Final Non-Precedential Decision Adopted: July 23, 2004

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on July 14, 2004, at Riverside, California.

Appellant was present and was represented by Lezlie Uko, Labor Relations Representative, California State Employees Association (CSEA).

Lorrine Scott-Barron, Employee Relations Officer, represented the California Department of Corrections (CDC), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

On January 27, 2004, respondent sent appellant written notice by certified mail that she was being automatically resigned effective February 6, 2004, for being absent without approved leave from January 16 through January 27, 2004.1 Appellant’s attorney at that time filed a request (appeal) for reinstatement after automatic resignation on February 25. DPA received the appeal on March 1. On June 11, appellant’s attorney notified DPA that CSEA was appellant’s new legal representative in this matter.

California Government Code section 19996.2 authorizes DPA to reinstate an employee after automatic resignation only if the employee files a request (appeal) for reinstatement within fifteen (15) days after service of the written Notice of Automatic Resignation. Allowing an additional five days for mailing, appellant had until close of business February 16 to file her appeal. (See California Code of Civil Procedure (CCP) section 1013.)

Appellant filed her appeal for reinstatement after automatic resignation on February 25. The appeal is untimely because it was filed nine days after service of the written notice.

DPA Rule 599.904 states that upon good cause being shown, DPA may allow an appeal to be filed within thirty (30) days after the end of the period in which the appeal should have been filed. Appellant’s appeal was filed within the requisite 30 days.

A hearing was held to determine whether appellant demonstrated good cause sufficient for DPA to accept jurisdiction in this matter.

In her written appeal appellant alleged she did not receive the January 27 notice of automatic resignation until February 10 and that an unauthorized person signed for the certified notice.

At hearing appellant claimed she did not know when she received the January 27 notice of automatic resignation but that she had good cause for late filing because she kept respondent informed of her correct mailing address and when she did receive the notice she immediately took all necessary steps to perfect her appeal.

Appellant alleged she received a work-related injury. She last worked on January 13, 2003. She subsequently was homeless and shifted from place to place. At some time prior to January 27, appellant advised respondent that her mailing address was [address omitted]. Although appellant lived in various locations, she kept this mailing address. She would periodically call the person maintaining the mail box and tell him where to forward her mail. Appellant was in Clear Lake, California in January and February. She did not provide respondent with a mailing address in Clear Lake. Appellant testified she called to check on her mail once or twice a week.

On January 27, respondent sent the notice of automatic resignation to appellant by certified mail at the Bermuda Dunes address she provided. The notice informed appellant the automatic resignation would be effective February 6 and that she could contact respondent for an informal hearing prior to that date. It also informed appellant she had 20 days from the date of mailing to request a hearing from DPA. The certified mail receipt showed that the mail was received at appellant’s mailing address on February 2. On February 10, respondent sent a second notice to appellant at the Bermuda Dunes address informing her the automatic resignation was final and that she had abandoned her right to an informal hearing because she had not timely contacted respondent.

Appellant testified she did not recall the date she actually received these two letters at her address in Clear Lake. She testified that she believed she may have received them at the same time. When she received the letters, she testified she immediately contacted her attorney and her doctor.

The Staff Services Manager who supervised the Personnel Office at Ironwood State Prison and who was doing the return-to-work activity in January and February, testified that she talked with appellant’s attorney sometime between January 27 and February 6. She testified that although she could not remember the exact date, she did recall the discussion occurred prior to February 6. She testified that she knew the call occurred during this time period because she and the Employee Relations Officer explained to appellant’s attorney what he needed to do regarding the informal hearing that had to be scheduled on or before February 6 as well as about the procedure for filing an appeal with DPA.

 

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Appellant filed a late appeal for reinstatement after automatic resignation. Her appeal was approximately nine days late.

Appellant claimed good cause for not timely filing her appeal. In determining what constitutes good cause sufficient to justify a late appeal, courts generally look to the CCP section 473, which provides relief for a “mistake, inadvertence, excusable neglect, or surprise of an attorney or a party.” Appellant claimed she did not timely file her appeal because she did not receive the notice of automatic resignation in time for her to timely perfect her appeal.

The courts have distinguished excusable conduct from simple negligence in a number of cases dealing with good cause of late filing of appeals. For example, the court found excusable conduct constituting good cause in circumstances where an attorney and client were laboring under the strain of criminal proceedings against the client and there was a breakdown in communication between them. (Gonzales v. State Personnel Board (1973) 76 Cal.App.3d 364, 367.). Similarly in Civil Service Commission v. Velez (1993) 14 Cal.App. 4th 115, 122-123, the court held that an employee who miscommunicated the date on which she received a termination notice to her union representative demonstrated good cause for her late appeal because the error was inadvertent. Finally, in Faulkner v. Public Employees Retirement System (1975) 47 Cal.App.3d 731, 734-735, the court held that an employee demonstrated excusable error for a late-filed appeal because his attorney’s law firm miscalendared the date the appeal was due.

In this case appellant did not demonstrate excusable conduct. The evidence shows respondent mailed the January 27 notice of automatic resignation to appellant at the address provided by appellant. The notice was received at that address on February 2. Appellant testified she checked on her mail at that address once or twice a week. Even disregarding the Staff Services Manager’s credible testimony regarding her conversation with appellant’s attorney, assuming appellant notified the mail box tender to mail the notice to her in Clear Lake as late as February 9, and allowing five days for receipt of the notice sent by mail from Bermuda Dunes to Clear Lake (CCP 1013), appellant would still have received the January 27 notice prior to February 16. The notice clearly informed appellant that she had 20 days from the date of mailing to timely file her appeal with DPA. Appellant did not prove by a preponderance of the evidence that she did not timely receive the January 27 notice of automatic resignation.

Furthermore, appellant did not provide respondent with a mailing address where she resided in Clear Lake for the months of January and February. The fact that appellant chose not to provide an address or otherwise establish an alternate procedure whereby she could timely receive potentially time sensitive information does not represent good cause for late filing.

 

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that the action of respondent in automatically resigning appellant effective February 6, 2004, is considered final. DPA is without jurisdiction to hear her untimely appeal.

 

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1. All dates are 2004 unless otherwise indicated.