Regents of the University of California (PERB 1585H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GEORGE SARKA,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. LA-CE-748-H
PERB Decision No. 	1585-H
January
	15,
	2004
Appearance: Pappy & Davis by George A. Pappy, Attorney, for George Sarka.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by George Sarka (Sarka)
of
a Board agent's dismissal
of
his unfair
practice charge. The charge alleged that the Regents
of
the University
of
California violated
the Higher Education Employer-Employee Relations Act (HEERA)1 by retaliating against
Sarka for his participation in protected activities. Specifically, Sarka alleges that he was
terminated because he filed grievances, filed unfair practice charges, and served as a union job
steward.
After reviewing the entire record in this matter, including the original charge, the
warning and dismissal letter, and Sarka's appeal, the Board issues the following decision.
1
HEERA is codified at Government Code section 3560 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

BACKGROUND
Sarka's charge consists
of
a thirty-six page statement
of
facts and approximately 300
pages
of
attachments. According to the charge, Sarka was employed as an assistant clinical
professor
of
medicine at the University
of
California at Los Angeles (UCLA). Sarka became
one
of
the first physicians involved in the University Professional and Technical Employees
(UPTE) union in 1998. Sarka alleges that in May 2000, he organized his fellow union
members in criticizing Vice Chancellor, Winston Doby (Doby) for his handling
of
the "UCLA
Student Health situation." Sarka alleges that problems "exploded" during the years 2001 and
2002, culminating in the filing
of
an unfair practice charge.2 On April 26, 2001, Sarka again
wrote to Doby expressing his "concerns." Sarka alleges that because
of
the April 26, 2001
letter, there was a "modus operandi" by UCLA to terminate him.
of
	On July 2, 2002, Sarka was given notice 	his termination. The notice cited Sarka's
Sarka responded to the notice andrefusal to follow directions and general poor performance.
participated in a Skelly3 hearing on July 12, 2002. Sarka received his final notice
of
termination on August 16, 2002. 	The notice informed Sarka that he was being tenninated
effective August 23, 2002. 	Sarka filed the instant unfair practice charge on February 24, 2003.
BOARD AGENT'S DISMISSAL
The Board agent first warned Sarka that his charge did not contain a "clear and
concise statement
of
the facts and conduct alleged to constitute an unfair practice." (PERB
That charge, unfair practice Case No. LA-CE-647-H, is currently on appeal before the
Board.
3See Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [124 Cal.Rptr. 14].
2

Reg. 32615(a)(5).4) 	The Board agent noted that Sarka had alleged violations
ofHEERA
in
conclusory terms instead
of
alleging specific facts. 	Sarka's charge instructed the Board agent
to review the attached documents for necessary details. The Board agent responded that,
"It
is
the Charging Party's responsibility to state in a clear and concise manner facts which
he
alleges support a violation.	
It
is not the Board agent's responsibility to read a large stack
of
documents to ascertain what
if
any violation occurred."
After reviewing the facts as described above, the Board agent warned Sarka that the
charge failed to state a prima facie case. First, the charge was filed on February 24, 2003.
Given the six-month statute oflimitations, only allegations
of
misconduct occurring
on or
after
August 23, 2002 were timely. Although Sarka was terminated effective August 23, 2002, he
was given notice
of
his termination well before that time. The Board agent cited PERB
precedent holding that it is the notice
of
termination, not the effective date
of
termination, that
triggers the running
of
the statute oflimitations. (Regents
of
the University
of
California
(1999) PERB Decision No. 1327-H (Regents).) Accordingly, the Board agent found
Sarka's
charge untimely, since Sarka had notice
of
his termination prior to August 23, 2002.
Second, the Board agent warned Sarka that the charge failed to establish nexus. 	The
notice
of
termination was well-documented and there were no facts indicating any disparate
treatment or other circumstantial evidence
of
animus. After Sarka failed to file an amended
charge, the Board agent issued a dismissal letter on March 21, 2003.
SARKA'S APPEAL
Sarka raises three issues on appeal. First, he takes issue with the Board agent's
statement that it was not the Board agent's job to search for the relevant facts from a large
4PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
3

stack
of
documents. Sarka argues that is precisely the job
of
a Board agent. 	Sarka points to
PERB Regulation 32620 for the proposition that a Board agent must "assist" the charging party
and "make inquiries and review the charge." Sarka argues that he should not be penalized for
submitting "too much evidence."
Next, Sarka argues that the Board's decision in Regents conflicts with the California
Supreme Court's decision in Romanov. Rockwell Internat., Inc. (1996) 14 Cal.4 th 479
[59 Cal.Rptr.2d 20] (Romano). In that decision, the court held that under the Fair Employment
and Housing Act (FEHA) (Gov. Code, sec. 12900 et seq.), a cause
of
action for wrongful
termination accrues on the actual date
of
termination, not on the date when the employee
receives notice
of
his termination. Sarka argues that the Romano rule should be adopted by
PERB.
Finally, Sarka argues that he has demonstrated sufficient nexus to establish a prima
facie case. Sarka again details his history
of
protected activities on behalf
of
the UPTE and
argues that his termination was retaliatory.
DISCUSSION
1.
	Duties
of
the Board Agent
Sarka's charge states that, "Dr. Sarka was terminated and harassed by management
because he engaged in union activities." The charge then directs the Board agent to review
300 pages of attachments. The Board agrees with the Board agent that Sarka has failed to
provide a clear and concise statement of the facts as required by PERB Regulation 32615.
Sarka's reliance upon PERB Regulation 32620 is of no aid to him. Regulation 32620
requires the Board agent to, "Assist the charging party to state in proper form the information
required by Section 32615." This is exactly what the Board agent did in the warning letter to
4

Sarka. Regulation 32620 also requires the Board agent to make inquires and review the
charge. However, the charge to be reviewed must comply with PERB Regulation 32615. In
short, the Board finds nothing in PERB Regulation 32620 that conflicts with the requirement in
Section 32615 to provide a clear and concise statement
of
the facts.
Even though Sarka failed to provide a clear and concise statement
of
the facts, the
record establishes that the Board agent thoroughly reviewed the documents attached to Sarka's
charge. Based upon that review, the Board agent set forth the relevant facts as best she could
in the warning letter.
	If
Sarka disputed those facts, he could have filed an amended charge,
which he did not. Having selected not to file an amended charge, Sarka is in no position to
now complain about the actions
of
the Board agent.
2.
	Triggering
of
Statute
of
Limitations
PERB is prohibited 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."
(HEERA sec. 3563.2(a).) 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.) With respect to allegations
of
wrongful
termination, PERB has held that it is the notice of termination, not the effective date
of
termination that triggers the running
of
the statute oflimitations. (Regents.) In this matter,
Sarka received notice on July 2, 2002, that UCLA intended to terminate him and received a
final notice of termination on August 16, 2002. Sarka was actually terminated on August 23,
2002. This charge was not filed until February 24, 2003. Accordingly, Sarka's charge is
untimely if either the July 2 or August 16 notices triggered the running of the statute
of
5

limitations. Under Regents, Sarka's charge would only be timely
if
the limitations period
began to run on August 23, his actual date
of
termination.
Sarka argues that PERB should overturn Regents and adopt the rule set forth in
Romano. Romano addressed the identical issue faced here except in an action arising under
FEHA (Gov. Code section 12900 et seq.). In Romano, the plaintiff was notified in December
1998 that he would be terminated once he accumulated a certain number
of
service credits
under the defendant's retirement plan. The plaintiff did not reach that point until May 1991.
After he was actually terminated, the plaintiff filed an age discrimination suit under FEHA.
The issue before the California Supreme Court was whether the one-year statute oflimitations
under FEHA should begin to run from when plaintiff received notice
of
his termination or from
when he was actually terminated.
Relying upon the language ofFEHA, the Court held that the statute oflimitations did
not begin to run until the date
of
plaintiffs actual termination. (Romano, at p. 493.) The
Court held that such a rule is consistent with the plain language ofFEHA and the remedial
purposes
of
FEHA. The Court also noted that such a bright-line rule is easier to apply since,
"[u]like notice of termination, which frequently is oral and may be conditional or equivocal,
the date
of
actual termination is a date that in most cases is subject to little dispute." (Romano,
at p.
494.)
The Board agrees that Romano represents the better rule when dealing with reprisals
and discrimination. Under HEERA, it is an unfair practice for an employer to impose
"reprisals" or "discriminate" against an employee for protected activity. (HEERA sec. 3571.)
The statute of limitations under HEERA is triggered when the unfair practice occurs. 	(HEERA
sec. 3563.2(a).) Under Romano, where the unfair practice is termination of employment, the
6

unfair practice does not occur until the date
of
actual termination. The statute
of
limitations
"would not run from the earlier date
of
notification
of
discharge, because on that date the
unlawful practice (that is, the discharge) had not yet 'occurred."' (Romero, at p. 493.)
Because the language prohibiting discrimination under REERA is similar to that
of
FERA, the
Board finds that the Romano rule should control. Accordingly, the statute
of
limitations on
Sarka's charge alleging termination for protected activities does not begin to run until the date
of
actual termination. To the extent that Regents and other cases hold differently, they should
be overruled.
The Board's adoption
of
the Romano rule is not only supported by the language
of
REERA, but also by public policy. First, as the Court in Romano noted, "such a rule has the
obvious benefit
of
simplicity." In most cases, there will be little dispute as to the date
of
actual
termination. Second, the Romano rule acts to encourage the use
of
internal grievance and
appeal procedures instead
of
forcing employees to immediately file a unfair practice charge
with PERB. Especially where there is a negotiated grievance procedure as part
of
a collective
bargaining agreement, the Board believes that employees should be encouraged to utilize
internal grievance and appeal procedures whenever possible. This is because the Board
believes as a matter
of
sound public policy that disputes should be settled at the most informal
level whenever possible. (Long Beach Community College District (2003) PERB Decision
No. 1564.) Settling disputes at an informal level also acts to conserve PERB's limited
resources. For all these reasons, the Board adopts the Romano holding that the limitations
period does not begin to run until the date of actual termination.
The Board notes, however, that REERA and the other statutes administered by PERB
differ significantly from FERA in one important aspect. Unlike FERA, REERA makes it
7

an unfair practice to "threaten to impose reprisals" and "threaten to discriminate." (HEERA
sec. 3571.) Thus, HEERA prohibits both the taking
of
adverse action and threatening to take
adverse action because
of
protected activity.
The Board's adoption
of
the Romano rule today is not intended to affect a charging
party's right to file a charge over a threat. Where the alleged unfair practice is a threat, the
statute
of
limitations is triggered by the threat itself and would remain so even after adoption
of
the Romano rule. This is because the threat and the actualization
of
the threat can be viewed
as
separate violations under the language
of
the statute. (HEERA sec. 3571.) Thus, where an
employer threatened to terminate an employee and then actually terminated the employee, both
the threat and actual termination constitute violations
of
HEERA and each action triggers the
running
of
the limitations period.
3.
	Prima Facie Case
Although Sarka's charge is timely, the Board must nevertheless dismiss the charge
because it fails to state a prima facie case
of
discrimination. Specifically, Sarka's charge fails
to establish the element
of
nexus required by Novato Unified School District (1982) PERB
Decision No. 210. Sarka's only proffered evidence
of
discrimination is his allegation that the
charges in his termination notice are unsubstantiated. In short, Sarka argues that UCLA lacked
good cause to terminate his employment. However, the fact that the charges against Sarka are
unsubstantiated, even
if
true, does not by itself establish the required nexus.
Sarka also argues that he has a long history
of
pro-union activism. Sarka asserts that
his union activities increased significantly in the six months prior to his termination. However,
apart from this conclusory allegation, Sarka identifies no protected activity (e.g., filing
of
a
grievance, etc.) close in time to his termination. Thus, "timing" (one of the traditional indicia
8

of
discrimination) is not present. Furthermore, there is no evidence
of
disparate treatment or
other inconsistencies that might constitute circumstantial evidence
of
discrimination. Sarka
was provided an opportunity to correct these deficiencies by filing an amended charge, but
chose not to
do
so. Accordingly, the charge must be dismissed.
ORDER
The unfair practice charge in Case No. LA-CE-748-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
9