Metropolitan Water District of Southern California (PERB 2066M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LOLLETT JONES-BOYCE,
Charging Party,
V.
METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA,
Respondent.
Case No. LA-CE-419-M
PERB Decision No. 	2066-M
September 29, 2009
Appearance: Lollett Jones-Boyce, on her own behalf.
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
DOWD IN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Lollett Jones-Boyce (Jones-Boyce) of a Board
agent's dismissal of her unfair practice charge. The charge alleged that the Metropolitan Water
District of Southern California (District) violated the Meyers-Milias-Brown Act (MMBA)1 by
placing Jones-Boyce on paid administrative leave and later terminating her employment and
health benefits in retaliation for her "exercis[ing] rights guaranteed under the MMBA." The
Board agent dismissed the charge for failure to state a prima facie case of retaliation.
The Board has reviewed the dismissal and the record in light of Jones-Boyce's appeal
and the relevant law. Based on this review, the Board affirms the dismissal of the charge for
the reasons discussed below.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

BACKGROUND
The charge, amendments and exhibits in this matter total more than 400 pages. Most
of
these documents are relevant to claims Jones-Boyce has pursued or is pursuing against the
District with other agencies or in court. However, few
of
them are germane to the issue before
the Board on appeal: whether the District took adverse action against Jones-Boyce because
of
her exercise
of
rights granted by the MMBA. Only the facts relevant to this issue are set forth
here.
Between 2003 and 2006, Jones-Boyce filed several complaints/claims against the
District: (1) a discrimination complaint with the California Department
of
Fair Employment
and Housing; (2) a civil lawsuit in Los Angeles County superior court; (3) an internal
discrimination complaint; and (4) a claim for workers' compensation benefits. Jones-Boyce
was placed on medical leave in October 2003. She returned to work in February 2006 and was
placed on paid administrative leave two months later. She returned to work again on
October 2, 2006.
Soon after her return in October 2006, Jones-Boyce began to miss work for various
medical and legal appointments. On December 11, 2006, Jones-Boyce's supervisor, Bobbi
Becker (Becker), informed her that she had until January "to come to work five days per week
without taking any time off including appointments." On February 6, 2007, Becker issued
Jones-Boyce a written directive requiring her to request leave at least 48 hours in advance for
medical appointments and five days in advance for non-medical appointments.
Over the next two weeks, Becker and Jones-Boyce met several times to discuss Jones
Boyce's alleged failure to comply with Becker's directive. At each meeting, Jones-Boyce was
accompanied by a representative from the American Federation of State, County and
2

Municipal Employees, Local 1902 (AFSCME), first Steve Koffroth (Koffroth), then Carlos
Castrillo (Castrillo).
On February 15, 2007, Jones-Boyce and Castrillo discussed filing a grievance over
Becker's directive. Castrillo suggested that Jones-Boyce file a PERB charge because the
grievance process could be lengthy. On February 20, Castrillo told Becker that AFSCME
would file a grievance
if
she did not accommodate Jones-Boyce's medical appointments.
Becker responded that she intended to place Jones-Boyce on a 90-day corrective action plan
for her continued unauthorized absences.
On the morning
of
February 21, 2007, Castrillo informed Jones-Boyce
of
Becker's
response. Later that morning, Jones-Boyce left the office ill after informing Becker by email
that her condition was becoming worse. 	The District placed Jones-Boyce on unpaid medical
leave that same day.
Sometime after February 21, 2007, Castrillo again offered to file a grievance over
Becker's conduct on Jones-Boyce's behalf. Jones-Boyce alleged she told Castrillo "it was too
late to do so" and she "could not wait for the grievance process since [Castrillo] informed me
that process is lengthy." AFSCME never filed a grievance over the matter.
On April 19, 2007, Jones-Boyce notified the District
of
her intent to file a claim for
long-term disability benefits. The following day, Jones-Boyce signed a settlement agreemen
resolving her civil suit against the District. Section 1.4
of
the agreement provided that the
District would place Jones-Boyce on paid administrative leave for 180 days following the
governing board's approval
of
the settlement.
t
2 Section 1.5 provided that Jones-Boyce would
2 The District provided a copy of the settlement agreement as part of its position
statement. In evaluating whether an unfair practice charge states a prima facie case, PERB is
not required to ignore facts provided by the respondent and consider only the facts provided by
the charging party. (Service Employees International Union #790 (Adza) (2004) PERB
Decision No. 1632-M.)
3

"resign or retire" at the end
of
the 180-day leave period or when the California Public
Employees Retirement System (CalPERS) granted her request for disability retirement,
whichever came first.
Although the settlement agreement provided that Jones-Boyce's paid administrative
leave would not begin until the governing board approved the agreement, the District
nonetheless placed her on paid administrative leave effective April 20, 2007. The District did
not notify Jones-Boyce
of
her placement on paid leave at this time; she learned
of
the status
change from the District's disability insurance carrier in response to her claim for benefits.
Jones-Boyce's attorney later informed her that the extra paid leave time was a "gift"from the
District.
The District's governing board approved the settlement agreement on May 8, 2007.
Jones-Boyce signed a request for dismissal
of
her civil case on May
11
and the case was
dismissed by the superior court at a hearing on May 15. Jones-Boyce did not attend the
hearing because she was hospitalized the day before. On July 3, the District's disability
insurance carrier denied Jones-Boyce's claim for long-term disability benefits.
On December 6, 2007, the District's general counsel informed Jones-Boyce by letter
that her "employment relationship with Metropolitan ended on November 5, 2007, pursuant to
the terms
of
the Settlement Agreement signed on April 20, 2007." By letter
of
that same date,
the District's human resources department informed Jones-Boyce that her medical coverage
would terminate on December 31, 2007, and that she may elect to continue her coverage
pursuant to the Consolidated Omnibus Budget Reconciliation Act
of
1985, or COBRA.
4

Dismissal and Appeal
Jones-Boyce filed the instant unfair practice charge on November 28, 2007, and
amended it eight times. On October 17, 2008, the Board agent dismissed the charge for failure
to state a prima facie case
of
retaliation. The Board agent found the charge failed to allege that
Jones-Boyce engaged in any activity protected by the MMBA. He also found that her
placement on paid administrative leave and discharge were not adverse actions.
On appeal, Jones-Boyce contends the Board agent failed to properly consider the
totality
of
the circumstantial evidence
of
retaliation presented in her charge. She argues that,
based on this circumstantial evidence, "a trier
of
fact can and should have reasonably inferred
that the District violated Appellant's rights under the MMBA and such violations were based
on a wrongful motive."
DISCUSSION
1.
	Late Filed Addendum to Appeal
PERB Regulation 32635(a)3 requires that an appeal
of
a Board agent's dismissal
of
an
unfair practice charge be filed within 20 days
of
the date the dismissal is served on the
charging party. The charging party is free to supplement the appeal during the 20-day period.
(See San Leandro Unified School District (2007) PERB Decision No. 1924 [Board accepted
three addendums to appeal filed during 20-day appeal period].) However, an addendum filed
after the 20-day period has expired is untimely unless good cause is shown for the late filing
pursuant to PERB Regulation 32136.4 (San Leandro Unified School District (2007) PERB
3 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
4 PERB Regulation 32136 states in full: 	"A late filing may be excused in the discretion
of the Board for good cause only. A late filing which has been excused becomes a timely
filing under these regulations."
5

Order No. Ad-366.) The Board has found good cause when a party makes a conscientious
effort to timely file and the late filing was caused by circumstances beyond the party's control,
such as a mailing or clerical error. (United Teachers
of
Los Angeles (Kestin) (2003) PERB
Order No. Ad-325.)
	If
the reason for the untimely filing is "reasonable and credible," the
Board evaluates whether the opposing party would suffer any prejudice as a result
of
the
excused late filing. 	(Barstow Unified School District (1996) PERB Order No. Ad-277.)
The Board's Appeals Assistant granted Jones-Boyce an extension until April 30, 2009,
to file her appeal in this matter and she did so on that date. On July 31, 2009, Jones-Boyce
filed an addendum consisting
of
a letter to her attorney (along with supporting documents) in
which she discussed a proposed settlement
of
her workers' compensation claim and informed
him that CalPERS was assisting with reimbursement
of
medical expenses she paid during her
2003-2006 medical leave. The addendum provides no reason for the late filing. 	Further,
nothing in the addendum indicates Jones-Boyce intended for it to be filed on or before
April 30, 2009, and that it arrived at PERB late as a result
of
circumstances beyond her control.
Therefore, Jones-Boyce has failed to establish good cause for the Board to accept her late-filed
addendum.
2. 	Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in
violation
of
MMBA section 3506 and PERB Regulation 32603(a), the charging party must
show that: (1) the employee exercised rights under the MMBA; (2) the employer had
knowledge of the exercise of those rights; (3) the employer took adverse action against the
employee; and (4) the employer took the adverse action because of the exercise of those rights.
6

(County of San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M; Novato
Unified School District (1982) PERB Decision No. 210.)5
a. 	Protected Activity
The statutes administered by PERB, including the MMBA, regulate specific conduct by
public employers and employee organizations concerning employer-employee relations.
(Los Angeles Community College District (1979) PERB Order No. Ad-64.) These statutes do
not regulate every aspect of the public employer's conduct. (Ibid.) Thus, PERB may only
remedy retaliation that was taken because an employee exercised rights granted by one of the
statutes PERB administers.
The primary allegation in Jones-Boyce's charge is that the District placed her on paid
administrative leave because she informed the District of her intent to file a claim for long
term disability benefits. Because the MMBA does not grant an employee the right to file a
claim for disability benefits, that conduct is not protected under the statute. Similarly, Jones
Boyce's discrimination complaints6 and workers' compensation claim do not constitute
protected activity under the MMBA because they do not implicate rights granted by the statute.
(State of California (Department of Consumer Affairs) (2005) PERB Decision No. 1762-S;
Salinas City Elementary School District (1996) PERB Decision No. 1131.)
Nevertheless, the charge did allege that Jones-Boyce engaged in two activities protected
by the MMBA: (1) utilizing AFSCME representation in her dispute with the District over
Becker's leave notice directive (County of Merced (2008) PERB Decision No. 1975-M;
5 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
6 Jones-Boyce did not provide copies of the discrimination complaints or details of their
contents.
7

Los Angeles Unified School District ( 1992) PERB Decision No. 957); and (2) filing the instant
unfair practice charge (San Bernardino City Unified School District (1998) PERB Decision
No. 1270; Riverside Unified School District (1987) PERB Decision No. 639).
In her appeal, Jones-Boyce asserts that she "participated in union activity" by sending a
complaint letter to a member
of
the District's governing board
on
September 11, 2006.
Making a complaint to the employer about working conditions that affect employees generally
is a protected activity. (Los Angeles Unified School District (1999) PERB Decision No. 1338;
The Regents
of
the University
of
California (Berkeley) (1983) PERB Decision No. 308-H.)
Here, Jones-Boyce complained to the District board member about the conduct
of
the
law
firm
representing the District in her civil action, not about working conditions. Further, there is no
indication that AFSCME was involved in the complaint in any way. Therefore, Jones-Boyce's
September 11, 2006 letter did not constitute protected activity under the MMBA.
b. 	Employer's Knowledge
of
Protected Activity
To prove that an employer took adverse action against an employee because
of
the
employee's protected activity, the charging party must establish that the employer had
knowledge
of
the employee's protected activity. (Los Angeles Community College District
(2004) PERB Decision No. 1668.) PERB may impute a subordinate employee's knowledge
of
protected activity to the decision maker
if
the subordinate employee was directly involved in
the adverse action. (City
of
Modesto (2008) PERB Decision No. 1994-M.) PERB will not
impute such knowledge to the decision maker when the employee's protected activity was
known only to employees who played no role in the adverse action. (Sacramento City Unified
School District (1985) PERB Decision No. 492.)
Clearly, Becker had knowledge
of
Jones-Boyce's use of AFSCME representation in
February 2007 because she attended meetings where Jones-Boyce was represented by Koffroth
8

or Castrillo and Castrillo spoke with Becker about her directive to Jones-Boyce. However, the
charge does not show that Becker had any role in placing Jones-Boyce on paid administrative
leave or terminating her employment and health benefits. Consequently, we cannot impute
Becker's knowledge
of
Jones-Boyce's use
of
union representation to the District. Nor does the
charge allege that any District employee other than Becker was aware
of
AFSCME's efforts on
Jones-Boyce's behalf in February 2007. Thus, the charge failed to establish that the District
employees who decided to place Jones-Boyce on paid administrative leave and terminate her
employment and health benefits knew
of
her use
of
AFSCME representation. It is undisputed,
however, that the District had knowledge
of
Jones-Boyce's unfair practice charge, as the
charge was properly served on the District and the District filed a position statement in
response to the charge.
c.	
Adverse Action
In determining whether evidence
of
adverse action is established, the Board uses an
objective test and will not rely upon the subjective reactions
of
the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) 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; fn.
omitted.)
PERB has held that placing an employee on involuntary paid administrative leave is an
adverse action. (San Mateo County Community College District (2008) PERB Decision
No. 1980; Oakland Unified School District (2003) PERB Decision No. 1529.) However, in
both of those cases the employee went from full employment status to paid administrative
9

leave. In contrast, Jones-Boyce was on unpaid medical leave at the time the District placed her
on paid administrative leave. Applying the objective test from Newark Unified School District,
supra, we conclude this was not adverse to Jones-Boyce's employment because she gained pay
as a result
of
the status change.
Nonetheless, Jones-Boyce contends that her placement on paid administrative leave
was an adverse action because it prevented her from obtaining long-term disability benefits.
While the charge presented evidence that the District's disability insurance carrier denied
Jones-Boyce's claim for long-term benefits, it failed to allege facts to establish that benefits
were denied because she was on paid administrative leave. Thus, the charge does not establish
that the District took adverse action against Jones-Boyce by placing her on paid administrative
leave.
It is well-established that termination
of
employment is an adverse action. (Jurupa
Community Services District (2007) PERB Decision No. 1920-M; Regents
of
the University
of
California (Einheber) (1997) PERB Decision No. 949-H.) However, the District did not
terminate Jones-Boyce's employment on November 5, 2007. Rather, it merely implemented
her voluntary resignation on that day pursuant to the April 20, 2007 settlement agreement.
Under these circumstances, the District's conduct did not constitute an adverse action.
Additionally, Jones-Boyce appears to allege that the District's termination
of
her health
benefits was an adverse action. However, the District terminated Jones-Boyce's health
benefits because she resigned. Thus, termination
of
her health benefits did not constitute an
adverse action.
d. 	Nexus Between Protected Activity and Adverse Action
Even if the District's placement of Jones-Boyce on paid administrative leave and
termination of her employment and health benefits constituted adverse actions, the charge
10

failed to establish the required nexus between these actions and her filing
of
the instant unfair
practice charge. 7 As Jones-Boyce points out in her appeal, "[ u]nlawful motive is the specific
nexus required in the establishment
of
a prima facie case
....
Unlawful motive can be
established by circumstantial evidence and inferred from the record as a whole." (Trustees
of
the California State University
v.
Public Employment Relations
Bd.
(1992) 6 Cal.App.4th
1107, 1124.)
To guide its examination
of
circumstantial evidence
of
unlawful motive, PERB has
developed a set
of
"nexus" factors that may be used to establish a prima facie case. 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 (City
of
Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
Because the charge failed to establish that the District employees who placed Jones
Boyce on paid administrative leave and later terminated her employment and health benefits
knew of her use of AFSCME representation in February 2007, we need not examine whether
the charge established a nexus between her use of AFSCME representation and the alleged
adverse actions.
11

employer's failure to offer the employee justification at the time it took action or the offering
of
exaggerated, vague, or ambiguous reasons (County
of
San Joaquin (Health Care Service)
(2001) PERB Order No. IR-55-M); (6) employer animosity towards union activists (Jurupa
Community Services District, supra; Cupertino Union Elementary School District (1986)
PERB Decision No. 572); or (7) any other facts that might demonstrate the employer's
unlawful motive. (North Sacramento School District, supra; Novato Unified School District,
supra.)
Typically, the closeness in time (or lack thereof) between the protected activity and the
adverse action goes to the strength
of
the inference
of
unlawful motive to be drawn and is not
determinative in itself. (Moreland Elementary School District, supra; Regents
of
the
University
of
California (1998) PERB Decision No. 1263-H; American Thread
Co.
v.
National
Labor Relations
Bd.
(4th Cir. 1980)
631
F.2d 316, 322.) However, when the adverse action
was taken before the protected activity occurred, a prima facie case cannot be established
because the employee's future protected activity could not have motivated the employer to take
the adverse action. (Berkeley Unified School District (2004) PERB Decision No. 1702.)
The District placed Jones-Boyce on paid administrative leave on April 20, 2007 and
terminated her employment pursuant to the April 20, 2007 settlement agreement on
November 5, 2007. She filed the instant unfair practice charge on November 28, 2007. Thus,
both
of
these alleged adverse actions occurred before Jones-Boyce filed her charge. Therefore,
pursuant to Berkeley Unified School District, supra, the timing precludes finding a causal
relationship between the filing of the charge and her placement on paid administrative leave
and termination.
The District notified Jones-Boyce on December 6, 2007, that her health benefits would
terminate on December 31, 2007. While this occurred shortly after Jones-Boyce filed the
12

instant charge, nothing in the charge or supporting documents indicates that the termination
of
benefits was motivated by the filing
of
the charge. Instead, as discussed above, the termination
of
benefits was a result
of
her resignation effective November 5, 2007. Accordingly, the
charge failed to establish a nexus between the filing
of
Jones-Boyce's unfair practice charge
and the District's termination
of
her health benefits.
In sum, the charge failed to establish a prima facie case that the District placed Jones
Boyce on paid administrative leave and later terminated her employment and health benefits
because she used AFSCME representation and filed an unfair practice charge. Accordingly,
because the charge did not allege facts sufficient to show that the District took adverse action
against Jones-Boyce because she exercised rights granted by the MMBA, we affirm the Board
agent's dismissal
of
the charge.
ORDER
The unfair practice charge in Case No. LA-CE-419-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Neuwald joined in this Decision.
13