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DPA Case Number 03-A-0069 - Reinstatement After Automatic Resignation

​ DPA Case Number 03-A-0069 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: September 8, 2003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 9:00 a.m. on August 27, 2003, at Sacramento, California.
Appellant was present and was represented by Patrick J. Guibao, Labor Relations Representative, California State Employees Association (CSEA).
Bernadette Fees, Personnel Manager, represented the Department of Fish and Game (DFG), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


On May 8, 2003, respondent mailed appellant notice that she would be automatically resigned close of business Thursday, May 15, 2003, for being absent without approved leave May 1 through May 7, 2003.
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 Notice of Automatic Resignation, unless the employee was not served with a written notice. Allowing an additional five days for mailing, appellant had until close of business May 28, 2003 to file her appeal.1
CSEA filed a request (appeal) for reinstatement after automatic resignation on June 16, 2003, which was received at DPA on June 17, 2003. The appeal was received by the Statutory Appeals Unit on June 25, 2003.2 The appeal was untimely because it was more than 20 days after service of the 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. 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 claimed there is good cause for the late appeal. In her June 16 appeal letter she claimed she could not timely file her appeal because her attorney notified her he would not represent her sometime after the May 16 “Skelly hearing.” At hearing appellant also claimed good cause because a CSEA representative did not return her telephone call.


By letter dated May 8, respondent notified appellant she was being automatically resigned effective Thursday, May 15. The letter stated in relevant part:
“Whether or not you respond to the appointing power, you still have a right to file a written appeal with the Department of Personnel Administration (DPA), 1515 S Street, North Building, Suite 400, Sacramento, California 95814-7243, within fifteen (15) calendar days of the effective date of service of this notice. You have five (5) additional days if the notice was sent by mail within California. An appeal is deemed to be a request for reinstatement without back pay as set forth in section 19996.2. If you file a timely appeal, DPA or its authorized representative shall hold a hearing within a reasonable time.”
The declaration attached to the notice was executed on May 8. Appellant’s appeal should have been filed on May 28. It was not filed until June 16, which was 18 days after when it should have been timely filed.
After receiving the notice of automatic resignation in early May, appellant contacted an attorney who was representing her in a worker’s compensation case. Appellant testified her attorney could not assist her with her appeal of her automatic resignation. The attorney, did, however, participate in appellant’s May 16 Skelly hearing. When appellant first became aware that her attorney would not represent her in her appeal of her automatic resignation is unclear. Her attorney was not called to testify.
Appellant also attempted to contact CSEA representatives regarding her appeal of her automatic resignation. When she attempted to contact them or if she attempted to contact them on more than one occasion is unclear. When appellant did attempt to contact one representative, he was unreachable and his voicemail message referred appellant to another representative. On some unknown date, appellant called the second representative. That representative did not call her back.
Appellant did not testify regarding what steps, if any, she took when she received no response from the CSEA representative.
At some point, in some way unaddressed in the record, appellant and her representative finally discussed her appeal and CSEA sent its June 16 letter to DPA requesting a hearing. Neither representative was called to testify.
At hearing the ALJ advised appellant she had presented no evidence to substantiate the contentions in her June 16 letter. Appellant chose not to present further evidence.
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Appellant filed a late appeal for reinstatement after automatic resignation. The appeal was approximately 18 days late.
In general, statutes of limitations on the filing of administrative appeals have been strictly construed, requiring dismissal of late-filed actions. (Bidwell v. State of California (Department of Youth Authority) (1985) 164 Cal.App.3d 213.) Courts have, however, permitted late-filed administrative appeals where the appeal has involved a fundamental and vested right, such as continuation of civil service employment. (Gonzales v. State Personnel Board (1977) 76 Cal.App.3d 364; Civil Service Commission v. Velez (1993) 14 Cal.App.4th 115.)
In Gonzales v. State Personnel Board, supra, the court set forth three criteria to be used in determining whether to permit a late filing of the appeal. This criteria applies to this case which involves a fundamental vested right.
The first criteria established by Gonzales, that the delay in filing the appeal be reasonably short, has been met by appellant.
The second criterion established by Gonzales for allowing a late-filed appeal has also been met. There was no evidence on the record that any prejudice inured to the Department as a result of appellant’s delay in filing her appeal.
For the third criteria, Gonzales established that the appellant must prove that good cause exists for the late filing of an appeal. 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 a “mistake, inadvertence, excusable neglect or surprise of an attorney or party.”
Appellant failed to provide evidence sufficient to support a finding of good cause. Appellant’s testimony regarding when she first learned her attorney would not represent her is unclear. That testimony appears to indicate she contacted her attorney’s secretary in early May and learned he would not represent her in the instant appeal. If true, this would be in conflict with the assertions in the June 16 appeal letter. The attorney was not called to testify.
Appellant’s June 16 assertion’s concerning reliance on her attorney’s representation is also at odds with appellant’s testimony at hearing where she testified she also contacted CSEA regarding representation in early May. If she believed her attorney was representing her in early May, contact with CSEA would have been unnecessary. Through the evidence presented, it cannot be determined that appellant’s reliance on her attorney resulted in her late filing.
Appellant also failed to present evidence that supported her contention that CSEA’s failure to return her calls resulted in her late filing. First, her testimony regarding when she first contacted CSEA is unclear. Second, if she could not contact CSEA, she knew they were not a representative on which she could rely to file her appeal. In the May 8 notice of automatic resignation, appellant was made aware of the requirement to timely file her appeal with DPA within 15 days of the date of the notice regardless of any action she took with the appointing power. She understood the letter well enough to perfect her informal appeal with DGS.
It was appellant’s responsibility to take whatever steps were necessary to ensure her appeal with DPA was timely filed. The fact that CSEA did not return her telephone calls did not abrogate appellant’s responsibility to pursue timely filing. Appellant could not sit by idly waiting for a telephone call to discuss potential representation. There is no evidence that she did anything more. In this case, the responsibility for filing a timely appeal fell with appellant, not CSEA.
There is simply not sufficient evidence to find that appellant’s relevance on potential representation provided just cause for her untimely filing.
For the reasons set forth above, it is concluded appellant did not demonstrate mistake, inadvertence, excusable neglect or surprise sufficient to establish good cause of her late 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 effective May 15, 2003, is denied.
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1. See California Code of Civil Procedure section 1013.
2. All dates are 2003 unless otherwise indicated.
  Updated: 5/21/2012
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