The District Maintenance Chief in the Santa Cruz District Office hired appellant as the District’s first Associate Civil Engineer in August 2000. Appellant reported to the District Maintenance Chief from August 2000 until approximately late August 2002. The Staff Parks and Recreation Specialist was appellant’s supervisor from late August 2002 until his resignation. The Santa Cruz District Manager was appellant’s second-level supervisor. The Senior Resource Ecologist was appellant’s co-worker. He monitored and provided recommendations on the environmental aspects of the District’s projects.
Appellant alleged that the District Maintenance Chief, Staff Parks and Recreation Specialist, Senior Resource Ecologist, and Santa Cruz District Manager were part of the Santa Cruz District’s “good old boy’s club” and that they supported each other and created an environment which was hostile to her and her position. She felt ostracized. She alleged that this hostile environment existed because of her gender, because she did not reciprocate the District Maintenance Chief’s alleged sexual advances, and because she filed an informal complaint against the District Maintenance Chief, the Santa Cruz District Manager, and the Senior Resource Ecologist. She testified this environment was so hostile that she became ineffective in her job.
Appellant also testified that when she learned DPR was reorganizing because of budget reductions, she believed her Santa Cruz District Office position was going to be eliminated. She believed the Santa Cruz District Manager would not “fight for her” to remain in Santa Cruz and she therefore would be forced to move from the Santa Cruz area. She did not want to leave the Santa Cruz area and she did not want to forfeit the State housing she lived in while working for DPR.
HARASSMENT, DISCRIMINATION, AND RETALIATION
Appellant testified that from the very beginning of her employment, the District Maintenance Chief sexually harassed her. She testified that he touched her inappropriately. She also alleged he remarked something to the effect, “So, you’re going to play the female card” and he told her she was “taking all the fun out of his job.”
Appellant testified the District Maintenance Chief retaliated against her when she would not “go along” with his sexually harassing conduct by changing her job duties, and not assigning her to project construction work.
When appellant was hired, the District Maintenance Chief gave her a job description that outlined her duties as 40% construction management; 40% technical support; 10% administration; 5% plan check; and 5% base maps/files. Appellant testified that the construction management aspect of the job was especially appealing to her and that it was a consideration upon which she decided to take the job in the Santa Cruz District.
In January 2001, the District Maintenance Chief hired a retired annuitant to supervise some of the construction work. The retired annuitant worked on six to eight projects and was employed by the district for six to eight months. Appellant believed the work assigned to the retired annuitant should have been assigned to her. Appellant also alleged there were numerous other projects that required her expertise that the District Maintenance Chief did not assign to her either because of retaliation or gender bias.
The District Maintenance Chief denied any inappropriate conduct. He testified that at approximately the same time appellant was hired, the Santa Cruz District received additional funding and approval for 45 district construction projects and an additional 38 to 45 headquarters projects. The construction manager was hired to assist with the additional workload. He testified he purposely assigned appellant to the “higher dollar” projects and that appellant’s construction management assignments were based on workload issues.
Appellant testified the District Maintenance Chief told her the construction management assignments were based on workload. She also testified that at approximately the same time she was hired, DPR began separating the design and construction management functions of its engineering staff in at least some of its operations. She further testified she worked long hours and that she performed constructive management duties on at least one project.
Appellant alleged the Santa Cruz District Manager also harassed and discriminated against her because he did not want an engineer assigned to the district and because she was a woman. She testified that the District Maintenance Chief told her on many occasions that the Santa Cruz District Manager did not want a district engineer. She also testified the Santa Cruz District Manager told her the Santa Cruz District was a “good ole boys club.”
Appellant alleged that the Santa Cruz District Manager accepted the Senior Resource Ecologist’s project development recommendations instead of hers because he did not want her in the district and because he was influenced by the Senior Resource Ecologist who was also gender biased. She also believed she was not included in the district’s core staff meetings in which projects and funding were discussed because of gender bias.
Appellant cited an instance where the Santa Cruz District Manager told a story involving the District Maintenance Chief and appellant at an after work social gathering. Appellant felt the story was inappropriate. When appellant approached the Santa Cruz District Manager about this, she testified he “blew up.” Appellant believed the Santa Cruz District Manager condoned and encouraged the District Maintenance Chief’s conduct because he did not intervene in the assignments he gave her.
The Santa Cruz District Manager denied any harassment or gender bias. He testified he allowed the District Maintenance Chief to make hiring decisions and to direct the daily assignment of maintenance work and projects because of his 30 years of maintenance experience and knowledge. On some occasions, the District Maintenance Chief asked appellant to review some projects that the District Maintenance Chief had not assigned to her. He also testified he went directly to her with some engineering questions because she worked near his office.
The Santa Cruz District Manager also testified that the district did not have the funding to get an engineer involved in every project that could potentially benefit from engineering input. He further testified he perceived appellant as wanting to be involved in all district projects which had any engineering aspect.
The Santa Cruz District Manager believed appellant did good work and on one project in particular, he testified she did a “great job.” He testified she worked long hours and had a good grasp of her job.
Appellant also alleged the Senior Resource Ecologist discriminated, harassed and retaliated against her. She testified he didn’t want a woman engineer in the district and that he told her this on many occasions. She testified he disregarded her recommendations on the Lombardi Creek project and he refused to approve her plans on the Gray Whale Parking Lot Project. Appellant alleged the Senior Resource Ecologist influenced the Santa Cruz District Manager and that he was instrumental in his failure to accept her recommendations in the Gray Whale Parking Lot Project. Appellant also alleged the Senior Resource Ecologist convinced the Santa Cruz District Manager she should not be involved in certain projects even though the project required engineering skill and expertise and the employees assigned to the project were not engineers. Appellant testified that eventually the Senior Resource Ecologist stopped speaking to her because of gender bias, retaliation for her naming him in a sexual harassment complaint, and because his duties were changed at approximately the same time the Staff Parks and Recreation Specialist was assigned as appellant’s supervisor.
The Senior Resource Ecologist was not called to testify. The Santa Cruz District Manager testified he did not accept appellant’s recommendations on the Gray Whale project because the problem being addressed was an environmental one and he was looking for an interim solution rather than the permanent fix proposed by appellant.
It was undisputed that the Senior Resource Ecologist and appellant did not get along. The Staff Parks and Recreation Specialist testified he witnessed an incident where appellant and the Senior Resource Ecologist were yelling at each other. He believed they had professional differences.
THE INFORMAL COMPLAINT
In May 2002, appellant contacted the District’s Chief of Administration. She filed an oral “informal sexual harassment complaint” against the District Maintenance Chief, the Santa Cruz District Manager, and the Senior Resource Ecologist. The specific instances or facts that formed the basis of the complaint are unknown. The Chief of Administration was not called to testify.
On May 28, 2002, appellant met with the counselor who had been assigned to investigate her complaint. Appellant did not tell the counselor about her problems with the District Maintenance Chief. She testified she did not discuss this because she learned the counselor was the District Maintenance Chief’s “friend.” There was no evidence regarding what specific complaints or allegations were discussed during this meeting. The counselor was not called to testify.
The counselor met with the District Maintenance Chief and the Santa Cruz District Manager to discuss appellant’s complaints. There was no evidence whether or not he met with the Senior Resource Ecologist.
After the meeting with the counselor, there was a meeting attended by the Santa Cruz District Manager, the Chief of Administration, the District Maintenance Chief and appellant. There was discussion regarding the hiring of the construction project manager, appellant’s lack of involvement in the district core meetings, and appellant’s frustration with the District Maintenance Chief and her belief that he was not supporting her. Appellant’s relationship with the Senior Resource Ecologist and the adverse affect it was having on the projects was also discussed. The Gray Whale Project was discussed. Appellant also asked for a private office.
At some point, the Santa Cruz District Manager also met with the Senior Resource Ecologist and the District Maintenance Chief. The Santa Cruz District Manager testified that as a result of these meetings the District Maintenance Chief was trying to improve his relationship with appellant.
As a result of appellant’s complaints and subsequent discussion, the Santa Cruz District Manager had a private office constructed for appellant and he involved her in the core staff meetings. In August 2002, the Santa Cruz District Manager changed appellant’s supervisor from the District Maintenance Chief to the Staff Parks and Recreation Specialist. The Santa Cruz District Manager believed he had taken all necessary steps to correct appellant’s complaints. There was no evidence that appellant complained to anyone about harassment, discrimination, or retaliation after these steps were taken.
On July 3, 2002, respondent advised appellant that her informal complaint was being dismissed. She was also advised that she had 365 days to file a formal complaint with the Department of Fair Employment and Housing. Appellant did not file a formal complaint.
In late 2002, there were rumors in the District regarding the State’s budget crisis and the potential affect it would have on District personnel. On January 13, 2003, appellant received a copy of an untitled document from an Engineer in Sacramento that showed that Associate Civil Engineer Positions in some districts were being eliminated. It did not indicate that appellant’s position was being eliminated.
Appellant became concerned that her position would be eliminated. She believed the Santa Cruz District Manager “would not fight for her” if her position was targeted for elimination. She contacted other district engineers to discuss potential budget reductions and elimination of district engineering positions.
Appellant discussed potential elimination of her position with the District Maintenance Chief. She asked him if he was part of the budget reduction planning process and if he knew what was going on. He told her that he was not part of the process. He also told her that he had been through a budget reduction in 1992 and that the specialist, “one of a kind” positions, in the districts were usually identified as those that would be cut. The District Maintenance Chief called the Chief of DPR’s Northern Service Center Operations and in charge of DPR’s budget, to check on plans regarding elimination of engineering positions in the districts. The Chief told the District Maintenance Chief he had checked with DPR’s Chief of Central Field Operations, and there were plenty of jobs for anyone whose jobs might be eliminated in the districts. The District Maintenance Chief gave this information to appellant. Appellant knew there was a possibility she could be reassigned to the Northern District Center in Sacramento, the Southern Service Center in San Diego or to the Central Service Center in Monterey. Appellant told the District Maintenance Chief she was going to try to secure bond funding to keep her position in the Santa Cruz District.
Appellant talked to the Santa Cruz District Manager about the potential elimination of her Santa Cruz District position. The Santa Cruz District Manager did not keep District employees informed of tentative layoff plans because he believed it was not good for morale to continually provide changing information. He testified appellant’s position, as well as the engineering positions throughout the districts were being considered for potential elimination. Appellant asked the Santa Cruz District Manager if her position would be saved and if she could keep her state housing if she had to move. She asked his advice on what she should do. He told her it would “be a good idea to explore all her options.”
The Staff Parks and Recreation Specialist also discussed the reorganization with appellant three or four times after work. They discussed the potential targeting of technical specialists, administrative staff and middle management in the districts. They also discussed the possibility that appellant could be reassigned to a position in the Central Service Center in Monterey. Appellant felt this service center was unstable and she wanted to stay in Santa Cruz.
Appellant talked to a Supervising Engineer in the Sacramento Northern Service Center about the reorganization. She testified the Supervising Engineer suggested that she report to him but remain in the Santa Cruz District to work on district projects. At some point, appellant testified the Supervising Engineer also told appellant that she could be moved to Sacramento if her position was eliminated in the District.
On February 27, 2003, appellant talked to the Chief of DPR’s Northern Service Center Operations. Appellant testified he told her she was the only district engineer slated to have her job eliminated. Appellant told him it was difficult working with non-Engineers who did not understand projects and that she wanted to report to a registered engineer. Appellant told him she was under a lot of pressure because she wanted to remain in the Santa Cruz area. She told him she didn’t want to go to another area because she would lose some of her benefits. She did not tell him about her sexual harassment complaint. Appellant asked him if she could remain headquartered in Santa Cruz, report to the Supervising Engineer, and work on projects that were assigned from DPR’s Central Services Center. The Chief told her he would talk to the manager of the Central Services Center. The Chief subsequently called appellant and told her the Central Service Center manager did not like the idea of having a “sourced-out” employee.
Appellant didn’t believe the Chief. She alleged she did not get this position because the District Maintenance Chief told the Supervising Engineer not to hire her because she “cared too much,” “was highly qualified,” and had a good work ethic. Neither the Supervising Engineer nor the Chief were called to testify.
Appellant learned there was an open position in the Central Service Center. Although it was originally advertised as an Associate Civil Engineer, it was changed to a Construction Manager position. She applied for the position. She did not get the job.
In January 2003 appellant began looking for a job that would ensure she would remain in the Santa Cruz area. She applied for a position at the University of California, Santa Cruz (UCSC).
She discussed the possibility of working at UCSC in after work discussions with The Staff Parks and Recreation Specialist. He told appellant he believed working at UCSC was one of the best positions in the area. He explained he knew two people who worked there who were ecstatic about the promotional opportunities. He also told her his mother had worked for the UC system. There was no evidence that he recommended she apply for a position or that he in any way implied there was any reason that she should resign from DPR.
Appellant asked the Santa Cruz District Manager if UCSC could call him for a reference. He provided the requested reference to UCSC. There was no evidence that he recommended appellant apply for this position or that he in any way implied there was any reason that she should resign from DPR. USCS offered appellant a position. Appellant accepted this position.
There was no evidence that appellant discussed her job search outside of DPR with anyone else prior to her acceptance of the USCS position.
On March 11, 2003, appellant submitted a written resignation that stated in relevant part:
“I hereby tender my resignation from the State of California, Department of Parks and Recreation. My employment with the State will officially terminate on March 31, 2003 after nearly 12 years of service. In response to the departments [sic] reorganization plans I have decided to accept a position with another employer that will allow me to remain in Santa Cruz. This has been a difficult decision since I feel strongly tied to the Santa Cruz District, my projects and the parks mission. I have learned many things during my tenure with this agency that I will carry with me throughout my career. I will miss most both the personal and professional relationships made here at the Santa Cruz District and wish each and every one the best in the future.”
Respondent accepted appellant’s resignation as of March 31, 2003.
At the time of appellant’s resignation, there was no evidence that she had been officially notified that her position in the Santa Cruz District Office was being eliminated, or that she would not have a position within DPR.
CIRCUMSTANCES FOLLOWING RESIGNATION
Appellant was rejected from her position at UCSC during her probationary period. She was required to vacate the State housing she occupied during her tenure with DPR.
Appellant filed the appeal to rescind her resignation from DPR on April 28, 2003. At the time of hearing, DPR’s budget reduction staffing plans had not yet been finalized.
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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.”
Appellant seeks to set aside her resignation on the basis that it was given under duress, undue influence, and that it was not otherwise freely given.
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 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 seeking reinstatement, an appellant has the burden of proof and the burden of going forward in the appeal hearing.
In this case appellant failed to meet her burden of proof. First, much of appellant’s evidence consisted of uncorroborated hearsay and/or unspecific, general inferences and personal testimony based solely on her opinion and perception. This is an inadequate basis on which to find unlawful activity supporting appellant’s allegation of duress and undue influence.
Second, there was not reliable evidence appellant was being singled out in the planning for budget staff reductions. The evidence shows discussion of elimination of multiple District Civil Engineering positions. In addition, at the time of hearing, there was no evidence of a definitive plan to eliminate appellant’s position.
Third, appellant failed to present any evidence regarding what role, if any, the Santa Cruz District Manager would potentially have in identifying appellant’s position as one to be eliminated. There was no evidence that his input could be the determining factor in either eliminating or saving appellant’s position from elimination.
Fourth, appellant failed to prove that the alleged sexual harassment, gender discrimination, and retaliation rose to the level of an unlawful work environment. A hostile work environment requires continuous, severe and pervasive conduct ignored by management that creates an intolerable, abusive, extreme working environment (Meritor Saving Bank v. Vinson (1986) 477 U.S. 57; Faragher v. City of Boca Raton (1998) 524 U.S. 775, Cloud v. Casey (1999) 76 Cal.App. 4th 895). While there may have been some isolated inappropriate comments, some ostracism, some work that arguably could have been assigned to appellant, and friction between appellant and the Senior Resource Ecologist, there is not adequate evidence to support a finding that this conduct was unlawful.
As noted by the California court in Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App. 3d 590, the world is full of “offensive jackasses but there is no tort for being offensive.” (Id. at 602.) “Ostracism ... does not amount to a hostile environment.... (Id. at 615.)
Furthermore, there was no evidence that appellant ever considered resignation based on the work environment. Instead, appellant testified she resigned mainly to ensure she would remain in the Santa Cruz area after learning her position may be eliminated and learning she would then be required to move to a different DPR location.
In addition, the language in appellant’s March 2003 letter of resignation and her willingness to return to work in the Santa Cruz office with those who she now contends previously made her work environment so unbearable and unproductive, undercuts her post-resignation allegation of a hostile work environment at the time of her voluntary separation.
There was no evidence that anyone at DPR in any way inferred that appellant would be unable to remain a DPR employee or that she would be penalized in any way if she did nothing, waited until DPR’s reorganization plan was finalized, and, in the worst case scenario, accepted a transfer to a different location.
The evidence shows that appellant researched and discussed her options with a variety of DPR personnel over the course of several months. She made a calculated and voluntary choice to resign because she obtained a job that allowed her to remain in Santa Cruz.
Appellant failed to prove she resigned because of duress, undue influence, or that her resignation was otherwise not freely given.