Ex-NMC president’s wrongful termination claim dismissed

Associate Judge David A. Wiseman also ruled that Janet Han King, Maria Paz Castro Younis, Andrew L. Orsini, and Frank Rabauliman are not proper parties to the wrongful termination claim because they were not Fernandez’s employer.

King and Younis are former regents, while Orsini and Rabauliman are sitting regents. The four are named individual defendants in Fernandez’s lawsuit.

In a nine-page decision, Wiseman determined that an employer-employee relationship did not exist between the individual defendants and Fernandez.

“The fact that the individual defendants had the power to terminate plaintiff’s position and determine plaintiff’s salary is insufficient to raise them to the status of employer. Moreover, the individual defendants were not responsible for paying plaintiff’s wages,” the judge said.

Wiseman set a status conference for the case on July 12, 2012, at 1:30pm.

With the dismissal of the wrongful termination claim, the claims remaining in Fernandez’s first amended complaint are breach of contract against NMC, breach of the covenant of good faith and fair dealing against NMC, and intentional interference with contract and economic relations against former House speaker Oscar Rasa.

Fernandez filed the first amended complaint on Feb. 13, 2012, three days after Wiseman dismissed Fernandez’s defamation and wrongful termination claims in the original complaint. The individual defendants were not named in the wrongful termination count in the original complaint.

In response to Fernandez’s first amended complaint, the defendants asked the court to dismiss the wrongful termination claim and find the individual defendants not proper parties for the claim.

The defendants argue that Fernandez failed to prove the clarity, causation, and jeopardy elements necessary to support a tort based claim for wrongful termination.

In granting the defendants’ motion to dismiss, Wiseman pointed out that as far as he can surmise, Fernandez appears to be citing internal NMC policy.

“Citing to an organization’s internal policy, however, is insufficient to constitute a clear public policy,” said Wiseman, adding that the clarity element is not met.

The judge said that Fernandez’s failure to identify the source of the public policy and consequent failure to meet the clarity element renders discussion of the jeopardy and causation elements unnecessary.

On the wrongful termination claim against the individual regents, Wiseman cited previous decisions stating that employees with authority to supervise, appoint and/or discharge other employees are not considered employers in wrongful termination claims without statutes explicitly providing for suits against supervisors.

By Ferdie de la Torre
Reporter