THE nine former firefighters and former Finance Secretary David DLG Atalig have settled a lawsuit over premium pay for the amount of $125,000 and have asked the federal court to approve and enter a judgment in favor of the plaintiffs.
Last year, former firefighters Paul T. Acebedo, Jose K. Angui, Allen T. Calvo, Cain C. Castro, Argernon A. Flores, Derek Gersonde, Shawn DLR Kaipat, Philip M. Kalen, and Adam J. Safer sued Atalig in his individual capacity for $100,000 in damages for the alleged deprivation of their civil rights.
“Defendant’s actions in approving less than the full $5,000 amount of premium pay for plaintiffs were without rational basis and deprived plaintiffs of the equal protection of the laws guaranteed to them by the Fourteenth Amendment to the U.S. Constitution, as applicable to the CNMI via the Covenant and actionable pursuant to 42 U.S.C. § 1983,” the lawsuit stated.
“Defendant’s actions were taken under the color of CNMI law,” it added.
On Wednesday, through their respective attorneys Joseph Horey and Keith Chambers, the parties filed a stipulation for judgment.
According to the stipulation, pursuant to a settlement agreement between the parties, they “agree that judgment be entered in favor of plaintiffs and against defendant in the amount of $125,000.”
However, the finality of the judgment is conditioned upon the Commonwealth Superior Court reaching a final judgment on a forthcoming claim against the CNMI government.
The conditions are as follows:
If the CNMI Superior Court holds — on any grounds independent of the parties’ settlement agreement — that the Commonwealth is or is not liable for indemnification in any amount, then the condition shall be removed and this judgment shall become final.
However, if the CNMI Superior Court holds that the parties’ settlement agreement in this matter, or any provision thereof, precludes or reduces the Commonwealth’s liability for indemnification in any way not expressly provided in the settlement agreement, then this judgment shall be vacated and the matter shall proceed as though the judgment had not been entered.
The parties will notify the District Court for the NMI within 30 days once the Superior Court issues a final judgment, the stipulation added.
Chief Judge Ramona V. Manglona has scheduled a status hearing for July 8 at 9 a.m.
In response to the lawsuit, Chambers said the former firefighters did not meet all the qualifications for premium pay in the amount of $5,000.
He said the plaintiffs “are unable to show that Mr. Atalig caused, within the meaning of Section 1983, plaintiffs to suffer a constitutional deprivation.”
Chambers added that Atalig “is protected from civil liability and suit under the doctrine of qualified immunity” and argued that the court should dismiss the complaint.
Background
According to the lawsuit, on or about Dec. 29, 2021, Gov. Ralph DLG Torres announced that the Department of Finance would release premium pay for CNMI government employees who had worked at least 40 hours to directly mitigate the Covid-19 pandemic.
The announcement stated that government employees who had worked on the front lines of the pandemic for at least 40 hours — providing prevention, response, preparedness, and recovery services — would receive $5,000 in premium pay.
Each of the plaintiffs, as DFEMS employees, had worked at least 40 hours to directly mitigate the Covid-19 pandemic and submitted applications for premium pay to the Department of Finance.
Although each of the plaintiffs met the qualifications for the $5,000 premium pay, the lawsuit stated that Atalig approved only $1,000 for each, rather than the full amount.
The lawsuit alleged that the “defendant decided arbitrarily that resigned, terminated, and inactive frontline employees would receive premium pay in the amount of $1,000 only.”
“Plaintiffs, who were no longer employed by the Commonwealth government at the time premium pay was issued, were therefore paid less than full premium pay, notwithstanding the fact that they had already performed the amount of direct pandemic mitigation work required to qualify for full premium payment,” the lawsuit stated.
The former firefighters were terminated due to their refusal to receive the Covid-19 vaccine. They previously filed a separate lawsuit in Superior Court seeking reinstatement.
The court affirmed the Civil Service Commission’s decision to terminate them for refusing the vaccine.
