Tither v Marar [2012] FMSC 25; 18 FSM Intrm. 303 (Chk. 2012) (25 June 2012)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2008-1114

SOSTER S. TITHER,
Plaintiff,

vs.

JULIO MARAR, in his private capacity and as Chuuk State Director of Health Services, and DR. JULIUS "JOJO" ARSENAL, in his private and official capacity as Department Physician,
Defendants.
_____________________________________________

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Ready E. Johnny
Associate Justice

Trial: June 13, 20-22, 24, 2011, February 29-March 1, 2012
Decided: June 25, 2012

APPEARANCES:

For the Plaintiff: Sabino S. Asor, Esq.

P.O. Box 95

Weno, Chuuk FM 96942

For the Defendants: Joses R. Gallen, Esq.

Chuuk Attorney General

Chuuk Office of the Attorney General

P.O. Box 1050

Weno, Chuuk FM 96942

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HEADNOTES

Public Officers and Employees - Chuuk
In a case alleging a retaliatory discharge, the plaintiff bears the burden to demonstrate that his conduct is both constitutionally protected and a substantial or motivating factor in his government employer's decision to discharge him. If the employee has met this burden, then the burden shifts to the employer to demonstrate that it would have taken the same action in the absence of the protected conduct. Tither v. Marar, [2012] FMSC 25; 18 FSM Intrm. 303, 306 (Chk. 2012).

Constitutional Law - Freedom of Expression; Public Officers and Employees - Chuuk
A state employee's speech that concerns genuine public issues is protected speech. Tither v. Marar, [2012] FMSC 25; 18 FSM Intrm. 303, 306 (Chk. 2012).

Public Officers and Employees - Chuuk
A plaintiff has not met his burden to prove that his protected speech was a substantial or motivating factor in his termination when he was not terminated because he engaged in protected speech about a patient's treatment but his termination occurred many months later and after a much more substantial ground and the more likely motivating factor - his behavior during the USNS Mercy visit and because his work performance while a probationary employee was not up to the level of professionalism expected of a practical nurse as shown by the series of incidents of unprofessional conduct. Tither v. Marar, [2012] FMSC 25; 18 FSM Intrm. 303, 306 (Chk. 2012).

Constitutional Law - Freedom of Expression; Public Officers and Employees - Chuuk
A plaintiff's termination or discharge was not unlawful when, even if he had been able to prove that his constitutionally-protected conduct had been a substantial or motivating factor in his termination and the burden had have shifted to the defendants, he still would not prevail because the defendants demonstrated that they would have taken the same action in the absence of the protected conduct because of his probationary status and his unsatisfactory and unprofessional conduct prevented him from being converted from a probationary employee to a permanent employee and he would have been terminated anyway. Tither v. Marar, [2012] FMSC 25; 18 FSM Intrm. 303, 306 (Chk. 2012).

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COURT'S OPINION

READY E. JOHNNY, Associate Justice:

This case was called for trial on June 13, 2011, and was tried on June 20-22, 2011, June 24, 2011, and February 29, 2012. Closing arguments were heard on March 1, 2012. Plaintiff Soster Tither, Anita Taraou, Rosemary Rieuo, Edwin Edipo, defendant Julio Marar, Irene Nero, defendant Dr. Julius Arsenal, Richie Soltones, Leon Richy, Merced Rold, and Marcelly Mariano testified. Based on their testimony and the evidence admitted, the court makes the following

Findings of Fact.

In November 2005, Soster Tither enrolled in and in due course successfully completed the Chuuk Hospital's nurse training program. He graduated on January 12, 2007.

Tither continued training at the hospital until he was hired, on probationary status, as a Practical Nurse I, effective September 16, 2007.

In September 2007, Tither decided that he should be the one to escort a stretcher patient to Honolulu, but his supervisor, Chief Nurse Irene Nero, explained to him that as a practical nurse he was not qualified to be an escort since an escort must be either a doctor or a registered nurse. Nonetheless, Tither managed to obtain authorization elsewhere and escorted the patient to Honolulu where he decided to remain for fifteen days although as an escort he was only authorized three or four days for the trip to Honolulu and return. Tither did not inform his superior that he intended to extend his stay in Honolulu. On his October 9, 2007 return to Chuuk, Tither went straight to the hospital to pick up his paycheck and was told he was suspended. The reason for the suspension was Tither's insubordination.

On November 26, 2007, Tither was assigned to duty in the Emergency Room. A young male patient, who had fallen out of a tree and whose abdomen was punctured by a protruding piece of wood, was brought to the Emergency Room. Dr. Julius Arsenal, with the assistance of two registered nurses, used IV fluids to raise the boy's blood pressure and, in order to save his life, a tube was inserted through the patient's mouth to drain blood and excess air from the stomach and to prevent further accumulation. This required that the tube be held in place by tape across the boy's face.

Tither objected to this treatment because he believed that Dr. Arsenal and the Filipino nurses were taping the boy's mouth shut with masking tape because they did not like him making noise and crying and that they making fun of the boy. (The Emergency Room does not stock masking tape.) Tither raised his concerns with the Chief Nurse, who told him she would look into it. He also wrote a letter to that effect and gave it to the Chuuk Senate President, who, at the time, was in Chuuk Hospital as a patient in critical condition. Dr. Arsenal later confronted Tither about his bothering a patient (the Senate President), who was in critical condition, with extraneous matters.

On one occasion, Tither came to work in the children's ward, where he was then assigned, not properly attired as a nurse. The supervisor spoke to him about this. Tither took off his clothes and left during lunch and did not return that day. On another occasion, he loudly demanded food from the hospital kitchen although that food was only for patients.

In August 2008, the hospital ship USNS Mercy visited Chuuk for ten days to provide surgical and other medical services on board the ship to Chuuk residents. Chuuk Hospital personnel were to provide on board assistance to the USN Mercy personnel. All of the Chuuk Hospital assisting personnel were to be doctors or registered nurses. The Chief Nurse did not authorize practical nurses for shipboard duty. Nevertheless, Tither and at least one other practical nurse somehow ended up on the list to serve as translators on board the USNS Mercy.

On August 22, 2008, Tither showed up for duty on board the USNS Mercy under the influence of alcohol and was disruptive while on the ship. This behavior continued the next day. On August 24, 2008, Tither was, by request, removed from the USNS Mercy and escorted to Chuuk Hospital because he was an embarrassment, he was disruptive, and he was under the influence of alcohol. On August 26, 2008, Tither was suspended, pending investigation, because of his behavior on the USNS Mercy.

Shortly thereafter, the Chief Nurse recommended that Tither be terminated because of the USNS Mercy incidents; the Honolulu stretcher case escort incident; and the general inability of any of the hospital staff to be able to work with him. On September 24, 2008, the Chief Nurse submitted her evaluation of Tither's performance as a probationary employee and she concluded that it was not safe to have him as an employee because he was insubordinate and always getting into problems with other nurses. The next day, the Director of Health Services Julio Marar recommended against Tither's permanent appointment. Director Marar then terminated Tither, effective September 30, 2008, because of the unsatisfactory reports about his performance while on probationary status and because he was not going to be upgraded from probationary status and made a permanent employee. The Director's termination memorandum told Tither that his "work attitude, behavior and character while on actual duty on board the USNS Mercy . . . shoat yo not not qualifialified to be a permanent employee of the Department of Health Services." Defs.' Ex. 2, Memo. (Sept. 25, 2

Tither did not seek other employment but eventually returned to school, at thet the Coll College of Micronesia, to further his education.

Relying on these findings of fact, the court makes the following

Conclusion of Law.

Tither contends that he was terminated because he complained about the boy patient's mistreatment by Dr. Arsenal and the Filipino nurses and that, since mistreatment of patients at the state hospital by state employees is obviously a matter of public concern, he was terminated in retaliation for engaging in constitutionally-protected speech. In a case alleging a retaliatory discharge, the plaintiff bears the burden to demonstrate that his conduct is both constitutionally protected and a substantial or motivating factor in his government employer's decision to discharge him, and that, "if the employee has met this burden, then the burden shifts to the employer to demonstrate that it would have taken the same action in the absence of the protected conduct." Damarlane v. Pohnpei Legislature, [2007] FMSC 58; 15 FSM Intrm. 301, 311 (App. 2007).

A state employee's speech that concerns genuine public issues is protected speech. Id. at 314. Tither has shown (and the defendants do not dispute) that his speech about possible mistreatment or abuse of state hospital patients by hospital staff would be about a matter of public concern - a genuine public issue - and thus would be constitutionally-protected speech.

Tither, however, has not met his burden to prove that this protected speech was a substantial or motivating factor in his termination. Tither was not terminated because he engaged in protected speech about the boy patient's treatment. Tither's termination occurred many months later and after a much more substantial ground and the more likely motivating factor - Tither's behavior during the USNS Mercy visit. Tither was terminated because his work performance while a probationary employee was not up to the level of professionalism expected of a practical nurse as shown by the series of incidents of unprofessional conduct by Tither.

If Tither had been able to prove that his constitutionally-protected conduct had been a substantial or motivating factor in his termination, the burden would have shifted to the defendants. But even if the burden had shifted, Tither still would not prevail. The defendants have demonstrated that they would have taken the same action in the absence of the protected conduct. That is, they have demonstrated that Tither, because of his probationary status and unsatisfactory and unprofessional conduct, would have been terminated anyway even in the absence of the November 26, 2007 Emergency Room incident and Tither's complaints about it. Tither's unsatisfactory performance prevented him from being converted from a probationary employee to a permanent employee. He was not discharged because of his complaints about the November 26, 2007 Emergency Room incident. Tither's termination or discharge was not unlawful.

Conclusion

Accordingly, the clerk shall enter judgment in the defendants' favor with the plaintiff to bear the costs, and, because the court has found for the defendants on the merits, the defendants' August 29, 2011 motion to dismiss is moot.

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