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CalHR Case Number 14-G-0055: Petition to Set Aside Resignation

​Final Decision Adopted March 3, 2015
By:  Richard Gillihan, Director

 

PROPOSED DECISION

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Human Resources (CalHR) at 1:00 p.m. on November 18, 2014 in Riverside, California.

Appellant, was present and represented by Michelle L. Hoy, Staff Legal Counsel, California Correctional Peace Officers Association.  Alan L. Sobel, Senior Staff Counsel, represented the California Department of Corrections and Rehabilitation (CDCR), California Institution for Women (CIW).

 

I - JURISDICTION

Appellant submitted a written resignation from her position as Correctional Officer with CDCR, CIW on June 13, 2014.  On July 3, 2014, appellant filed a petition to set aside her resignation with CalHR. 

Government Code section 19996.1 authorizes CalHR 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 CalHR 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 19996.1. CalHR has jurisdiction over the appeal.

 

II - ISSUES

Appellant seeks to set aside her resignation because she was not thinking clearly  and her written resignation was not a free and voluntary act.

Respondent argues appellant's resignation was voluntary.

The issue to be determined is:

1.  Was appellant's resignation free and voluntary?

 

III - FINDINGS OF FACT

The evidence established the following facts by a preponderance of the evidence.   The appellant began her career with respondent on November 3, 2003.  Her most recent appointment was to the position of Correctional Officer at respondent's California Institution for Women (CIW).  On October 1, 2013, the appellant gave birth to a child and was off work until March 2014.  Her doctor (NAME REDACTED) began treating the appellant in 2011.  In late 2013, after the birth of the appellant's second child, she treated her for post-partum depression.  Her doctor testified the post-partum depression caused the appellant increased heart rate, difficulty processing decisions and panic attacks.

The appellant was released by her doctor to return to work and in June 2014 attended training which included incident report protocols.  The training stressed that "no matter what type of force you see," a report must be written regarding the incident." Earlier in 2014, the appellant witnessed a use of force, but did not make an incident report.  After the training, she realized she should have written an incident report.  She then went to 'pump.'  (Footnote 1.)  She was not able to 'pump' and became anxious believing her inability to pump was because she failed to write an incident report.

Appellant then checked her work mailbox and learned her request to change her work status from a Permanent Intermittent employee to an on-call status employee had been denied by the Warden.  The appellant went upstairs to the Investigative Services Unit and spoke with Officer (NAME REDACTED) to determine what she should do regarding the unwritten incident report.  She then spoke with Lieutenant (NAME REDACTED) and told him she believed she witnessed an excessive use of force but did not file an incident report. 

The Lieutenant told her to write the incident report because it was her responsibility as a Correctional Officer.  He assured her the incident report would be confidential as he recognized she may have been fearful.  She was reluctant and stated something to the effect, "she did not want to be a 'rat.'"  The appellant tried to write the incident report but could not because she felt overwhelmed.  She returned to the Lieutenant's office about two hours later and told him she did not want to write the incident report and wanted to resign from her position as Correctional Officer.

The Lieutenant asked the appellant if she was sure she wanted to resign.  She told him she had been thinking about resigning for a week and had discussed it with her husband and her pastor.  He indicated the appellant appeared emotional but told him she knew she wanted to resign.  The Lieutenant directed her to the Personnel Office.  After the appellant left for the Personnel Office, the Lieutenant spoke with the Warden and told her the appellant wanted to resign.  He reported this information to the Warden because he thought it odd the appellant wanted to resign. 

At the Personnel Office, NAME REDACTED, an Associate Governmental Program Analyst who has trained as a Peer Counselor, asked the appellant if she was okay.  The appellant told the Peer Counselor she wanted to resign because it would be the "best thing for me."  The Peer Counselor spent some time with the appellant and attempted to persuade her not to resign because it is a great job with excellent benefits.  She told the appellant to think about what she was doing and to go home and take some time to think about her actions.

The appellant told the Peer Counselor NAME REDACTED she was tired of what was going on at the California Department of Corrections and Rehabilitation and reiterated she just wanted to resign and go home to her husband and kids because they needed her.  As she mentioned her children, she cried, but appeared rational and was adamant she wanted to resign.  The Peer Counselor again told her to think about her actions and reiterated she should take some time to think about what she was doing.  After several unsuccessful attempts to get her to reconsider, NAME REDACTED told the appellant she needed to complete some resignation paperwork.    

After approximately fifteen minutes, NAME REDACTED, Personnel Supervisor II, joined the appellant and the Peer Counselor.  She overheard the Peer Counselor ask the appellant if she really wanted to resign and the appellant replied she did want to resign.  The Personnel Supervisor II, who has handled several resignations, took the appellant to the interview room so she could complete the resignation paperwork.  She explained the resignation process to the appellant including any benefits to which she was entitled.  The appellant was again crying.    

The Lieutenant then entered the interview room and asked the appellant on behalf of the Warden if she was sure she wanted to resign.  He gave her a hug and tried to convince her not to resign.  She told him, "I'll find a better job."  The appellant then explained to the Lieutenant and the Personnel Supervisor II that the job was not for her because she had small kids at home and reiterated resigning is what she really wanted to do.  She also indicated she wanted to get to safety and to her baby and that meant going home.  

The appellant testified she knew she was resigning, but looking back she realizes it was not the right thing to do. 


IV - ANALYSIS 

 A petition to set aside resignation is governed by Government Code section 19996.1 which provides:  "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 it aside is filed with the department [CalHR] 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." 

In seeking reinstatement, appellant has the burden of proof to show by a preponderance of the evidence her resignation was by reason of mistake, duress or that it was not free and voluntary.  (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) 

Appellant's resignation was free and voluntary
An employee may resign from state service by submitting a written resignation to the appointing power.  (Cal. Code Regs., tit. 2, § 599.825.)  The appellant tendered her written resignation to respondent on June 13, 2014.  The respondent, after failing to convince the appellant not to resign, accepted her resignation.  An employee is entitled to withdraw a resignation if she 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.)  Respondent changed appellant's work status to a resignation the following day indicating it acted on her resignation. 

The California Civil Code section 1567, provides that an apparent consent is not "free" when obtained through duress, menace, fraud, undue influence, or mistake.  

The appellant does not claim her resignation was under duress, menace, fraud, undue influence, or mistake, but argues she did not know what she was doing because of post-partum depression.  Her doctor testified the appellant suffered from this mental condition after the birth of her second child in October 2013.  The condition caused the appellant to experience an increased heart rate, difficulty processing decisions and panic attacks.

However, there is no evidence the appellant was seen by her doctor directly before or after her decision to resign.   Her doctor testified she saw the appellant 3 or 4 times from October 2013 to December 2013, but did not see the appellant for 17 days after the resignation.  The doctor's testimony the appellant was medically incapacitated to make a decision on June 13, 2014 is not persuasive because she had not seen the appellant for six months and could not possibly know her patient's state of mind at the time of the resignation.

Moreover, the appellant did not contact her doctor for over two and a half weeks after the resignation.  By waiting 17 days to contact her doctor, the appellant was clearly not suffering from any emergent medical condition or post-partum depression when she resigned on June 13, 2014.  Had she been suffering from her mental condition, she would have contacted her doctor immediately for help. 

 A "voluntary act" is an act proceeding from one's own choice or full consent unimpelled by another's influence.  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 the exercise of free choice and respond to compulsion from others.  (Kasumi Nakashima v. Acheson (1951) 98 F.Supp. 11.)  The appellant admitted she understood what she was doing at the time of the resignation and told the Lieutenant she had been thinking about it for some time.  Not only does she admit she had been thinking of resigning for some time, she explained her reasons to the Peer Counselor, stating it was, "the best thing for me" and she had "kids at home that needed her."

Despite her treating physician's testimony the appellant dealt with life stressors of being a Latina, a mother, her church, her in-laws and an abusive husband, the appellant made a reasoned decision and testified these life stressors caused her to make a bad decision.  A bad decision is a voluntary act.  Furthermore, the Peer Counselor and the Lieutenant testified they did everything in their power to convince the appellant to go home before making such an important decision of resigning.  However, the appellant refused. 

Therefore, the appellant's argument post-partum depression caused her resignation not to be a free and voluntary act is not persuasive.  Lastly, appellant's own admission she knew she was resigning belies any diagnosis of post-partum depression or difficult decision-making.  She also admits that looking back on her decision – it was the wrong thing to do.  This hindsight by the appellant does not assist her in meeting her burden of proof her resignation was not free and voluntary. 


V - CONCLUSIONS OF LAW

Appellant's resignation was free and voluntary and should not be set aside.  

*           *           *           *           *
THEREFORE, IT IS DETERMINED, the petition of appellant to set aside her resignation, from the position of Correctional Officer with the California Department of Corrections and Rehabilitation, California Institution for Women effective June 13, 2014, is denied.



 

Footnote 1:  'Pump' refers to expressing milk to provide breast milk for her newborn.

 

Updated:  October 20, 2016

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