KOSRAE STATE COURT TRIAL DIVISION
Cite as Skilling v. Kosrae
10 FSM Intrm. 448 ( Kos. S. Ct. Tr. 2001)
 
[10 FSM Intrm. 448]
 
ITCHIGO N. SKILLING,
Plaintiff,
 
vs.
 
STATE OF KOSRAE,
Defendant.
 
CIVIL ACTION NO. 78-00
 
ORDER GRANTING SUMMARY JUDGMENT;
DISMISSAL WITH PREJUDICE
 
Yosiwo P. George
Chief Justice
 
Hearings: February 13, September 10, 2001
 
Decided: October 31, 2001
 
APPEARANCES:
 
For the Plaintiff:                          Sasaki George, Esq.
                                                     Micronesian Legal Services Corporation
                                                     P.O. Box 38
                    Lelu, Kosrae FM 96944
 
[10 FSM Intrm. 449]
 
For the Defendant:                   April Dawn M. Skilling, Esq.
                                                   Assistant Attorney General
                                                   Office of the Kosrae Attorney General
                                                   P.O. Box 870
                                                   Lelu, Kosrae FM 96944

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HEADNOTES
 
Civil Procedure ) Summary Judgment
     The court shall grant summary judgment if the pleadings, discovery responses and affidavits show that there is no genuine issue to any material fact and that the moving party is entitled to judgment as a matter of law. Skilling v. Kosrae, 10 FSM Intrm. 448, 450 (Kos. S. Ct. Tr. 2001).
 
Civil Procedure ) Affidavits; Civil Procedure ) Summary Judgment
     For a summary judgment motion, supporting and opposing affidavits must be made on personal knowledge, and must set forth such facts as would be admissible in evidence. An adverse party may not rest upon the mere allegations or denials of his pleading, but must set forth by affidavit or otherwise, specific facts showing that there is a genuine issue for trial. The facts are viewed in the light most favorable to the nonmovant. Skilling v. Kosrae, 10 FSM Intrm. 448, 450 (Kos. S. Ct. Tr. 2001).
 
Public Officers and Employees
     Trust Territory Code Title 61 governed the Public Employment System during 1978, and provided that the grievance procedures would hear and adjudicate grievances for all employees where the employees would be free from coercion, discrimination or reprisals and that they might have a representative of their own choosing. Skilling v. Kosrae, 10 FSM Intrm. 448, 451 (Kos. S. Ct. Tr. 2001).
 
Public Officers and Employees
     In 1978, the Trust Territory Public Service Grievance System covered all Public Service employees and covered any matter of concern or dissatisfaction to an eligible employee, unless exempted. Skilling v. Kosrae, 10 FSM Intrm. 448, 451 (Kos. S. Ct. Tr. 2001).
 
Public Officers and Employees
     An employee had to complete the informal grievance procedure before presenting the grievance to the Trust Territory Personnel Board. The employee was required to present a grievance concerning a particular act or occurrence within fifteen calendar days of the date of the act or occurrence. The informal grievance procedure permitted presentation of the grievance orally. The Regulations also provided a formal grievance procedure, which the employee may have utilized and which had to be done in writing, if his grievance was not settled to his satisfaction under the informal grievance procedure. The formal grievance procedure was not mandatory upon employees. Skilling v. Kosrae, 10 FSM Intrm. 448, 451-52 (Kos. S. Ct. Tr. 2001).
 
Administrative Law ) Judicial Review; Public Officers and Employees
     The Trust Territory Public Service System Regulations did not require an employee grievance be heard by the Personnel Board in the formal grievance procedure prior to filing suit in court on that grievance. There was no limitation on judicial review of grievances imposed by the Public Service System Regulations, as long as the informal grievance procedure was completed. Skilling v. Kosrae , 10 FSM Intrm. 448, 452 (Kos. S. Ct. Tr. 2001).
 
[10 FSM Intrm. 450]
 
Public Officers and Employees ; Statute of Limitations
      After a Trust Territory employee's cause of action accrued in 1980 when he completed the informal grievance procedure with his supervisor, he had two options: follow the formal grievance procedure for review by the Personnel Board; or file suit in court for judicial review of his grievance. Since his right to sue was complete then, a suit, filed in 2000, will be barred by the six-year statute of limitations and dismissed. Skilling v. Kosrae, 10 FSM Intrm. 448, 452-53 (Kos. S. Ct. Tr. 2001).

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COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

     Defendant filed a Motion for Summary Judgment on January 18, 2001. Plaintiff filed her Response to the Defendant's Motion for Summary Judgment on January 29, 2001. A hearing on Defendant's Motion was held on February 13, 2001. Sasaki George, MLSC, represented the Plaintiff. April Dawn M. Skilling appeared for the Defendant. The hearing on the Motion was continued. Parties were ordered to file memoranda on the issue of whether the late Norio Skilling's right to sue was complete on his alleged misclassification in July 1978. Following the filing of the memoranda, the hearing was continued on June 13, 2001. On June 13, 2001, Plaintiff requested, and this Court granted, additional enlargement of time to conduct discovery of Mr. Lou Brooks, who is residing in the State of Hawaii. On September 10, 2001, the final hearing on Defendant's Motion for Summary Judgment was held.

     After hearing from both parties, I took the Defendant's Motion for Summary Judgment under advisement. Based upon the information submitted to this Court, the argument of counsel, the file in his matter and in the interest of justice, Defendant's Motion for Summary Judgment is granted. This Order sets forth the Court's decision and its reasoning.

     Defendant's Motion for Summary Judgment is based upon two grounds. First, the Plaintiff's suit is barred by the statute of limitations. Second, the Plaintiff's suit is barred by the doctrine of laches. Defendant argues that Norio Skilling's cause of action accrued in July 1978, when his alleged misclassification was completed. Defendant argues that both the statute of limitations and the doctrine of laches bars this suit, which was filed in August 2000, more than more than 22 years after the alleged misclassification. Plaintiff has opposed the Motion for Summary Judgment, arguing that Norio's cause of action accrued in 1997, when he retired from Kosrae State Government employment.

     Plaintiff argues that the doctrine of laches is not applicable here, due to the lack of any prejudice to the Defendant, and due to Defendant's unclean hands. As discussed below, this Court finds that the Plaintiff's cause of action in this case is barred by the statute of limitations. The Court does not reach the issue or applicability of the doctrine of laches.

I. Standard for Summary Judgment.

KRCP Rule 56(c) provides that the Court shall grant s     ummary judgment "if the pleadings, discovery responses and affidavits show that there is no genuine issue to any material fact and that the moving party is entitled to judgment as a matter of law." "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence . . . . [A]n adverse party may not rest upon the mere allegations or denials of his pleading, but must set forth by affidavit or otherwise, specific facts showing that there is a genuine issue for trial." Kos. Civ. R. 56(e). The facts are viewed in the light most favorable to the nonmovant. Dai Wang Sheng v. Japan

[10 FSM Intrm. 451]

Far Seas Purse Seine Fishing Ass'n , 10 FSM Intrm. 112 (Kos. 2001).

II. Facts.

     The material facts in this matter are undisputed. Plaintiff's deceased husband, Norio Skilling ("Norio"), was first hired by the Trust Territory Government in August 1963. Norio changed positions several times during his course of employment with the Government. On July 27, 1978, Norio was reassigned and promoted from Assistant Land Management Officer to District Land Management Officer at pay level 21/1. From 1979 to 1980, Norio received several pay level increases and within-grade increases. On July 27, 1980, Norio was assigned to the "target pay level" as State Land Management Officer from 23/2 to 25/1. Norio received within-grade increases at pay level 25 from 1978 to 1997, when he retired from employment with the Kosrae State Government through the Early Retirement Program.

     In approximately 1980, Norio presented a verbal grievance to Gerson Jackson regarding his 1978 classification. Mr. Jackson was then the Director of the Department of Conservation and Development and the immediate supervisor of Norio. Mr. Jackson investigated Norio's grievance and informed Norio that the basis for lower pay level of level 21 was due to classification of Norio's position as a "developmental" position. Mr. Jackson stated to Norio that if he was not satisfied with his response, Norio should approach the Trust Territory Personnel Office for further action. Affidavit of Gerson Jackson. Norio did not approach or file any grievance with the Trust Territory Personnel Office or Personnel Board. Norio took no further action on his grievance for nearly 20 years.

     On April 21, 1999, Norio filed a grievance against the State of Kosrae for his 1978 classification and lower pay level at level 21. On July 25, 1999, Norio Skilling passed away. On May 30, 2000, the Administrator of Personnel rendered his decision, denying Norio's claim. On August 1, 2001, the Complaint in this matter was filed.

III. Analysis.

     Plaintiff claims that Norio was improperly classified at pay level 21/1 when he was promoted on July 27, 1978. Plaintiff claims Norio should have been classified at pay level 25/1 as District Land Management Officer, based upon the applicable classification plan. The State Classification Plan for District Land Management Officer specified compensation for that position at pay level 25.

     The Trust Territory Code, Title 61 governed the Public Employment System during the 1978 alleged misclassification of Norio. 61 TTC Section 12 provides the grievance procedures as: "The Board shall develop a plan for the hearing and adjudication of grievances for all employees. The regulations relating to grievance procedure shall assure that employees are free from coercion, discrimination or reprisals and that they may have a representative of their own choosing." The grievance procedure was established by Department of Personnel, Trust Territory of the Pacific Islands in January 1974 through the Code of Public Regulations, Title 61, Public Employment, Chapter 1 ("Regulations"). These Regulations are applicable to Norio's alleged misclassification and claims in this matter. The procedure for grievances is established in Part 14 of Title 61 of the Code of Public Regulations. The Trust Territory Public Service Grievance System covers all Public Service employees and covers any matter of concern or dissatisfaction to an eligible employee, unless exempted. Regulations, Sections 14.1 and 14.2. Therefore, the Grievance System applied to Norio, his classification in 1978 to pay level 21 and his dissatisfaction with that classification.

     The Regulations, Section 14.5, requires that the employee complete the informal grievance procedure before the grievance is presented to the Trust Territory Personnel Board. The employee was

[10 FSM Intrm. 452]

required to present a grievance concerning a particular act or occurrence within fifteen calendar days of the date of the act or occurrence. Here, Norio's grievance concerned his classification at pay level 21, which took place in July 1978. He was aware of the classification because he made a verbal presentation of his grievance to his supervisor, Gerson Jackson, in 1980. The Regulations, under the informal grievance procedure, permit presentation of the grievance orally. Regs.  14.5.b. Norio did present his grievance orally to his supervisor, Gerson Jackson, under the informal grievance procedure in about 1980.

     The Regulations also provide a formal grievance procedure which may be utilized by the employee if his grievance is not settled to his satisfaction under the informal grievance procedure. The Regulations, Section 14.6 states that: "If the employee's grievance is not settled to his satisfaction by the immediate supervisor, he should forward his grievance for formal review to the Trust Territory Personnel Board." Regs.  14.6. This grievance submission by the employee to the Personnel Board must be done in writing. Section 14.6(c). By its own terms, and by the use of the term "should," the formal grievance procedure was not mandatory upon employees.

     Norio did not submit his grievance in writing to the Personnel Board. Plaintiff claimed that Norio did submit his grievance verbally to a member of the Personnel Board at that time, to Mr. Lou Brooks. Plaintiff was given several months to secure admissible evidence of Norio's grievance submission to Mr. Lou Brooks, as required by KRCP Rule 56(e) and (f). Plaintiff was unable to submit affidavits or any other admissible evidence to support her claim that Norio did submit his grievance Mr. Lou Brooks, or to the Personnel Board. Plaintiff failed to show by admissible evidence, that Norio did submit his grievance in writing to a member of the Personnel Board. Therefore, Norio failed to utilize the formal grievance procedure provided by the Regulations, Section 14.6. By Norio's failure to submit his grievance in writing to the Personnel Board, he lost his right to have his grievance heard and resolved by the Personnel Board.

     The Public Service System Regulations did not require a grievance be heard by the Personnel Board in the formal grievance procedure prior to filing suit in court on that grievance. There was no limitation on judicial review of grievances imposed by the Public Service System Regulations, after completing the informal grievance procedure. Further, The Trust Territory Public Service System Act, 61 TTC ch. 1, did not require that a grievance be subject to the formal grievance procedure before the Personnel Board prior to filing suit. There was no limitation on judicial review of grievances made by an employee under the Public Service System Act or under the Public Service System Regulations, as long as the informal grievance procedure was completed. In comparison, for disciplinary actions (also called "adverse actions"), appeal to the Trust Territory Personnel Board was required first, prior to appealing the disciplinary action in Court. See Regulations, Title 61, page 41.

     The Regulations do show an intent to provide an administrative remedy for grievances: first through the informal grievance procedure, then through the formal grievance procedure. Regs. pt. 14. Norio failed to comply with the administrative remedy provided by the Regulations when he failed to request formal grievance review by the Personnel Board, after completing the informal grievance procedure in 1980 with his supervisor, Gerson Jackson. Therefore, under the applicable Trust Territory Code and Regulations provisions, Norio lost his right to an administrative remedy when he failed to request formal review of his grievance by the Trust Territory Personnel Board.

     The applicable statute of limitations to this matter is six years, pursuant to Kosrae State Code, Section 6.2505, after accrual of the cause of action. Based upon the undisputed facts in this case, Norio's cause of action accrued in 1980, when he completed the informal grievance procedure with his supervisor, Gerson Jackson. After completion of the informal grievance procedure, Norio had two options: Norio could follow the formal grievance procedure for review by the Personnel Board; or Norio

[10 FSM Intrm. 453]

could file suit in Court, for judicial review of his grievance. He did neither.

     Therefore, Norio's right to sue was complete in 1980, as the Public Service System Law or Regulations did not bar judicial review of grievances after completion of the informal grievance procedure. Norio failed to follow the administrative remedy provided by the Regulations. Norio also failed to file suit until the year 2000, 20 years after his right to sue was complete. More than six years has passed since the accrual of Norio's cause of action and right to sue in 1980. Accordingly, Norio's claim is now barred by the statute of limitations.

     I find that the standard for the granting of summary judgment has been satisfied, pursuant to KRCP Rule 56. There are no genuine issues of material fact and the Defendant is entitled to judgment as a matter of law. Therefore, Defendant's Motion for Summary Judgment is granted. The Complaint is dismissed with prejudice.

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