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DPA Case Number 06-B-0018 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: May 26, 2006
By: Michael T. Navarro, Director



On January 24, 2006, appellant was served written notice by mail of automatic resignation for absence without leave (AWOL) by respondent, Department of General Services (DGS). The automatic resignation was effective February 14, 2006. Appellant seeks reinstatement to his former position as a custodian with DGS in Sacramento, California. The Services Employees International Union, Local 1000 (SEIU), appellant’s representative, filed a written request (appeal) for his reinstatement on February 24, 2006.
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. Allowing five days for mailing, appellant’s appeal would have been timely if it was postmarked on or before February 13, 2006. Appellant’s appeal is untimely because it was filed eleven (11) days after it should have been filed.
California Code of Regulations, Title 2, section 599.904 allows DPA to accept a late filing within thirty (30) days of the date the appeal should have been filed based on good cause. Appellant claims he had good cause for late filing because: (1) his union representative initially assigned to the case assumed the automatic resignation would be withdrawn because DGS paid appellant industrial disability leave benefits (IDL) for the days he was charged with being absent without leave; (2) the union representative was inexperienced and believed he could file the appeal twenty (20) days after the “Coleman hearing”1 rather than 20 days after service of the Notice of Automatic Resignation; and (3) the delay was short and there was no prejudice to the department.
Respondent disputes appellant’s claim of good cause for late filing. Respondent argues: (1) appellant’s Coleman hearing was attended by two SEIU Labor Representatives, at least one of which was experienced in automatic resignation issues; (2) appellant received notice of respondent’s intention to sustain the automatic resignation six (6) days before the deadline to file the appeal; (3) the eleven-day delay in filing in this case exceeds the delay in the cases cited by appellant and thus is not “minimal;” and (4) good cause must be shown before prejudice to the respondent is considered.
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Appellant filed a late appeal for reinstatement after automatic resignation. The appeal was 11 days late.
Appellant claimed good cause for late filing. There are three basic considerations in determining whether to permit a late filed appeal: (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. (Gonzales v. State Personnel Board (supra) 76 Cal.App.3d 364.)
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 3 to 6 days. (Gonzales v. State Personnel Board (supra) 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 11 days. The 11-day period exceeds existing case law supporting a brief or de minimus delay.
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 the appellant would prevail. However, this factor alone or in combination with the length of the delay is not dispositive. In the cases cited by the appellant, the court weighed not only the length of the delay and resulting prejudice caused by the delay but also the reason for the late filing. In Gonzales v. State Personnel Board, supra, 76 Cal.App.3d 364, the court found late filing because of a breakdown in communication between the petitioner and attorney when both were laboring under the strain of criminal proceedings to be excusable. In Faulkner v. Public Employees Retirement System, supra, 47 Cal.App.3d 731, the court found appellant’s inadvertent act of sending an appeal to the wrong office constituted good cause; and in Gibson v. Unemployment Insurance Appeals Board, supra, 9 Cal. 3d 494, the court held an attorney’s inadvertent calendaring error was sufficient to justify late filing.
In examining the cause for late filing, 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.” In this case, appellant claims mistake. Appellant’s representative initially chose not to file an appeal of the automatic resignation because he mistakenly thought respondent would withdraw the automatic resignation. The representative then did not file the appeal immediately after learning respondent was not withdrawing the action on February 7, 2006 because he mistakenly believed he had 20 days after receiving the results of the Coleman hearing to file the appeal.
“Mistake” is generally defined in Blacks Law Dictionary (Sixth Centennial Edition, 1991) at page 1001 as follows:
“Some intentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence. A state of mind not in accord with reality. A mistake exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence.”
California Civil Code at section 1576 and following similarly describes “mistake” as either a mistake of fact or a mistake of law in the context of contractual agreements between parties. A “mistake of fact” is defined as:
“. . . a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in:
1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or,
2. Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such thing, which has not existed.”
A “mistake of law” is defined as:
“. . . a mistake . . . only when it arises from:
1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or,
2. A misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify.
These Civil Code sections and the surrounding case law set forth the requirements of mistake in order to determine whether a contract can be rescinded. While the act of late filing is not tantamount to a contract, the Civil Code definitions and surrounding case law are helpful in determining what criteria the courts apply in determining what constitutes a mistake sufficient to excuse the late filing.
It is concluded appellant’s representative failed to establish that he was under some erroneous conviction of law or fact which would have caused him to not file a timely appeal based on his belief respondent would want to avoid additional litigation. While respondent’s automatic resignation of appellant could potentially result in civil and workers’ compensation litigation, there was no reason to believe respondent was unaware of such potential when it decided to invoke the automatic resignation. Appellant’s representative did not argue any facts that imply in any way that respondent took any affirmative action that led him to believe it would revoke the automatic resignation. Appellant’s representative simply believed respondent’s invocation of the automatic resignation statute was egregious in light of the fact it paid appellant temporary disability leave benefits during the same period it inconsistently declared appellant absent without leave. Appellant’s representative unreasonably neglected his legal duty to timely file the appeal based on his personal analysis of the risk the respondent would be willing to assume. Appellant made an ungrounded assumption. Appellant’s calculated decision is not a mistake which excuses late filing.
Appellant’s representative also failed to establish he was under a mistake of fact or law when he believed he could timely file the appeal within 20 days of receiving the results of the Coleman hearing. In the January 24, 2006 “Notice of Automatic Resignation By Absence Without Leave (AWOL),” appellant was informed 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, CA 95814-7243, within fifteen (15) calendar days of the service of this notice (that deadline may be extended for five calendar days if this notice is served by mail). An appeal is deemed to be a request for reinstatement as set forth in Govt. Code 19996.2. If you file a timely appeal, the DPA or its authorized representative shall hold a hearing within a reasonable time.” (Bold in original.)
This notice clearly sets forth the appeal filing deadline.
The notice also informed the appellant and his representative of the timing requirements and procedures for obtaining a Coleman hearing. Appellant and/or his representative understood the notice well enough to timely comply with these procedures. There is nothing in the notice or in Government Code section 19996.2 which could reasonably lead the appellant or his representative to unilaterally believe an appeal could be filed 20 days after receipt of the results of the Coleman hearing. Appellant did not establish good cause sufficient to excuse late filing based on his unilateral mistaken legal belief.
Appellant did not demonstrate mistake, inadvertence, excusable neglect or surprise sufficient to establish good cause to accept his request for reinstatement by DPA.
It must also be noted that the basis for appellant’s request for reinstatement appears to be outside DPA’s jurisdiction. In Coleman v. Department of Personnel Administration (supra) 52 Cal.3d 1102. the Court held that an employee terminated under the automatic resignation provision of Section 19996.2 has a right to a hearing to examine whether he had a valid excuse for being absent, whether he had a valid reason for not obtaining leave; and whether he/she is ready, able, and willing to return to work. DPA is not charged with examining whether the appointing power acted properly with regards to the actual termination. Appellant argued the appointing power improperly invoked the automatic resignation statute because he cannot be simultaneously absent without leave and granted industrial disability leave. He argued respondent improperly applied Government Code section 19996.2. This issue falls outside DPA’s jurisdiction as set forth in the Government Code and the Coleman decision.
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WHEREFORE IT IS DETERMINED that the appeal for reinstatement after automatic resignation from the position of custodian effective February 14, 2006, is denied.

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1. “In Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the court held that due process requires an employee be afforded an informal hearing prior to the effective date of the invocation of Government Code section 19996.2. This informal hearing is routinely referred to as a “Coleman hearing.”
  Updated: 5/21/2012
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