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DPA Case Number 05-H-0038 - Petition To Set Aside Resignation

Final Non-Precedential Decision Adopted: December 2, 2005
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 October 13, 2005, at Riverside, California. The record remained open until November 28, 2005, to allow the parties to file written briefs.
Appellant was present and was represented by Paul D. Huggins, Labor Relations Representative, Association of California State Supervisors (ACSS).
Monrow A. Mabon, Staff Counsel, represented the California Department of Corrections and Rehabilitation (CDCR), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


Government Code section 19996.1 requires an appellant to file the petition to set aside a resignation with “the department 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.” Government Code section 19815 defines “department” as the DPA. In this case appellant submitted a written resignation from his position as Chief Medical Officer Correctional Facility (CMO), to CDCR on February 7, 2005 and the resignation was effective the same day. Appellant’s petition to set aside the resignation was filed with DPA on March 7, 2005, 28 days after the resignation was tendered and effective. Appellant’s appeal to set aside his resignation is timely and properly before DPA for decision.

Respondent initially argued appellant’s petition was untimely filed with DPA. It contended appellant was required to request reinstatement from CDCR and receive a rejection from respondent prior to filing a petition for reinstatement with DPA. On November 28, 2005, respondent withdrew this argument regarding DPA’s jurisdiction.


Appellant argued his resignation should be set aside because it was given or obtained by reason of duress and that it was otherwise not freely and voluntarily given because respondent failed to inform him he was named in various lawsuits.


Appellant served as the CMO at CIM for approximately four and one-half (4.5) years. For at least a portion of that time he functioned as the Acting Health Care Manager. During the time he worked for CDCR, appellant also had a private medical practice. In his private practice he acted as a medical legal consultant and expert witness. He was reimbursed at the rate of $300 per hour plus travel expenses.

Appellant testified that during the 4.5 years he worked at CIM, he observed a change in both the inmates and the level of care provided for the inmates. He testified the inmates were becoming more “demanding” and that some of the medical personnel he supervised failed to provide a level of quality health care he felt was appropriate. Appellant also testified he could not get supplies and other personnel support from Sacramento he thought was necessary to provide an appropriate level of health care.

Appellant assessed the situation at CIM as becoming more dangerous. He was getting an increasing number of complaints regarding health care. An increasing number of lawsuits regarding health care were being filed. During his tenure at CIM, appellant was named in approximately 14 court actions. Appellant did not want to be involved in such lawsuits and he was not sure of the support he would receive from CDCR.

Appellant was also apprehensive about the Federal Government becoming more involved in the prison’s health care management and the appointment of a new regional health care manager. Appellant perceived the new administrator as being unknowledgeable about and inexperienced in the health care field.

During his tenure at CIM, appellant did not receive any disciplinary action; he received no threats; and he had no significant disputes with the new regional administrator or any other supervisor.


Following his resignation on February 7, 2005, appellant was contacted by various attorneys regarding “at least six” legal cases. In at least some of these cases, he was named as a party. Because appellant was named as a party in some of the cases, he believed he would not be compensated for the time he would have to devote preparing for and participating in the actions. He reasoned that by continuing his employment, he would be reimbursed because his salary would compensate him for the required time. As of the date of the hearing, appellant had not appeared in court regarding any of these cases and he had not hired an attorney to represent him.

On March 3, 2005, appellant wrote to CDCR’s Health Care Services Division and rescinded his resignation. He explained that he believed CDCR had a duty to notify him of the pending lawsuits and indicated that if he would have known about the cases, he would not have resigned. It is unclear if and when CDCR responded to appellant’s request for reinstatement.

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Government Code section 19996.1 provides:

“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,. . . .”

Appellant seeks to set aside his resignation on the basis that he resigned under duress and was not notified by his employer that he was involved in various lawsuits that resulted from his employment.

Duress consists of unlawful confinement of another’s person, or relatives, or property which causes him to consent to a transaction through fear. (Odorizzi v. Bloomfield School District (1966) 246 Cal.App.2d 123, 128.) There was no evidence of unlawful activity by respondent or evidence of fear on the part of appellant.

Civil Code section 1567 provides that an apparent consent is not "free" when obtained through duress, menace, fraud, undue influence, or mistake. Appellant’s argument that CDCR violated a duty to inform him of pending lawsuits prior to his resignation does not support a finding of duress, menace, fraud, undue influence, or mistake. There was no evidence appellant was threatened with injury. There was no evidence to support appellant’s argument that CDCR had a duty to inform him of pending litigation. There was no evidence that CDCR was even aware of such pending litigation prior to appellant’s resignation. There was no evidence appellant did not intend to resign, did not understand the nature of the resignation, or that he did not comprehend the significance of the resignation. There was no evidence appellant discussed his resignation with anyone.

Appellant was simply unhappy with the existing work environment and the appointment of the new regional administrator and potential intervention of the federal government. Appellant changed his mind about his resignation based on his analysis that keeping his job with CDCR would be economically beneficial given his potential involvement in cases that arose from his employment.

Appellant’s resignation was free of any unlawful coercion and appellant was aware of what he was doing. It was free, voluntary, and binding pursuant to the requirements of Government Code section 19996.1.

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that the petition to set aside resignation effective February 7, 2005, is denied.
  Updated: 5/22/2012
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