ALJ hears alleged wrong termination case in Public Defender's office

Pago Pago, AMERICAN SAMOA — A former employee of the Public Defender’s (PD) office has taken his case to the Administrative Law Judge (ALJ) claiming wrongful termination by the American Samoa Government (ASG).

The plaintiff is asking the ALJ to dismiss defendant’s request to deny his request for review; to grant plaintiff’s motion for Summary Judgment and enter in favor of the plaintiff. Plaintiff is also requesting damages for wage loss, punitive, pain and suffering, other damages; and to reinstate plaintiff’s employment.

Plaintiff in this case is Leauma Ben Alefosio while ASG is the defendant. Assistant Attorney General and Chief of Civil Division, Julia Furlong is representing ASG while Alefosio is acting Pro Se.

The plaintiff contends that Public Defender Director, Michael White, failed to provide a statutorily required recommendation in writing to the Director of Human Resources under A.S.C.A 7.0211. Plaintiff was not informed of any performance evaluation or even a write-up as stipulated in local statute and the ASG personnel policy and administration manual.

Moreover, the suit contends the Department of Human Resources failed to investigate this matter promulgated in A.S.C.A 7.0110 (5). Furthermore, ASG did not adhere to the three-part administrative procedure articulated in Tauai v. American Samoa Government when terminating an ASG employee.

Under the three-part administrative process, a government employee submits a written grievance to the supervisor. Then the Director of Human Resources conducts an informal hearing and then issues a "final decision," after which the employee may appeal to the Personnel Advisory Board.

The Personnel Advisor Board was reinstated in March 2021, shortly after the Lemanu administration took office. However, court records indicate that the plaintiff could not appeal the decision to the Personnel Advisory Board.

In addition, the local statute admonishes ASG of the need not to rush to immediately terminate an employee once a decision has been made but rather must notify the employee in "good faith" of this decision in a reasonable and timely manner. The former P.D. employee was surprised when he received his termination letter in May 2021.

The plaintiff contends this case is a classic textbook case of procedural and substantive due process violation by the legal definition of the law. The Due Process Clauses of the 5th Amendment and the Fourteenth Amendment to the U.S. Constitution and the American Samoa Constitution Article 1 Section 2 states that the government "shall not take a person's life, liberty or property without due process of law." In all situations, the court requires fair procedures and an unbiased decision-maker.

Usually, the deprived employee must receive notice of the government's action and have an opportunity to respond before termination. As mentioned earlier, the former P.D. employee was surprised when he received his termination letter on May 3, 2021. The plaintiff argues that when you think of all the possible due process violation scenarios in a wrongful termination case, this one certainly checks all the boxes.

The case has already been heard before the ALJ and plaintiff is awaiting the court’s decision.

PLAINTIFF’S CASE

Plaintiff was employed by the ASG for 19 months, starting from Oct. 21, 2019 until May 7, 2021, the date plaintiff stated he was wrongfully terminated from his employment as Investigator, Translator, and Administrator with the PD by defendant, ASG, through its agent, Michael White, where he worked for approximately two years.

Plaintiffs claims that defendant failed to follow proper procedures indicated in the ASG personnel policy and administration manual, employee handbook, and pertinent statues which includes A.S.C.A title 7, AS regulation title 4, when it terminated his employment which is a direct violation of procedural and substantive due process of the 5th and 14th Amendments of the US Constitution as well as the American Samoa Constitution Article 1 Section 2.

According to the plaintiff, on Oct. 21, 2019, plaintiff entered in a one-year contract with the Department of Human Resources (DHR) to work as an Administrator. One month later in mid-November, the plaintiff was transferred to the PD’s office with an inter-agency transfer request letter by Public Defender, Michael White on Feb. 10, 2020 where the plaintiff’s contract was amended to reflect title change from Administrator to an Investigator.

White stated in his inter-agency transfer letter that “Mr Leauma’s background, general work experience and skillset provides the opportunity for his office “to accomplish a tremendous amount of investigative case work, translator, and administrative support” that wasn’t always available given the limited experience in this arena of the criminal justice system.

 The plaintiff holds a B.A. in History and Political Science and M.S. in Criminal Justice Administration with over 20 years of combined stateside experience in judiciary, law enforcement, research, teaching, and the legal profession. Plaintiff also pursued an M.S. in Forensic Science and studied law at an ABA-approved law school in San Diego. Plaintiff also has family ties in Tutuila, Manu'a, and Aunu'u islands of American Samoa.

“His education, training and work experience is relevant to the position he held as an Investigator, Interpreter and Administrator for the PD’s office,” the document says.

In early April 2020, plaintiff inquired with White if there were any changes to FY 2021 Budget proposal that would affect his salary, essentially his job security and “White lied and informed plaintiff that he has not submitted the proposal yet.” Plaintiff approached White several times regarding this issue and White repeatedly said no.

Court documents claim that the plaintiff approached then-governor Lolo Matalasi Moliga in June 2019 because his supervisor, White, had adjusted his salary without notice (Agaoleatu v Haleck) and defied Gov. Lolo's conversion policy. The plaintiff says both actions undertaken by Michael White are employment law violations. The plaintiff was one of many ASG employees who had their contracts converted to career service under Gov. Lolo's contract conversion policy and A.S.C.A 7.0207 a (2) in 2020.

The governor at the time had general supervision and control of all government executive departments, agencies, and instrumentalities, and personnel decisions are subject to his direction under Am. Samoa Art. II, §7; A.S.C.A § 70110; A.S.C.A § 4.0102, § 4. 0111 (b). The rationale behind Lolo's conversion policy was to retain highly skilled ASG employees, especially blood natives of American Samoa.

Court records also claim that White and his secretary met with Gov. Lemanu Peteli Mauga and the Budget Director on April 28, 2021. Two days before the meeting, White had informed the plaintiff that he had a scheduled meeting with the governor to go over the FY 2022 budget proposal. The plaintiff then asked White to tag along for fear that the PD would convince the governor to terminate his employment.

The suit contends that White lied and said he was going alone. However, White invited his secretary, an avid supporter of the Lemanu and Talauega political campaign during the 2020 election and a relative of Lemanu, to solicit Lemanu's support to terminate the plaintiff's employment according to documents filed by the plaintiff. White knew his secretary had been asking for a pay raise. White's secretary admitted informing Lemanu and Budget Director that the Public Defender’s Office was paying the plaintiff too much money.

The plaintiff contends that it is illegal for an employee to offer suggestions in deciding another employee's tenure. Plaintiff then approached White and his secretary and White said that the meeting was about "moving numbers around." White also reminded the plaintiff, "remember last year when you approached Governor Lolo?"

According to the plaintiff, White's comment was a clear indication that the reason for his termination was pure retaliation. The plaintiff then asked White if he should be worried about getting terminated and White informed the plaintiff that he would let him know if anything came up. White also assured the plaintiff not to worry.

But the plaintiff was never kept abreast of any information. The government has since denied the meeting with Lemanu ever took place. The plaintiff argues that even if the then-governor was not involved, the magnitude of the impropriety conveyed is unacceptable, which only proves wrongful termination.

There is no evidence to prove the government legally terminated the plaintiff's employment, according to the plaintiff. The plaintiff reminded the court that the Attorney General's office is essentially pursuing a case despite a lack of evidence.

Read the government’s response to the plaintiff’s motion on this lawsuit in Wednesday’s edition of Samoa News.