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DPA Case Number 02-G-0113 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: March 20, 2003
By: Howard Schwartz, DPA Chief Counsel


This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on March 12, 2003, at Riverside, California.
Appellant was present and was represented by Olga K. Hansen, Labor Relations Representative, California State Employees Association (CSEA).
Linda D. Deos, Staff Counsel, represented the Employment Development Department (EDD), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


On August 29, 2002,1 respondent sent appellant written notice by overnight United Parcel Service (UPS) that she was being automatically resigned effective August 14, for being absent without approved leave from August 15 through August 29. Appellant filed a request (appeal) for reinstatement after automatic resignation on October 15. DPA received the appeal on October 18.
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 two (2) days for receipt of overnight mail, appellant had until close of business September 15 to file her appeal. (See California Code of Civil Procedure (CCP) section 1013.)
Appellant filed a request (appeal) for reinstatement after automatic resignation on October 15. The appeal was untimely because it was filed more than 17 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.
There were disputed issues of fact regarding the reasons for appellant’s late filing. Accordingly, a hearing was held to determine whether appellant demonstrated good cause sufficient for DPA to accept jurisdiction in this matter.


In correspondence to DPA before the hearing, appellant claimed her sister and her friend mistakenly mailed her original appeal to her supervisor and to the State Personnel Board (SPB) between September 2 and September 5.
At hearing, appellant claimed for the first time that she never received notice she was being automatically resigned and that the “appeal” originally referenced in her previous correspondence to DPA related to requests for Family Medical Leave (FMLA) and Non-Industrial Disability Insurance (NDI).


At the time appellant was hired, she notified respondent of her mailing address. This remained her mailing address throughout the relevant period in this case. Because appellant was not at this address in August, her sister was monitoring the mail during this period.
On August 22, the supervisor sent appellant a letter at the above address notifying her that respondent was “rescinding the Absence Without Leave (AWOL) statute [sic] that was effective August 14, 2002.”2 The letter also notified appellant she was to contact respondent and provide medical substantiation. Respondent included an “Employee Request for Family Medical Leave” form; a “Claim for Non-Industrial Disability Insurance” form; and a “Certification of Physician or Practitioner” form with the letter. Respondent’s action was based on information received from the supervisor on August 21 that appellant’s absence was family and medically related.
Appellant’s sister received the letter and the enclosed forms. She contacted her sister and filled out the FMLA and NDI request forms according to her sister’s instructions. She did not complete the physician certification form. Appellant’s sister mailed the completed forms to her supervisor within a week of receiving them. The supervisor received the requests for FMLA and NDI.
Between August 22 and August 29, respondent received information that led it to believe appellant was absent because she was in detention for welfare fraud. On August 29, respondent sent appellant a letter via UPS overnight mail to the Redlands address provided by appellant. The letter informed appellant she was being automatically resigned effective August 14, because she was absent without approved leave from August 15 through August 29. It also informed appellant she could contact the Coleman Officer by September 11 to discuss the automatic resignation and that she could file an appeal with DPA “within 15 calendar days of the day this notice was mailed to you.” The letter provided appellant with the Coleman Officer’s telephone number and the addresses for both him and DPA. The notice included a Proof of Service showing it was served on August 29.
Both appellant’s sister and appellant testified they did not receive the August 29 letter. The supervisor testified the letter was never returned to respondent. She also testified she never received an appeal from appellant after this letter was mailed.
Appellant called her supervisor on September 3. According to appellant, her supervisor said “something about her being terminated.” The supervisor asked appellant if she had received all the paperwork sent to her. The supervisor told appellant she should talk to her sister and follow the instructions on the paperwork. Appellant asked her supervisor if she needed to contact her again and her supervisor responded, “No.” There was no other discussion regarding what date appellant’s separation was effective or what other steps appellant could take to respond to the separation.
Appellant eventually contacted the Coleman Officer. The Coleman Officer told her there was nothing he could do because the time had passed for her to contact him. Appellant then filed her appeal with DPA on October 15.
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Appellant filed a late appeal for reinstatement after automatic resignation. According to Government Code section 19996.2, she had 15 days from the date the notice was served to file a timely appeal. Her appeal was approximately 30 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 party.”
Appellant is claiming surprise based on her contention she did not receive the August 29 Notice of Automatic Resignation. She is also claiming mistake based on her alleged belief that the requests for FMLA and NDI constituted her appeal. The courts have interpreted surprise under CCP section 473 as “some condition or situation, in which a party ... is unexpectedly placed to his injury without default or negligence of his own, which ordinary prudence could not have guarded against.” Miller v. Lee, 52 Cal.App.2d 10, 16.
Appellant failed to prove good cause for her late filing based on surprise. At hearing, when appellant was asked how she knew she could contact the Coleman Officer regarding her automatic resignation, she replied that one of the letters, “Appellant’s Exhibit A,” told her. “Appellant’s Exhibit A” was the exhibit designation for the August 22 letter from respondent informing appellant the August 14 automatic resignation was rescinded. It did not mention the Coleman Officer. The Coleman Officer’s name and contact information was contained only in the August 29 letter that appellant alleged she did not receive. Appellant offered no other explanation how she knew she could contact the Coleman Officer regarding her automatic resignation.
The Redlands address was the address appellant provided to respondent. Respondent sent the August 29 letter to the address provided. Appellant received all other documents sent to her at the Redland’s address from respondent. Pursuant to Evidence Code section 641, appellant is presumed to have received the August 22 notice of automatic resignation.
The August 22 letter clearly informed appellant she had to contact the Coleman Officer by September 11 and DPA within 15 days of the service of the notice. Appellant did neither.
Appellant failed to exercise due diligence or ordinary prudence. Even after the supervisor gave appellant reason to believe information regarding her separation was already in the mail on September 3, appellant failed to contact her supervisor to report she did not receive such information. There was no evidence that she made any timely inquiries of her supervisor or anyone else to determine or exercise any right of appeal prior to September 15. Appellant failed to prove good cause for late filing based on surprise.
Appellant also failed to prove good cause for late filing based on mistake. What constitutes a mistake of law is mainly a factual question, with the determining factor being reasonableness of misconception. (Fidelity Federal Savings and Loan Association of Glendale v. Long (1959) 175 Cal.App.2d 149, 154.) Appellant’s claim that she believed the FMLA and NDI forms she sent to her supervisor represented her appeal fails for multiple reasons. First, based solely on the August 22 letter that accompanied these forms, there would have been no reason for appellant to appeal anything because that letter notified her that the previous August 14 automatic resignation was being rescinded. Second, the forms she submitted were clearly designated as FMLA and NDI benefit request forms. Third, this explanation is at odds with information submitted to DPA before the hearing stating that an appeal had been mistakenly sent to both the supervisor and the SPB. At hearing, appellant maintained the FMLA and NDI documents had been sent to her supervisor. There was no mention that the documents were also sent to SPB. Therefore, it is concluded appellant failed to prove mistake, inadvertence, excusable neglect or surprise in failing to timely file her appeal with DPA.
For the reasons set forth above, it is concluded that appellant failed to demonstrate good cause for the late filing of the appeal. Consequently, appellant’s automatic resignation should be considered final and the appeal dismissed. Appellant retains permissive reinstatement rights to State service.
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that the appeal for reinstatement after automatic resignation effective August 14, 2002, is denied.
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1. All dates are 2002 unless otherwise indicated.
2. There was no evidence introduced at hearing regarding when the original notice of automatic resignation was given, what dates it covered, or whether it was written or verbal.
  Updated: 5/22/2012
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