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DPA Case Number 05-W-0008 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: April 27, 2005
By: Michael T. Navarro, Director



This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on April 11, 2005, at Riverside, California.
Appellant was present and was represented by David De La Riva, Legal Counsel, California Union of Safety Employees (CAUSE).
Barrett McInerney, Labor Relations Counsel, DPA, represented the Department of Consumer Affairs (DCA), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


On August 13, 2004, respondent mailed appellant notice stating she would be automatically resigned as of close of business August 25, 2004, for being absent without approved leave July 6, 2004 through August 6, 2004.
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 15 days after service of the Notice of Automatic Resignation, unless the employee was not served with a written notice. In its original calculation, DPA allowed an additional five days for mailing, and determined appellant had until close of business September 2, 2004, to file her appeal.
CAUSE filed a request (appeal) for reinstatement after automatic resignation with the State Personnel Board (SPB) on October 1, 2004. The SPB forwarded the request to DPA. DPA received the request on December 22, 2004. The appeal was originally deemed untimely because it was more than 20 days after the August 13, 2004 date the notice was placed in the mail to appellant.
DPA Rule 599.904 states that upon good cause being shown, DPA may allow an appeal to be filed within 30 days after the end of the period in which the appeal should have been filed. Appellant’s appeal was filed with the SPB within the requisite 30 days.1 Accordingly, a hearing was held to determine whether appellant demonstrated good cause sufficient for DPA to accept jurisdiction in this matter.


Appellant is requesting that DPA accept jurisdiction and her appeal for the purpose of determining whether she should be mandatorily reinstated to her former position. Appellant claims there is good cause for the late appeal because: (1) the August 13, 2004 notice of automatic resignation (notice) was improperly served; (2) appellant was undergoing medical treatment and she believed she did not have to file an appeal because she believed she had been granted leave pursuant to the Family Medical Leave Act (FMLA); (3) appellant made every effort to comply with the requirements made by respondent; and (4) appellant’s union representative requested, but did not receive, notice from respondent that appellant had been automatically resigned.
Appellant also argues that her due process rights were violated because she was not given adequate time to request an informal hearing prior to the effective date of the automatic resignation as required in Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102 (Coleman). This due process argument is beyond DPA’s subject matter jurisdiction as limited by both the Coleman decision and Government Code section 19996.2. Therefore, DPA will make no determination of this issue.


Appellant was not at work from at least July 6, 2004 through August 25, 2004.2 She was enrolled in an Intensive Outpatient Program for some undisclosed illness or condition from August 13 through September 10.
On August 2, when appellant did not receive a paycheck for July, she attempted to contact her union representative. The union representative returned appellant’s call on August 9. He subsequently called appellant’s supervisor on that same day. The supervisor told the union representative appellant was not on FMLA leave; that appellant was considered absent without leave (AWOL); and, that appellant had until August 13 to contact respondent. The union representative called appellant and told her that a letter was coming and that she should send him the letter as soon as she received it. On August 11, appellant received the August 6 notice of automatic resignation. The notice advised appellant she would be considered AWOL effective August 13 and that she had until that date to contact respondent to request an informal hearing. It also advised appellant as follows:
“Whether or not you respond to the Department to request an informal conference, you have the right to file a written request for reinstatement with the Department of Personnel Administration, 1515 S Street, North Building, Suite 400, Sacramento, CA 95814 within fifteen (15) calendar days of service of this notice. You have five (5) additional days if the notice was sent by mail within California. A request for reinstatement is made pursuant to Government Code section 19996.2. If you file a timely request, the Department of Personnel Administration or its authorized representative will hold a hearing within a reasonable time.”
Appellant faxed the August 6 notice to the union representative soon after she received it.
On August 12, the union representative contacted respondent’s Labor Relations Officer, on another matter. During their conversation, the union representative asked the labor relations officer about appellant’s AWOL. The labor relations officer told the union representative she would look into the matter. The labor relations officer called the union representative back on August 13. She told the union representative appellant was being “terminated” that day and appellant should contact respondent.
Appellant did not contact respondent by August 13 to request an informal hearing or for any other reason.
At some point which is unclear from the record, the union representative complained to respondent that the August 6 notice did not give appellant adequate time to respond. For some reason which is also unclear from the record, respondent mailed appellant a revised notice of automatic resignation on August 13. The revised notice extended the effective date of the automatic resignation to August 25. It again notified appellant as follows:
“Whether or not you respond to the Department to request an informal conference, you have the right to file a written request for reinstatement with the Department Of Personnel Administration, 1515 S Street, North Building, Suite 400, Sacramento, CA 95814 within fifteen (15) calendar days of service of this notice. You have five (5) additional days if the notice was sent by mail within California. A request for reinstatement is made pursuant to Government Code section 19996.2. If you file a timely request, the Department of Personnel Administration or its authorized representative will hold a hearing within a reasonable time.”
The August 13 revised notice was placed in an envelope marked with the Contractors State License Board’s return address. It was addressed to appellant and sent by certified, first class mail on August 13. However, respondent incorrectly sent the notice to appellant at 2840 Iris Way, Laguna Beach, California. Appellant’s address is 2480 Iris Way, Laguna Beach, California. The United States Post Office corrected the error. It corrected the address on the envelope and on the return receipt. Appellant received and signed for the revised August 13 notice on August 25.
Appellant did not open the envelope containing the August 13 notice which she received it on August 25. She could not recall when she finally did open it. She testified she did not open the envelope because she “was not handling her business at this time,” “she was opening very little mail,” and she was just “concentrating on her out patient program at that time.”
Although appellant testified she faxed the April 13 notice to the union representative, appellant could not produce a copy of the facsimile transmission and the union representative testified he had never seen the August 13 notice. The union representative testified he first learned on September 7 that a second notice of automatic resignation was sent to appellant during a telephone conversation with respondent’s legal representative. At that time, the union representative believed appellant had never received the August 13 notice and he asked respondent’s legal representative if he had a signed receipt indicating appellant had received the notice. The union representative then called appellant and left a message asking her to forward a copy of the second notice to him. Appellant did not provide the union representative with a copy of the August 13 notice by October 1. The union representative was unable to contact appellant and he still assumed she did not receive revised notice.
Sometime between September 14 and September 30, the union representative somehow received a copy of a “Notice of Personnel Action, Report of Separation” indicating appellant had been separated for absence without leave effective July 5. Based on this document and his prior experience with discipline actions before the SPB, he filed an appeal of a “Constructive Medical Termination” with the SPB on October 1.
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Appellant filed a late appeal of her automatic resignation with the SPB. The appeal was filed on October 1, approximately 29 days after respondent attempted to serve the August 13 notice of automatic resignation by certified mail. Appellant claimed good cause for late filing because, among other things, the notice was improperly served. Respondent incorrectly addressed the envelope to appellant at the wrong address.
Government Code section 19996.2 provides, “... any request for reinstatement must be made in writing and filed within 15 days of the service of notice of separation. Service of notice shall be made as provided in Section 18575 and is complete on mailing.” Government Code section 18575 allows the notice to be either personally served or “served by mail to the last known residence or business address of the addressee.”
“Successful service by mail requires strict compliance with statutory requirements.” (Silver v. McNamee (1999) 69 Cal.App.4th 269, 279.) However, in Heinlen v. Heilbron (1892) 94 C. 636 (Heinlen), California’s Supreme Court recognized that, if permitted by statute, one means of attempted service could be substituted for another. In Heinlen, a case similar to this one, a notice of appeal was mailed to an attorney’s old office address but was forwarded to the attorney’s new office address by the post office. The attorney admitted receiving the notice but complained that the service had been improper and failed to establish the court’s jurisdiction. Under such circumstances, the Supreme Court held that the post office’s “delivery of the [mailed] notice ... renders the service personal, and the proof of such delivery establishes a personal service.” (Id. at p. 640.)
As in Heinlen, the notice in the instant case was personally served by the United States Post Office. Government Code section 18575 permits such personal service. Appellant admitted she received the notice on August 25. Because service was not perfected at the time of mailing, the date appellant had to file her appeal was extended by 15 days from August 25, to September 9. However, appellant’s appeal is still untimely because it was filed on October 1, 21 days after it should have been filed.
In addition to the argument regarding improper service, appellant also claimed her medical treatment caused her hardship and affected her ability to comprehend her situation and timely file her appeal. This argument is without merit. Appellant failed to present any reliable medical evidence that she was incapacitated or in any way unable to comprehend the specific information that was provided to her in both the August 6 and August 13 notices of automatic resignation. Appellant was fully able to comprehend that she did not receive a paycheck and she was fully capable of calling her union representative and responding to his calls in regard to that issue. Although she received the August 13 notice on August 25 and the envelope containing that notice clearly indicated it was from the Contractors License Board, appellant made the voluntary decision not to open it. She did not forward it to her union representative, she did not contact respondent, and she did not contact her union representative to let him know she had received a communication. She did not respond to her union representative’s attempts to reach her or his request that she forward the August 13 notice to him. Appellant chose to do nothing. Appellant failed to prove her illness and/or treatment affected her ability to timely file an appeal. Appellant did not do everything she could to comply with the instructions in the notice or to take any action to perfect a timely appeal.
Appellant’s argument that respondent’s failure to provide her union representative with a copy of the Notice of Automatic Resignation also caused her untimely filing is without merit. The evidence does not support appellant’s contention that her representative requested a copy of the August 13 notice from anyone but appellant. Appellant did not provide any statute or case law that requires a second copy of the notice be sent to a union representative. Furthermore, the union representative testified that past practice indicated that he sometimes received copies of “disciplinary notices” and sometimes he did not. The union representative did not receive a copy of the August 13 notice because appellant failed to provide him with a copy. If she wanted his representation, it was incumbent on her to provide him with the necessary information or at the very least to notify respondent that the union representative was her representative in the automatic resignation. She chose to do neither.
To the extent appellant claims that her untimely filing must be excused based on the actions of her union representative, her claim of good cause also fails. Lacking input and response from the appellant regarding the April 13 notice, her union representative attempted to protect appellant’s appeal rights to the best of his ability. Based on his prior experience with disciplinary actions, the union representative mistakenly believed he could file an appeal of the August 6 notice of automatic resignation with the SPB as a “construction medical termination.” He believed appellant did not receive the August 13 revised notice. He also mistakenly believed such an appeal could be made after appellant was issued a “Notice of Personnel Action, Report of Separation” on September 14. He apparently did not read or understand the August 6 notice of automatic resignation appellant forwarded to him. The August 6 notice advised the reader that an appeal of the automatic resignation must be filed with DPA within 20 days of mail service of the letter and it advised that the resignation was being taken pursuant to Government Code section 19996.2. Although the union representative did not receive a copy of the August 13 revised notice which was ultimately the definitive notice for appellant’s automatic resignation, the instructions for filing an appeal were the same.
In determining what constitutes good cause 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.” The union representative made a mistake of law. Although what constitutes a mistake of law excusable under CCP Section 473 is not well settled and there appears to be no exact test for determination of the issue, the cases generally agree that the determining factor to justify a late filing is the reasonableness of the misconception. Where the court has found that the alleged mistake of law is the result of general ignorance of the law or lack of knowledge of the rules (Brooks v. Johnson, (1898) 122 Cal. 569), or unjustifiable negligence in the discovery or research of the law, (Security Truck Line v. City of Monterey, (1953) 117 Cal.App.2d 441; Shearman v. Jorgensen, (1895) 106 Cal. 483), relief will normally be denied. (Fidelity Federal Savings and Loan Association of Glendale v. Carl Long (1959) 175 Cal.App.2d 149, 154.) In this case, the union representative could have simply read the August 6 letter to determine the process and timeliness for filing an appeal of an automatic resignation. Under these circumstances, the union representative’s lack of knowledge and untimely filing of a construction medical termination with the SPB was well intentioned but unreasonable and does not serve as good cause to excuse appellant’s untimely filing of her automatic resignation.
Finally, appellant’s contention that her untimely filing should be excused because respondent failed to prove that it was prejudiced by her late filing is also unpersuasive. The prejudice to respondent is only one of three factors that are considered in determining whether good cause exists for late filing, and on its own is not determinative. The other two factors considered are the length of delay and the actual cause of the delay.
No specific length of delay has been established, but any delay must be “brief” or “de minimus.” Reported cases have found “good cause” where the delays ranged from three (3) to six (6) days. (Gonzales v. State Personnel Board (1977) 76 Cal.App.3d 364 – 6 days; Faulkner v. Public Employees Retirement System (1975) 47 Cal.App.3d 731 – 4 days; Gibson v. Unemployment Insurance Appeals Board (1973) 9 Ca.3d 494 – 3 days.) In this case, the delay in filing was 21 days. The delay was not brief or “de minimus.”
The actual cause of the delay is also a consideration. In the final analysis, it was appellant’s total lack of action that caused her late filing. She did nothing to perfect her appeal rights as outlined in the revised April 13 notice. After August 25 when she actually received the notice, she did not contact respondent or anyone else regarding her appeal rights or any other matter and she did not timely file her appeal by September 9, the date for timely filing after personal service by the post office. Appellant’s inaction in this case was unreasonable. She failed to prove such inaction was the result of her treatment or any medical condition.
For the reasons set forth above, it is concluded that appellant did not establish good cause for late filing of her appeal. Consequently, appellant’s automatic resignation should be considered final; and the appeal dismissed.
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that the appeal for reinstatement after automatic resignation from the position of Enforcement Representative effective July 5, 2004, is denied.
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1. DPA calculates the filing time in accordance with the date the appeal was mailed to the SPB.
2. All dates are 2004 unless otherwise indicated.
  Updated: 5/9/2012
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