DPA Case Number 05-F-0051 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: July 21, 2005

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on July 12, 2005, at Riverside, California.

Appellant, was present and was represented by Henry Walton, Labor Relations Representative, Service Employees International Union (SEIU).

Kaye Krumenacker, 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 March 2, 2005, respondent mailed appellant notice that he would be automatically resigned close of business February 4, 2005, for being absent without approved leave February 4 through March 2, 2005.1

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 March 22 to file his appeal.

SEIU filed a request (appeal) for reinstatement after automatic resignation on appellant’s behalf on April 5. The appeal was received at DPA on April 8. It 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 his appeal for the purpose of determining whether he should be mandatorily reinstated to his former position. Appellant claims there is good cause for the late appeal because he was suffering from depression and his doctor told him he was unable to participate in a hearing.

Appellant last worked on February 4. He testified he called in to report his absence every day for the first week he was absent.

Respondent notified appellant by letter dated March 2 he was being automatically resigned effective March 17. The letter stated in relevant part:

“If you disagree with these facts, you may request an informal hearing to be held prior to March 17, 2005 (emphasis in original). To request an informal hearing you may contact, either orally or in writing, the Coleman Scheduling Coordinator, Human Resources Branch, Department of Motor Vehicles, P.O. Box 932315, Sacramento, CA. 94232-3150, or by calling (916) 675-6537....

Whether or not you respond to your department to request an informal hearing, you still have the right to file a written request for reinstatement with the Department of Personnel Administration (DPA), 1515 “S” Street, North Building, Suite 400, Sacramento, CA 95814, with in fifteen (15) calendar days of service of this notice. You have five (5) additional days if the notice was sent by mail within California. A request for reinstatement is made pursuant to Government Code Section 19996.2. If you file a timely request, the DPA or its authorized representative will hold a hearing within a reasonable time.”

The declaration attached to the notice was executed on March 2, showing service to appellant by United States Mail. Appellant testified he received the March 2 letter.

After appellant received the letter, he testified he called various people at DGS including DGS’ Acting Chief, Human Resources Branch. He testified he knew he had a deadline by which to file his appeal but he was confused. He testified DGS consistently talked with him about changing the date of a “hearing,” but ultimately did not do so. Appellant also testified he took the March 2 letter to his physician. Appellant contended his doctor told him he (appellant) was medically unable to participate in a hearing. DGS finally advised appellant to contact his union representative. Appellant contacted SEIU on April 5, and an appeal to DPA was filed on that date.

Appellant testified that his absence and untimely filing was a result of depression and the effects of the medication he was prescribed. Appellant described his depression as “immobilizing” and that it made “it impossible for [him] to perform the normal functions of [his] daily life.” Appellant testified the prescribed medication caused him to be drowsy, irritable, and confused.

Appellant presented two documents from Kaiser Permanente that indicate he was seen there on March 14 and March 18 for depression and that he was taken off work for one and seven days respectively. Other documents indicate appellant saw his treating psychiatrist on March 25 and, as of that date appellant was prescribed the medication he claimed prevented his timely filing. Appellant was subsequently reevaluated at Kaiser on April 4 and April 18. Appellant was diagnosed as being unable to work through at least April 26.

 

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Appellant filed a late appeal for reinstatement after automatic resignation. The appeal was approximately 14 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 section 473, which provides relief for a “mistake, inadvertence, excusable neglect or surprise of an attorney or party.” However, appellant did not claim any of these. He claimed excusable error on his own part because his medical condition and the effects of medication rendered him unable to function and perform the activities of daily living.

In the instant case, appellant did not demonstrate excusable error. His testimony regarding the totally disabling effects of his depression and the alleged statement by his treating psychiatrist that he was unable to participate in any hearing was unsupported by any written or oral medical evidence. The medical documentation presented shows that appellant did not receive the medication he complained of until March 25, three days after appellant should have timely filed his appeal. No medical provider was called to support or clarify the total disabling condition appellant claimed prevented him from timely filing his appeal.

Furthermore, appellant’s calls to his supervisor during the first week of February, his multiple calls to respondent’s representatives after he received the March 2 letter, and his contact with his union representative during the period appellant claimed he was unable to function also belie his testimony that his medical condition and medications prevented his timely filing.

Finally, respondent objected to the medical documentation presented by appellant as hearsay. Government Code section 11513 provides that hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Therefore, the medical documentation presented by appellant cannot be relied on to support a finding that appellant’s medical condition was the cause of his untimely filing.

For the reasons set forth above, it is concluded appellant did not establish good cause for the filing of his 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 from the position of Motor Vehicle Field Representative effective March 17, 2005, is denied.

 

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1. All dates are 2005 unless otherwise indicated.