Trustees of the California State University (PERB 1741H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ORLANDO ERIC GRAVES,
Charging Party, Case No. SF-CE-726-H

Vv. PERB Decision No. 1741-H

TRUSTEES OF THE CALIFORNIA STATE January 26, 2005

UNIVERSITY,

Respondent.

Appearances: Orlando Eric Graves, on his own behalf; Donald A. Newman, University
Counsel, for Trustees of the California State University.

Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION

SHEK, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Orlando Eric Graves (Graves) of a Board agent’s dismissal (attached) of his
unfair practice charge. The unfair practice charge alleged that the Trustees of the California
State University (CSU) violated Higher Education Employer-Employee Relations Act
(HEERA)' by discriminating against him when he applied for employment with CSU.

The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charge, the warning and dismissal letters, Graves’ appeal and CSU’s
_ response. The Board finds the warning and dismissal letters to be free of prejudicial error and

adopts them as the decision of the Board itself.

‘HEERA is codified at Government Code section 3560, et seq.

ORDER
The unfair practice charge in Case No. SF-CE-726-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

STATE OF CALIFORNIA 	[=,===~==========='<(--~ 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax: (916) 327-6377
November 1, 2004
Orlando Eric Graves
1039 - 107th Ave
Oakland, CA 94603
Re: 	Orlando Eric Graves v. Trustees of the California State University
Unfair Practice Charge No. SF-CE-726-H
DISMISSAL LETTER
Dear Mr. Graves:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 20, 2004. Orlando Eric Graves alleges that the Trustees
of the California State University violated the Higher Education Employer-Employee Relations
Act (HEERA)1 by changing the requirements to apply for a job with the University.
I indicated to you in my attached letter dated October 14, 2004, that the above-referenced
charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to October 25, 2004, the charge would be
dismissed.
On October 26, 2004 I received an amended charge. In the amended charge you stated that
you had "no idea why the decision of the Human Resources Service Group to not forward my
application to the hiring department was determined." You also stated that the following were
unfair practices: the Group's decision not to forward your application to the hiring department,
Mrs. Gaspar's request that you complete an additional entire application package, and Mrs.
Gaspar's request that you submit a letter of interest. Although the University's actions may
seem out of the ordinary, that fact alone does not make them a violation of the HEERA. As
explained in the warning letter, PERB's jurisdiction is limited to enforcement of the HEERA
and does not include rectifying every problem that arises in the University workplace.
Therefore, I am dismissing the charge based on the facts and reasons contained in my October
14 letter.
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-726-H
November 1, 2004
Page 2
Right to Appeal
(
Pursuant to PERB Regulations,2 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-726-H
November 1, 2004
Page 3
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
.If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
Robert Thompson
General Counsel
Attachment
cc: Donald A. Newman
Robert Thompson
General Counsel

=ST=A=T=E=O=F=CA=L=I=FO=R=N=IA======'( 	===============I(~·~ 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax: (916)327-6377
October 14, 2004
Orlando Eric Graves
1039 - 109th Ave
Oakland, CA 94603
Re: 	Orlando Eric Graves v. Trustees of the California State University
Unfair Practice Charge No. SF-CE-726-H
WARNING LETTER
Dear Mr. Graves:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 20, 2004. Orlando Eric Graves alleges that the Trustees
of the California State University violated the Higher Education Employer-Employee Relations
Act (HEERA)1 by changing the requirements to apply for a job with the University.
On March 28, 2004, Mr. Graves mailed an application for employment to CSU San Jose for a
position as a Fire Alarm Technician based on an advertisement in the San Jose Mercury
newspaper. On April 9,2 he received a job status notification form from the University stating
they were unable to forward his application to the hiring department because he did not meet
the experience requirements. After reviewing the pertinent documents, Mr. Graves came to the
conclusion that the only disqualifying factor in his application was his race, African American.
On April 14, Mr. Graves spoke with Rosario Gaspar, Head of University Human Resources,
who stated that his application did not demonstrate any programming experience. She told him
to complete another application package and submit a letter of interest. He responded that this
job position did not require a letter of interest. She disagreed and stated that he must also
demonstrate renovation experience. When questioned, Ms. Gaspar admitted that the job
requirements did not include renovation experience but that she was now requesting it. Mr.
Graves protested that he was being treated unfairly and that legal action would follow.
Based on these allegations, this charge does not state a prima facie case for the following
reasons.
Although the charge does not specify the type of violation being alleged, the facts in the charge
most probably describe a discrimination case based on HEERA section 3571(a). To
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 All dates are in 2004.

SF-CE-726-H
October 14, 2004
Page 2
(\
C
demonstrate a violation of HEERA s~ction 3571(a), the charging party must show that: (1) the
employee exercised rights under HEERA; (2) the employer had knowledge of the exercise of
those rights; and (3) the employer imposed or threatened to impose reprisals, discriminated or
threatened to discriminate, or otherwise interfered with, restrained or coerced the employees
because of the exercise of those rights. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation of the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
Evidence of adverse action is also required to support a claim of discrimination or reprisal
under the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No.
689.) In determining whether such evidence is established, the Board uses an objective test
and will not rely upon the subjective reactions of the employee. (Ibid.) In a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
Mr. Graves asserts that the change in job requirements described in this charge was motivated
by the University's reaction to his race. Such allegations fall outside of PERB' s jurisdiction.
In California School Employees Association, Chapter 245 (Waymire) (2001) PERB Decision
No. 1448, the Board held that PERB has no jurisdiction to enforce statues regarding
discrimination based on sex, race, or religion. Allegations such as the ones made herein are
more properly considered by the Department of Pair Employment and Housing. As PERB
lacks jurisdiction over such allegations, this charge must be dismissed.

SF-CE-726-H
October 14, 2004
Page 3
(
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the ·
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before October 25, 2004, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Robert Thompson
General Counsel
Robert Thompson
General Counsel