Worker seeks court’s review of DOL decision

A nonresident worker asked the Superior Court yesterday to review a recent decision by the Department of Labor, citing its failure to satisfy due process of law.

Chen Ping, through legal counsel Stephen C. Woodruff, filed a complaint for judicial review of DOL secretary Joaquin A. Tenorio’s decision on May 13, which affirmed an earlier administrative order recommending for her voluntary repatriation.

Woodruff said that Tenorio’s decision issued a single “administrative order appeal,” stating only that the record has been reviewed and the decision of the hearing officer has been affirmed. It also cited Chen’s right to bring the matter to court.

“It contains no reasoned basis for the decision, in violation of [Chen’s] rights to due process of law under the CNMI and U.S. Constitutions,” said Woodruff.

Woodruff said the secretary’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with applicable law.”

He added that it was “contrary to constitutional right, power, privilege or immunity; short of plaintiff’s statutory rights, and was made without observance of procedures mandated by applicable laws.”

Further, Woodruff said that Tenorio’s decision was “unsupported by substantial evidence…and unwarranted by established facts.”

The worker asked the court to set aside Tenorio’s decision and the matter be remanded for entry of an order granting her transfer relief, or alternatively a new hearing.

Chen noted that all of her co-workers with complaints against their former employer, USA Smile Inc., got transfer relief, but she was referred for repatriation.

He said that the decision of the secretary to confine the review to the record, without providing Chen an opportunity to be heard on this question, and the secretary’s failure to give a reason for the decision to confine the review to the record, violated Chen’s rights to due process.

On Oct. 7, 2003, DOL hearing officer Linn Asper recommended that Chen be referred to Immigration for voluntary repatriation based on the belief that Chen’s testimony was not credible.

Asper said that Chen worked as waitress from Aug. 19, 1999 to Sept. 20, 2000. She complained that she was underpaid and required to pay $3,000 for a labor permit renewal in 2000. However, she filed her complaint with DOL in January 2003, way beyond the six to one year statute of limitations for labor complaints.

During the hearing, Asper said that Chen had testified that she has not worked since the end of her contract and she was unaware of her right to file a complaint until 2003 because of her inability to speak English and her ignorance of the law.

“Complainant’s statements, both as to her unemployment for two and one-half years and to her ignorance of labor complaint procedures, are not credible,” said Asper.

The complainant appealed the case on Oct. 22, 2003.

On May 13, Tenorio affirmed Asper’s decision and issued a four-sentence affirmation order of Asper’s decision.