AFFIRMATIVE ACTION CASE AGO: Sex discrimination case is a local issue

Posted on Jul 13 1999

The Attorney General’s Office said questions about the CNMI government’s affirmative action policy is a local issue that should be tackled and answered by local courts.

Asst. Atty. General Sean Frink presented this argument in asking the US District Court on Saipan to dismiss the sex discrimination suit filed by former corrections director Dolores San Nicholas against the Department of Public Safety.

Nicholas, who started working at DPS in July 1977, complained that she was “forced to accept insufficient pay” and was denied her promotions rights.

In 1997, Nicholas was replaced by a junior male police officer, who she said was not qualified for the position as chief of corrections.

She believes the decision to replace her was based on her gender, which she also claimed was the same reason why she was getting a salary rate much lower than his male counterparts.

Having served and held top positions in the police department for several years, Nicholas believes she was the most qualified for the job.

The plaintiff’s lawyer, Douglas Cushnie, said DPS had violated Nicholas’ constitutional rights to be employed “free of sexual discrimination.”

Frink said the federal court has no jurisdiction over Nicholas’ case because it deals with “novel and complex issues of the ‘state law.'”

Quoting from a US Supreme Court’s earlier ruling, Frink wrote that “It is well established that federal courts should be extremely reluctant to decide novel questions of state of law.”

“Novel questions” refer to legal issues that have not been previously raised in the local level.

For example, Commonwealth laws that deal with sex discrimination should be interpreted by local courts because there have been no cases in the past that addressed related questions such as the requirements of the CNMI’s affirmative action policy, Frink said.

Cushnie, on the other hand, disagreed with the government lawyer’s “defense of sovereign immunity.”

“The case is no novel or complex issue,” Cushnie said. “If this were brought in 1959, defendants may have an argument that the issues are novel. To say that in 1999, a sex discrimination complaint is a novel complex is to ignore 20 years of very active law which prohibits sex discrimination.”

Cushnie said that in the first place, he doubts if the local courts “would permit discrimination based upon sex or gender of an individual.”

The federal court, which heard the oral arguments of both parties last Friday, is set to issue a written judgment within this week.

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