Matter of Peredo

• Court: Superior Court of Guam
• Decided: May 10, 2021
• Docket: SP0038-20
• Status: Unknown

Opinion

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IN THE SUPERIOR COURT OF GUAM l

In the matter at? Special Proceedings Case No. SP0038-20

CLARICE B. PEREDO,

Employee,

vs. DECISION AND ORDER 0

GUAM BEHAVIORAL HEALTH AND WELLNESS CENTER, GOVERNMENT OF GUAM,

Respondent.

INTRODUCTION

This matter came before the Honorable Dana A. Gutierrez on February 9, 2021 for a MOtion

Hearing regarding Respondent Guam Behavioral Health and Wellness Center, Government of Guam's

("Respondent") Motion to Dismiss Verified Petition and Action With Prejudice for Lack of Subject

Matter Jurisdiction, Failure to Name the Civil Service Commission As a Necessary Party and Failure

to State a Claim for Relief ("Motion to Dismiss" or "Motion"). Present via Zoom were Attorney

Jacqueline Taitano Terlaje representing Petitioner Clarice B. Peredo ("Petitioner") and Assistant

Attorney General Donna Lawrence representing Respondent. Hav ing duly considered the arguments

presented and the applicable law, the Court now issues the following Decision and Order G R A N T I N G

Respondent's Motion to Dismiss.

BACKGROUND

On or about May 2016, Petitioner separated from her employment at Guam Behavioral Health 1

DECISION AND ORDER Clarice B. Peredo 14 Guam Behavioral Health and Wellness Center; SP0038-20

and Wellness Center ("GBHWC") in good standing and at Step 5 of her pay grade. Petition, at 2 (Feb.

27, 2020); Civil Service Commission Decision and Judgment ("D&J"), at 2 (Jan. 28, 2020). On or

about February 2017, Petitioner requested re-employment to her former position at the same pay grade

and step. D&J, at 2. On June 14, 2017, Management at GBHWC informed Petitioner that she must

sign a letter stating she would accept re-employment at Step 1. Id. On June 15, 2017, Petitioner

signed the letter accepting re-employment at Step 1 and a Personnel Action confirming re-employment

was issued on July 28, 2017. Petition, at 3.

On December 22, 2017, Petitioner instituted Step 1 of the grievance procedures set forth in the

Department of Administration Personnel Rules and Regulations ("DOA Personnel Rules" or "DOA

PR&R") arguing that Petitioner signed the letter involuntarily and that she should be reinstated at Step

5 of her pay grade. D&J, at 2. After completing Steps 2-4 of the grievance procedure, Petitioner

submitted a Step 5 grievance appeal to the Guam Civil Service Commission ("CSC") on March 13,

2018. Petition, at 3. Prior to a hearing on the merits of the grievance, Respondent filed motions to

dismiss Petitioner's CSC Step 5 grievance appeal for lack of subject matter jurisdiction on January 18,

2019 and March 12, 2019. Motion, at 3. Petitioner did not tile an opposition to the motions. Id. On

April 25, 2019, the CSC heard arguments on the motions and voted 3 to 2 in favor Of Respondent.

Motion, Exhibit 3, July 18, 2019 Decision and Order (June 29, 2020). However, the CSC issued a

Decision and Order ("D&O") on July 18, 2019 holding that Respondent's motion to dismiss failed

because Respondent did not acquire the necessary four (4) affirmative votes. Id.

Petitioner's CSC Step 5 grievance appeal proceeded before the CSC for a grievance hearing on

November 21, 2019. D&J, at 1. On January 28, 2020, the CSC issued a Decision and Judgment

voting 3 to 2 in favor of Petitioner, however, the grievance failed because Petitioner did not secure the

necessary vote of 4 in order to support the grievance. Id. at 2-3 (Jan. 28, 2020).

2 DECISION AND ORDER Clarice B. Peredo VS Guam Behavioral Health and Wellness Center; SP0038-20

On February 27, 2020, Petitioner filed a Verified Petition for Judicial Review ("Petition") in the

Superior Court of Guam requesting the following relief: 1) for an order that the CSC Decision and

Judgment dated January 29, 2020 be vacated, 2) for an order declaring the Decision and Judgment null

and void; 3) for an order finding that the esc, notwithstanding the substantial evidence presented,

failed to find that the conduct of GBHWC violated 4 GCA §2108 and DOA Personnel Rules 4.502 and

6.006; 4) for an order directing GBHWC to determine the amount of back wages and benefits to which

Petitioner is entitled but for the violation of 4 GCA §2108, DOA Personnel Rules 4.502 and 6.006, 5)

that the Court find that Petitioner is a party adversely affected by the Decision and Judgment dated

January 29, 2020, 6) for equitable relief, as may be .proper, and 7) for attorney's fees and costs of suit.

On June 29, 2020, Respondent filed the Motion to Dismiss asserting that the Petition must be

dismissed with prejudice for lack of subject matter jurisdiction, failure to name the CSC as a necessary

party, and for failure to state a claim for relief. On July 27, 2020, Petitioner filed her Opposition to the

Motion to Dismiss, and Respondent filed their Reply on August 10, 2020. The Court held the Motion

Hearing on February 9, 2021 and subsequently took the matter under advisement

DISCUSSION

In Guam Poliee Depot v Guam Civil Serf Comm'n (Chaltauros), the Guam Supreme Court

determined that the Guam Rules of Civil Procedure ("GRCP"), including Rule 12(b)(6), apply to

petitions for judicial review. 2020 Guam 12 11 10. Here, Respondent moves to dismiss the Petition

pursuant to Rule 12(b)(1), (b)(6), and (b)(7) of the GRCP.1 As the Motion to Dismiss is substantively

based on grounds enumerated in Rule 12(b), similar to Charfauros, the Court Ends that Rule 12 of the

GRCP applies.

1 The Court notes that Respondent does not specifically cite to these rules in the Motion to Dismiss, but the Court will address Respondent's arguments pursuant to the mies of the GRCP, as applicable.

3 DECISION AND ORDER Clarice B. Peredo v Guam Behavioral Health and Wellness Center; SP0038-20

A. Standard of Review for Rule 12(b)(1) Challenges to Subject Matter Jurisdiction.

When addressing motions to dismiss pursuant to Rule 12(b)(1), the Court must first determine

whether the moving party is asserting a facial or factual challenge to subject matter jurisdiction. See

Lisangan v Gov? of Guam, 2020 Guam 27 1] 38, note 6 (reasoning that in a factual challenge to

jurisdiction, the trial court may look to evidence outside the pleadings), W chansky v Zoel Holding

Co., 702 Fed. Appx. 559, 560 (9th Cir. 2017) ("A Rule l2(b)(l) jurisdictional attack may be facial or

factuaL"), State 14 One Love Ministries, 416 P.3d918, 927 (Haw. Ct. App. 2018).

A facial challenge asserts that the absence of jurisdiction can be established by considering

only the allegations of the complaint itself. One Love Ministries, 416 P.3d at 927, see Wchansky, 702

Fed. Appx. at 560. By contrast, a factual challenge to jurisdiction attacks the validity or truthfulness of

the facts alleged which support the existence ofjwrisdiction. Id. Here, Respondent argues that even

assuming that all the facts pled by Petitioner are true, Petitioner has failed to establish that the matter at

issue was a proper grievance complaint appeal before the CSC and, therefore, the CSC had no

jurisdiction to address the matter. Motion, at 11-13. Accordingly, the Court finds that Respondent has

asserted a facial challenge to jurisdiction.

The standard when addressing a facial challenge to jurisdiction is substantively the same as the

standard applied when addressing a motion to dismiss under Rule l2(b)(6): the allegations of the

complaint must be accepted as true and construed in the light most favorable to the plaintiff. One Love

Ministries, 416 P.3d at 927, see Wichansky, 702 Fed. Apex. at 560. Additionally in facial challenges,

the Court must not look beyond the face of the complaint-in this case, the Petition-to determine

whether the allegations are sufficient as a legal matter to invoke the coull's jurisdiction. 2 James Wm.

Moore, Moore's Federal Practice § 12.30[4], at 12-45 (ad ed. 2012) (internal citations omitted) .

4 DECISION AND ORDER Clarice B. Peredo V Guam Behavioral Health and Wellness Center; SP0038-20

B. Timeliness Not Subject To Review.

First, Respondent argues that Petition must be dismissed due to the CSC's lack of jurisdiction

because Petitioner did not initiate Step 1 of the grievance process within the required fifteen (15) day

time period pursuant to DOA Personnel Rule 12.505(B)(1). Motion, at 8-9. However, the Court notes

that Respondent did not provide the Court with any documentation, such as a declaration or copies of

the motions to dismiss filed before the CSC on January 18, 2019 and March 12, 2019, in order to

demonstrate that the timeliness argument was raised before the CSC.2 In addition, although the

Respondent attaches the CSC's July 18, 2019 D&O denying Respondent's motion to dismiss for lack

of jurisdiction, the attachment did not mention any argument made by Respondent as to the timeliness

of the grievance. Motion, Exhibit 3, at 1-2.

Ultimately, the Court is unable to determine whether the Respondent properly preserved the

issue of timeliness for appeal because neither par ty pr esented the Cour t with any r ecor d of the

timeliness arguments that may have been raised before the CSC. See Guam Dep't of Educ. v Civil

Serf Comm'n (Somerjleck), 2019 Guam 21 1] 8 ("The objection to timeliness of the Teachers'

grievance was raised before the CSC and again on appeal at oral argument. Therefore, the objection

has not been forfeited[.]"). Because the parties failed to present the Court with any evidence of the

arguments raised before the CSC on this issue, this Court will not make a finding as to whether the

CSC lacked jurisdiction due to untimeliness of the grievance.

C. The CSC Lacked Jurisdiction.

Additionally, Respondent argues that the Petition should be dismissed due to the CSC's lack of

jurisdiction because the personnel action for which Petitioner seeks relief is not a grievance as defined

2 At the hearing on the Motion, Respondent asserted that the objection to timeliness was raised before the CSC, however, Respondent did not direct the Court to any record supporting this assertion. Min. Entry (Feb. 9, 2021).

5 DECISION AND ORDER Clarice B. Peredo v. Guam Behavioral Health and Wellness Center; SP0038-20

in the DOA Personnel Rules and as authorized bye GCA § 4403(c). Motion, at 7, 11-14. In response,

Petitioner argues that 4 GCA § 4403(d) grants the CSC the authority to determine a violation of Guam

personnel laws or rules, and that the CSC did not dismiss the appeal for lack ofjurisdiction as a matter

excluded under the grievance rules. Opposition, at 6.

Ultimately, the counts have the final responsibility to interpret the law and determine whether a

challenged administrative action was unauthorized and therefore void. Guam Fed'n of Teachers u

Gov 't of Guam, 2013 Guam 14 'H 64. As a result, if the CSC's decision was unauthorized due to a lack

of jur isdict ion t o hea r P et it ioner 's gr ieva nce a ppea l, t hen t his C our t would consequent ly la ck

jurisdiction to review the decision.

Guam statutes governing the CSC are addressed in Article 4 of Title 4 of the Guam Code

Annotated. Specifically, the duties, Powers, and responsibilities of the CSC are outlined in 7 GCA §

4403. Pursuant to 7 GCA §§4403(c) and (d), the CSC can "hear appeals of ... grievance complaints

of an employee from the classified service if such right of appeal to the Commission is established

in the personnel rules governing the employee," and "may investigate and set aside and declare null

and void any personnel action of an employee in the classified service if the Commission finds after

conducting the necessary investigation that the personnel action was taken in violation of personnel

laws or rules[.]" (emphasis added).

Pursuant to 10 GCA §§ 86108(f)(1), GBHWC, as an executive agency established through 10

GCA § 86103, may adopt its own rules and regulations in accordance with Guam's Administrative

Adjudication Law, codified at 9 GCA §§ 9100 et seq. GBHWC has adopted the DOA Personnel Rules

to govern employee rights, conduct, and obligations, and management responsibilities and actions?

3 See Guam Behavioral Health and Wellness Center, Human Resources/Personnel Services & Training, DOA Personnel Rules and Regulations, https://gbhwc.guam.gov/policies.

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DECISION AND ORDER Clarine B. Peredo v Guam Behavioral Health and Wellness Center; SP0038-20

Further, the DOA Personnel Rules apply to all employees occupying classified positions employed by

the departments and agencies under the jurisdiction of the DOA. DOA PR&R 1.000(A). Therefore,

the DOA Personnel Rules apply to Petitioner as she was an employee of GBHWC, a line agency under

the jurisdiction of the DOA.4 Motion, at 11.

1. 4 GCA §4403(d) Is Not Applicable to the CSC's Jurisdiction in This Case.

Although Petitioner asserts that the CSC is granted the authority to null and void personnel

actions pursuant to 4 GCA § 4403(d) and therefore has jurisdiction, the record before the Court

demonstrates that Petitioner pursued the grievance procedures governed by DOA Personnel Rules

12.500-12.900. See Petition, at 3 1] 14; D&J, at 1-3. The CSC is granted jurisdiction to hear grievance

appeals through 4 GCA § 4403(c), therefore 4 GCA § 4403(d) would not be relevant to whether the

CSC has jurisdiction in the case at bar. Accordingly, the Court finds that the Petitioner's reliance on 4

GCA § 4403(d) to invoke the CSC's jurisdiction is not applicable to this matter.

2. 4 GCA § 4403(c) Does Not Give the CSC Jurisdiction Because the Action At Issue Is A Grievance Related to Job Classification.

Petitioner's grievance before the CSC was based on an allegation that GBHWC violated 4

GCA § 2108 and DOA Personnel Rules 4.502 and 6.006. Petition, at 6.5 Sections 12.100 and 12.200

4 The Court notes that at the hearing on the Motion, the parties informed the Court that Petitioner is no longer employed by GBHWC. Min. Entry (Feb. 9, 2021). However, Respondent did not assert that this fact affects the outcome of the present Motion. Id.

5 Title 4 GCA §2108 provides:

Former classified employees of Government of Guam who were in good standing at the time of resignation may be hired at not less than the salary they earned at their former position if they apply for the same or comparable job in the same department. This re-employment credit privilege must be exercised within a four (4) year period. The employee may waive this privilege.

DOA Personnel Rule 4.502 provides: A permanent classified employee who separated through resignation or retirement while in good standing may be eligible for reemployment, without competition, to the same or comparable position in the same department within four years from the date of separation ... A reemployed employee may be hired at not less than the salary earned at the former position. Reemployment appointments are not subject to the certification procedures as described in these rules. .

7 DECISION AND ORDER Clarice B. Peredo 14 Guam Behavioral Health and Wellness Center; SP0038-20

of the DOA Personnel Rules define the meaning of grievances as they apply to permanent classified

employees as follows:

Definition. A gr ieva nce is a ny question or compla int filed by a per ma nent employee alleging that there has been a misinterpretation, misapplication or violation of a personnel statute, rule, regulation, or written policy which directly affects the employee in the performance of his official duties, or that he has received prejudicial, unfair, arbitrary, capricious treatment in his working conditions, or work relationships. C over a ge. Gr ieva nces ma y inclu de b u t a r e not limit ed t o, s u ch ma t t er s a s employee-supervisor relationships, duty assignments not related to job classification, shift and job locations assignments, hours worked, worldng facilities and conditions, policies for granting leave and other related matters .

(emphasis added). DOA Personnel Rule l2.301(E) also states that appeals from classification

determinations are not covered by Chapter 12 grievance procedures.

Further, DOA Personnel Rule 5.002 provides that:

Classification standards established by the Civil Service Commission placed positions in their proper classes and pay grades to: A) define the various classes of positions that exist in the classified service in terms of duties, responsibilities and qualification requirements. Standards may be created, amended or abolished, B) establish the oMcial class titles, and C) set forth the pay grades.

Based on the language in these rules, the Court finds that the salary of a re-hired employee is a

matter directly related to the employee's classification and pay grade. This finding is further supported

by contr a sting the issue of sa la r y for a r e-hir ed employee to other gr ieva ble issues pr eviously

addressed by the Guam Supreme Court. See Guam Fed'n of Teachers, 2013 Guam 14. In Guam

Fed 'n of Teachers, the Supreme Court found that the decision of the Guam Education Policy Board to

DOA Personnel Rule 6.006 provides:

A person who is reemployed under the provisions of Rule 4.502 shall be paid at a rate to which he would have been entitled had he remained in service, but that no credit shall be given toward progressive salary step increases within the pay grade.

8 I DECISION AND ORDER Clarice B. Peredo v Guam Behavioral Health and Wellness Center; SP0038-20

delay the start of the 2003-2004 school year and resulting furlough of the Petitioner fell within the

scope of a "grievance" as defined in Department of Education ("DOE") Personnel Rule 909.200. Id.

at 1131-33. In making this determination, the Supreme Court found that the two week delay of the school year was a matter concerning "hours worked" and emphasized that "hours worked" is explicitly

listed as a type of grievance in DOE Personnel Rule 909.200. Id. at1133.

The Court notes that DOA Personnel Rule 12.200 defining "grievance" is identical to DOE

Personnel Rule 909.200. By contrast to the issue of "hours worked" in Guam Fed 'n of Teachers, the

issue of the salary to which the employee is entitled upon rehiring is not a specified type of grievance

listed in DOA PR&R 12.200. In fact, the issue of "pay grade" is clearly listed in the DOA Personnel

Rule 5.002 which identifies the matters concerning "classification."

Accordingly, the Court joins the decision in Aguon M Civil Sera Comm'n & Dep? of

Corrections in part, and finds that a classification determination was necessarily made by GBHW C

when Petitioner was rehired.6 This is evidenced by the fact that Petitioner was asked to sign a waiver

indica ting her a ccepta nce of r eemployment a t Step 1. T he issue of whether the classification

determination was correct is irrelevant because the CSC lacks jurisdiction to hear grievances related to

job classification pursuant to 4 GCA §4403(c) and DOA Personnel Rules 12.200 and 12.301(E).

6 In Aguon, the Superior Court addressed the same issue presented in the case at bar. SPOl32-18, D&O (Feb. 28, 2019). In Aguon, the Petitioner accepted reemployment at the Department of Corrections ("DOC") at the Step 1 pay grade, but later pursued steps 1-5 of the grievance procedure arguing that she was entitled to reemployment at her former (and higher) pay grade. Id. at 2. At the Step 5 grievance appeal to the CSC, the CSC granted DOC's motion to dismiss with prejudice for lack ofjurisdiction, based on the Petitioner's failure to file her grievance in a timely manner. Id.

The Aguon Court addressed the issue of subject matter jurisdiction of the CSC, noting that "notwithstanding the CSC's reasoning for dismissing the grievance appeal, the Court will uphold the CSC's dismissal if it finds the CSC lacked jurisdiction based on other grounds." Id. at 3. The Court held that a classification determination was made upon the Petitioner's rehiring, therefore the DOC action which the Petitioner sought to appeal was excluded from the definition of "grievance" inlDOA PR&R 12.200. Id. at 4. Thus, the Court concluded that the CSC lacked jurisdiction to hear the Petitioner's appeal. Id.

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DECISION AND ORDER Clarice B. Peredo vo Guam Behavioral Health and Wellness Center; SP0038-20

Additionally, Step 1 of the grievance procedure specifies that the informal name of the

procedure is intended to encourage settlement of matters "at the lowest possible administrative level"

through means such as "day-to-day discussions between employees and supervisors regarding work

conditions and related employment matters." DOA.PR&R 12.502, l2.503(A). On a practical level,

the decision to rehire an employee at a designated pay grade is not a determination that can be resolved

at the lowest administrative level-in this case, the lowest administrative level would be the direct

supervisor of an administrative assistant at GBHWC. Consequently, the Court finds that the pay grade

of a rehired employee is a classification issue not subject to grievance and may not be reviewed by the

CSC pursuant to 4 GCA §4403(c) and DOA Personnel Rules 12.200 and 12.301(E).

Although the Court finds that the CSC lacked the jurisdiction to address this grievance because

it relates to job classification, the Com notes that 4 GCA §4403 (d) authorizes the CSC to "investigate

and set aside and declare null and void any personnel action of an employee in the classified service if

the [CSC] finds after conducting the necessary investigation that the personnel action was taken in

violation of personnel laws or rules." The required procedure for bringing a personnel action before

the CSC for investigation is further specified in 4 GCA § 4403(d)(1)-(4) which is remarkably different

from the process for obtaining review of a grievance matter.

Here, the Court notes that the Petitioner identified the complained-of action by GBHWC as a

"Personnel Action." See Petition, a t 3 1] 13. Accor dingly, the Could finds that because the

complained-of action by GBHWC was a personnel action and Petitioner did not avail herself of the

required procedure to review personnel actions under 4 GCA § 4403(d), the Court will not entertain

Petitioner's grievance appeal as if it were an appeal of a personnel action.

Because the classification issue giving rise to Petitioner's grievance appeal is not a "grievance"

as defined in the DOA Personnel Rules, the Court holds that the CSC lacked jMsdiction to hear

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DECISION AND ORDER Clarice B. Peredo M Guam Behavioral Health and Wellness Center; SP0038-20

Petitioner's appeal, and the Court therefore lacks jurisdiction to review the CSC's decision. All

remaining issues raised in Respondent's Motion to Dismiss are moot.

C ONC LUS ION

For the foregoing reasons, the Court hereby GRANTS Respondent's Motion to Dismiss.

SO ORDERED this 10th day of May, 2021 I

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