Regents of the University of California and Teamsters Clerical, Local 2010 (Polk) (PERB A437H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DEBBIE POLK,
Charging Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case Nos. LA-CE-1182-H
LA-CE-1201-H
LA-CE-1202-H
DEBBIE POLK,
Charging Party,
v.
TEAMSTERS CLERICAL, LOCAL 2010,
Respondent.
Case No. LA-CO-533-H
PERB Order No. Ad-437-H
May 9, 2016
Appearances: Debbie Polk, on her own behalf; Elizabeth Sanchez, Director, Employee &
Labor Relations, and Shondella M. Reed, Attorney, for Regents of the University of California;
John E. Varga, Attorney, for Teamsters Clerical, Local 2010.
Before Winslow, Banks and Gregersen, Members.
DECISION
BANKS, Member: These cases, which were consolidated for administrative
convenience, are before the Public Employment Relations Board (PERB or Board) on appeal
by Debbie Polk (Polk) from an administrative determination by PERB’s Appeals Office. The
administrative determination denied Polk’s June 27, 2014 request for a 90-day extension of
time in which to appeal the dismissal of the four, above-captioned unfair practice charges.
For the reasons discussed below, we deny Polk’s administrative appeal and affirm the
administrative determination that Polk is not entitled to any further extensions of time to

appeal the dismissal of her unfair practice charges. Because the time to appeal those cases
has now passed, the Office of the General Counsel’s dismissal of Case Nos. LA-CO-533-H
and LA-CE 1202-H on February 27, 2014 and its dismissal of Case Nos. LA-CE-1182-H and
LA-CE-1201-H on March 12, 2014 are not subject to appeal.
FACTUAL AND PROCEDURAL HISTORY
From approximately September 1, 2011 until January 2012, Polk was employed by the
Regents of the University of California (University) as an Administrative Assistant II at the
University’s Riverside campus. The Administrative Assistant series is part of the Clerical and
Allied Services Bargaining Unit, which is exclusively represented by Teamsters Clerical,
Local 2010 (Local 2010).
As of January 1, 2014, Polk was the charging party in three unfair practice charges
against the University (Case Nos. LA-CE-1182-H, LA-CE-1201-H and LA-CE-1202-H) and
in one unfair practice charge against Local 2010 (Case No. LA-CO-533-H). On February 27,
2014, the Office of the General Counsel dismissed the charges in Case Nos. LA-CO-533-H and
LA-CE-1202-H and on March 12, 2014, the Office of the General Counsel dismissed the
charges in Case Nos. LA-CE-1182-H and LA-CE-1201-H.
On March 21, 2014, Polk requested a 90-day extension of time in which to appeal the
dismissal of Case Nos. LA-CO-533-H and LA-CE-1202-H. Polk’s request stated that she had
a medical condition that restricts her ability “to perform the activities required to facilitate an
appeal.” Polk’s request also stated that the 90-day extension was needed for her to rehabilitate
from this condition. The University opposed this request, arguing that Polk had provided no
evidence to substantiate her need for an extension and Local 2010 took no position.
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On March 27, 2014, PERB’s Appeals Assistant denied Polk’s request for a 90-day
extension and instead granted Polk a 20-day extension of time, plus five days for service by
mail, making April 14, 2014 the new deadline for appealing Case Nos. LA-CE-1202-H and
LA-CO-533-H.
On April 1, 2014, Polk made a similar request for a 90-day extension in Case
Nos. LA-CE-1182-H and LA-CE-1201-H. As with Polk’s previous request for a 90-day
extension in her other two cases, the University opposed this request, arguing that Polk had
provided no evidence to substantiate her asserted need for an extension.
On April 2, 2014, the Appeals Assistant again denied Polk’s request for a 90-day
extension in Case Nos. LA-CE-1182-H and LA-CE-1201-H, and instead granted Polk a 20-day
extension of time in which to appeal the dismissal of these cases.
On April 11, 2014, Polk requested an additional 20-day extension in each of her four
cases for medical conditions. The University and Local 2010 opposed each of Polk’s
subsequent requests for an extension, arguing that she had provided insufficient evidence to
support her asserted need for an extension.
On April 15, 2014, Polk submitted additional documentation to the Appeals Office,
including a doctor’s note dated April 14, 2014, which stated that Polk may not return to work
or school until April 20, 2014. On April 18, 2014 Polk was granted a 20-day extension for
each of her four cases.
On April 25, 2014, Polk again requested an extension of time to appeal her four cases.
On May 8, 2014, the Appeals Office granted Polk’s request for an extension of time in all four
cases. However, unlike previous correspondence, the Appeals Office’s May 8, 2014
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correspondence advised Polk that to receive any further extensions of time, she would need to
provide additional information, including (1) the accommodation(s) requested, (2) the
limitations or impairments that prevented Polk from timely filing the appeal within the timeline
allotted by the previous extensions of time, and (3) how having additional time would enable
her to complete the appeals process. The Appeals Office asked that Polk also provide
supporting documentation for any request for additional time.
On May 23, 2014, Polk requested an additional extension of time until 20 days after
being released by her doctor to return to work on June 3, 2014. Polk explained in her request
that she had vision problems that interfered with her ability to file an appeal. On May 27,
2014, Polk was granted an additional 20 days as requested in all four cases. As a matter of
administrative convenience, the due dates for filing appeals in all four of Polk’s cases were
consolidated and the new filing date was June 30, 2014. In the letter granting the extension of
time, the Appeals Office reiterated that documentation would be required for any further
extensions.
On June 4, 2014, Polk requested that the due dates for her appeals in Case
Nos. LA-CE-1182-H and LA-CE-1201-H be staggered 20 days from the due dates in Case
Nos. LA-CE-1202-H and LA-CO-533-H. On June 6, 2014, the Appeals Office granted an
additional 20-day extension in all cases to July 21, 2014.
On June 27, 2014, Polk again requested an extension of time until October 20, 2014.
The Appeals Office’s denied that request on July 11, 2014 and the present administrative
appeal ensued on July 28, 2014.1
Although timely filed, Polk’s appeal did not include proof of service, as required by
PERB regulations. (PERB Regs. 32360, subd. (a), 32140, subds. (a), (c); PERB regulations are
codified at Cal. Code Regs., tit. 8, § 31001 et seq.) After the Appeals Office advised Polk of
1
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On September 8, 2014, the University filed a position statement which opposed Polk’s
appeal and urged PERB to deny Polk any further extension of time in her three cases against
the University. Local 2010 filed no position statement in response to Polk’s appeal.
On September 9, 2014, Polk filed with PERB and served additional correspondence in
which she reiterated her request for additional time in which to appeal the dismissals of each of
her four unfair practice charges.
DISCUSSION
We presume for the purposes of this appeal, that Polk is a qualified individual with a
disability and that, as a state agency, PERB is a public entity subject to California and federal
anti-discrimination statutes. (Civil Code, § 51 et seq.; 42 U.S.C. § 12101 et seq.; 28 C.F.R.
§ 35.104 (1), (2).) By law, a public entity must make reasonable modifications in policies,
practices, or procedures, unless the public entity can demonstrate that making such
modifications would result in undue financial and administrative burdens or would
fundamentally alter the nature of the service, program, or activity offered. (28 C.F.R.
§ 35.130, subds. (a), (b)(7); 28 C.F.R. § 35.164.) Such accommodations may include
reasonable changes to the public entity’s calendaring or scheduling policies, practices or
procedures to provide additional time for persons with disabilities to file papers, to prepare for
hearing, or otherwise to ensure full and equal access to the public entity’s services. (County of
Santa Clara (2012) PERB Decision No. 2267-M, p. 4; In re Marriage of James M.C. and
this deficiency on August 8, 2014, Polk provided proof of service to the Appeals Office on
August 22, 2014, and the University and Local 2010 were provided notice and opportunity to
respond. Because Polk’s defective service was cured and there is no suggestion that it
substantially affected the rights of any parties, we excuse the deficiency. (Fontana Unified
School District (2003) PERB Order No. Ad-324, pp. 6-7.)
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Christine J.C. (2008) 158 Cal.App.4th 1261, 1273, 1274, fn. 4; Vesco v. Superior Court (2013)
221 Cal.App.4th 275, 279; see also Cal. Rules of Court, rule 1.100, subd. (a)(3).)
A reasonable accommodation may be for an indefinite duration or for a particular matter or
appearance (2 Witkin, Cal. Proc. 5th (2008) Courts, § 32, p. 55), and other policies or statutes
may not serve as an automatic limit on the duration of a particular accommodation. (See also
Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1338-1340.) However, a “reasonable
accommodation” does not require the public entity to wait indefinitely for an impairment or
medical condition to improve or be corrected. (Hanson v. Lucky Stores, Inc. (1999)
74 Cal.App.4th 215, 226-227.) To determine whether a requested accommodation is
reasonable, a public entity may request additional information about an applicant’s impairment
or medical condition, including its severity, and for some indication that the requested
accommodation will in fact enable the applicant to participate in the service, program or
activity offered by the public entity without resulting in undue financial and administrative
burdens or fundamentally altering the nature of the service, program or activity.
While Polk provided the Appeals Office with documentation of her medical
impairments or conditions and restrictions, that documentation did not explain how granting a
fifth extension of time (which extended beyond her return-to-work dates on previous medical
releases) would enable her to complete the appeals process, given that the previous four
extensions of time granted by PERB had not been sufficient. For this reason, PERB was
unable to assess the reasonableness of granting Polk’s request for another extension of time.
(King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443-444; Nadaf-Rahrov v.
Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 984; Soldinger v. Northwest
Airlines, Inc. (1966) 51 Cal.App.4th 345, 370.)
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Additionally, the indefinite and continuing nature of Polk’s requests for extensions of
time would fundamentally alter the nature of PERB’s unfair practice proceedings. PERB
affords parties to an unfair practice charge a relatively user-friendly administrative process for
adjudication of labor relations disputes. The expectation is that unfair practice charges are
handled as expeditiously as possible at both the case processing and administrative appellate
stages. Especially in a case where the Office of the General Counsel has dismissed an unfair
practice charge after conducting an investigation and concluding that a prima facie case has not
been established by the allegations of the charge, it is imperative that any appeal from
dismissal be handled as promptly as possible. If the dismissal is to be reversed on appeal, the
charge processing starts anew and the lapse in time between the dismissal and the renewal of
charge processing should be as minimal as possible. The more distant the events underlying
the charge to the adjudication of the charge, the greater the challenges for the parties in
preserving documents, securing witnesses and preserving the accurate recollection of
witnesses. If an unfair practice has occurred, it should be remedied promptly. On the other
hand, if the dismissal is to be affirmed on appeal, the respondents should be cleared with
finality from any wrongdoing. Delays in this process leave parties in an ambiguous situation
as to their rights and responsibilities, which is counter-productive to the maintenance of
harmonious labor relations that is a fundamental mission of PERB. (HEERA, § 3560,
subd. (a).) 	Polk’s appeal must also be denied because granting her multiple requests would
cause an alteration to PERB’s unfair practice charge processing procedures.
2
The Higher Education Employer-Employee Relations Act (HEERA) is codified at
Government Code section 3560 et seq.
2
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ORDER
Debbie Polk’s appeal from the administrative determination in Case Nos. LA-CE-1182-H,
LA-CE-1201-H, LA-CE-1202-H, and LA-CO-533-H is hereby DENIED. Because Polk’s appeals
from dismissal for the above-referenced charges were due on July 21, 2014, no extension of time
has been granted, and Polk has not shown good cause for excusing her late filings, the dismissal
of Case Nos. LA-CE-1182-H, LA-CE-1201-H, LA-CE-1202-H and LA-CO-533-H are final and
not subject to appeal.
Members Winslow and Gregersen joined in this Decision.
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