Final Non-Precedential Decision Adopted: November 5, 2003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 November 3, 2003, at Sacramento, California.

Appellant was present and represented herself.

Jennifer J. Berry, Senior Staff Counsel, represented the Department of Motor Vehicles (DMV), respondent.

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

On July 18, 2003 respondent mailed appellant notice that she would be automatically resigned effective July 29, 2003, for being absent without approved leave from July 8 through July 18, 2003.1

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 August 7, 2003 to file her appeal.2

Appellant filed a request (appeal) for reinstatement after automatic resignation on September 3, which was received at DPA on September 9. 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 her late appeal because she was in a rehabilitation facility and had multiple personal and family responsibilities during the period she should have timely filed her appeal with DPA.

Respondent mailed the Notice of Automatic Resignation to appellant at her address of record on July 18. Appellant entered Tranquility Village, an inpatient recovery home, on July 21. Appellant called her supervisor on July 25 to report she had enrolled in the recovery home. At that time appellant’s supervisor asked her if she had received the notice of automatic resignation. When appellant indicated she had not received the notice, the supervisor faxed the July 18 letter to appellant at the recovery home.

Appellant testified she was not thinking clearly and was not functioning normally when she received the July 18 Notice of Automatic Resignation or during the period she should have timely filed her appeal. Nonetheless, after receiving the letter, appellant called her supervisor. When appellant’s supervisor informed her that the matter was “out of her hands,” appellant testified she called the number listed in the notice several times but she was unable to contact anyone.

Appellant also testified she had some free time while at the recovery home; that she was given time away from the recovery home; and that she received faxes and used the telephone while in the recovery program. She also testified she was involved in taking care of her son after an August 19 surgery. Documents submitted by appellant also show she applied for Nonindustrial Disability Insurance on July 30.

Although the Notice of Automatic Resignation informed appellant she had to contact DPA within 15 calendar days of service of the notice and it gave appellant DPA’s address, appellant did not attempt to contact DPA. In her appeal, she stated, “...I felt the best thing I could do at the time, was to begin focusing my attention on getting better. I had made contact prior to the date on the letter [July 29], but needed time to work on my emotional stability, and sobriety.” At hearing appellant also testified she did not file a timely written appeal with DPA because she wanted the appeal to appear “professional” and she wanted to include supporting documents.

 

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Appellant filed a late appeal for reinstatement after automatic resignation. The appeal was approximately 27 days late.

Appellant claimed good cause for late filing. 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 prove any of the above grounds as a basis to excuse her late filing. The evidence shows she was capable of attending to and prioritizing various responsibilities and requirements in her personal life. By her own admission, she elected to delay filing her appeal with DPA until other aspects of her personal life were more settled. She received notice of her responsibility to file her appeal within 15 calendar days of the notice of automatic resignation and she willfully and knowingly chose not to do so.

 

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that the appeal for reinstatement after automatic resignation effective July 29, 2003, is denied.

 

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1. All dates are 2003 unless otherwise indicated.

2. See California Code of Civil Procedure section 1013.