Alameda County Medical Center (PERB 1707MA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DELORES BERNICE FLENOY,
Charging Party,
v.
ALAMEDA COUNTY MEDICAL CENTER,
Respondent.
Case No. SF-CE-78-M
Request for Reconsideration
PERB Decision No. 1707-M
PERB Decision No. 1707a-M
F e b r u a r y 	4 , 	2005
Appearance: Delores Bernice Flenoy, on her own behalf.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on a request for reconsideration of Alameda County Medical Center (2004)
PERB Decision No. 1707-M (Alameda County Medical Center) by Delores Bernice Flenoy
(Flenoy). The unfair practice charge alleged that the Alameda County Medical Center
(Medical Center) violated the Meyers-Milias-Brown Act (MMBA)1 by retaliating against her
for protected conduct.
CONTENTS OF THE REQUEST
The request for reconsideration contains an outline of evidence that Flenoy claims to
have newly discovered in a declaration signed under penalty of perjury, which states that this
evidence was not previously available to her. Attached to the declaration are five documents.
The request itself describes these documents as supporting Flenoy's allegations that she was
treated differently from other employees. 	These documents are summarized as follows:
MMBA is codified at Government Code section 3500, et seq.
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A memorandum from Flenoy's supervisor Therese Davis (Davis) dated October 6, 2004
regarding sick time and vacation usage: This memorandum states that the sick time and
vacation usage policy was not applied strictly across the board. As the policy was not applied
evenly, Flenoy argues that her excessive tardiness was not a proper ground for discipline.
A memorandum dated May 3, 2004: This memorandum involves a complaint by one
employee that an employee who attacked her did not receive discipline. Flenoy asserts that
this memo shows that the Medical Center does not discipline employees for their violent acts,
yet terminated her for attendance issues, violation of the bilingual services policy, and alleged
dishonesty.
A Department of Health Services (DHS) report with cover letter to Flenoy dated
November 5, 2002: This report summarizes an investigation conducted in response to a
complaint by Flenoy regarding problems with implementation of the Medical Center's
bilingual services policy and procedures.2 According to Flenoy, this document proves that
there was no written bilingual services policy in place and shows that discipline on the basis of
violation of such a policy was thereby inappropriate.
Attached documents dated April and August 2002 that, according to Flenoy, show that
the Medical Center did not have a human resources manual: The April 1, 2002 memo from the
Medical Center's legal counsel to SEIU Local 535 Representative Fred Beale (Beale) was to
provide a copy of a new human resources policy manual for review and to assure Beale that the
2A copy of Flenoy's actual complaint was not provided in the request and the DHS
report does not summarize her complaint. The report appears to find deficiencies in the
implementation of the policy, not that a policy did not exist. 	The report however did indicate
that the investigator was informed by management that it was developing needed procedures
and revising existing procedures. The report itself documents staff unawareness of the
"Bilingual Services Directory," which lists contact and other relevant information about
bilingual-designated employees. 	The report concluded that the hospital did not have reference
material relevant to the services. Based on the rest of the report, the phrase "reference
material" pertains to the Bilingual Services Directory, not a bilingual services policy.
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new manual would not supplant the existing memorandum of understanding. The August 1,
2002 document is a copy of a grievance filed by Flenoy complaining about an employee who
did not follow the human resources policy manual or the memorandum of understanding in
setting time and attendance standards. The document also shows the denial of the grievance by
Davis, Flenoy's supervisor. 	Flenoy concludes from these documents that since the Medical
Center had no policy upon which to base her termination, her supervisors were allowed to
discriminate against her.
DISCUSSION
PERB Regulation 324103 governs requests for reconsideration and provides, in
pertinent part:
(a) 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.
(Emphasis added.)
PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
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In her request, Flenoy purports to introduce newly discovered evidence that was neither
previously available nor could have been discovered with the exercise of reasonable diligence.
Noting that Flenoy's charge was filed December 10, 2002, amended charge filed February 13,
2002, warning letter issued January 30, 2003, and dismissal issued October 23, 2003, it strains
credibility to believe that documents dated April 1, 2002, August 1, 2002, and November 5,
2002 were not available to Flenoy before she filed her charge or before the dismissal was
issued. Two of these documents were addressed to Flenoy. With regard to all three
documents, Flenoy does not explain why these documents were not previously available or
how she discovered them since the dismissal of her charge. Mere conclusory statements that
the new evidence was not previously available or could not have been discovered with the
exercise of reasonable diligence before the dismissal of the charge do not suffice to
demonstrate their truth. 	(See, e.g., Hart District Teachers Association (Mercado and Bloch)
(2001) PERB Decision No. 1456a.)
The remaining new evidence does not convince us that Flenoy has shown nexus
between her protected activity and termination. Flenoy does not dispute that she was
excessively tardy, was abusive toward non-English speaking patients, or had falsified records.
There is nothing in these documents that contradicts the fact that the Medical Center
progressively disciplined Flenoy about these issues before terminating her, i.e., that she was
terminated for her misconduct, not her protected activity. Furthermore, the May and October
2004 documents involved incidents that occurred long after the events at issue in the charge,
and thus are not relevant to the issues sought to be reconsidered.
In light of this discussion, the Board concludes that Flenoy has not met the
requirements for reconsideration of Alameda County Medical Center.
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ORDER
Delores Bernice Flenoy's request for reconsideration of the Board's decision in
Alameda County Medical Center (2004) PERB Decision No. 1707-M is hereby DENIED.
Chairman Duncan and Member Neima joined in this Decision.
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