DPA Case Number 06-T-0066 - Petition to Set Aside Resignation

Final Non-Precedential Decision Adopted: September 15, 2006

By: David A. Gilb, Director

A hearing was held in this matter at 9:00 a.m. on September 7, 2006 at Sacramento, California.

Appellant, was present and was represented by Steven B. Bassoff, Attorney. Tammy Goddard, Correctional Lieutenant, Employee Relations Officer (ERO), California Medical Facility (CMF), represented the California Department of Corrections and Rehabilitation (CDCR), respondent.

Appellant resigned his position as a Correctional Officer at CMF effective June 8, 2006.1 He filed a Petition (appeal) to Set Aside his Resignation with the Department of Personnel Administration (DPA) on July 7, 2006. His appeal complies with the procedural requirements of Government Code section 19996.1.

Appellant testified and admitted one exhibit into evidence. Respondent produced two witnesses and admitted five exhibits into evidence. Appellant’s resignation letter was entered into evidence as a joint exhibit.

Appellant sought to set aside his resignation on the basis of duress and mistake. He argued he resigned because respondent was going to terminate him and he believed resigning from his position instead of being terminated would protect his retirement benefits. He also argued he resigned without benefit of counsel and under the pressure of being wrongfully terminated. Appellant argued respondent’s termination represented bad faith and granting of appeal would permit him to pursue further litigation for reinstatement.

Respondent contended appellant willfully and voluntarily resigned; he had access to counsel; and he was terminated because he did not comply with the terms of a settlement agreement.

The only issues to be resolved are: (1) Did appellant resign under duress? (2) Did appellant resign by mistake? (3) Was appellant’s resignation freely and voluntarily given?

A preponderance of the evidence proves the following facts:

1. Appellant entered State service on November 2, 1984 as a Correctional Officer (CO) with what was then the California Department of Corrections.2 At some point, appellant was promoted to Correctional Sergeant.

2. Appellant received an adverse action. The adverse action was resolved by a stipulated settlement in or about July 2005.

3. As part of the stipulated settlement, appellant was demoted from Correctional Sergeant to CO for one year. Appellant was required to undergo an assessment by a licensed Drug/Alcohol Rehabilitation Counselor and he was required to complete all recommendations from the assessment. Appellant was also required to enroll in a certified treatment program for 12 months. Appellant agreed to provide written verification to the hiring authority of his enrollment and progress on a monthly basis for 12 months. The parties agreed that if appellant failed to comply with the terms of the settlement, he would be dismissed from State service. Appellant waived any right to appeal the termination in any forum.

4. Appellant enrolled in and completed a 3.5-month program through Healthy Partnerships. The program ran from July through November 2, 2005.

5. On or about November 2, 2005, appellant began seeing a Licensed Marriage and Family Therapist who was referred to him through respondent’s Employee Assistance Program (EAP). Appellant saw this provider until February 2006.

6. Appellant stopped seeing the Marriage and Family Counselor because he was informed he was “ineligible” for further treatment. There was no evidence appellant received further treatment from any source after February 2006.

7. Respondent began questioning appellant’s compliance with the settlement in or about October 2005. He met with the ERO and respondent’s Legal Consultant on or about October 12, 2005 to discuss the matter. Respondent sent appellant an October 21, 2005 memorandum that outlined the perceived deficiencies in his compliance.

8. Appellant submitted information to respondent in or about October and November 2005 to prove he was complying with the settlement. He attempted to meet with the Warden in November and December 2005 to discuss the terms of the settlement, but he could not get an appointment. Appellant complained to the ERO in November 2005 that he could not get an appointment with the Warden. The ERO did not assist appellant in this regard.

9. Respondent issued appellant a memorandum on June 5. The memorandum outlined its previous contacts with appellant, appellant’s responses, and his compliance deficiencies. The memorandum informed appellant he would be dismissed effective close of business June 8.

10. After appellant received the June 5 memorandum, he called and left a message for Mark Kruger, Attorney at Law. Kruger represented appellant in the adverse action. Kruger called appellant back on June 6.

11. Kruger and the Warden participated in a conference call concerning appellant and the terms of the settlement on June 6.

12. Appellant met with the Warden, the ERO, and the Correctional Lieutenant of Investigative Services on June 6. A second Lieutenant was present at the meeting at appellant’s request. During that meeting, appellant told the Warden he did not attend treatment sessions in March, April, May, and June 2006 because he did not have insurance coverage. The Warden told appellant if he could prove he did not have insurance coverage, he would waive enforcement of the settlement agreement for those months. The Warden also requested appellant provide additional information regarding his treatment program that would address respondent’s other concerns about appellant’s compliance with the settlement.

13. Appellant provided some of the requested information to respondent on the afternoon of June 6. He provided information that showed he was notified he was “ineligible” for coverage with the EAP provider after February 2006. The information was taken directly to the Warden’s office by the Lieutenant who attended the Warden’s meeting at appellant’s request.

14. After the meeting on June 6, the Warden ordered the ERO to check with Personnel regarding the status of appellant’s health coverage in March, April, May and June 2006. On or about June 7, the ERO learned appellant had health care coverage for those months. The ERO reported this to the Warden. The Warden instructed the ERO to begin appellant’s dismissal process.

15. The Correctional Lieutenant called appellant at approximately 11:00 a.m. on June 8. He wanted to meet appellant to have him sign some papers. Appellant believed he was being terminated. After some discussion, the parties agreed to meet at CMF around 12:30 p.m.

16. Kruger spoke to the ERO at approximately 8:05 a.m. on June 8. He asked her to postpone taking action until he could become more involved. The ERO refused to postpone any action.

17. Appellant spoke to Kruger on June 8 before 12:30 p.m. Kruger told appellant he did not know what to do in this situation. There was no evidence Kruger advised appellant to resign.

18. At some point between June 5 and June 8, appellant talked to a friend who informed told him he could lose at least some of his retirement benefits if he was terminated. Appellant believed his resignation would prevent this.

19. Appellant drafted his letter of resignation before he met with respondent on June 8.

20. Appellant met with the Correctional Lieutenant, the ERO, and a personnel representative at CMF on June 8 at approximately 12:30 p.m. The meeting took approximately 15 minutes.

21. Appellant presented his resignation to respondent immediately upon entering the meeting room. No one suggested appellant resign.

22. The Correctional Lieutenant informed appellant he did not have the authority to accept the resignation on behalf of respondent and he made this note on the letter of resignation.

23. The ERO told the appellant she would present the resignation to the Warden and if he did not accept the resignation, she would contact appellant.

24. The personnel representative discussed appellant’s benefits with him and gave him a check.

25. The ERO presented the Warden with appellant’s letter of resignation. The Warden accepted the resignation.

1. Respondent’s procedural jurisdiction and appellant’s appeal rights are found in Government Code section 19996.1: “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 it aside is filed 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.”

2. The appellant bears the burden of proof and the burden of proof is the preponderance of the evidence. (Aguila v. Atlantic Richfield (2001) 25 Cal. 4th 826.)

3. Civil Code section 1567 provides that an apparent consent is not “free” when obtained through duress, menace, fraud, undue influence, or mistake.

4. 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.)

5. “Mistake” is generally defined in Blacks Law Dictionary (Abridged Sixth Edition, 1991) at page 693, as follows: “Some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence. A state of mind not in accord with reality. A mistake exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence.”

Appellant failed to meet his burden of proof. There was no evidence respondent illegally coerced appellant into resigning because of fear. There was no evidence appellant unintentionally or mistakenly submitted his resignation. Appellant voluntarily and willfully decided to resign.

There was no discussion of resignation with respondent. Appellant made the decision to resign entirely on his own after receiving information from a friend about the potential advantage of resigning rather than being terminated as provided in the settlement agreement. Appellant made a calculated decision that he believed would be to his best advantage. He now regrets that decision and wants to rescind his resignation because he believes his termination could be successfully challenged on the basis he complied with the terms of the settlement agreement.

DPA is without jurisdiction to determine whether or not appellant complied with the terms of the settlement agreement. And, the evidence does not support setting aside appellant’s resignation.

Appellant failed to prove by a preponderance of the evidence that his resignation was a submitted under duress, mistake, or was otherwise involuntarily given.

The petition to set aside his resignation from the position Correctional Officer effective June 8, 2006, is denied.

1. All dates are 2006 unless otherwise indicated.

2. The California Department of Corrections because the California Department of Corrections and Rehabilitation in July 2005.