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Capelle v College of the Marshall Islands [2013] MHHC 2; Civil Action 2011-095 (14 March 2013)

IN THE HIGH COURT
OF THE
REPUBLIC OF THE MARSHALL ISLANDS

CIVIL ACTION NO. 2011 – 095

DAMIEN CAPELLE,
Plaintiff,

v

COLLEGE OF THE MARSHALL
ISLANDS,
Defendant.

DECISION

Plaintiff Damian Capelle filed a complaint against defendant College of the Marshall Islands ("CMI") and certain individual defendants on May 19, 2011 for wrongful termination and breach of contract. Trial was held on May 16, 2012. At trial the court heard testimony from Damian Capelle and Rachel Solomon in plaintiff's case in chief, and from Donna Seppy and Robert Wilson in CMI's defense. Numerous exhibits were admitted for plaintiff and defendant. Written closing arguments were submitted by the parties, the last filed on January 28, 2013.

The court finds that defendant wrongfully terminated plaintiff and defendant shall pay plaintiff damages in the amount of $18,249.

I. FACTS

Damian Capelle had worked continuously for CMI^[1] since 2004 on the basis of successive two year term contracts, the last of which began on August 21, 2010. His job title in the last contract^[2] was Coordinator of Student Athletics and Recreation at an annual salary of $18,249. While he had in the past received generally good personnel reviews, on December 14, 2010 he received a letter from his immediate supervisor, Rachel Solomon, Director for Student Engagement, advising him of problems with attendance. Later in January there were two instances of contact with Capelle recorded by Donna Seppy, the newly hired interim Dean of Student Services and CapeIle's second level supervisor. On January 12, 2011, he met with Seppy to discuss "his request to relocate office space."^[3] The following day he met with Seppy to request time off to "fix my truck."^[4]

On February 2, 2011 Capelle was requested to attend a meeting with four representatives of the College: Robert Wilson, Human Resources Director; Donna Seppy, interim Dean of Student Services; Robert Rivercomb, Director of the ABC Toolbox Program, Arrak Campus; and Angelina La'aw, Human Resources assistant director. At the meeting he was presented with a memo entitled "Disciplinary Action/Failure to Abide by the College's Standards of Conduct and Work Performance."^[5] The memo stated he was subject to immediate termination for failure to adhere to the standard of conducts. Further, it stated he would be terminated immediately unless he accepted a position at the Arrak Campus as Assistant Director of the ABC Toolbox Program at the same salary he was currently receiving, but with certain conditions attached. The memo provided that he should respond by 5:00 p.m. the following day, February 3, 2011.

Failure to respond by that time would be considered refusal to accept the position and result in his termination effective February 3, 2011.

At the February 2 meeting, there was some discussion of grievance procedures (testimony of Damian Capelle, Tr. 43^[6]; testimony of Donna Seppy, Tr. 95-96; testimony of Robert Wilson, Tr.133, 134.) Wilson told Capelle he would have 24 hours to file any grievance (Tr. 135.) Specifics of the charges mentioned in the memo did not come up (Tr. 100.) Plaintiff did not expressly accept or reject the offer in the memo at the meeting (Tr. 103, 104.) There was no discussion of the proposed new position for plaintiff (Tr.70.)

Following the meeting, Capelle met briefly with his immediate supervisor Rachel Solomon, HR Director Wilson, and President of the College Kenneth Woodbury. At the meeting with Woodbury, "he wasn't really, my impression, was supportive of me as the President I though he was gonna be supportive, and be like okay bring in the Supervisor, bring in Bob, nothing happened then." (Tr. 25.) Instead, Woodbury said 'you need to take what they're offering." (Tr. 25.) Feeling he had run out of options (Tr. 25), the following day, February 3, 2011, Capelle turned in his keys, received clearance papers, and sent out an email directing inquiries to his supervisor (Tr 61-63.)

Capelle sought legal advice from Micronesian Legal Services Corporation and attorney Robert Catz undertook his representation. Catz gave notice of his client's intention to sue the College for damages in his letter of February 15, 2013^[7] to President of the College Kenneth Woodbury. On February 24, 2011, he followed up with a letter^[8] to President Woodbury demanding a hearing to contest the unfounded allegations of misconduct contained in the February memo. The College responded to Catz on February 25, 2011^[9] asserting that Capelle had been informed of his right to use the grievance procedure at the February 2, 2011 meeting and that the manner of doing so was through a written request to the President submitted "by the end of the next day, i.e., in twenty four hours." It advised Capelle's failure to do so lost him the protections of the College's human resource policies.

After the loss of his job with the College, plaintiff sought other work at a salary close to what he was earning at the College to support his family and pay off loans (Tr. 36.) He ultimately found work with the Marshall Islands Police Department as a Lieutenant in the Internal Affairs Division in February of 2012 (Tr. 4) which position he held at the time of trial.

II. DISCUSSION

A. Plaintiff was terminated by Defendant.

The parties disagree about how to characterize the effect of the February 2, 2011 memo.^[10] Plaintiff asserts the effect of the memo and the meeting of that date was to terminate the plaintiff. Defendant contends the effect of the memo and meeting was a transfer pursuant to the College's requirements and plaintiff "self-terminated." The court finds the effect of the memo and meeting was the termination of the plaintiff by the defendant.

The subject line of the memo established the nature of the memo: "Disciplinary Action/Failure to Abide by the College's Standards of Conduct and Work Performance." By its own language, the memo was explicitly a "disciplinary action." Indeed, throughout the entire memo there was never the mention of the word "transfer." The first sentence of the memo continued in this vein, stating the purpose of the memo. "The purpose of this Memo is to notify you in writing of your failure to abide by the College's General Standards of Conduct and Work Performance." Again, there was no mention of a transfer being the subject of the memo. The balance of page one and through half of page two of the memo set out the standards of conduct to which plaintiff allegedly failed to adhere and behaviors which established cause for disciplinary action, "up to and including termination of employment."

The memo continued: "By all rights you should be immediately terminated from employment because of the above mentioned failures in your conduct." Despite this, the memo stated "you will be afforded a final opportunity, in a different position, to prove that you can abide by the standards of conduct expected of an employee of the College." That "opportunity" was for the "period of (90) ninety days" to start immediately as Toolbox Programs Coordinator at the Arrak Campus. During that time, the memo listed five "expectations." If those expectations were not met, "whatever the cause," the result would be plaintiffs "immediate, on that day, termination from employment at the College."

The memo went on to state that if plaintiff did not accept this "opportunity," "this letter shall serve as notice of your immediate termination from employment with the College of the Marshall Islands for failure to abide by the College's standard of employee conduct." The February 2 memo required that he return it with an indication of acceptance or otherwise of the position "as offered" by five p.m., Thursday, February 3, 2011. The memo went on to set down in no uncertain terms that "[f]ailure to return this letter, with your decision and signature, will be interpreted to mean that you do not accept the position as offered resulting in your termination from employment with the College effective February 3, 2011."

Whether the offered position constituted a lawful transfer under section 5.2.8 of the College of the Marshall Islands Human Resources Policy and Procedure Manual, August 2009^[11] ("Manual") or not is immaterial to the effect of plaintiff's failure to return the February 2 memo by 5 p.m. that Thursday. Failure to accept the position as offered specifically resulted in plaintiff's "immediate termination from employment with the College of the Marshall Islands for failure to abide by the College's standard of employee conduct." He was terminated by his employer by the terms of the memo. Offering the plaintiff an alternative position did not excuse the College from following the procedural requirements for termination of an employee set out in the Manual.

Defendant suggests that plaintiff's actions on February 3, 2011 constituted some sort of "abandonment" or "self-termination" of his employment with the College. The actions referenced by defendant are that the plaintiff turned in his keys, filled out his clearance form and sent out a good-bye email.^[12] None of these actions are inconsistent with a determination that defendant terminated the plaintiff Reference to the Employee Clearance Form^[13] indicates in the instructions that the employee must complete the form "prior to separation." Part of that process is turning in his keys (see entry for "Physical Plant.") Completing those tasks is not inconsistent with the termination of plaintiff by defendant pursuant to the February 2 memo, because they are to be done before separation. Similarly the referenced email^[14] does not show or even suggest the plaintiff was not terminated under the terms of the February 2 memo. On its face, it was sent at 5:26 p.m. on February 3, after his termination under the February 2 memo, which by its terms, terminated plaintiff immediately if it was not returned by "5pm, Thursday, February 3, 2011." These actions do not show plaintiff was not terminated by defendant.

To the contrary, the College treated the plaintiff as terminated. The Personal Action Form^[15]