print logo
Main Content Anchor

DPA Case Number 00-S-0040 - Petition to Set Aside Resignation

Final Non-Precedential Decision Adopted: July 13, 2000

By: Howard Schwartz, DPA Chief Counsel


This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on June 29, 2000, at Sacramento, California.
Appellant was present and was represented by Patrick Clark, Labor Relations Representative, Association of California State Supervisors (ACSS).
Judith Ann Smith, Senior Legal Analyst, represented the Department of Transportation (Caltrans), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


On April 5, 2000, appellant submitted a written resignation from his position at Caltrans. On May 2, 2000, ACSS filed a petition (appeal) with DPA seeking to set aside appellant’s resignation. The appeal complies with the procedural requirements of Government Code section 19996.1.


Appellant claimed that his resignation, dated April 5, 2000, should be set aside because it was given or obtained by reason of duress and undue influence and that it was not freely and voluntarily given, pursuant to Government Code section 19996.1.


On March 24, 2000, respondent served appellant by mail with a Notice of Adverse Action of Dismissal. Appellant received the notice and accompanying documentation on or about March 27, 2000. The notice advised appellant that he was being dismissed effective close of business April 5, 2000. It also advised him of his right to respond to Caltrans within five working days of service and his right to appeal to the State Personnel Board (SPB) within 30 days after the effective date of the action. Appellant exercised both avenues of appeal.
Skelly Meeting. Through his representative, appellant arranged to meet with the Deputy Director of Maintenance and Operations. The Deputy Director was appointed as the Skelly Officer for Caltrans. His responsibility was to meet with appellant, listen to appellant’s response and recommend whether the adverse action should be sustained, modified or revoked. On April 3, 2000, appellant met with the Deputy Director and presented his response. On April 4, 2000, the Deputy Director submitted a Skelly recommendation memorandum to the Deputy Director of Policy and Administration. The response was in relevant part:
“... it is my recommendation that the action be sustained. However, it is also my recommendation that the Department offer a settlement agreement, reducing the penalty to a twenty-day suspension, and requiring participation in a counseling program for anger management for six months, with verification of participation to be provided monthly to the office of Personnel Operation. Violation of this agreement would be grounds for immediate termination.”
Respondent notified appellant’s representative on the afternoon of April 5, 2000, that respondent had reviewed the recommendation and was sustaining the adverse action.
Appellant’s representative called appellant at approximately 3:00 p.m. and informed him of the decision. After consulting with his representative, appellant prepared and delivered a written resignation to Caltrans, prior to close of business on April 5, 2000.
The effect of the resignation was that the dismissal was superseded by the appellant’s separation by resignation. Appellant admitted that he knew his resignation would stop the dismissal action.
Appeal of Adverse Action. On or about May 2 or 3, 2000, appellant filed an appeal from adverse action with the SPB. SPB denied the appeal on jurisdictional grounds because appellant had resigned from State service pending dismissal but had not been dismissed.


On April 10, 2000, respondent mailed appellant a letter accepting his resignation.
On or about May 2 or 3, 2000, appellant filed his appeal from dismissal with SPB. On the same date he filed his petition to set aside the resignation. Appellant seeks to set aside the resignation so that he may appeal any dismissal respondent may re-serve on him. He expects that the SPB will reduce the dismissal to a lesser penalty or revoke it, and he will, thereafter, be able to retain civil service status.
As cause to rescind the resignation, appellant claimed that he acted under duress because he did not receive the results of the Skelly meeting until two hours before the dismissal was to become final and because he expected the result to be a reduction of the penalty (to something less than dismissal).
As support for his claim that he expected the result to be a reduction of the penalty, appellant testified that he was “very reassured” at his Skelly meeting that the Deputy Director would recommend against dismissal because it was clear he didn’t think respondent had a valid basis for dismissal. He testified the Deputy Director exhibited “groans” and “rolled his eyes.” Also, the Deputy Director told him something to the effect of, “You should be grateful for this process.” The Deputy Director was not called as a witness to validate or invalidate appellant’s perceptions.
Appellant also testified that with the exception of the current Deputy Director, he had received favorable treatment by the department (respondent), which in part led to his belief that he would be treated fairly by the Skelly Officer. However, independent evidence established that appellant was issued a lengthy corrective memorandum on August 6, 1999, by the former Deputy Director of Policy and Administration. The memo referred him to the Merit Behavior Care, Inc. of the Employee Assistance Program for assistance in resolving identified job performance problems and for alleged threats, negativity, hostility and confrontation exhibited on the job to other employees. Also, appellant’s penalty of dismissal was not recommended by the Deputy Director of Policy and Administration but rather by the Personnel Analyst upon review a number of reported incidents of misconduct which were incorporated into the Notice of Adverse Action which was served upon appellant in late March 2000.
Appellant admitted no one at Caltrans suggested or encouraged him to resign in lieu of dismissal. He also admitted he knew the Deputy Director‘s authority only extended to recommending an alternate penalty or revocation and that the Deputy Director never told him he would exercise that authority to reduce the penalty to less than a dismissal.
* * * * *


Appellant seeks to set aside his resignation on the ground that he acted under duress when he resigned from State service. In effect, appellant contends that the circumstances surrounding his resignation hindered his ability to make a free, voluntary and binding decision.
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. Duress or menace supposes some unlawful action by a party that causes the other party to consent by fear. Odorizzi v. Bloomfield School District (1966) 246 Cal.App.2d 123, 128. Undue influence involves the taking of an unfair advantage of another. Id. at 132, citing Civil Code section 1575.
In this instance appellant failed to prove that anyone at Caltrans engaged in unlawful conduct that influenced his decision to resign rather than face dismissal. Appellant also failed to prove that his supervisor or others unduly influenced him to resign.
Appellant clearly was aware of the consequence of his resignation at the time he exercised his right to resign and chose a course of action which he now regrets. Accordingly, it is concluded that his resignation was free, voluntary and binding and should not be rescinded.
* * * * *


that the petition to set aside resignation effective April 5, 2000, is denied.
  Updated: 5/22/2012
One Column Page
Link Back to Top