BOE motion to dismiss ex-PSS chief’s claims under advisement

Superior Court Associate Judge Kenneth L. Govendo placed under advisement yesterday the Board of Education and its members’ motion to dismiss the two claims in the lawsuit filed against them by former Public School System commissioner Cynthia I. Deleon Guerrero.

Special assistant attorney general Tiberius D. Mocanu argued the motion as counsel for the BOE and its members: MaryLou S. Ada, Janice A. Tenorio, Herman T. Guerrero, Florine M. Hofschneider, and Herman M. Atalig.

Brien Sers Nicholas argued against the dismissal.

In Deleon Guerrero’s wrongful termination claim, Mocanu said the court must dismiss this claim as the court lacks jurisdiction because of Deleon Guerrero’s failure to comply with the Government Liability Act.

Mocanu stated that Deleon Guerrero has not alleged that she has presented her claim to the attorney general and gave the CNMI 90 days to resolve her claim.

As for her claim of breach of contract, Mocanu said Deleon Guerrero fails to allege any particular contractual provision that the BOE and its members breached.

Mocanu said the only possible contractual provision that could have been relied on does not mandate a hearing prior to dismissal.

In Deleon Guerrero’s opposition, Nicholas asked the court to deny the motion and proceed to trial.

In Deleon Guerrero’s pleadings, Nicholas said Deleon Guerrero was entitled to be heard and to defend herself as a matter of due process—something that the BOE and its members did not give her.

Nicholas said the defendants argue for the dismissal of the breach of contract claim by focusing their attention only on Deleon Guerrero’s claim for lack of notice and an opportunity, conveniently forgetting Deleon Guerrero’s other allegations that her termination was “for cause” based on MaryLou Ada’s statement as the chairperson of BOE that Deleon Guerrero was terminated because she was not getting along with BOE members.

Nicholas said while Deleon Guerrero’s contract allowed her termination “without cause,” the actions of the defendants alleged by plaintiff were otherwise, that is terminating her “for cause” because she was not getting along with them.

“This is the breach in this case,” the lawyer said.

Nicholas said the defendants, in an attempt to support their argument, put forth a hypothetical that is not fitting to the undisputed facts of this case in that plaintiff was terminated because she would not go along with defendants.

Nicholas said this is where Deleon Guerrero was entitled to be heard and to defend herself against accusations.

Nicholas noted that Deleon Guerrero alleges that her termination was done in retaliation for her questioning BOE’s micromanagement of PSS and her refusal of a request to transfer $175,000 to the board’s account.

Deleon Guerrero sued BOE and its members for allegedly terminating her last October as PSS commissioner in violation of due process. She accused the defendants of conspiring to violate her due process rights, wrongfully terminating her, and breaching her employment contact. She is demanding $350,000 in damages.

Deleon Guerrero originally filed her lawsuit before the Superior Court last January. Last March 23, the defendants filed a notice of removal of the lawsuit to the District Court.

Once in the District Court, Deleon Guerrero moved to have the case returned to the Superior Court.

U.S. District Court for the NMI Chief Judge Ramona V. Manglona remanded to the Superior Court two claims—wrongful termination and breach of contract.

Last May 30, Manglona dismissed with finality Deleon Guerrero’s two remaining claims—violation of her due process rights and conspiracy to violate her due process rights.

During the pendency of the case in the District Court, defendants filed a motion before the Superior Court to dismiss all counts in plaintiff’s complaint.