Suspended EMS manager files appeal in LBJ actions
Suspended EMS Manager Galumalemana Fuapopo “Popo” Avegalio has filed an appeal to his sudden suspension and pending termination through his lawyer, Charles Alailima. Last month Popo was suspended while he was meeting with the governor, and was locked out of his office at the time.
Alailima in the appeal last week asked the LBJ Board of Directors to immediately reinstate Popo, saying he should receive full back pay.
Alailima noted in the appeal that the suspension was improper. He said the suspension letter (which was signed by Vice President of Human Resources Anna Hargett) first notifies Popo of his suspension and in the second paragraph notifies him that the suspension is pending the expiration of the 30-day notice period to terminate.
“The second paragraph then says that Popo’s employment is terminated effective March 9, 2013 with the justification for termination “continuing insubordination and unprofessional conduct” — citing two written notices of inappropriate behavior given on June 4 and October 15, 2012.
“There is no separate notice of suspension from termination," says Alailima, adding that "It is ambiguous as to what this letter is intended to be. “Is it a notice of suspension or a notice of termination?”
Alailima noted that the letter (called "Exhibit A") is facially defective in its form.
LETTER TO POPO OF SUSPENSION
LBJ Vice President of Human Resources Ana Hargett noted the action to suspend Popo as EMS Manager is outlined under the Human Resources Personnel Policy and Administration Manual. “It is prompted by your refusal to meet with the Chief Executive Officer today (February 7, 2013) to discuss your performance.
“This action is a suspension pending the expiration of a 30-day notice period to terminate your employment at LBJ Tropical Medical Center. Therefore, effective March 9, 2013 your employment at the hospital will be terminated. This action was taken as a result of your continuing insubordination and unprofessional conduct. You have received written notices of this inappropriate behavior on June 4, 2012 and again on October 15, 2012 and no change in your conduct has been noted,” says the letter. It also indicated that Popo could appeal the action of his termination.
Alailima quoted the Human Resources Personnel Policy and Administration Manual, which states the employee will normally remain in active duty status during the 30-day notice period. However, if the circumstances are such that retention of the employee in active duty status in the employees position may result in damage to LBJ property or may be detrimental to the interest of LBJ or injurious to the employee, fellow workers or the general public, the employee may be temporarily assigned to other duties, placed on annual leave, suspended pending expiration of the 30-day notice period.
The specific reasons for not retaining the employee in active duty status during the notice period must be included in the notice of suspension by the CEO.
Alailima said that it appears the justification for Popo’s suspension were the allegations of a refusal to meet with the CEO to discuss performance on the same day Popo had an appointment requested by the governor.
Alailima pointed out that given the manual presumption that the person to be terminated can remain on the job unless he presents a threat, the burden is on the CEO to show such a threat, yet there is no indication of threat to any LBJ property or employee of LBJ interest.
“If anything it is the suspension of the most highly trained and senior member of the EMS staff that is a threat to the Public Welfare,” wrote Alailima in the letter addressed to Sandra King-Young as Chairman of the LBJ Board.
The appeal further states that the suspension was initiated by the startling physical act of the CEO storming into Popo’s office (while Popo was meeting with the governor in the Office of the Governor), and directing the maintenance staff to change the lock. Following that, the CEO called a meeting telling EMS employees that Popo was suspended and would be terminated, says Alailima.
“This intemperate display by the CEO towards a senior member of the LBJ staff in front of the LBJ employees was not only improper under the manual, it was highly unprofessional for a person in such position of authority, not to mention an affront to the dignity of my client who is a respected chief,” says the appeal.
According to the appeal, the burden is on LBJ to present documentation justifying the drastic action of termination. This should come in the form of written warnings, which would justify termination, and yet the Feb. 7, 2013 letter "makes only conclusory statements and references two warning letters without providing the specific facts or context in which such letters were made that would justify the drastic action of termination."
The personnel manual references termination for any reasons set forth such as standards for employee conduct. Part of the second paragraph cites ‘continuing insubordination and unprofessional c conduct” but fails to identify any specific section of the manual. “My client (Popo) disagrees that his actions in any way undermined the professionalism EMS related services he provides.”
Alailima pointed out that the letter provided no information or documentation of the required recommendations and written accounts of actions justifying the termination from Popo’s supervisor to the CEO as required by the manual.
The appeal goes on to say that the letter did not provide information on any careful consideration by the CEO or consultations he engaged in to justify termination as required by the manual.
“The precipitating event seems to have been the fact that given the conflict between the Governor’s requested appointment with him (Popo) and the vague request made through secretaries to see the CEO in his office, my client chose to seek short postponement of the CEO meeting so that he did not have to inconvenience the busy schedule of the governor.
“It's facially improper in form to be a termination notice as these are two separate notices since it begins with an order notifying my client of his suspension, and then morphs half-way through the second paragraph into a termination notice that does not itself meet the requirement of the termination notice under the Manual.”
Alailima requested that the LBJ Board review the suspension and termination letter and "set aside both the suspension and termination of my client" for insufficiency of due process notice required under the Manual both as to suspension and termination.
"Insufficient evidence of any threat to LBJ justifying immediate suspension, and insufficient evidence of misconduct that would warrant the drastic sanction of separation considering his many decades of service and the impact to the public from the loss to the EMS of its most experienced and trained manager and officer" were also noted in the letter, which was copied to CEO LBJ-ASMCA and Human Resources LBJ-ASMCA.