DPA Case Number 00-R-0044 - Petition To Set Aside Resignation

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:30 a.m. on August 24, 2000, at Riverside, California.

Appellant was present and was represented by Samuel S. Ortega, representative.

Chian He, Staff Counsel, represented Department of Veteran Affairs (DVA), respondent.

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

Appellant submitted a written resignation from her position, as a Certified Nursing Assistant (CNA) to the DVA at the Veterans Home at Barstow (the Home) on April 13, 2000. On, May 12, 2000, appellant submitted a petition (appeal) to set aside her resignation to the State Personnel Board (SPB). On June 16, 2000, the SPB transferred the appeal to DPA. DPA received the appeal on June 20, 2000.

Also, on May 12, 2000, appellant filed an appeal directly with DPA. A hearing was held as scheduled on August 24, 2000, and the record was closed. The parties were provided one week (to August 31, 2000) to file written closing argument. The appeal complies with the procedural requirements of Government Code section 19996.1.

On August 29, 2000, respondent’s counsel filed a closing brief1 with DPA and served a copy on appellant’s representative. Appellant’s representative did not file his closing brief until September 8, 2000; and did not serve it on respondent until September 12, 2000.

On September 14, 2000, respondent’s counsel filed an objection to appellant’s closing brief and moved to strike it because it was untimely and because it was “permeated with objectionable and impermissible references” to fact and documents not in evidence. Respondent’s counsel also claimed it was “contaminated with extensive violations of court’s ruling and general legal practice standards.” On September 20, 2000, appellant’s representative filed a response.

After a review of the objectionable brief, the ALJ concluded that it contains numerous statements, declarations and other documents which had been or would be (if offered) excluded from evidence because they are not relevant, not properly authenticated, and/or constitute uncorroborated hearsay. For example, the representative referred to investigations of death at the Home, previous settlement discussions, other persons who had resigned from employment at the Home, a Senate hearing regarding the Home and personal conversations between the representative and representatives of the Department of Health Services (DHS) and the Department of Justice. The ALJ also concluded the brief was highly prejudicial and did not properly present argument on the facts in evidence.

Consequently, the appellant’s counsel’s closing brief is rejected (stricken) from the record and will not be considered in analyzing the facts and making conclusions of law in this matter.

Respondent’s counsel also requested sanctions because appellant’s representative made misrepresentations to both the ALJ and respondent’s counsel regarding the brief. The ALJ is without authority to sanction a representative; and a representative cannot be reported to the State Bar for allegations of unethical or unprofessional conduct. Accordingly, no ruling will be made regarding alleged misrepresentations and false information provided the ALJ or opposing counsel.

Appellant sought to set aside her resignation on the grounds that it was obtained by reason of mistake, fraud, duress and undue influence. She also claimed that she had no compelling reason to resign until she was forced to resign by the Acting Director of Nurses (Director).

On April 12, 2000, appellant was late to work. After she arrived, she provided care for a number of the residents who were assigned to her for that day. During her work shift, an incident occurred which led to her being written up by the Supervisor of Registered Nurses (Supervisor) for alleged maltreatment of a resident.

On April 13, 2000, appellant was called to a meeting before her Supervisor and the Director relating to the incident which had occurred on April 12. Before she went to the meeting, appellant called the California State Employees Association (CSEA) and arranged for representation. Two representatives appeared with her.

The following persons were present throughout the meeting: the Director, the Supervisor, the CSEA representatives and the appellant. Towards the end of the meeting, the Administrator for the Home appeared briefly.

According to all present except appellant, the Director went over the charges against appellant. There were four or five counts. The Director also had letters from other staff, which were critical of appellant. He advised appellant that he had done a preliminary investigation and he would be taking adverse (punitive) action against her. He also advised her he was mandatorily required to report the alleged mistreatment of a resident to the DHS. (The Director is mandated by the California Code of Regulations, Title 22 to report instances of alleged abuse.)

Also, according to all present except appellant, the representatives and appellant left the meeting and conferred privately at least twice. The representatives advised her of the consequences of the charges and the effect upon her CNA license, if the charges were upheld. One of the few options available to appellant was to resign before being served with the adverse action. If that occurred she would not be able to work for the State, but she would avoid losing her license. The other option was to challenge the adverse action by appeal and to challenge the revocation of her license by DHS.

The representatives advised appellant to resign rather than risk losing her license. One of them testified, “she [appellant] admitted fault at the meeting;” and the other testified, “I was convinced she’d get her license revoked at the time.”

According to the representatives, during the second private consultation with appellant, appellant told them she wanted to resign to avoid loosing her license. She asked the CSEA representative to draft the resignation for her. The representative drafted the following resignation for appellant, which was signed at two places by appellant, as indicated:

After appellant made her decision to resign, she and her representatives again met with the Director and Supervisor to offer her resignation. The Director called the Administrator to the meeting to find out who had the authority to accept the resignation. The Administrator questioned the representatives asking them if they had talked to their client about her options. The representatives assured him they had. He then advised the Director to take the written resignation and submit it to the Personnel Office for processing.

Appellant’s version of what went on at the meeting differed substantially from her former representatives and the Director and Supervisor. She claimed she was not responsible for the alleged maltreatment of the resident and she told the Director what happened. He told her that he didn’t want to hear why she was late to work on April 12 and he said he was going to take her to the State Board.

She claimed her representatives left her alone in the conference room and talked outside. Then they came back and told her she did not have a choice.

She claimed that when the Director told her she was accused of patient endangerment, she did not understand. He told her if she didn’t sign a resignation, he would take her license away. He did not tell her the department was going to take a disciplinary action.

She also claimed that both the Director and the Administrator threatened to take away her license and that the union representatives consulted with the Director and Administrator regarding her without her present. (They insisted they did not leave her alone.)

Appellant’s testimony was self serving and lacked credibility when weighed against that of all other witnesses testimony and against the circumstances existing at the time of her resignation, as set forth above.

 

* * * * *

Government Code section 19996.1 provides that no resignation shall be set aside unless it was given or obtained pursuant to or by reason of mistake, fraud, duress, undue influence or for any other reason was not the free, voluntary and binding act of the person resigning.

The evidence does not warrant the finding necessary to set aside appellant’s resignation.

Appellant made no mistake as to the nature of what she was signing; she understood the nature of her act and she knew the significance of her resignation, which was that she would be separated from her job as a CNA with DHS.

Likewise, there was no fraud. No party intentionally (or, for that matter, unintentionally) deceived appellant to induce her to act. No false representations were made to appellant to obtain her resignation.

Neither was there duress. “Duress envisions some unlawful action by a party by which one’s consent is obtained through fear.” Keithley v. Civil Service Board (1970) 11Cal.App.3d 443, 450; citations omitted.

No duress was employed by the Administrator, Director or Supervisor to obtain appellant’s resignation. The Supervisor had an obligation to report incidents of alleged patient abuse on her shift and she did. The Director had responsibility for investigating reports and, exercising his discretion to take adverse action. He also had a mandatory obligation at law to report allegations of maltreatment of a resident to DHS. He did both. The Administrator’s responsibility was to advise the Director as to how to accept a resignation. He did so by conferring with the appellant representatives and determining she had been advised of her choices before making arrangements for processing the written resignation. Therefore, none of these individuals engaged in “unlawful action.”

Finally, there was no undue influence, which is “. . . persuasion which tends to be coercive in nature, persuasion which overcomes the will without convincing the judgment.” Odorizzi v. Bloomfield School District (1966) 246 Cal.App.2d 123, 130. No one tried to obtain appellant’s resignation—appellant volunteered it to respondent after hearing the charges against her and consulting with her union representatives. As reflected in the written resignation, she resigned with advice from her union representatives and with understanding of her situation. She did not want to run the risk of losing her license.

It is concluded that appellant’s resignation was free of any unlawful coercion and appellant was aware of what she was doing. Appellant accepted the advice of her representatives that it would be a better choice to resign than to face the risk of an adverse action and revocation of her license. Appellant now has “buyer’s remorse.” Appellant did not mistakenly resign; she has simply changed her mind as to the expediency of resigning. Although appellant was upset over the circumstances of her resignation, the decision to resign was, nevertheless, free, voluntary and binding pursuant to Government Code section 19996.1. See also Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1248; 1251.

For the reasons set forth above, it is concluded appellant’s resignation should stand and the appeal should be denied.

 

* * * * *

that the petition to set aside her resignation effective April 13, 2000, is denied.

 

* * * * *

1. A brief is defined in Blacks Law Dictionary as “A written statement prepared by the counsel arguing a case... It contains a summary of the facts of the case, the pertinent laws, and an argument of how the law applies to the facts supporting counsel’s position.” Blacks Law Dictionary (Abridged Sixth Ed.) West Publishing Co., St. Paul, Mn (1991).