print logo
Main Content Anchor

DPA Case Number 01-J-0042 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: December 11, 2003

By: Gloria Moore Andrews, DPA Chief Deputy Director

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on October 29, 2003, at Sacramento, California.
Appellant was present and represented himself.
Patricia M. Keegan, Staff Counsel, Department of Personnel Administration represented the California Conservation Corps (CCC), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - CAUSE FOR APPEAL

Appellant alleged his layoff was procedurally improper and conducted in bad faith. He specifically alleged he did not get the required 30-day notice prior to the effective date of his layoff and that he was laid off so that another employee could take his job.

II - BACKGROUND FACTS

Circumstances Surrounding Appellant's Layoff

Respondent's budget was reduced by approximately $11 million dollars for fiscal year 2002-2003. As a result of these reductions, respondent prepared a "Program Streamline Plan" which called for layoff, demotion, or involuntary transfer of approximately 77 full time employees. In preparing this plan, respondent mapped out each employee's potential demotion path in accordance with preliminary seniority scores. Among other things, the plan included geographic layoff, demotion or transfer of one Energy Resource Specialist I in the Placer Office and layoff, demotion, or voluntary transfer of 11.5 Conservationist I's and 16 Conservationist II's statewide. Respondent determined that 7 Conservationist I positions would be kept at the Placer Center.
Respondent submitted its plan to DPA and DPA ultimately approved it. DPA notified the relevant employee unions of the proposed layoffs, demotions or involuntary transfers. As a result of impact negotiations, the California Union of Safety Employees (CAUSE), the union representing State Bargaining Unit 7 which includes the Conservationist classes, and the DPA reached an agreement on April 30, 2003.1 This agreement allowed Conservationists I and II with enough seniority to remain in classification and who were employed at a location where there was an excess of that classification to voluntarily transfer to another location. It also allowed Conservationist II's to demote in lieu of transfer to a vacant Conservationist I position at their current location. The agreement additionally provided a transfer incentive of $1,500 to Conservationists I and II who voluntarily transferred pursuant to the agreement.
DPA also reached an agreement with California Association of Professional Scientists (CAPS), the union representing State Bargaining Unit 10 and the Energy Resource Specialists. Under this agreement, DPA agreed to allow the impacted Energy Resource Specialists to demote to Conservationists II's.
On or about the first week in June, respondent notified the impacted employees at Placer Center of their layoff, demotion in lieu of layoff or transfer opportunities in accordance with the above agreements and the seniority scores that had been provided by DPA. The Environmental Specialist I at the Placer Center was notified he had the right to demote in lieu of layoff to the class of Conservationist I or II at the Placer Center. The Environmental Specialist I notified respondent he wanted to demote to a Conservationist II position. The Conservationist II at the Placer Center with the least seniority, who would be "bumped" by the Environmental Specialist I, was notified he was eligible to demote in lieu of layoff to a Conservationist I at the Placer Center. The Conservationist II initially notified respondent he was not interested in this position. However, by July 1, he changed his mind and notified respondent he wanted to accept the Conservationist I position at the Placer Center effective July 7. The Conservationist II who demoted in lieu of layoff to the Conservation I position subsequently retired on July 31. Respondent issued a Job Opportunity Listing for a Conservationist I at the Placer Center on July 31, 20 days after the effective date of appellant's layoff.

Appellant's Layoff

Based on seniority calculations and the agreements made during layoff negotiations with the unions, respondent determined that appellant, the Conservationist I with the least seniority at the Placer Center, would not be able to remain at the Placer Center. On June 4, respondent mailed appellant a memorandum titled, "Notice of Layoff or Transfer In Lieu of Layoff" and a Department of Personnel Administration Form DPA-015, "Notice of Involuntary Transfer, Demotion, or Termination." Appellant was informed he was not eligible to demote in lieu of layoff and that his seniority score did not allow him to remain at the Placer Center. Appellant was notified that he did have enough statewide seniority to transfer to another location and he was given optional locations to which he could transfer. Appellant was also informed that if he indicated he wanted to transfer, he would be sent another letter confirming his new work location and reporting date.
If appellant was not interested in transferring, appellant was instructed he should complete Parts III and IV of the DPA-015, indicating other options he chose in lieu of transfer and indicating his preferences regarding placement on reemployment lists. Appellant was also advised of his benefits if he decided to be laid off and his appeal rights. The DPA-015 listed an effective date of July 7. Appellant was instructed to return the completed form indicating his preferences by June 20. Appellant testified he received the memorandum and the DPA-015 on or about June 4.
Appellant returned the DPA-015 on June 26. He indicated he was not interested in working at any location other than at the Placer Center. He indicated he wanted to be placed on the reemployment list for a full time position at the Placer Center. He also wrote, "Note: Due to the current situation at Placer, with the resignation and transfer of 2 C-1's, it would appear that my position would be secure I.A.W. the current layoff procedures. Please verify."
On July 3, respondent sent appellant a second memorandum titled "Notice of Layoff - Effective July 11, 2003." This notice acknowledged receipt of appellant's Form DPA-015, acknowledged that appellant chose to be laid off in lieu of transfer, and it reiterated appellant's benefits. It also extended appellant's date of layoff from the original date of July 7 to July 11.
Appellant was laid off effective July 11. At some point after he elected to be laid off in lieu of transfer, appellant learned that the Conservationist II at the Placer Center who was being bumped by the Environmental Specialist was demoting to a Conservationist I at the Placer Center. He then decided to appeal his layoff.

III - ISSUES

Date of Notice of Layoff

Appellant argued that respondent's July 3 "Notice of Layoff-Effective July 11, 2003" represented his formal notice of layoff. Government Code section 19997.13(a)(1) states:
"An employee compensated on a monthly basis shall be notified that he or she is to be laid off 30 days prior to the effective date of the layoff and not more than 60 days after the date of the seniority computation. The notice of layoff shall be in writing and shall contain the reason or reasons for the layoff. An employee may elect to accept this layoff prior to the effective date thereof."
Appellant's argument that the July 3 memorandum was his formal notice of layoff is without merit. Appellant admitted he received and responded to the June 4 "Notice of Layoff or Transfer In Lieu of Layoff" and to the DPA-015, "Notice of Involuntary Transfer, Demotion, or Termination." This correspondence informed appellant in writing of the reason for layoff. It informed appellant he could not demote. It also informed appellant if he chose to transfer, he would be sent another letter confirming his new work location and reporting date.
Appellant indicated he did not want to transfer to another location and that he wanted to be placed on a reemployment list. Given the information provided to appellant and in light of Government Code section 19994.1 requiring a 60-day notice of transfer, the effective date of July 7 which was provided in the June 4 correspondence could only be indicative of the effective date of appellant's lay off if he chose no other options. At hearing appellant admitted he knew that if he did not choose to transfer, he would be laid off.
Respondent's June 4 notice to appellant complied with Government Code section 19997.13. The July 3 notice merely extended appellant's lay off date five days. Appellant had more than the statutorily required 30 days notice before the effective date of the layoff.

Timely Filing of Appeal

At hearing respondent made a motion to dismiss the case based on appellant's untimely filing of his appeal.
As discussed above, appellant received his formal notice of layoff or transfer in lieu of layoff on June 4. Government Code section 19997.14 provides that an employee may file an appeal from layoff on the grounds that the required procedure was not followed, that the layoff was not made in good faith, or that the layoff was otherwise improper. The appeal must be filed within the 30 days of receipt of the notice of layoff.
Respondent advised appellant of his appeal rights in the June 4 layoff notice as follows:
"You may appeal this notice as provided by DPA Rule 599.904, unless otherwise provided by your collective bargaining agreement. In accordance with DPA Rule 599.904, your appeal must be filed within 30 days of receipt of your Notice of Layoff . . . Appeals should be sent to the Department of Personnel Administration, 1515 S Street, North Building, Suite 400, Sacramento, California."
Respondent incorrectly cited DPA Rule 599.904, rather than Government Code section 19997.14. This is harmless error in this case because appellant testified he received the June 4 notice on or about June 4. There was no evidence that appellant's collective bargaining agreement superceded DPA Rule 599.904 or Government Code section 19997.14. CAUSE submitted an appeal on appellant's behalf on July 23. This is nineteen days after the appeal should have been timely filed on July 4.
DPA Rule 599.904 allows an appeal to be filed within 30 days after the end of the period in which the appeal should have been filed based upon good cause being shown. In determining what factors constitute good cause sufficient to justify a late appeal, courts generally look to the California Code of Civil Procedure (CCP) section 473 which provides relief for "mistake, inadvertence, excusable neglect or surprise of an attorney or party."
Appellant failed to prove any of the above grounds as a basis to excuse his late filing. He admitted he did not decide to file an appeal until he learned that a Conservationist II at the Placer Center had decided to demote to a Conservationist I position at the Placer Center which he believed was a position that he should have been retained to fill. Appellant did not testify when he received this information. He did not provide any evidence that he took any action to file a timely appeal on or before July 4. He was aware of the filing deadline and there was no evidence he was unable to timely file. The fact that he may have questioned his layoff did not relieve him of filing an appeal within the requisite 30-day period. He simply chose not to do so. Therefore, it is concluded that appellant did not demonstrate good cause for his failure to file a timely appeal. Respondent's motion to dismiss based on untimely filing is granted. Therefore, DPA will not address appellant's argument that his layoff was taken in bad faith.
 
* * * * *

WHEREFORE IT IS DETERMINED

that the appeal from Layoff from the position of Conservationist I effective July 11, 2003, is considered final and the appeal dismissed.
* * * * *

FOOTNOTES

1. All dates are 2003 unless otherwise indicated.
  Updated: 5/29/2012
One Column Page
Link Back to Top