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HEADNOTES

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COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

     On August 23, 2001, Plaintiff filed a Motion for Summary Judgment. Defendant filed a Response to the Motion on September 5, 2001. Plaintiffs' Memorandum in Reply was filed on September 11, 2001. The Motion was called for hearing on October 4, 2001. Lyndon L. Cornelius, MLSC, appeared for the Plaintiffs. Defendant was represented by April Dawn M. Skilling, Assistant Attorney General.

     After hearing from both parties, consideration of the Motion, Response and Reply, evidence presented before the Court, applicable law, and in the interests of justice, Plaintiff's Motion for Summary Judgment was granted. This Order sets forth the reasoning of the Court for its ruling.

I. Standard for Summary Judgment.

     KRCP Rule 56(c) establishes the standard for summary judgment. Summary judgment shall be entered if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. Summary judgment under Rule 56 is appropriate when, viewing the facts in the light more favorable to the party against whom judgment is sought, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Weno v. Stinnett, 9 FSM

[10 FSM Intrm. 443]

Intrm. 200, 206 (App. 1999).

II. Procedural Background.

     These two cases, Paul S. Aaron v. State of Kosrae, and Lilly S. Jonas v. State of Kosrae, have been consolidated for trial, by Order entered on July 31, 2001. Both Plaintiffs are graduates of the Pacific Basin Medical Officers Training Program (PBMOTP) in Pohnpei. Both Plaintiff Paul Aaron and Plaintiff Lilly Jonas graduated from PBMOTP in 1996 and were hired in 1997 by the State of Kosrae. Plaintiffs were hired to work at the Department of Health, Kosrae State Hospital as Staff Physicians I. Their entrance salary was assigned at pay level 25/6. Earlier graduates of the PBMOTP, hired by the State prior to the Plaintiffs in this case, had also been hired as Staff Physicians I. However, the entrance salary for the earlier graduates was assigned at pay level 28/6.

     The Plaintiffs filed grievances with respect to their lower pay level. The Honorable Rensley A. Sigrah, Governor of Kosrae State, on May 1, 2000, issued his final decision on the grievance of Paul Aaron. The Governor granted the grievance and ordered that the pay level of Paul Aaron be raised to level 28 to make Aaron's pay level consistent with the other medical officers at the Department of Health. The Governor made the decision and pay level increase effective on May 1, 2000 and did not make the pay level increase retroactive to Aaron's date of hiring. Plaintiff Lilly Jonas' salary was also adjusted pursuant to the Governor's decision on the Aaron's grievance. On May 1, 2000, Jonas' pay level was also increased to level 28. Jonas' pay level increase was not made retroactive to Jonas' date of hiring. Both Plaintiffs now claim retroactive pay at level 28 from the dates of their hiring in 1997 up to May 1, 2000.

III. Undisputed Facts.

     Several Kosraeans, including Vita A. Skilling, Paul A. Skilling, Livinson A. Taulung and Carolee T. Masao graduated from the PBMOTP prior to 1996 as medical officers. These medical officers were hired by the Defendant State as Staff Physicians I, at pay level 28/6. The State has admitted that their classification and assigned pay level (28) was incorrect and that these medical officers should have been classified and paid at a lower level, most likely as Medical Interns, at pay level 21. Plaintiffs graduated from PBMOTP in 1996 as medical officers. In 1997, both Plaintiffs were hired by the State. Plaintiff Aaron was hired on January 2, 1997 and Plaintiff Jonas was hired on March 31, 1997. Each of these Plaintiffs were also classified as Staff Physicians I, but were assigned to a lower entrance salary at pay level 25.

     Each of the Staff Physicians I working for the Department of Health, including those who graduated from PBMOTP prior to 1996 and both Plaintiffs, were assigned similar responsibilities and performed similar duties at Kosrae State Hospital. Each of the Staff Physicians I possessed the same qualifications at the time they were hired by the State: graduation from the PBMOTP and no medical work experience. However, those Staff Physicians I hired prior to the Plaintiffs were treated differently than the Plaintiffs, by being paid at a higher pay level.

     The State granted the grievance of Plaintiff Paul Aaron, and raised the pay level of both Plaintiffs on May 1, 2000 to pay level 28, "to make it consistent with the other medical officers of the Health Department." The State did not make the Plaintiffs' pay increase retroactive to hiring. The pay level increase was made it effective on May 1, 2000.

     Based upon the evidence submitted before the Court, I find that there is no genuine issue as to any material fact presented in this case.

[10 FSM Intrm. 444]

IV. Analysis.

     Plaintiffs were hired as Executive Service System employees in 1997. Both parties argued the application of the State Public Service System Act, Kosrae State Code, Title 18, to this case. However, Kosrae State Code, Title 5, Chapters 4 and 5 (repealed) governed the Executive Service System at the time of hiring of the Plaintiffs in January and March 1997. Therefore, the Executive Service System laws shall be applied to the State's initial classification of the Plaintiffs and assignment of their entrance salary at pay level 25.

     The Executive Service System employee positions were governed by Kosrae State Code, Title 5, Chapters 4 and 5 (repealed). The position of "Staff Physician I" was an Executive Service position at the time of the Plaintiffs' hiring by the State. Kosrae State Code, Section 5.401(6), provided that: "In conducting the Executive Service, the Executive . . . (6) provides for the systemic classification of positions . . . ." Kosrae State Code, Section 5.410(1) also requires systemic classification of a position in accordance with the position's duties, and groups positions into classes according to their similarities in duties and qualifications.

     Importantly, the Executive Service System provides for one pay level for each class of positions. Kosrae State Code, Section 5.506(1) specified the entrance salary rate for employees entering the Executive Service. Section 5.506(1) refers to "the pay level for the class of the position." The language used in Section 5.506(1), clearly indicates that each class of positions is assigned one pay level.

     Here, every graduate of PBMOTP hired by the State in 1996 and 1997, including the Plaintiffs and the other medical officers, were grouped into the same class of positions: Staff Physicians I. This similar classification was based upon every medical officer possessing similar qualifications, and being assigned similar duties and responsibilities. However, the Staff Physician I class was assigned two pay levels: pay level 28 for persons hired prior to the Plaintiffs, and pay level 25 for the two Plaintiffs in this case. The State's action in assigning two different pay levels to the same class of positions was a violation of Kosrae State Code, Sections 5.401(6), 5.410(1) and 5.506(1).

     The State, by granting Plaintiff Aaron's grievance and increasing both Plaintiffs' salary to pay level 28 in May 2000, has partially corrected their improper action and violation of law in treating the Plaintiffs differently from the other PBMOTP graduates. The State has adjusted and raised the Plaintiffs' salaries for consistency with the other Staff Physician I salaries from May 1, 2000 forward. However, the State's correction of the pay level from May 1, 2000 forward did not address the improper salary assignment and violation of law from the Plaintiffs' date of hiring to April 30, 2000.

     The Plaintiffs should have been classified at the time of their hiring by the State in 1997 at the same pay level as the medical officers who were hired by the State as Staff Physicians I prior to the Plaintiffs. At the time of their hiring, the Plaintiffs possessed similar qualifications, and were assigned similar duties and responsibilities as the other medical officers working as Staff Physicians I for the State at Kosrae State Hospital. Pursuant to applicable law, Kosrae State Code, Title 5, both Plaintiffs in this case, who were classified and hired as Staff Physicians I, should have been assigned to pay level 28/6 on their respective dates of hiring.

     Plaintiffs have satisfied the standard for summary judgment under KRCP Rule 56. Plaintiffs have shown that there is no genuine issue as to any material fact and that as the moving party, they are entitled to judgment as a matter of law. Plaintiffs' Motion for Summary Judgment is granted. Plaintiff Aaron is entitled to retroactive adjustment to his entrance salary as Staff Physician I, to pay level 28/6, effective on his date of hiring of January 5, 1997. Plaintiff Jonas is entitled to retroactive adjustment

[10 FSM Intrm. 445]

to her entrance salary as Staff Physician I, to pay level 28/6, effective on her date of hiring on March 31, 1997.

V. Computation of Damages.

     Parties have agreed to meet and calculate the damages in this matter, with the assistance of employees of the Department of Administration. The parties shall file and serve their calculation of damages no later than November 15, 2001. If both parties agree to a single calculation of damages, a stipulated joint calculation of damages shall be filed. Judgment shall be entered following the filing and hearing on the calculation of damages.

VI. Pre-judgment Interest.

     Plaintiff seeks pre-judgment interest of 9 % on the amount of the withheld salary, from the date of hiring from each Plaintiff to April 30, 2000. Pre-judgment interest is rarely awarded as an element of damages. In specific cases, pre-judgment interest has been awarded in breach of contract cases, where the complaining party had been deprived of funds that he was entitled to by his contract. In the case of Coca-Cola Beverage Co. v. Edmond, 8 FSM Intrm. 388 (Kos. 1998), the Court awarded pre-judgment interest at 9% per annum because the Defendant wrote checks on an insufficient account balance to the Plaintiff. The Court found that the Defendant knew at the time he wrote those checks that he owed the Plaintiff a specific amount of money.

     The FSM Supreme Court has also awarded pre-judgment interest in a case involving an intentional tort, in the case of Bank of Hawaii v. Air Nauru, 7 FSM Intrm. 651 (Chk. 1996). In that case, involving Defendant's intentional conversion of funds, the Court awarded pre-judgment interest at 9% per annum from the date of conversion. In this case also, the Defendant knew the specific amount of funds that he had converted from the Plaintiff.

     Tort claims are generally "unliquidated" in that the defendant does not know the precise amount he will be obligated to pay. See 22 Am. Jur. 2d Damages § 664 (rev. ed. 1988). Most courts will not award interest on unliquidated monetary claims, which amount cannot be computed without a trial. See Dan B. Dobbs, Remedies § 3.5, at 165 (1973). In some jurisdictions in the United States, pre-judgment interest may also be allowed according to state law. However, in Kosrae State, there is no State Law which addresses pre-judgement interest, or allows its award.

     Kosrae State Court has awarded retroactive adjustment in salary in a similar employment case, Edwin v. Kosrae, 4 FSM Intrm. 292 (Kos. S. Ct. Tr. 1990). In that case, plaintiff claimed that he was improperly demoted, after serving a temporary promotion. After the temporary promotion ended, Edwin was improperly returned to position at pay level 14/10. The Court determined that Edwin should have been returned to the salary level at 21/6. In calculating the amount of damages, the Court took the difference between the amount of pay that Edwin should have received (at 21/6) and actually received (at 14/10) for the period of time that the plaintiff worked at the lower pay level. No pre-judgment interest was awarded to plaintiff Edwin.

     There is no statutory authority allowing or directing the Court to award pre-judgment interest in these type of cases involving violation of law or regulations. Our Legislature has not spoken on this issue. Although pre-judgment interest has been allowed in certain contract and conversion cases, it has not been awarded in employment cases involving violation of law or regulations. Plaintiff's request for pre-judgment interest is denied.

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