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DPA Case Number 05-B-0123 - Petition to Set Aside Resignation

Final Non-Precedential Decision Adopted: March 13, 2006
By: Michael T. Navarro, Director


This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on February 28, 2006, at Avenal, California.
Appellant was present and was represented by Andrea Laiacona, Attorney, Weinberg, Roger, and Rosenfeld.
Lori A. Green, Legal Counsel, DPA represented the Prison Industry Authority (PIA), 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 Industrial Supervisor, (Wood Products) Prison Industries with PIA on November 29, 2005. On December 8, 2005,1 appellant filed a petition (appeal) with DPA to set aside his resignation. The appeal complies with the procedural requirements of Government Code section 19996.1.


Appellant seeks reinstatement on the basis of duress. He contends respondent’s failure to permanently remove an inmate from the furniture factory after the inmate allegedly threatened him caused him to believe he had no choice but to resign to protect his safety.
Appellant also argued respondent must allow him to rescind his resignation because respondent never accepted the resignation before the recession. Appellant further argued that he should be reinstated because by not allowing him to rescind his resignation, respondent was disciplining and terminating appellant without the due process protections afforded in the relevant collective bargaining agreement and/or by the State Personnel Board (SPB).2


Appellant has a history of absenteeism dating back to at least 2002. His absenteeism was a result of numerous physical and mental problems including the affects of an automobile accident, diabetes, vertigo, alcoholism and depression. The PIA Administrator (Administrator) at ASP received reports that appellant had discussed suicide with inmates and that the inmates were afraid of the appellant. The Administrator had personally heard appellant talk about suicide on at least three different occasions.
Although respondent considered sending appellant for a fitness for duty, automatically resigning him pursuant to Government Code section 19996.2 or disciplining appellant because of his excessive absenteeism, it did not take any of these actions. Instead, appellant was counseled, placed on attendance restriction, and some of his job duties were reassigned. His performance report reflected his intermittent attendance and the affect it had on his job performance. Appellant was referred to the Employee Assistance Program (EAP).
On October 25, appellant confiscated a box of pornographic material he found in the tool room of the furniture factory. On October 26, an inmate approached appellant and another industrial supervisor and demanded the box be returned. Appellant told the inmate the material in the box was illegal and it was not going to be returned. The inmate then stated, “If I don’t get my box back, you will have a problem.” Appellant told the inmate he didn’t have a problem, the box was gone and the inmate was not getting the box back. The inmate then leaned toward appellant in a threatening manner and stated, “Yes, you do have a problem.” At that point, the inmate was escorted out of the furniture factory by a correctional officer.3
Appellant was upset and angry. He testified he did not hit his personal alarm or blow his whistle during the incident because two correctional officers were in the immediate area and he did not think the inmate’s comments represented an immediate threat. He believed the inmate would act on his comment in the future if the box was not returned.
Appellant spoke with his immediate supervisor. Appellant and the other industrial supervisor each decided to file a “CDC 115.” The CDC 115 is one of at least two forms used to report incidents involving inmate misconduct. It is usual and customary to use the CDC 115 to report violent inmate behavior.
The Facility II Correctional Lieutenant (Lt.) reviewed the CDC 115’s on October 26. He told the industrial supervisor the CDC 115’s as originally submitted were insufficient to support an action against the inmate based on a threat against staff. The Lt. also told the industrial supervisor the CDC 115’s could be rewritten to provide additional information. The Lt. also talked with the inmate on October 26.
The Lt. went on vacation. When he returned, he learned no further information had been received and the inmate had not been returned to work. The Lt. then interviewed two correctional officers in the furniture factory and the industrial supervisor who observed the incident and who submitted a CDC 115. Based on the Lt.’s previous inquiry and a November 28 recommendation from one of the correctional officers in the furniture factory, the Lt. decided to return the inmate to work in an area in the furniture factory where he would be supervised by someone other than appellant. The inmate received no corrective counseling or other disciplinary action based on the information submitted by the appellant and the industrial supervisor. The inmate was returned to work in an alternate area of the furniture factory on November 30.
Appellant was not interviewed or otherwise contacted regarding the incident. He was not at work. Appellant worked intermittently during November and had not been at work since November 15. When appellant was at work, he heard rumors “through the inmate grapevine” that the inmate he thought threatened him was going to be returned to work. This upset appellant. He was afraid of the inmate.
Appellant called his supervisor on November 28. He told him he needed to talk to him because he had numerous problems involving alcohol, depression, “trouble at work and other places.” Appellant also referenced “that thing” with the inmate. The supervisor advised appellant to contact his health care professional and to contact the EAP. Appellant told his supervisor he would be at work the next day.
On November 29 at approximately 5:30 a.m., appellant contacted one of his co-workers. He asked the co-worker to stop by his house to pick up a letter of resignation to give to his supervisor. The resignation letter read as follows:
“To: Whom it may concern
I have to quit effective today 11-29-05. My personal safety and well being come first. I have no choice.
Thank you.
[Name Omitted].”
When the co-worker picked up the letter from the appellant on November 29, the appellant told his co-worker that “CDC [California Department of Corrections]4 is after him.” Appellant also state that “they” planted a dead dog in his water meter; and, correctional officers were ringing his doorbell and leaving. He also said CDC was listening in on his conversations at work through his factory alarm.”5
Appellant testified he decided to resign on November 29 because he believed the inmate was returning to work on that day.


Appellant’s co-worker presented the resignation letter to appellant’s supervisor on the morning of November 29. The supervisor began the process of checking appellant out of the institution.
Appellant decided he wanted to rescind his resignation on November 30. He attempted to call the ASP PIA Administrator. The Administrator was on vacation.
Appellant spoke with the Administrator on December 1. According to appellant, the Administrator told him he could not rescind his resignation because it was “a done deal” and he would be getting paperwork from personnel. The Administrator testified he wished appellant well and advised him to take care of himself. In response, the appellant replied, “Don’t count on it.” The Administrator viewed this as a veiled suicide threat.
Appellant wrote to the Administrator on December 5 advising him again that he wanted to rescind his resignation. Appellant stated he had made a “mistake and did not handle the situation well.”
Respondent refused to allow appellant to rescind his resignation. Appellant filed his petition with DPA to set aside his resignation on December 8.
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Appellant seeks to set aside his resignation on the basis that the resignation was given under duress and was otherwise unlawful.
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.
In seeking reinstatement, an appellant has the burden of proof and the burden of going forward in the appeal hearing.
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.
In this instance appellant failed to prove that anyone at PIA or CDC engaged in unlawful conduct that influenced his decision to resign. Respondent did nothing illegal in returning the inmate to work in an alternate area after conducting an inquiry which led it to conclude there was no enhanced potential for violence to the appellant. While appellant may have disagreed with respondent’s decision and may have feared the inmate, appellant’s fear was fueled by inmate gossip and by the appellant himself without discussion with any of his supervisors or managers. Although he indicated he was going to come in to talk with his supervisor, he decided to resign instead.
The evidence shows that on the day appellant resigned, he had an unreasonable belief that CDC was engaging in surreal, irrational conduct. The fear that appellant alluded to in his resignation letter was a result of not only his fear of the inmate but of the CDC itself. While appellant’s decision to resign was based at least in part on irrational underpinnings, he was aware of the consequence of his resignation at the time he exercised his right to resign and did so knowingly and voluntarily. He simply chose a course of action he now regrets.
Appellant’s argument that his resignation must be rescinded because it was not accepted is also without merit. In Armistead v. State Personnel Board, (1978), 22 Cal.3d 198, the court held that an employee is entitled to withdraw a resignation if he or she does so before its effective date, before it has been accepted, and before the appointing power acts in reliance on the resignation. In American Federal of Teachers v. Board of Education, (1980), 107 Cal.App.3d 829, the court held that:
“The language of the holding in Armistead unequivocally establishes that the test is to be read so as to make withdrawal [of the resignation] ineffectual if any one of the three events has occurred.” (Id. at pg. 840.)
Based on the evidence presented at hearing it is clear at least one of the three Armistead events occurred prior to any of the appellant’s actions to withdraw his resignation. The resignation was effective on November 29 but appellant did not attempt to rescind the resignation until at least November 30 when he attempted to call the Administrator but could not reach him. Therefore, respondent had no legal obligation to allow appellant to rescind his resignation because appellant did not, attempt to withdraw the action until after it was effective.
Respondent also had no legal obligation to allow appellant to rescind his resignation simply because by accepting the resignation it was relieved of its responsibility to pursue other forms of discipline that required other due process protections in other forums.
Appellant’s resignation was not given under duress. It was free, voluntary and binding and should not be rescinded. Respondent was under no legal obligation to allow appellant to rescind his resignation and respondent did not violate any of appellant’s due process rights by not allowing appellant to rescind his resignation.
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that the petition to set aside his resignation from the position Industrial Supervisor (Wood Products), Prison Industries effective November 29, 2005, is denied.
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1. All dates are 2005 unless otherwise indicated.
2. Appellant is a member of State Bargaining Unit (BU) 12, Craft and Maintenance. The International Union of Operating Engineers (IUOE) represents BU 12. The collective bargaining agreement (CBA) between IUOE and the State for BU 12 in effect for the relevant period sets forth the process that BU 12 members are to use to appeal automatic resignations and disciplines in Article 15. Based on the California Supreme Court’s decision in State Personnel Board v. Department of Personnel Administration (2005) 37 Cal 4th 512, the appeal of disciplinary actions must be exclusively to the SPB. However, the appeal of an automatic resignation, a non-merit issue, remains subject to the process of the CBA’s Article 15.
3. The California Department of Corrections and Rehabilitation (CDCR) is responsible for safety and security in all areas of the prisons including PIA work areas. CDCR Correctional Officers (custody staff) are routinely assigned to and remain in the furniture factory. Work issues and safety concerns regarding inmates are reported to custody staff. Custody staff are ultimately responsible for processing and resolving issues involving inmate conduct.
4. CDC has been renamed the California Department of Corrections and Rehabilitation (CDCR).
5. Appellant objected to the introduction of these statements at hearing as hearsay (Government Code section 11513 (d). However, the statements are not accepted to prove the truth of the matters asserted, but rather that appellant made the statements and they reflect appellant’s state of mind at the time they were made. Such evidence is an exception to the hearsay rule. (Evidence Code section 1250.)
  Updated: 5/1/2012
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