the District failed to comply with the CBA and
the Education Code by failing to inform him
of
students with disciplinary problems.
Shortly after filing the April 17, 2007 grievance, Adams took a medical leave
of
absence. 	On two separate occasions, in May 2007 and October 2007, the District improperly
notified Adams that he was absent without leave. On August 15, 2007, the District requested
that Adams return his school keys by September 7, 2007.
On August 17, 2007, the District ordered Adams to submit to a psychiatric evaluation
prior to returning to work. On September 7, 2007, the District accused Adams of selling
textbooks that were assigned to his classroom. Adams denied selling District textbooks.
2

Adams contacted his UTLA representative several times for assistance with these
matters.
Adams did not return to school, but met with the District in January 2008, to discuss
these issues. It
is
unclear whether a union representative attended this meeting with Adams.
On February 22, 2008, the District issued Adams a Notice
of
Unsatisfactory Acts for
incidents occurring during the 2006-2007 school year. 	Finally, in June 2008, the District
terminated Adams' employment.
BOARD AGENT'S PARTIAL DISMISSAL
The Board agent dismissed all allegations occurring more than six months prior to the
filing
of
the charge and found no evidence
of
a continuing violation. The Board agent found
these allegations included: 	in 2006, assigning Adams to teach classes outside his expertise,
giving him a negative performance evaluation, and accusing him
of
striking students; on
August 15, 2007, requiring him to return his school keys; and on September 7, 2007, accusing
Adams
of
selling District textbooks.2 Additionally, the Board agent dismissed the alleged
violations
of
the Education Code and First Amendment, along with the discrimination claims
under the Fair Employment and Housing Act, finding they were not within PERB's
jurisdiction.3
CHARGING PARTY'S APPEAL
On appeal, Adams reargues the same facts addressed by the Board agent and asserts the
continuing violation doctrine should apply to the untimely allegations. Further, Adams raises
The Board agent found that three allegations, the required psychiatric examination, the
Notice of Unsatisfactory Acts, and the termination of Adams' employment, were timely and a
complaint was issued on these allegations. Prior to hearing, the parties reached a settlement of
these allegations and the complaint was dismissed.
3The dismissal of these claims was not raised in the appeal, and therefore will not be
discussed herein.
3

new facts and allegations in his appeal but does not provide good cause as to why these matters
should be considered for the first time on appeal.
DISCUSSION
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 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. 	(Los Angeles Unified School District (2007) PERB Decision
No. 1929; City
of
Santa Barbara (2004) PERB Decision No. 1628-M; Tehachapi Unified
School District (1993) PERB Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
Nonetheless, an unfair practice charge may still be considered timely
if
the alleged
violation is a continuing one. (San Dieguito Union High School District (1982) PERB
Decision No. 194.) A continuing violation occurs
if
an alleged violation has been revived by
subsequent unlawful conduct within the six month statute
of
limitations. 	(Sacramento City
Teachers Association (Franz) (2008) PERB Decision No. 1959; Compton Community College
District (1991) PERB Decision No. 915.)
Adams filed his charge utilizing PERB's electronic filing procedure on March 26, 2008.
The statutory limitations period extends six months prior to the filing
of
the charge to
September 26, 2007. Therefore, as stated by the Board agent, the allegations occurring prior to
September 26, 2007, are untimely filed.
On appeal, Adams argues that many of the incidents which the Board agent dismissed
as untimely represent continuing violations of incidents that were included in the complaint.
4

However, the untimely allegations
of
adverse action represent acts by the District that are
separate and independent from the timely allegations. 	Therefore, the continuing violation
doctrine cannot be applied and these allegations are untimely. 	Consequently, the allegations
of
reprisal that occurred prior to September 26, 2007 are outside the six month statute
of
limitations and are untimely filed.
Finally, Adams raises new facts and allegations on appeal. PERB Regulation 32635(b)4
provides: "Unless good cause is shown, a charging party may not present on appeal new
allegations or new supporting evidence." Adams has failed to demonstrate good cause to allow
presentation
of
new allegations or evidence on appeal and nothing in the appeal indicates that
such good cause exists.
ORDER
The partial dismissal
of
the unfair practice charge in Case No. LA-CE-5177-E is hereby
AFFIRMED.
Chair Rystrom and Member Neuwald joined in this Decision.
4PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
5