Armistead v. State Personnel Board

California Court of Appeal Sep 2, 1981 No. Civ. 20602Published

Before: Puglia

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Holding. The court held that an employee's brief physical return to the workplace without resuming duties does not interrupt the five-day period of unauthorized absence required for automatic resignation under Government Code section 19503. Consequently, the trial court properly sustained the demurrer without leave to amend because the plaintiff's conduct fell squarely within the statute's provisions.

Issues

Whether a brief physical return to the job site without resuming duties tolls the five-day period for automatic resignation under Government Code section 19503.
Whether the plaintiff's petition for administrative mandamus alleged sufficient facts to withstand a general demurrer.
Whether Government Code section 19503 is unconstitutional as violative of due process and equal protection.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 19503 contemplates not merely the physical presence of the employee at his job site, but also an actual resumption of work duties and responsibilities.”

“When plaintiff voluntarily refused to discharge his employment duties for five consecutive working days, such self-abdicating action triggered the constructive resignation provision.”

[63]

Opinion

PUGLIA, P. J.

Appellant, James Armistead (plaintiff), appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of defendants California State Personnel Board et al. (Board). On appeal, plaintiff asserts (1) his petition for administrative mandamus alleged facts sufficient to withstand a general demurrer; (2) the decision upholding his automatic discharge from state service is contrary to law, as the Board incorrectly interpreted the provisions of Government Code section 19503 (hereafter all statutory citations are to Gov. Code, § 19503), and (3) section 19503 is unconstitutional as violative of due process and equal protection.

Plaintiff was an employee of the State Department of Water Resources (DRW). On June 1, 1979, while so employed he commenced a one-man strike against his employer. The reasons alleged in the petition for the strike were (1) to protest his, plaintiff’s, current job assignment, which plaintiff felt constituted harassment due to his prior legal skirmishes with the department, (2) to call attention to his alleged frustration in not having received a decision over a pending dispute concerning back pay, and (3) to protest the inadequate pay of state employees.

By letter dated June 1, 1979, DRW informed plaintiff that his absence was unauthorized, and that failure to return to work would expose him to separation from state service as being absent without leave (AWOL). DRW subsequently informed plaintiff to return to work by June 8 or he would be severed from his position as AWOL.

On June 8 plaintiff appeared at his job site. Plaintiff inquired whether there were any. important phone messages; upon being informed there were none, he discussed the reasons for his AWOL status with his supervisor. Plaintiff then composed and delivered a letter to his superiors reiterating that he was still on strike and left his office. In all, plaintiff had remained at his job site for approximately 45 minutes. His verified petition admits his appearance was “for the purpose of precluding his being terminated on the basis of being AWOL” for five consecutive working days.

On June 11 plaintiff was notified by DRW that he had been separated from his position as AWOL pursuant to section 19503, which pro

Armistead v. State Personnel Board

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PUGLIA, P. J.

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