08 Mar 2018
- By Bryan Manabat – [email protected] – Variety News Staff
THE Board of Education had the right to terminate former Education Commissioner Cynthia Deleon Guerrero’s employment without cause, according to Tiberius Mocanu, special assistant attorney general.
In his memorandum of law in support of a motion to dismiss Deleon Guerrero’s lawsuit against the BOE which he represents, Mocanu told the Superior Court that Deleon Guerrero was an at-will employee. “An at-will employee may be terminated at any time and for any reason so long as that reason is not against public policy or in violation of the law,” he added.
He noted that Deleon Guerrero failed to plead membership in any protected class and therefore fails to claim a violation of the Equal Protection Clause.
“Failure to state a reason for the termination of an at-will employee is not illegal as a matter of law, as long as the reason is not discriminatory,” Mocanu reiterated.
“Under the federal Constitution, at-will employees possess no protected property rights and therefore are not entitled to due process before being terminated.”
sMacanu said Deleon Guerrero also failed to alleged that she was defamed, and had she been defamed, she failed to alleged that the defamation impaired a tangible property interest. Her complaint likewise failed to allege that the defamation caused her a disability or stigma in the community, Mocanu added.
He said the plaintiff’s complaint “is confusing as it appears that she is teeing up an argument that the beratement and harassment was indicative of the true reason for her termination, yet never connects the dots as to why that conduct/reason is illegal and thus a ‘plausible claim for relief.’ ”
Mocanu also noted that the court lacks subject matter jurisdiction to hear this cause of action as the lawsuit has not alleged that the plaintiff has complied with the Government Liability Act.
He said the Act “requires that any person having a claim against the CNMI would have to file notice of that claim with the [Attorney General’s Office] prior to bringing suit.”
Mocanu said the plaintiff “has not alleged that she has presented her claim to the attorney general and afforded the CNMI 90 days to resolve her claim. Consequently, this court sitting in the jurisdictional shoes of the state court, lacks subject matter jurisdiction to hear this claim.”
As for the former commissioner’s allegation of breach of contract, Mocanu said the “plaintiff fails to allege with specificity any particular contractual provision which the BOE members breached.”
He said Deleon Guerrero did not allege an implied-in-fact contract or an amendment that would disturb the party’s original agreement.
“The only possible contractual provision that could have been relied on does not mandate a hearing prior to [her] dismissal,” Mocanu said.
“The section of the contract governing termination has no such provision. Instead it clearly establishes that [the] plaintiff is an at-will employee and that she may be removed without cause.”
Mocanu said the BOE members have not breached the contract.
Deleon Guerrero’s lawsuit was originally filed in Superior Court on Jan. 18, 2018 and named BOE chairwoman Mary Lou Ada and members Janice A. Tenorio, Herman T. Guerrero, Florine M. Hofschneider, and Herman M. Atalig as defendants.
The plaintiff, who is represented by Brien Sers San Nicolas, is alleging wrongful termination, breach of contract, and violations of her constitutional rights.
Source: Marianas Variety : http://www.mvariety.com/cnmi/cnmi-news/local/102749-lawyer-boe-can-terminate-education-chief-without-cause