City of Santa Monica (PERB 2211MA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALFRED MCKNIGHT,
Charging Party,
V.
CITY OF SANTA MONICA,
Respondent.
Case No. LA-CE-523-M
Request for Reconsideration
PERB Decision No. 2211-M
PERB Decision No. 221 la-M
December 29, 2011
Appearances: Law Office of Vida M. Holguin by Vida M. Holguin, Attorney, for
Alfred McKnight; Barbara Greenstein, Deputy City Attorney, for City of Santa Monica.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on a request for reconsideration by Alfred McKnight (McKnight) of
the Board's decision in City of Santa Monica (2011) PERB Decision No. 2211-M. In that
decision, the Board dismissed a complaint and underlying charge alleging that the City of
Santa Monica (City) terminated McKnight's probationary employment in retaliation for having
filed grievances concerning his employment with the City, thereby committing an unfair
practice under the Meyers-Milias-Brown Act (MMBA). 1
In its decision, the Board determined that McKnight established the elements of
protected activity, employer knowledge, and adverse action, under the standards set forth in the
Board's decision in Novato Unified School District (1982) PERB Decision No. 210. The
Board determined, however, that McKnight failed to establish an unlawful motive in the City's
decision to terminate his probationary employment, and therefore failed to establish a nexus
1 The MMBA is codified at Government Code section 3500 et

between the protected activity and the adverse action. The Board further found that, even
assuming for the sake of argument that McKnight had established a prima facie case of
retaliation, the City nonetheless established that it would have rejected McKnight on probation
despite his protected activity.
The Board has reviev,red McKnight's request for reconsideration and the City's
response thereto in light of the relevant law.2 Based on this review, the Board denies
McKnight's request for reconsideration for the reasons discussed below.
PROCEDURAL BACKGROUND
On March 20, 2009, McKnight filed an unfair practice charge alleging that the City
terminated his probationary employment in retaliation for having engaged in protected activity.
On November 24, 2009, the PERB Office of the General Counsel issued a complaint based
upon these allegations. After a hearing before an administrative law judge (ALJ), the ALJ
issued a proposed decision finding that the City terminated McKnight's probationary
employment in retaliation for having filed grievances concerning his employment. Following
exceptions filed by the City, on October 24, 2011, the Board issued a decision reversing the
ALJ's proposed decision and dismissing the charge and complaint. On November 14, 2011,
McKnight filed a timely request for reconsideration of the Board's decision.
ASSERTED GROUNDS FOR RECONSIDERATION
McKnight asserts that reconsideration should be granted because the record contains
sufficient evidence of nexus based upon (1) inconsistent or contradictory justifications for the
City's actions; (2) cursory investigation of McKnight's alleged poor performance; (3) disparate
McKnight submitted a reply to the City's opposition to his request for
reconsideration. Nothing in PERB Regulation 3241 0(a) authorizes the fiiing of a reply to
an opposition to a request for reconsideration. Therefore, the Board does not consider
McKnight's reply brief in making its determination. (PERB regs. are codified at Cal. Code
Regs., tit. 8, sec. 31001, et seq.)
2
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treatment of McKnight; ( 4) other facts demonstrating unlawful motive; and ( 5) McKnight was
not a probationary employee when he was terminated.
THE CITY'S RESPONSE
The City disputes that grounds for reconsideration exist. In addition, the City contends
that, in the event the Board grants reconsideration, it will have to consider additional evidence
not considered by the Board or the ALJ and other evidentiary matters.
DISCUSSION
Requests for reconsideration of a final Board decision are governed by PERB
Regulation 32410(a), which states in full:
Any party to a decision of the Board itself may, because of
extraordinary circumstances, file a request to reconsider the
decision within 20 days following the date of service of the
decision. An original and five copies of the request for
reconsideration shall be filed with the Board itself in the
headquarters office and shall state with specificity the grounds
claimed and, where applicable, shall specify the page of the
record relied on. Service and proof of service of the request
pursuant to Section 32140 are required. The grounds for
requesting reconsideration 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. 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.
Because reconsideration may only be granted under "extraordinary circumstances," the
Board applies the regulation's criteria strictly. (Regents of the University of California (2000)
PERB Decision No. 1354a-H.) A request for reconsideration "is not simply an opportunity to
ask the Board to 'try again."' (Chula Vista Elementary School District (2004) PERB Decision
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No. 1557a.) PERB Regulation 32410(a) allows a party to request reconsideration
of
a
Board
decision only on two grounds: (1) the decision contains "prejudicial errors
of
fact;" or
(2) previously unavailable and undiscoverable newly discovered evidence that is both
relevant
and submitted within a reasonable time
of
discovery would impact or alter the decision. 	These
limited grounds preclude a party from using the reconsideration process to reargue or relitigate
issues that have already been decided. (Redwoods Community College District (1994)
PERB
Decision No. 1047a.)
McKnight asserts only the first ground for reconsideration, that the Board's decision
contains prejudicial errors
of
fact. To establish a basis for reconsideration
on
this ground, the
Board's
errors must be factual, not legal, in nature. Therefore, a disagreement over the legal
analysis employed by the Board is not grounds for reconsideration even
if
it amounts to a
prejudicial error
oflaw
resulting from application
of
its own case law. (California State
Employees Association (Hard, et al.) (2002) PERB Decision No. 1479a-S (California State
Employees Assn.).)
Inconsistent Justifications
McKnight conflicting reasons for his termination supported finding
of
nexus and unlawful
motivation. McKnight does not, however, identify any evidence in the record to support this
claim. Moreover, "inconsistent justifications" was not one
of
the nexus factors identified by the
ALJ or raised on exceptions before the Board.3 Instead, the ALJ determined that the failure to
question the employees involved in the incidents immediately preceding McKnight's termination
and the failure to provide reasons for terminating McKnight's probationary employment
constituted sufficient evidence of nexus. The Board overturned these legal determinations,
3 McKnight did not file exceptions to the ALJ' s proposed decision.
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finding that the failure to interview employees in the absence
of
evidence establishing a regular
practice
of
doing so did not support an inference
of
unlawful motive, and the failure to provide a
probationary employee with reasons for termination does not indicate unlawful motive in the
absence
of
evidence that the employer was required by law, policy or past practice to do so.
(County
of
Riverside (2011) PERB Decision No. 2184-M (Riverside).) Thus, McKnight has
not established that the Board's decision contains a prejudicial error
of
fact on this issue.
Cursory Investigation
McKnight asserts that the Board erred in failing to find that the City engaged in a cursory
investigation
of
his alleged poor performance. As he did previously, McKnight argues that the
failure to interview witnesses constituted a cursory investigation. As discussed above, however,
the Board made the legal determination that the failure to interview employees in the absence
of
evidence establishing a regular practice
of
doing so does not support an inference
of
unlawful
motive. (Riverside.)4 A disagreement over the legal analysis employed by the Board is not
grounds for reconsideration even
if
it amounts to a prejudicial error
of
law resulting from
application
of
its own case law. (California State Employees Assn.) Here, McKnight's
disagreement is legal, not factual. 	Therefore, there is no basis for reconsideration
of
this issue.
Disparate Treatment
McKnight argues that the City engaged in disparate treatment in its investigation
of
his
performance. He did not, however, except to the ALJ's finding
of
no disparate treatment.
Moreover, as discussed above, the Board made the legal determination that the mam1er in which
the City investigated 	complaints about McKnight's performance did not establish an
inference of unlawful motive. Accordingly, there is no basis for reconsideration on this issue.
4 The Board found that the City was entitled to rely on videotaped recordings of the
incidents.
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Other Facts Demonstrating Anti-Union Animus
McKnight asserts that other actions
of
his supervisor demonstrate anti-union animus. He
did not, however, file exceptions to the ALJ's finding that there was no evidence
of
anti-union
animus. Therefore, we find no basis to consider this claim on reconsideration.
Not a Probationary Employee
McKnight objects to the finding that he was a probationary employee at the time
of
his
termination, contending that the City unlawfully extended his probation following a medical
leave
of
absence. McKnight did not raise this issue on exceptions to the ALJ' s proposed
decision, and we find no basis to consider it here.
ORDER
The request
of
Alfred McKnight for reconsideration
of
the Public Employment
Relations Board's decision in City
of
Santa Monica (2011) PERB Decision No. 2211-M,
Case No. LA-CE-523-M, is hereby DENIED.
Chair Martinez and Member McKeag joined in this Decision.
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