Government Code section 19996.1 provides that:
“No resignation shall be set aside on the ground that it was given or obtained pursuant to or by reason of mistake, fraud, duress, undue influence or that for any other reason it was not the free, voluntary and binding act of the person resigning, unless a petition to set aside is filed with the department [Personnel Administration] within 30 days after the last date upon which services to the state are rendered or the date the resignation is tendered to the appointing power whichever is later.”
The clear language of the statute requires the trier-of-fact to look to the actions of the appellant at the point of resignation to determine if that act was for any reason not free, voluntary and binding. Civil Code section 1567 provides that an apparent consent is not "free" when obtained through duress, menace, fraud, undue influence, or mistake.
In seeking reinstatement, an appellant has the burden of proof and the burden of going forward in the appeal hearing.
Appellant claims his resignation must be set aside because he was under the influence of drugs and lacked the capacity to freely tender his resignation. He also argues the resignation must be set aside because it was obtained through duress and undue influence.
Appellant’s argument that his resignation must be voided because he lacked the capacity to freely tender the resignation is without merit. Neither party presented any evidence that appellant was irrational nor that he exhibited behavior that indicated he was not mentally competent or mentally functioning appropriately at the time of his resignation. The appellant engaged in conversation with the ERO regarding his work and the allegations against him. According to appellant’s own testimony, he was able to rationally respond to questions the ERO allegedly asked him. Appellant’s representative testified appellant was able to converse freely with him. Appellant also rationally conversed with the ISU Sergeant as he was escorted off the premises. Neither the ERO, the Vice President, the RN, nor the ISU Sergeant reported hearing or observing any irregular behavior that demonstrated appellant was mentally irrational or incompetent. While appellant may have exhibited physical symptoms of drug use, the evidence presented indicates appellant had the mental capacity to freely and voluntarily tender his resignation.
Appellant’s claim that his resignation must be set aside because it was obtained through duress is also without merit. Duress supposes some unlawful action by a party that causes the other party to consent by fear. Duress consists in unlawful confinement of another’s person, or relatives, or property which causes him to consent to a transaction through fear (Civil Code 1569). The only potential confinement that relates to this case is appellant’s assertion he was not allowed to leave the ERO’s office to go to the restroom. This testimony is not credible. The ERO denies appellant asked to leave the office. Appellant’s union representative whom appellant alleged was present when he made this request denies hearing such a request. The union representative also indicated the appellant did not ask him to leave the office or otherwise ask for a break. The representative’s testimony is credited over that of appellant. Unlike the appellant who has an inherent self interest in the outcome of the case, the representative’s future effectiveness hinges on his ability to successfully represent employees and support their positions. As part of his success, the representative must maintain a reputation of trust and integrity with both the employee and the employer. Perjured testimony would undermine the trust of both these groups and severely damage his 18-year career as a union steward. It is highly unlikely the Vice President would place himself in that situation.
Although menace was not pleaded in this case, duress is often used interchangeably with menace. In California menace is technically a threat of duress or a threat of injury to the person, property or character of another. (Odorizzi v. Bloomfield School District (1966) 246 Cal.App.2d 123, 128 citing Civ. Code 1570.) However, menace, like duress, was also not involved in this case. Appellant’s testimony that the ERO told him that if his drug test showed any trace of drugs, he was going to be reported to the DA was not credible. According to appellant’s written version of the August 16, 2005 incident, his representative and the ISU personnel were in the ERO’s area when the statement was made. The ERO denied making such a statement. Neither the appellant’s representative nor the ISU Sergeant heard any such statement. These witnesses are credited over the appellant who has an inherent self interest in having his resignation set aside. Furthermore, even if appellant had proven the ERO made such a statement, this would not constitute duress or menace. The action or threat in duress or menace must be unlawful, and a threat to take legal action is not unlawful unless the party making the threat knows the falsity of his claim. (Id. 128.) There was no evidence the ERO knew appellant would not be referred to the DA.
Appellant’s argument that he was subjected to undue influence is also rejected. Undue influence involves “taking an unfair advantage of another’s weakness of mind, or ... taking a grossly oppressive and unfair advantage of another’s necessities or distress.” (Id. 130, citing Civil Code 1575.) “In essence undue influence involves the use of excessive pressure to persuade one vulnerable to such pressure, pressure applied by a dominant subject to a serviette object. In combination, the elements of undue susceptibility in the serviette person and excessive pressure by the dominating person make the latter’s influence undue, for it results in the apparent will of the serviette person being in fact the will of the dominant person.” (Id. 131.) “Undue susceptibility may consist of total weakness of mind which leaves a person entirely without understanding; or, a lesser weakness which destroys the capacity of a person to make a contract even though he is not totally incapacitated.” (Id. 131 citing Civ. Code 38, Civ. Code 39; and Peterson v. Ellebrecht, 205 Cal.App. 2d 718, 721-722.)
Appellant failed to prove either the Vice President or the respondent pressured him to resign. Appellant specifically accepted the Vice President as his representative on two separate occasions. It was the Vice President who gave appellant the option of resigning. The appellant did not report to the Vice President and there was no evidence the Vice President had any authoritative position over appellant at any time. There was no reliable evidence the Vice President did anything more than provide appellant with his options, one of which was to resign.
The ERO and ISU personnel did not suggest that the appellant resign or speak to him about resignation prior to appellant’s declaration he was going to resign. The ERO ordered appellant to take a drug test. The ISU were in the area to transport appellant to take the drug test. Any pressure or coercion appellant felt was a result of the dilemma in which he placed himself. He felt pressure because he received a lawful order to take a drug test. The pressure was a result of his knowing he would not be able to pass the test.
Appellant was fully aware of the consequences of his resignation at the time he resigned. He could resign (which would release him from an obligation to take the drug test, free him from potential legal or disciplinary action as a result of his failure to pass the test, and avoid embarrassment for his father who worked at the institution) or he could take the drug test, fail the test, and be subject to the consequences consistent with such failure. Appellant clearly knew his choices and voluntarily chose to avoid the pressure and the potential consequences of a failed drug test.
All other arguments tendered by appellant are dismissed. Violations of POBAR are within the original jurisdiction of the courts. (Upland Police Officers Association v. City of Upland (supra) 111 Cal.App.4th 1294.) The respondent has no obligation to allow an employee to rescind a lawfully tendered resignation simply because the resignation releases respondent from any further due process obligations it may have had in another forum if the employee had not resigned.
Therefore, it is concluded that appellant’s execution of a resignation on August 16, 2005 was a free, voluntary and binding act and the resignation should not be rescinded.