DPA Case No.: 12-B-0006 - Petition to Set Aside Resignation
Final Decision Adopted April 4, 2012
By: Julie Chapman, Acting Director
PROPOSED DECISION
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on March 28, 2012 in Sacramento, California.
Appellant was present and represented by David Burnett, Staff Legal Counsel, California Correctional Police Officers Association (CCPOA).
Dan Stone, Regional Parole Administrator, represented the Department of Corrections and Rehabilitation (CDCR), Division of Juvenile Justice (DJJ), respondent.
I - JURISDICTION
Appellant submitted a written resignation from her position as Parole Agent II, Youth Authority (Specialist) with CDCR, DJJ on December 27, 2011. On January 10, 2012, appellant filed a petition to set aside her resignation with DPA.
Government Code section 19996.1 authorizes DPA to set aside a resignation on the grounds 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, if a petition to set aside is filed with DPA 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 appeal complies with the procedural requirements of Government Code section 19996.1 and DPA has jurisdiction over the appeal.
II - ISSUES
Appellant seeks to set aside her resignation on the basis she acted under mistake and duress when she tendered her resignation from CDCR.
Respondent argues appellant’s resignation was voluntary.
The issues to be determined are:
1. Did appellant resign by reason of mistake or duress?
2. Was appellant’s resignation free and voluntary?
III - FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence.
Appellant began working for respondent on October 3, 1988. After attending the Parole Agent Academy, she was appointed to Parole Agent I in March 1991. She was promoted to Parole Agent II on February 13, 2008. After spending 20 years in adult parole, she transferred to juvenile parole. Appellant enjoyed an unblemished career during her tenure in adult and juvenile parole.
On April 1, 2010, her last day at work, she began a Family Medical Leave Act (FMLA) leave. Appellant took the FMLA leave in order to bond with three special needs children recently placed in her home. By April 1, 2011, appellant had exhausted all of her leave credits and began an eight-month unpaid leave of absence.
Sometime in either November or December of 2011, appellant learned of the reorganization of respondent’s adult and juvenile parole divisions. The reorganization merged the Department of Juvenile Justice (DJJ) with the California Department of Corrections and Rehabilitation (CDCR). More specifically, the Division of Juvenile Parole Operations (DJPO) with the Division of Adult Parole Operations (DAPO). The merger required appellant to move from DJPO to DAPO.
The reorganization also led to a Bargaining Unit 6 contract Addendum to the existing Memorandum of Understanding between CCPOA and CDCR. The contract addendum stated in relevant part, “CDCR and CCPOA agree to review the training records of those DJJ Parole Agents that previously attended and completed a DAPO Academy, to determine if attendance to a DAPO Academy is required.”
On December 9, 2011, appellant contacted respondent. She requested an attendance waiver for the Parole Agent Academy. Her waiver request included reasons she believed she was exempt from attending the Parole Agent Academy. Specifically, appellant indicated she had nearly 20 years of experience as an Adult Parole Agent, had previously attended the Parole Agent Academy and that attendance at the 10-week course in Galt, California, would place an undue hardship on her family.
On December 16, 2011, respondent advised appellant she would have to attend the Parole Agent Academy in order to keep her position. On December 18, 2011, appellant advised respondent that she would have to resign because she was unable to attend the Parole Agent Academy. She also asked for instructions to initiate the resignation paperwork and requested the identity of the final decision maker who determined she must attend the Parole Agent Academy.
In response, respondent provided the required form to initiate a resignation, but ignored appellant’s request regarding the final decision maker. The following week, appellant spoke with respondent in an effort to determine the final decision-maker. She was told to send her inquiry regarding the final decision maker to those higher in the chain of command. Appellant sent her request to various individuals including, the Regional Parole Administrator. There is no evidence she received any response.
On December 27, 2011, appellant completed her resignation paperwork. The effective date of her resignation was January 1, 2012. On January 5, 2012, respondent separated appellant from state service effective January 1, 2012. On January 6, 2012, appellant sent an email to the Director, Division of Adult Paroles, to withdraw her resignation, extend her leave of absence and waive the requirement she attend the Parole Agent Academy. Respondent did not reinstate appellant.
IV - ANALYSIS
An employee may resign from state service by submitting a written resignation to the appointing power. A copy of such resignation shall immediately be filed by the appointing power in a manner prescribed by DPA. (Cal. Code Regs., tit. 2, § 599.825.) Appellant tendered her written resignation to respondent on December 27, 2011.
An employee is also entitled to withdraw a resignation if she does so before its effective date, before it is accepted, and before the appointing power acts in reliance on the resignation. (Armistead v. State Personnel Board (1978) 22 Cal.3d 198.) Appellant attempted to withdraw her resignation on the afternoon of January 6, 2012, but was unsuccessful. Respondent accepted appellant’s resignation and separated her from state service effective January 1, 2012.
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, unless a petition to set it aside is filed with the department [DPA] 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.”
In seeking reinstatement, appellant has the burden of proof to show by a preponderance of the evidence her resignation was by reason of mistake, duress or that it was not free and voluntary. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)
1. Appellant did not resign by reason of mistake.
Appellant’s argument her resignation was a mistake is not supported by the evidence. A mistake is “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, [she] would not have done or omitted.” (See Black’s Law Dict. (6th ed. 1990) p. 1001, col. 2.)
Appellant, as seen in her long unblemished career with respondent, is hardworking, articulate and smart. She was not suffering from a state of mind not in accord with reality, rather she made a conscious decision to resign her position with respondent in order to care for her newly adopted special needs children. Moreover, her decision to resign was not some unintentional act, but a reasoned choice which placed the care of her children over that of continued employment with respondent.
Furthermore, appellant did not suffer from some erroneous conviction which precluded her from making a reasoned decision. She asked for and received the resignation forms because she was determined to stay home with her children. She understood if she failed to report to the Parole Agent Academy, she would tarnish her excellent work record. She was resolute in her decision to resign because she knew she could not attend the Parole Agent Academy at the expense of the health of her children.
2. Appellant’s resignation was not by reason of duress.
Despite appellant’s belief she was given an ultimatum by respondent – “resign or attend the 10-week academy,” there was no evidence any member of respondent’s staff gave appellant such a demand. Duress is defined as any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner [she] otherwise would not (or would). (See Black’s Law Dict. (6th ed. 1990) p. 504, col. 1.) Respondent did not threaten or otherwise coerce appellant to resign. Appellant explored the options of attending the Parole Agent Academy or obtaining a waiver of attendance, before she tendered her resignation. There was no evidence appellant suffered from an unlawful threat or coercion.
3. Appellant’s resignation was free and voluntary.
Civil Code section 1567 provides that an apparent consent is not "free" when obtained through duress, menace, fraud, undue influence, or mistake. A “voluntary act” is an act proceeding from one’s own choice or full consent unimpelled by another’s influence. To determine whether an act is voluntary, the trier-of-fact must determine all relevant facts and circumstances which might cause the actor to depart from the exercise of free choice and respond to compulsion from others. (Kasumi Nakashima v. Acheson (1951) 98 F.Supp. 11.) Appellant did not resign as a result of mistake or duress. She made a reasoned decision to resign so she could remain at home with her children.
Lastly, appellant’s claim respondent failed to adequately consider her prior attendance at the Parole Agent Academy is not proof her resignation was not free and voluntary or a result of mistake or duress. If she believes respondent did not act in accordance with the Bargaining Unit 6 contract amendment, appellant’s remedy lies elsewhere.
V - CONCLUSIONS OF LAW
Appellant did not resign by virtue of a mistake or duress. Her resignation was a free and voluntary act.
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THEREFORE, IT IS DETERMINED, the petition to set aside her resignation, from the position of Parole Agent II, Youth Authority (Specialist), with the Department of Corrections and Rehabilitation, Division of Juvenile Justice, effective January 1, 2012, is denied.
