Issaquah School District, Decision 13883 (PECB, 2024)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Kevin Mallaji, Complainant, vs. issaquah school district, Respondent.

CASE 138320-U-24 DECISION 13883 - PECB order of dismissal

Kevin Mallaji, complainant.

Amanda Dorey, Director of Human Resources, for the Issaquah School District.

On February 1, 2024, Kevin Mallaji (complainant) filed an unfair labor practice complaint against Issaquah School District (employer). The complaint was reviewed under WAC 391-45-110.[1] A deficiency notice issued on March 6, 2024, notified Mallaji that a cause of action could not be found at that time. Mallaji was given a period of 21 days in which to file and serve an amended complaint or face dismissal of the case.

On March 7, 2024, and March 21, 2024, Mallaji filed an amended complaint and additional information to support his complaint.

ISSUE

The original and amended complaints allege the following:

Allegations outside of this agency’s jurisdiction

The original and amended complaints are dismissed because they lack facts demonstrating that the union’s failure to represent Mallaji was based upon invidious reasons.

Background

On January 13, 2023, Mallaji started work as a Custodian with the Issaquah School District (employer). His position is represented by Teamsters Local 763 (union) for purposes of collective bargaining.

According to the original complaint, the employer trained Mallaji to perform his custodial duties which he claims he successfully completed. On February 16, 2023, Mallaji’s supervisor, Dawn, claimed that he was not performing his job as a Custodian. The complaint did not provide Dawn’s full name. Mallaji allegedly sent Dawn proof that he was performing his job and that Dawn responded that his work was “pretty good” but that he needed additional training. Mallaji finished this additional training on February 24, 2023.

On February 28, 2023, Dawn allegedly told Mallaji that he would not go back to Maywood Middle School because the lead had concerns about his work. The original complaint asserted that Dawn did not tell Mallaji what those concerns were even though Mallaji asked. Mallaji claims in his complaint that he believes Dawn was discriminating against him for unidentified reasons and wanted to give better assignments to her friend and to punish Mallaji.

On March 8, 2023, Mallaji requested accommodations to observe Ramadan by starting work early so he could leave by 6pm. Dawn allegedly changed Mallaji’s hours to 3pm to 11pm. When Mallaji complained to Human Resources, his hours were changed as requested.

In March of 2023, Dawn allegedly moved Mallaji to Beaver Lake Middle School and informed the supervisors there that Mallaji had poor performance. On March 13, Mallaji sent Dawn pictures of his performance and asked his current supervisor, Drew, about his performance. The complaint did not provide Drew’s full name but does allege that Drew told Mallaji that he was doing a good job. However, on March 20, 2023, Drew asked Mallaji to the custodian office and accused Mallaji of “giving him the finger” because a blue glove that was placed on the desk was positioned to show the middle finger. Mallaji denied the act was intentional.

Around April 12, 2023, Mallaji’s day supervisor, Matt, informed him that he observed Mallaji for two weeks and that he was doing a good job, but the employer may nevertheless extend his probation period. The original complaint did not provide Matt’s full name. On April 14, 2023, union Shop Steward Jeff Garbe forwarded Mallaji an email exchange that extended his probation period. While Mallaji asked Garbe why his probation was being extended, Garbe allegedly told Mallaji it was because of his “Performance and attendance at work.” Mallaji alleged that he was never informed that his performance or attendance was under question and the only time off he requested because human resources instructed him to wait at home for 3 days while they decided how to handle his Ramadan request.

On April 27, 2023, Mallaji met with Human Resources Director Amanda Dorery, his union representatives, and Matt to discuss the extension of his probation. Mallaji alleged that when responded to the employer’s complaints that the employer made up new accusations, including improperly taking time off, poor performance, and for not getting along with people at work.

In May 2023, Mallaji worked at Pine Lake Middle School with Custodial Lead and Shop Steward Charles Floyd. Sometime during that workday, Floyd allegedly told Garbe that “Kevin doesn't know how to do his job.” Mallaji also asserts that Dawn kept assigning him to schools “further north” to make his commute hard. He alleges Dawn did this in retaliation for requesting a work assignment that was closer to his residence.

On August 23, 2023, Dawn allegedly called Mallaji to a meeting with Floyd where Dawn accused Mallaji of violating the employer’s policies and procedures. Mallaji claims that he carefully responded to each accusation. Mallaji claimed Dawn’s accusations demonstrate discriminatory behavior against him. The employer allegedly hired an investigator to look into the allegation, but Mallaji has not heard about the results of the investigation.

Following that meeting, Mallaji met with Floyd with questions concerning how to write his response to the accusation. Floyd allegedly told Mallaji to call him and Floyd would help write the response. Mallaji claimed that he tried calling Floyd three times, left a voicemail, and Floyd never called him back. On September 7, 2024, Union President Jason Powell allegedly told Mallaji that even though people have said he does good work, in the future they will say that he does bad work. Mallaji claimed that this proves the union knew the employer would mistreat Mallaji, demonstrates that the union is not representing Mallaji, and the union is taking sides with the employer to make Mallaji look bad.

In September 2023, Mallaji claimed that Dawn discriminated against him by treating him differently than a substitute custodian named Esther. The complaint did not provide Esther’s full name. Mallaji claimed that both he and Esther forgot to clean a bathroom during this time, but Dawn punished Mallaji for this minor mistake by reassigning him to schools that were farther away from where he lived to make it hard for him to commute. Mallaji also claimed that because Esther is friends with Dawn’s husband, Dawn assigned Esther to a school that Mallaji had been working at that was more convenient for Esther. Mallaji asserted that this shows Dawn’s favoritism towards Esther and racial discrimination towards Mallaji.

On an unidentified date in late September 2023, Garbe sent Mallaji an email informing him that Garbe is no longer going to be Mallaji’s shop steward.

Mallaji’s original complaint asserted that in October and November 2023, Susana Santiago, the lead at Apollo Elementary School, accused him of creating drama by trying to touch the union representative's hand and by talking loudly. In late October 2023, Floyd allegedly told Santiago that Mallaji tried to hold Floyd’s hand and talked loudly after the meeting on August 23, 2023. Sandra Flores, a friend and coworker told me this after Susana told her. Mallaji asserted that these claims demonstrate that the shop stewards and employers are making false accusations and colluding against him.

On October 13, 2023, Mallaji inquired about a warehouse driving position. He claims that a coworker told him that they “hire by ‘who do you know’” and refused to consider his application even though he has over 25 years of experience with a class A commercial drivers license. Mallaji also claimed that the employer did not post this position and kept it quiet to allow a family member of a current driver to accept the position.

In November 2023, Mallaji alleged that Dawn accused him of clocking out early and wanted him to claim 15 minutes of vacation time. Mallaji claimed that he clocked out 1 minute early and that other employees also clock out slightly early and they are not asked to claim vacation time. Mallaji also claimed that he clocked out early because a senior employee was verbally abusive towards him and Mallaji felt unsafe.

At the end of November, Mallaji asked his new supervisor Nicole and Dawn to schedule him closer to where he lived. Mallaji claims that Nicole and Dawn ignored his seniority and gave a friend with less seniority the schools closer to Mallaji’s residence. Mallaji also claims that Nicole and Dawn harshly stated, “we assign you.” On December 7, 2023, the employer placed Mallaji on paid administrative leave for misconduct and took Mallaji’s badge, escorted him off the premises, and instructed him not to talk with anyone.

At a December 18, 2023, meeting, the employer informed Mallaji that he was placed on leave for using a computer on December 5, 2023. Mallaji asserts that he was never told about the policy and was often invited to use other computers by faculty and teachers. Mallaji claimed that he thought he was following policy and that he was not aware of any policies prohibiting from using the computers. On December 19, 2023, Mallaji met with an investigator and was again informed that he was placed on leave for using a computer.

On January 10, 2024, Union President Jason Powell sent Mallaji an email that allegedly asserts that the union is refusing to represent him. The contents of that email are not explained in the original complaint, but Mallaji asserts that the email simply repeats the allegations against Mallaji and uses inflammatory words like “civility, poor performance.”

Mallaji’s amended complaints do not contain any new additional facts. Rather, the amended complaints include documentation that supports the allegations in the original complaint.

ANALYSIS

Applicable Legal Standards

Statute of Limitations

There is a six-month statute of limitations for unfair labor practice complaints. RCW 41.80.120(1) governs the time for filing complaints:

The commission is empowered and directed to prevent any unfair labor practice and to issue appropriate remedial orders: PROVIDED, That a complaint shall not be processed for any unfair labor practice occurring more than six months before the filing of the complaint with the commission . . . . This power shall not be affected or impaired by any means of adjustment, mediation, or conciliation in labor disputes that have been or may hereafter be established by law.

The Commission has ruled multiple times on statute of limitations questions involving unfair labor practice complaints. The six-month statute of limitations begins to run when the complainant knows, or should have known, of the violation. State – Corrections, Decision 11025 (PSRA, 2011) (citing City of Bremerton, Decision 7739-A (PECB, 2003)).

The only exception to the strict enforcement of the six-month statute of limitations is when the complainant had no actual or constructive notice of the acts or events which are the basis of the charges. City of Renton, Decision 12563-A (PECB, 2016) (citing City of Pasco, Decision 4197-A (PECB, 1994)). Under the “discovery rule,” the statute of limitations does not begin to run until the complainant, using reasonable diligence, would have discovered the cause of action. U.S. Oil & Refining Co. v. State Department of Ecology, 96 Wn.2d 85, 92 (1981). The doctrine of equitable tolling requires the exercise of reasonable diligence on the part of the complainant. Adult Residential Care, Inc., 344 NLRB 826 (2005). The party asserting equitable tolling should apply bears the burden of proof. Nickum v. City of Bainbridge Island, 153 Wn. App. 366, 379 (2009). To prove that the statute should be tolled, the complainant would need to show deception or concealment of the facts forming the basis of the unfair labor practice complaint and the exercise of diligence by the complainant. City of Renton, Decision 12563-A (citing Millay v. Cam, 135 Wn.2d 193, 206 (1998)).

The Commission has also ruled that the statute of limitations begins to run when an adverse employment action is communicated to employees and where the employer does not attempt to conceal its actions, even if the exclusive bargaining representative did not have actual notice of the alleged violation. State – Corrections, Decision 11025 (citing City of Chehalis, Decision 5040 (PECB, 1995)).

Application of Standards

Mallaji filed his complaint on February 1, 2024. Accordingly, only those factual allegations that occurred on or after August 1, 2023, can be considered for purposes of finding a cause of action under chapter 41.56 RCW and all other facts may only be considered background information.

PERC’s jurisdiction is limited to labor relations disputes. The agency does not have authority to resolve all disputes that might arise in public employment, such as allegations that an employer discriminated against an employee because of a recognized disability. Just because the complaint does not state a cause of action for an unfair labor practice, it does not necessarily mean the allegations involve lawful activity. It means that the issues are not matters within the purview of PERC. Tacoma School District (Tacoma Education Association), Decision 5086-A (EDUC, 1995).

Here, Mallaji has not alleged in his original and amended complaints that the employer discriminated against him for exercising union activity that would be protected by the statutes this agency administers. Rather, it appears that Mallaji is alleging that the employer is discriminating against him on the basis of race, religion, or national origin. Those kinds of claims are not properly filed before this agency and should be filed with the Washington Human Rights Commission or the United State Equal Employment Opportunity Commission.

Order

The original and amended complaints charging unfair labor practices in the above-captioned matter are DISMISSED for failure to state a cause of action.

ISSUED at Olympia, Washington, this  24th  day of June, 2024.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

Dario de la Rosa, Unfair Labor Practice Administrator

This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.