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DPA Case Number 03-M-0080 - Petition To Set Aside Resignation

Final Non-Precedential Decision Adopted: October 21, 2003
By: Howard Schwartz, DPA Chief Counsel


This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on September 8, 2003, at Sacramento, California.
Appellant was present and was represented by Rosa M. Reyes, Labor Relations Representative, California State Employees Association (CSEA).
Steven Kaiser, Deputy Attorney General, represented the Medical Board of California (MBC), 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 his position as Associate Programmer Analyst (Specialist) with MBC on July 18, 2003. On July 23, 2003, appellant filed a petition (appeal) to set aside his resignation with MBC. The appeal complies with the procedural requirements of Government Code section 19996.1.


Appellant seeks reinstatement on the basis that his resignation was given under duress, undue influence; and was otherwise not freely given.


Appellant filed numerous complaints with the Department of Consumer Affairs’ (DCA’s) Equal Employment Office (EEO).1 Respondent investigated appellant’s claims. Respondent found the claims were either without merit or found that appellant refused to provide specific facts to facilitate a complete investigation. There was no record that appellant pursued these complaints beyond DCA or that any of appellant’s charges were ever found to be meritorious.

Appellant felt he was constantly harassed, demeaned, and discriminated against because of race and national origin. He alleged that the harassment and discrimination resulted in a hostile work environment that became so unbearable he was forced to resign.

Appellant believed his MBC supervisor in 2000 and 2001 discriminated against him. The exact nature of this discrimination is unknown. The supervisor was not called to testify.

Appellant testified he was harassed by his co-worker. He testified he overheard his co-worker use the term “nigger” in February 2003 while talking with MBC’s Personnel Analyst. He believed she was referring to him. The Personnel Analyst testified she never heard appellant’s co-worker use the term “nigger” in any conversation she had with her in reference to appellant or anyone else. The co-worker was not called to testify.

Appellant believed employees in the Information Services Branch (IBS) were discriminating against and harassing him by sabotaging his computer program. Appellant made these allegations during his discussions with his supervisors regarding potential violations of MCB’s Internet Usage and Incompatible Work Activity Policies.

Appellant believed MBC’s Executive Director was discriminating and harassing him. He testified the Executive Director demeaned him in 2000 when he failed to acknowledge his work on a project during a meeting. Appellant also testified the Executive Director was targeting him when he overheard him talking to some of his female co-workers and the Executive Director said something to the effect, “Oh boy, you should quit,” or “Oh boy, you should get out.” Appellant believed the Executive Director directed this to him because he was the only male within hearing distance. The Executive Director was not called to testify.

Appellant testified he was also discriminated against and harassed by MBC’s Deputy Executive Director. The Deputy Executive Director became appellant’s supervisor after he returned to MBC from DGS in January 2002. Appellant alleged the Deputy Executive Director harassed and discriminated against him when she assigned him the project of developing an indexing system for Licensing Program files. He felt the work was demeaning clerical work outside his classification because it potentially involved lifting boxes and placing them on a shelf after he had reviewed files.

Appellant refused to perform the work. Appellant told the Deputy Executive Director he had a lifting restriction and a problem with his right hand. The Deputy Executive Director asked appellant to bring a doctor’s verification of his restrictions. She arranged the work so that appellant would not have to lift the boxes. Appellant still refused to do the assignment. He left the workplace and/or did not report to work for approximately six days in February 2003 after he was given the assignment. He was considered absent without leave (AWOL) for portions of these six days. Appellant never brought in a doctor’s note verifying his restrictions.

Appellant was placed on AWOL status a second time for the period of March 4 through March 6, 2003 because he failed to comply with MBC policy regarding requesting time off, reporting to work, and reporting absences.

Because of appellant’s refusal to work on the indexing system for the Licensing Program files and his failure to report to work and comply with MBC’s reporting policies, he was suspended for five days from April 23 through April 29, 2003.

Appellant testified that a former supervisor in the Licensing Branch told him in April 2003 that management was trying to remove him from his classification. The former supervisor was not called to testify. Appellant also testified a co-worker told him that he should “quit the job, no one appreciates you here.”

Appellant testified management also discriminated against him in July 2003. He and other MBC employees had been notified in June 2003 that they were being designated “surplus employees” and may be subject to future layoff. MCB rescinded the employees’ surplus designations. At least one of appellant’s co-workers was notified of this rescission by letter on or about July 9, 2003. Appellant did not receive his letter notifying him his surplus status was rescinded until July 16, 2003 after he queried the Personnel Analyst. Appellant was absent the day the rescission letters were distributed.

Appellant testified that not receiving his surplus rescission letter on the same day as one of his co-workers upset him to the point that he became ill and could not work the next day, July 17, 2003. Appellant did not see a physician or any other health care professional on this day.

Appellant testified that when he returned to work on July 18, 2003, he spoke with his co-worker between 8:00 - 8:30 a.m. He testified the co-worker told him something to the effect that, “He could go now.” Appellant testified he believed the co-worker was being used by management to tell him that he should resign. Appellant also testified he knew the co-worker was not his supervisor.

The co-worker testified he never told appellant that no one appreciated him and that he did not have any discussions with or made any statements to appellant regarding appellant’s unhappiness with his work environment.

Without consulting with anyone, appellant left work about 8:50 a.m. on July 18, 2003. He called the Personnel Analyst and told her was resigning. The Personnel Analyst told appellant to come into the office to do some paperwork. Appellant told the Personnel Analyst he was too stressed to come into the office. He did not feel he could drive. Appellant subsequently faxed the Personnel Analyst his letter of resignation. He also faxed a change of address.

Appellant testified he was under a doctor’s care at the time he resigned. He also testified he had experienced several deaths in his family since 2001 and that he was experiencing ongoing family problems.


On July 18, 2003, the Personnel Analyst told the Deputy Executive Director appellant resigned. The Deputy Executive Director instructed the Personnel Analyst to get appellant’s final check ready so he would receive it within the required 72 hour period.

Appellant testified he “changed his mind” about resigning on or about July 21, 2003. He called the Deputy Executive Director and told her he wanted his job back. The Deputy Executive Director told appellant MBC was in a hiring freeze and it would not be able to fill the position from which he resigned without a freeze exemption. She also told him it was highly unlikely MBC would get such an exemption because there were more critical positions in other divisions which needed to be filled.

Appellant saw his doctor on August 28, 2003. The doctor provided appellant with a note that said: “[Appellant] has been suffering from a high amount of stress and anxiety. He may not have been thinking rationally when he resigned his employment 7/18/03.” The doctor was not called to testify.

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Appellant seeks to set aside his resignation on the basis that he resigned under undue influence and duress and that he was otherwise medically incapable of voluntarily resigning.

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 case the evidence does not support appellant’s claim that his resignation was anything other than a free, voluntary and binding decision that appellant now regrets. Appellant failed to establish a prima facie case of discrimination showing that race or national origin was a basis or a motivating factor behind any of the comments or actions that he internalized as unlawful. (See McDonnell Douglas Corp. v. Green, (1973) 411 U.S. 792, 802.) He failed to present objective, non-hearsay evidence to corroborate his testimony that management or his co-workers entered into a multi-year campaign and conspiracy designed to create a hostile work environment which would ultimately force him to resign. The evidence does not support appellant’s contention he was forced to resign based on duress.

There was also no credible evidence that anyone counseled appellant to resign or that a reasonable person would have interpreted the statements appellant alleged he overheard as anything other than normal conversation. There was no credible evidence that any racial epithets were used. The evidence does not support appellant’s contention he was forced to resign based on undue influence.

Appellant also failed to prove that he had a medical condition that prevented him from making a voluntary, knowing, and purposeful resignation. The medical information presented was not obtained until long after the resignation was tendered and appellant decided he made a mistake by resigning. The medical information is ambiguous. No medical provider was called to testify.


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that the petition to set aside resignation effective July 18, 2003, is denied.
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1. The Medical Board of California is an affiliate organization under the auspices of the Department of Consumer Affairs.
  Updated: 5/29/2012
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