Quinene v. CSC (Guam Memorial Hospital)

Opinion

IN THE SUPERIOR COURT OF GUAM 2

r 3 In the Matter of: ) Special Proceedings Case nO P03S-1 0 4 ) JULIETTA QUINENE, ) 5 ) Petitioner, ) 6 ) vs. 7 ) ) DECISION AND ORDER 8 CIVIL SERVICE COMMISSION, ) re: Petition for Judicial Review ) 9 Respondent, ) 10 ) ) ) AUTHORITY, 12 ) Real Party in Interest.) 13

15 This matter came before the Honorable Judge Michael J. Bordallo on January 20, 2012. 16 The Petitioner was represented by Attorney Daniel S. Somerfleck. The Civil Service 17 Commission ("Commission") was represented by Attorney Sophia Santos Diaz. The Guam 18

19 Memorial Hospital Authority ("GMH") was represented by Attorney Minakshi V. Hemlani.

20 After considering the matters presented, the court now issues the following decision and order 21 denying the Petitioner's petition because the Commission's decision was in accordance with 22 the law. 23 BACKGROUND 24

25 Petitioner was a Hospital Nurse Supervisor with GMH until September 14, 2009 when

26 she was demoted. According to the September 10, 2009 Final Notice of Adverse Action she 27 was demoted for the following reasons: (l) unexcused or unauthorized absence, (2) 28 disobedience to constituted authorities (insubordination), and (3) failure or delay in carrying

Page 1 of4 out orders, work assignments or instructions. Petitioner timely appealed the Final Notice to the 2 Commission. On February 4, 2010, the Commission denied Petitioner's motion to revoke for 3 procedural defect. 4 Petitioner then appealed to this court by filing a petition for judicial review on February 5

6 25, 2010. Petitioner argues that the Commission's decision regarding 4 GCA § 4406 was

7 erroneous. More specifically, she argues that she was not given notice of the charges against 8 her within the 60 day requirement laid out in 4 GCA § 4406. Thus, Petitioner asks the court to 9 reinstate her to her former position and award her back pay. 10

11 DISCUSSION

12 The standard of review to be applied by a trial court, upon judicial review of the

13 agency's action, is as follows: "If the agency decision is not in accordance with law or not 14 supported by substantial evidence, the court shall order the agency to take action according to 15 law or the evidence." 5 GCA § 9240 (2005). The court always reviews questions of law de 16

17 novo. Nissan Motor Corp. in Guam v. Sea Star Group Inc., 2002 Guam 5 ~ 10. Further, the

18 court must weigh the record as a whole, weighing both the evidence that supports and evidence 19 that detracts from the agency's decision. Lopez v. Guerrero, 882 F.Supp 952 (D. Guam App. 20 Div. 1995) citing Baxter v. Sullivan, 923 F.2d 1391 (9th Cir. 1991). Additionally, the court 21 must uphold the agency's decision where the evidence is susceptible to more than one rational 22

23 interpretation. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).

24 The court is required to affirm the Commission's findings of fact, and any conclusions 25 resulting therefrom, if supported by substantial evidence. Fagan v. Dell'Isola, 2006 Guam 11 ~ 26 11. This is because a reviewing body "may not substitute its views for those of the [agency], 27 but instead must accept the [agency's] findings unless they are contrary to law, irrational, or 28

Page 2 of4 ,., D r' ; t. I r, .. Ii 1-1\ \\. L U. \ \ , _ i " i \ f 'j unsupported by substantial evidence." !d. Thus, the court must first determine whether the 2 Commission's decision was in accordance with law. 5 GCA § 9240 (2005); 22 GCA § 9122 3 (2005). Second, the court must determine whether the Commission's decision was supported by 4 substantial evidence. 5 GCA § 9240. "[S]ubstantial evidence is defined as 'such relevant 5

6 evidence as a reasonable mind might accept as adequate to support a conclusion." Bondoc v.

7 Worker's Compo Comm'n, 2000 Guam 6 ~ 6. 8 Whether the Commission's decision was "in accordance with the law" 9 In reviewing the Commission's decision and order, it is necessary to begin with whether IO

11 the decision was in accordance with the law. In doing so, the court must determine whether the

12 Commission's decision regarding 4 GCA § 4406 was erroneous. That section provides, 13 An employee in the classified service who is dismissed, demoted or suspended 14 shall be given immediate notice of the action, together with a specific statement of the charges upon which such action is based in the manner required by Article 2 15 ofthis Chapter. .. In no event mayan employee in the classified service be given notice and statement of the charges required by this Section after the sixtieth 16 (60th) day after management knew or should have known the facts or events 17 which form the alleged basis for such action. Any action brought by management in violation of this Section is barred and any decision based upon such action is 18 void. 19 4 GCA § 4406. Petitioner argues she was not given notice of the charges against her within the 20 60 day requirement. Petitioner asserts that the June 28, 2009 incident played a significant part 21 and was the primary reason for her demotion. She also argues that the Final Notice of Adverse 22

23 Action states the reason for her demotion occurred on June 28, 2009. Because she did not

24 receive the Final Notice until September 10, 2011, some 75 days later, she argues the Final 25 Notice did not come to her within the requisite 60 days as required by 4 GCA § 4406. 26 The Commission however, disagreed with the Petitioner. The Commission found the 27 alleged wrong was based on Petitioner's failure to timely return from leave on July 13, 2009 28 not the date she requested leave, which is June 28, 2009. The Petitioner was granted leave for 2 two weeks and was supposed to return to work on July 13, 2009. Petitioner however did not 3 return to work until July 19, 2009. Therefore, the Commission found the Final Notice came 4 within the requisite 60 days because the clock started on July 13,2009, the day Petitioner failed 5

6 to return to work.

7 Based on our de novo review of the question of law in this case, the court concludes that 8 the Commission's decision is in accordance with the law. Although the incidents mentioned in 9 the Final Notice of Adverse Action prior to July 13, 2009 may either be background 10

II information or additional reasons for the Petitioner's demotion, the court agrees with the

12 Commission that the alleged wrong was based on the Petitioner's failure to timely return from \3 leave. The 60 day clock started on July 13, 2009, when the Petitioner failed to return to work. 14 Therefore, the court finds that Commission's decision was in accordance with the law. 15 CONCLUSION 16

17 Based on the foregoing, the Petitioner's request for relief is hereby DENIED.

20 SO ORDERED, this 10 day of 2012.

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