DPA Case Number 06-S-0010 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: May 8, 2006

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 April 25, 2006, at Sacramento, California.

Appellant, was present and was represented by Kasey Christopher Clark, Chief Legal Counsel, California Union of Safety Employees (CAUSE).

Timothy G. Yeung, Deputy Attorney General, represented the Department of Justice (DOJ), respondent.

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

On December 12, 2005, respondent mailed appellant notice that she would be automatically resigned close of business December 23, 2005, for being absent without approved leave December 5, through December 12, 2005.

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 January 3, 2006 to file her appeal. (See California Code of Civil Procedure section 1013.)

CAUSE filed a request (appeal) for reinstatement after automatic resignation which was received at DPA on January 27, 2006. 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 was good cause for the late appeal because (1) respondent should have made an effort to personally serve the notice of automatic resignation instead of mailing it to her post office box, and (2) appellant’s illness impaired her ability to retrieve her mail at her post office box.

Appellant last worked six years ago. In February 1997 she was involved in a work-related car accident. She suffered from neck and back pain as a result of the accident. In March or April 2000 she was diagnosed as suffering from the effects of toxic mold. She had a cough and debilitating headaches. She has been on a series of paid and unpaid medical leaves since January 2000. In 2002, respondent was notified appellant was unable to perform the essential functions of her position as a Special Agent Supervisor. Respondent applied for disability retirement for appellant in October 2003. The California Public Employees Retirement System (CalPers) denied the disability retirement application on or about October 7, 2004.

On September 2, 2005, respondent sent appellant a listing of department vacancies and instructed her to contact DOJ by September 19, 2005 to discuss her potential return to work. The appellant did not respond. Appellant testified she never got the first copy of the September 2, 2005 letter.

By letter dated October 25, 2005, respondent ordered appellant to call the Assistant Director, Mission Support Branch (Assistant Director) at 8:00 a.m. on November 9, 2005 to discuss the specifics of her work assignment. On November 4, 2005, respondent sent appellant a letter reiterating appellant was to call the Assistant Director on November 9, 2005. Respondent included a copy of the September 19, 2005 correspondence with the November 4, 2005 letter.

Appellant called the Assistant Director on November 9, 2005. The Assistant Director offered her a position as an Associate Government Program Analyst (AGPA). However, the appellant wanted to return to work as a Special Agent Supervisor. According to the appellant, the Assistant Director told her to talk with her representative and get back to him. There was a discussion about her return to work on November 28, 2005. Appellant testified she did not understand this to be a definite return to work date.

On November 21, 2005, respondent’s Personnel Analyst sent appellant class specifications and essential duties for the Special Agent Supervisor position and instructed her to have her doctor review these and return these to respondent by November 28, 2005. When appellant did not return to work or return any information, respondent sent appellant a letter on November 30, 2005 ordering her to report to work on December 5, 2005. Respondent did not report to work on December 5, 2005 and she did not contact respondent. Appellant testified she did not receive the November 30, 2005 letter ordering her back to work before December 5, 2005.

On December 12, 2005, respondent notified appellant by mail she was being automatically resigned effective December 23, 2005.

On August 24, 2001, appellant informed respondent that because of her illness she had trouble retrieving certified mail. She instructed respondent to send any future correspondence either to her workers’ compensation attorney or to her by regular mail at a P.O. Box address in Ranch Cordova, California. On or about August 15, 2002, appellant again informed respondent she was frequently unable to pick up certified letters and asked that future correspondence be sent to her via regular U.S. mail. On or about March 31, 2004 appellant notified respondent that she had changed her workers’ compensation attorney.

All letters relevant to this proceeding were sent to appellant by both certified mail and regular mail. The letters sent to appellant were sent to her at the post office box address she provided. A copy of all the relevant correspondence was also sent to the workers’ compensation attorney named in appellant’s August 24, 2001 letter even though he was no longer appellant’s attorney after March 31, 2004.

Although appellant lived at the same residence for approximately one year, she did not notify respondent of her residence address and she did not provide respondent with a telephone number where she could be reached. She did not notify respondent of any change in her mailing address after 2001.

Appellant did not receive the December 12, 2005 notice of automatic resignation until January 21, 2006 when she checked her post office box. On January 28, 2006, she returned to the post office during normal business hours and received additional correspondence from respondent. Appellant testified she did not check her post office box from November 9, 2005 through January 21, 2006. She testified she did not check her post office box during this period for a variety of reasons including some health-related problems that debilitated her for certain periods; the fact she was taking care of her father; she was trying to decide what to do about her job; and, she was “trying to write a letter to the Department.” Appellant did not present any medical information indicating she was physically or mentally incapacitated during this period. No medical personnel were called to testify.

 

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Appellant filed a late appeal for reinstatement after automatic resignation. The appeal was approximately 24 days late.

Appellant claimed good cause for late filing. There are three basic considerations in determining if a late-filed appeal should be accepted: (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 where good cause has been found for late filings, range from three (3) to six (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; and Gibson v. Unemployment Insurance Appeals Board (1973) 9 Ca.3d 494 – 3 days.) In this case, the delay in filing was 24 days. Appellant’s delay was not “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 affect any further reorganization than it would if the appeal were timely filed. However, respondent argues in a more general sense that it and the public would be prejudiced if appellant were allowed to subvert a filing deadline simply because she willfully ignored respondent’s communications by failing to check her pre-designated post office box. This argument targets the heart of the issue.

The actual cause of the delay is the most troublesome and important aspect of this late-filed appeal. Appellant did not report to work as ordered and filed her appeal of her automatic resignation late because she chose not to go to her post office box from November 9, 2005 to January 21, 2006. Although appellant claimed she was medically unable to go to her mailbox for certain time periods, she did not present any medical evidence supporting any incapacity. She admitted she was not incapacitated during the entire time at issue.

Although appellant claimed she was overwhelmed by a group of circumstances that included concerns regarding her employment, she did nothing to ensure consistent, reliable, personal communication with her employer on an ongoing basis. She simply instructed respondent to send regular mail to a post office box in 2001 and she never changed these instructions. She provided no home address, telephone number, or any other alternate method of contact. Appellant knew there was on-going dialogue with respondent regarding her employment and she knew respondent’s only method of initial communication with her was the post office box.

Appellant bears the sole responsibility for not timely filing her appeal. Her decision not to check her post office box from at least December 13, 2005 through January 21, 2006 was voluntary and does not represent good cause to excuse her untimely filing.

Appellant’s argument that respondent had an obligation to take extraordinary steps to find out where she lived and personally serve her is without merit. Appellant has the responsibility of keeping her employer informed of her current address for purposes of notice.1 She chose to provide her employer with a post office box address. Appellant presented no statute or case law which either requires or permits an employer to search potentially private employee information and use such information for employment purposes.

For the reasons set forth above, it is concluded appellant did not demonstrate good cause to accept appellant’s late-filed appeal. Consequently, appellant’s automatic resignation should be considered final and the appeal dismissed.

 

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that the appeal of for reinstatement after automatic resignation from the position of Special Agent (Department of Justice) effective December 23, 2005, is denied.

 

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1. See Evans v. Department of Motor Vehicles noting duty of automobile dismantlers and attorneys to keep their respective regulatory agencies apprised of a current address for purposes of notice.