Final Non-Precedential Decision Adopted: November 7, 2006
By: David A. Gilb, Director
DECISION
ON JURISDICTION
On August 22, 2006, respondent Employment Development Department (EDD) served appellant written notice by overnight mail that she was being automatically resigned for being absent without leave (AWOL) from August 15 through August 21, 2006.1
The appellant filed a written request (appeal) for reinstatement to her former position of Office Technician (Typing) on September 15, 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 two additional court days for mailing (See Code of Civil Procedure 1013), appellant’s appeal would have timely if it was postmarked on or before September 8, 2006. Appellant’s appeal is untimely because it was filed seven (7) days after is 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’s appeal falls within the requisite 30 days.
Appellant claimed she had good cause for late filing because she was in the hospital from September 4 to September 12; because respondent mailed the results of her Coleman hearing to the wrong address; and, because the Coleman Officer did not tell her on September 11 she had to appeal in writing by a certain date.2
Respondent disputed appellant’s claim of good cause for late filing. Respondent argued appellant had ample time to file her appeal before she was hospitalized; her hospitalization did not impair her ability to file her appeal; and, the Coleman Officer had no obligation to inform appellant of her appeal right.
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PURSUANT TO THE FOREGOING THE ALJ MAKES THE FOLLOWING DETERMINATION:
Appellant filed a late appeal for reinstatement after automatic resignation. The appeal was 7 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 7 days. The 7 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 above, 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.” Appellant did not articulate any of these reasons for failing to timely file her appeal.
Instead, she argued her hospitalization precluded her from timely filing and implies that respondent failed to meet its duty of notifying her of her appeal rights. Both of these arguments fail.
The August 22 notice of automatic resignation included the following information:
“Whether or not you request a meeting, you must have the right to file a written appeal with the Department of Personnel Administration, 1515 S Street, North Building, Suite 400, Sacrament, California, 94244-2340, within 15 calendar days of the day this notice was mailed to you. An appeal is deemed to be a request for reinstatement as set forth in Government Code, Section 19996.2. If you file a timely appeal, the Department of Personnel Administration or its authorized representative shall hold a hearing within a reasonable time.
IF YOU FAIL TO APPEAL WITHIN THE TIME SPECIFIED, YOUR AUTOMATIC RESIGNATION FROM STATE SERVICE SHALL BE FINAL.” (Emphasis in original.)”
Appellant received the notice. She understood the notice well enough to arrange for and participate in a Coleman hearing prior to August 31. Respondent properly notified appellant of her appeal rights. Appellant provided no legal basis for her contention the Coleman Officer had a legal obligation to again inform her of her DPA appeal rights.
Appellant also failed to prove how her hospitalization prevented her from timely filing her appeal. She admitted in her October 11 correspondence that she was in the hospital from September 4 through September 12. She also admitted she contacted respondent while she was in the hospital on September 7 and September 11 to obtain the results of the Coleman Hearing and that she received calls from respondent about her automatic resignation while she was in the hospital. Appellant was not incapacitated and she failed to provide any reason why she was unable to file her appeal when she was otherwise able to conduct business and process information regarding her automatic resignation.
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. She did not provide any other reason that justifies good cause for late filing. Consequently, appellant’s automatic resignation should be considered final; and the appeal dismissed.
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WHEREFORE IT IS DETERMINED
that the appeal for reinstatement after automatic resignation from the position of Office Technician (Typing) effective August 14, 2006 is denied.
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FOOTNOTES
1. All dates are 2006 unless otherwise indicated.
2. “In Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the court held that due process requires the employer to give the employee a right to be heard prior to the effective date of the invocation of Government Code section 19996.2. The informal hearing is routinely referred to as a “Coleman hearing.” And, the person presiding over the informal session is referred to as “the Coleman Officer.”
