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DPA Case Number 04-D-0149 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: March 8, 2005
By: Michael T. Navarro, Director, DPA


On November 15, 2004, appellant was served written notice by certified mail of automatic resignation for absence without leave (AWOL) by respondent, California Youth Authority (CYA). The automatic resignation was effective October 1, 2004. Appellant seeks reinstatement to her former position as a Supervisor of Academic Instruction at CYA’s Herman G. Stark Youth Correctional Facility in Chino, California. The Association of California State Supervisors (ACSS), appellant’s representative, filed a written request (appeal) for her reinstatement on December 9, 2004. The appeal included declarations from appellant and Nellie D. Lynn supporting appellant’s request that her late filing be excused.
Government Code section 19996.2 requires that a request for reinstatement be filed within fifteen (15) days of the service of the notice of separation. Appellant’s appeal is untimely because it was filed 24 days after service of the notice. Allowing five days for mailing, Appellant’s filing would have been timely if postmarked on or before December 5, 2004. California Code of Regulations, Title 2, section 599.904 allows DPA to accept a late filing within 30 days of the day the appeal should have been filed based on good cause. Appellant claims she had good cause for late filing because she did not open the certified letter notifying her of her automatic separation. She claimed she did not open the letter because she believed it was from her supervisor. She alleged that opening the letter from CYA and discovering it was from her supervisor would have upset her and she did not want to be upset because she was already ill. Appellant filed workplace violence complaints against her supervisor and one other employee in November 2003 which she claimed were never investigated.


Appellant had been absent from work beginning October 1, 2004. When appellant first became ill, she called her supervisor to report her doctor took her off work for 30 days. A few days later, appellant’s supervisor called her at home and asked for medical documentation. Appellant told her supervisor not to call her at home because it was upsetting and disturbing.
During the period October through December 2004, appellant contacted various employees and co-workers at CYA to discuss various subjects. She received some correspondence from respondent that she did open. According to appellant, she received two certified letters from CYA that she didn’t open based on her fear it was from her supervisor.
Appellant learned of her automatic resignation on December 6, 2004, when she called respondent and was told she no longer worked for CYA. She then contacted ACSS’ Labor Relations Representative Nellie D. Lynn. Lynn immediately contacted respondent to arrange a “Coleman Hearing” but learned the time for such a request had lapsed. Because of prior work commitments, Lynn was unable to meet with appellant until December 9, 2004. ACSS filed the appeal on appellant’s behalf on that date.
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Appellant filed a late appeal for reinstatement after automatic resignation. The appeal was approximately four days late.
Appellant claimed good cause for late filing. There are three basic considerations in determining whether good cause exists for late filing: (1) length of delay; (2) whether prejudice accrues to the other party if the appeal is heard; and (3) 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 (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 four days. Appellant’s delay was “de minimus.”
There is no evidence in this case that appellant’s failure to timely appeal immediately prejudiced respondent or that respondent would be required to effect any further reorganization than it would if the appeal were timely filed and appellant would prevail. However, respondent argues in a more general sense that it would be prejudiced if appellant were allowed to file a late appeal because, “Her willful actions . . . . would establish a precedent that employees may ignore certified mail from employers without consequence.” This argument targets the heart of the issue.
The actual cause of the delay is the most troublesome and important aspect of this late appeal. There was no dispute appellant received the notice. In her declaration, appellant stated she received two certified letters from “Herman G. Stark Youth Correctional Facility.” She decided not to open either of them because she believed they came from her supervisor. She believed the letters would mentally stress her. She did not want to communicate with her supervisor. She declared she had told him not to call her at home. Appellant did not contend her doctor ordered her not to communicate with her supervisor, that she was physically unable to communicate with her supervisor or other CYA employees, or that she was otherwise completely disabled during the relevant period when she should have timely filed her appeal. In fact, appellant declared she contacted various employees and co-workers regarding multiple issues in October, November, and December 2004. Appellant simply voluntarily decided not to open any certified mail from respondent on the possibility it might be from her supervisor and on the possibility it might mentally upset her if she did open it.
Appellant’s unilateral decision and diagnosis had the effect of abridging respondent’s right to notify her of its intention to invoke the automatic resignation statute and begin the statutory appeal period. Government Code section 19996.2 states the Legislature’s intent that an employee who is automatically resigned may be given notice and 15 days to respond. Appellant cannot refuse to be notified, file untimely, and then expect that the statutory filing requirement will be extended.
Appellant’s decision not to open the certified mail and thus be given notice of her automatic resignation is distinguishable from other cases that allow untimely filing based on mistake, inadvertence, surprise, or excusable neglect. For example, in Gonzales v. State Personnel Board, supra, 76 Cal.App.3d 364, good cause was found where the appeal was filed late due to a breakdown in communication between the petitioner and his attorney when both were laboring under the strain of criminal proceedings. In Faulkner v. Public Employees Retirement System, supra, 47 Cal.App.3d 731, good cause for late filing was found when the appeal was sent to the wrong office, and, in Gibson v. Unemployment Insurance Appeals Board, supra, 9 Cal. 3d 494, the attorney made a calendaring error. In this case there was no miscommunication or unintentional action.
Appellant has failed to prove good cause for late filing based on mistake, inadvertence, surprise, or excusable neglect or any other grounds. ACSS is not responsible for appellant’s late filing because the time for timely filing had already been exhausted before appellant contacted her representative.

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  Updated: 5/21/2012
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