DPA Case Number 01-G-0012 - Petition To Set Aside Resignation

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on March 29, 2001, at Visalia, California.

Appellant was present and represented himself.

Lieutenant E. Chico Rivera, Employee Relations Officer (ERO), represented the Department of Corrections (CDC), respondent.

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

On December 25, 2000, appellant submitted a written resignation to the Employee Relations Office at North Kern State Prison. On January 24, 2001, the California Correctional Peace Officers Association (CCPOA) filed a petition (appeal) to set aside the resignation on behalf of appellant. The appeal complies with the procedural requirements of Government Code section 19996.1.

Appellant filed his appeal to seek reinstatement to his former position as a Correctional Officer at North Kern State Prison. He claimed that his resignation was given by reason of mistake, fraud, duress, undue influence or that for another reason it was not a free, voluntary and binding act.

Appellant testified that he injured his ankle while at work on November 4, 1999. His physician took him off work. In August 2000, a State Compensation Insurance Fund (SCIF) Investigator videotaped appellant playing soccer on at least two occasions. Thereafter, appellant made false statements in a deposition. He stated he had not been engaged in any physical activity since his work injury. Appellant subsequently acknowledged his false statements.

On October 16, 2000, appellant attended a workers’ compensation hearing. His workers’ compensation claim was denied and he returned to work. After his return he heard people talking about him; and other staff started asking him questions about his workers’ compensation claim.

Sometime in December appellant determined he did not want to go back to work and hear more of the “stuff” others were saying about him. He spoke with another officer and arranged a swap on Second Watch. Thereafter, on December 26, 2000, he called the ERO and advised her he wanted to resign.

The ERO asked why he wanted to resign. She told him he was making a big move by resigning. She advised him to write a memorandum explaining that he wanted to resign and to bring it to her. He wrote out the following resignation which he delivered to the ERO on December 26, 2000.

“12/26/00

I Officer [name omitted] [number omitted] is writing [sic] this letter to inform you that I am resigning from my job as a Correctional Officer. I had a great four years of experience as Correctional Officer. But me and my family think its time to move on to a new career. So thank you North Kern State Prison for all the time spent on me and believe me I learned a lot from being a Correctional Officer.

Thank You!

[Name Omitted]

[Signature]”

Appellant testified that when he delivered the resignation to the ERO’s office, he also turned in his badge and identification. After that he never talked to the ERO or anyone else at the facility regarding his resignation for a while.

Appellant woke up one morning in January 2001 at 2:00 a.m. and called the Sergeant in Central Control to ask him questions regarding reinstatement. He decided he was no longer under stress and he wanted to return to work. Thereafter, he filed his appeal through his union.

Appellant claimed that at the time he resigned he was under a great deal of stress caused by the videotaping of him playing soccer and his fear that he would be criminally prosecuted for workers’ compensation fraud. However, he acknowledged that no one forced him to resign. He resigned because he did not want to go back to work and hear more of the “stuff” he was hearing after he returned to work in late 2000.

 

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Appellant seeks to set aside his resignation on the grounds that he acted under stress 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 did not claim that anyone at CDC engaged in unlawful conduct that influenced his decision to resign. Appellant resigned because he did not like fellow staff members questioning him regarding his workers’ compensation claim and because he feared criminal prosecution for workers’ compensation fraud. Appellant also did not claim that his supervisors or others unduly influenced him to resign. He acknowledged that he knew he was resigning even though he was under stress because of the workers’ compensation matter.

Clearly, appellant was aware of the consequences of his resignation at the time he exercised his right to resign; and he 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.

 

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that the petition to set aside resignation effective December 26, 2000, is denied.