This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on July 11, 2011 in Sacramento, California.

 

Appellant, was present and represented by Steven B. Bassoff, Attorney, Law Office of Steven Bassoff.  Judi Smith, Staff Services Manager I, Department of Transportation (DOT), represented DOT, respondent.

On March 23, 2011, appellant, packed up his office and attended an exit interview with the Computer Information Officer.  On April 4, 2011, appellant attempted to rescind his resignation.  His request was denied.  On April 11, 2011, he filed this appeal.

 

Government Code section 19996.1 authorizes DPA to set aside a resignation on the grounds 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, if a petition to set aside is filed with DPA 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 appeal complies with the procedural requirements of Government Code section 19996.2.  DPA has jurisdiction over the appeal.

Appellant seeks to set aside his resignation on the basis he made a mistake and was under duress when he resigned from the DOT.  He contends the circumstances surrounding his resignation hindered his ability to make a free, voluntary, and binding decision.  

 

Respondent argues appellant’s resignation was voluntary.

 

The issues to be determined are:

 

1. Did appellant resign under duress?

 

2. Did appellant resign because of mistake?

 

3. Did appellant resign because of undue influence?

 

4. Was appellant’s resignation free and voluntary?

Appellant began his State of California career on February 5, 1980.  He started working for the DOT, respondent, on April 5, 1993 and at the time of his resignation was a Data Processing Manager III (DPM III).  As a DPM III, he provided operating system support, supervised four different units and as many as 41 employees. 

 

In February 2011, respondent reorganized its Information Technology (IT) division.  Under the reorganization, appellant was assigned to a new supervisor in the branch of Project Management Professional, Information Technology.  Shortly after taking over, the new supervisor met with appellant and requested a copy of his work schedule.  His supervisor told appellant he must take an entire day off if he needed more than 3 hours off in any given day.  Appellant was frustrated and amazed at this directive because he believed his DPM III position to be exempt under the Fair Labor Standards Act (FLSA). 

 

On February 9, 2011, appellant requested time off from work to attend an event sponsored by respondent’s Black History Committee.  Appellant’s supervisor told him he would have to take a vacation day to attend the event because it might last more than 3 hours.  On February 24, 2011, appellant received a telephone call from his supervisor at 5:09 p.m. and asked him why he was not in his office.  His supervisor reminded appellant his work schedule was not flexible.

 

On the morning of March 18, 2011, appellant’s supervisor’s supervisor, the Computer Information Officer, happened to see appellant near the elevator.  She told appellant he would begin reporting to her under yet another reorganization, and would no longer report to his new supervisor. 

 

After a short, but contentious relationship with appellant’s new supervisor, the relationship reached its boiling point.  On the afternoon of March 18, 2011, appellant’s supervisor was heard yelling at appellant at the front door of his office.  Appellant became emotionally distressed and humiliated and lost sleep over the weekend because he was so upset over the yelling incident.  On Monday March 21, 2011, appellant returned to work but was so upset he kept his office door closed.  He continued to lose sleep over the degrading manner he believed his supervisor treated him.

 

On March 22, 2011, appellant called in sick because he felt physically ill from the emotional distress he was suffering.  On the afternoon of March 22, 2011, he called respondent’s Human Resources department and told them he wanted to separate from state service.  He was told by someone in the Human Resources department he could resign by email but that he needed his supervisor’s signature.

 

On March 23, 2011, appellant met with his second new supervisor for his exit interview.  She reminded him that he would be working for her, not his old supervisor.  Appellant told his second new supervisor that his old supervisor micro-managed, but did not elaborate on any other problems with his working conditions.  At the meeting with his second new supervisor, appellant appeared anxious to cash out his vacation and told her he wouldn’t have to work until January 2012.  The second new supervisor told him he should take some time to think about resigning and suggested he take a two-week vacation.  Appellant told her he wanted to write a book, work for private industry or just retire. 

 

On April 4, 2011 at 2:41 p.m., appellant emailed his new supervisor and the Deputy Director of Administration.  Appellant did not provide a copy of the email and its content is not clear from the record.  The response to his email is clear from the record.  In response, the Deputy Director stated in relevant part:  “[y]our separation was processed last week.  This separation constitutes a break in service.  While you have permissive reinstatement rights, the Department is not able to re-hire you due to the current hiring freeze.  Once the freeze is lifted you will be able to be considered for permissive re-instatement.”   

Appellant’s argument his resignation was not free and voluntary must fail.  An employee may resign from state service by submitting a written resignation to the appointing power.  (Cal. Code Regs., tit. 2, § 599.825.)  While the record does not reflect a written resignation from appellant, it does indicate respondent acted on appellant’s actions to resign from state service. 

 

Appellant made a formal request to return to work on April 4, 2011.  Respondent notified appellant that same afternoon it had already acted on his resignation and he was considered separated from state service. An employee is entitled to withdraw a resignation if he does so before its effective date, before it is accepted, and before the appointing power acts in reliance on the resignation.  (Armistead v. State Personnel Board (1978) 22 Cal.3d 198.)  Appellant’s formal request to return to work was received after respondent relied on his resignation. 

 

In seeking reinstatement, appellant has the burden of proof and the standard of proof is a preponderance of the evidence.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)  Appellant’s resignation may be set aside if he proves by a preponderance of the evidence it was given or obtained pursuant to or by reason of mistake, duress, undue influence or that for any other reason it was not freely and voluntarily given.  

 

The clear language of the Government Code section 19996.1 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.  As noted above, it is not clear when appellant actually tendered his resignation, but his actions during the preceding period are clear.

 

Appellant was upset over the disagreements he was having with his first new supervisor.  He believed she was treating him badly and micro-managed him.  By requiring he take a full day of leave when he needed to be away from work for only a few hours, he believed she was not in compliance with the law.  She also yelled at him on at least one occasion during their short supervisor/employee relationship. 

 

If appellant believed his supervisor was acting in contravention of the law, he had many choices other than resignation.  His argument he was the victim of duress which led him to resign is without merit.  Duress is defined as any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he otherwise would not (or would) act.  (Black’s Law Dict. (6th ed. 1990) p. 504, col 1.)  The test of “duress” at its harshest is what would have influenced the conduct of a reasonable man.  (Steffen v. Refrigeration Discount Corp. (1949) 91 Cal.App.2d 494.)

 

Appellant provided no evidence his supervisor unlawfully threatened or coerced him to resign.  She may have done things appellant did not appreciate, like micro-manage him, but she did not make any unlawful threats or otherwise coerce the appellant into acting or not acting in a certain way.   Moreover, when appellant told his new supervisor he had made a decision to resign from state service, he had not talked to his old supervisor for several days. 

 

Similarly, appellant’s argument he made a mistake must also fail.  Mistake is “some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence.  A state of mind not in accord with reality.”  (See Black’s Law Dict. (6th ed. 1990) p. 1001, col. 1.)  There was no evidence appellant was suffering from an altered state of mind.  On the contrary, he intended to resign and manifested that intent when he spoke with respondent’s Human Resources department and told his new supervisor he had made a decision to resign and did so.

 

Appellant’s belief he was the victim of undue influence is mis-placed.  “Undue influence consists of:  1) In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; 2) Taking an unfair advantage of another’s weakness of mind; or, 3) In taking a grossly oppressive and unfair advantage of another’s necessities or distress.”  (Civ. Code, § 1575.)

 

There is no evidence to suggest respondent attempted to take unfair advantage of appellant.  In fact, there is credible evidence to the contrary because appellant’s new supervisor suggested he take some vacation time and re-think his decision to resign.  Because appellant did not heed her advice, does not advance his argument respondent took unfair advantage of him.

 

Furthermore, Civil Code section 1567 provides an apparent consent is not "free" when obtained through duress, menace, fraud, undue influence, or mistake.  There is no evidence to show appellant’s act to resign was not free.   A “voluntary act” is an act proceeding from one’s own choice or full consent unimpelled by another’s influence.  Here again, appellant, despite his supervisor’s suggestion he take some time before resigning, voluntarily left his position.

 

To determine whether an act is voluntary, the trier-of-fact must determine all relevant facts and circumstances which might cause the actor to depart from exercise of free choice and respond to compulsion from others.  (Kasumi Nakashima v. Acheson (1951) 98 F.Supp. 11.)  There is no evidence to indicate appellant’s act of resigning was not his own choice.  He decided to resign, told respondent’s Human Resources department of his choice to resign and met with his new supervisor to complete the process of resignation.

 

Lastly, it is a well-established principle of law:  “when the evidence is evenly balanced, the proponent [of the evidence] loses."  (Director, Office of Workers' Compensation Programs, Dept. of Labor v. Greenwich Collieries (1994)  512 U.S. 267.)  

 

Appellant’s denial his new supervisor told him he should take a two-week vacation and think about the consequences of resigning from state service is contradicted by the new supervisor’s version he told her he wanted to write a book, work for private industry or just retire.  Appellant agrees he said something about writing a book but denies saying anything about retirement or not having to work until January 2012.  In light of the full record, both versions of the meeting are credible; however, because the evidence is equally balanced, respondent must prevail.

Appellant failed to prove by a preponderance of the evidence his resignation was obtained through duress, by mistake or because of undue influence or that his resignation was not free and voluntary.