Saipan Tribune

Thursday, May 23, 2013

Friday, September 28, 2012

Wiseman reinstates terminated DYS staff

Superior Court Associate Judge David A. Wiseman has ordered the immediate reinstatement of a juvenile corrections worker who had sued Gov. Benigno R. Fitial and Department of Community and Cultural Affairs Secretary Melvin Faisao for her alleged unlawful termination.

Wiseman granted Thelma S. Kapileo's motion to suspend DCCA's action against her and denied a motion filed by Fitial and Faisao to remand the case to the Civil Service Commission.

Although granting a stay pending judicial review is something that is only done in extraordinary circumstances where irreparable injury is clearly apparent, Wiseman believes that Kapileo has satisfied her burden.

“The court finds [Kapileo] and her family will suffer irreparable injury from her lack of income if a stay is not issued,” the judge said.

Kapileo filed the lawsuit through counsels Jane Mack and Dimitri Varmazis of the Micronesian Legal Services Corp.

The plaintiff sued the defendants for unlawful suspension and termination, violation of employment contract, and violation of U.S. constitutional due process protections.

Kapileo asked the court to set aside her suspension and termination and declare DCCA's action as unlawful.

She demanded reinstatement with full backpay and payment for damages, court costs, and attorney's fees.

Kapileo received the notice of her termination on Oct. 5, 2011. Faisao said that Kapileo failed to perform her duties and responsibilities as an Emergency Shelter caretaker.

On at least one occasion, Faisao said, a female detainee was sexually assaulted by Pedro I. Sablan, an Emergency Shelter caretaker, while on Kapileo's watch

“You action have resulted in serious violations of not only the Standards of Conduct and is clearly a dereliction of duty,” Faisao said.

In his order on Wednesday, Wiseman found that Kapileo has shown a probability of success on the merits because she was not provided with a hearing prior to being terminated, and there was no relief available to her as a Civil Service employee.

Another factor that Wiseman considered is the government's “poor record of satisfying its judgments.”

“For example, if petitioner were to succeed with her judicial review claim and obtain a judgment against the government, it would be extremely difficult for her to try to collect an award for backpay or money damages in lieu of the number of unpaid judgments that currently exist against the CNMI government,” the judge noted.

Wiseman said that remanding Kapileo's case to the Civil Service Commission is not appropriate since the commission has already declared that Kapileo has exhausted her administrative remedies and it took the CSC five months for them to make that declaration.

Wiseman said that CSC is essentially non-operating and lacks a quorum. “[Remanding the case to CSC] would be an exercise in futility and would constitute a deprivation of petitioner's due process rights,” he said.