HEADNOTES

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COURT'S OPINION

ALIKSA B. ALIKSA, Associate Justice:

     This matter was called for trial on July 17, 2001. Plaintiff was represented by Lyndon Cornelius, MLSC. April D.M. Skilling, Assistant Attorney General, appeared on behalf of the State. The Court heard the matter as trial de novo, pursuant to Kosrae State Code, Section 18.507. The following persons testified at the trial: Plaintiff Mixon Jonas, Takasy Shrew, Salpasr Tilfas. Trial was concluded on July 17, 2001. After the trial, I took the matter under advisement. This Memorandum sets forth the Court's decision and reasoning on the issue of liability of the Defendant.

I. Findings of Fact

     This matter involves claims made by the Plaintiff with respect to actions which took place from 1990 through 1992. The actions taken by the State approximately ten years ago took place under a previous administration. However, due to the timing of administrative review, this matter now comes before this Court at this time for disposition.

     Plaintiff was a classroom teacher for Malem Elementary School and an employee of the Executive Service System at all relevant times, from 1990 through 1992. On March 11, 1990, Plaintiff was assigned specific duties of "head teacher" and given a step increase in salary, from 14/6 to 14/7. Plaintiff's new position was listed as Classroom Teacher II (HT). This new position is reference throughout this decision as "Head Teacher."

     As Head Teacher, Plaintiff was given duties additional to the duties of Classroom Teacher II. Plaintiff's Head Teacher duties included the designation of supplemental materials for the social studies curriculum, quarterly social studies teacher meetings, designation of substitute teachers, supervision of the other social studies teachers, and serving as a resource person for social studies teachers. Plaintiff spent several hours per week performing these additional duties as Head Teacher.

     The Personnel Action Form documenting Plaintiff's change in status states the "Type of Action: Temporary Salary Adjustment. NTE 1 yr." The Remarks section of the Personnel Action Form also stated the following:

This Remarks statement was agreed to by the Plaintiff, by his signature of concurrence.

[10 FSM Intrm. 457]

     Plaintiff served as Head Teacher for two years and six months: March 1990 to September 1992. Plaintiff received the one step increase for movement to the Head Teacher position in March 1990. Sometime after March 1990 and before September 1992, Plaintiff received a step increase, raising his salary from 14/7 to 14/8. On September 30, 1992, Plaintiff was terminated from the Head Teacher position and his pay was reduced from 14/8 to 14/7. The Personnel Action Form for the termination action stated the following Remarks: "Termination of temporary salary adjustment. Request Effective Date: 9/30/92. Employee became Head Teach in Social Studies at Malem Elementary School on 3/11/90. Effective with Action, employee reassume his normal duties as Classroom Teacher II (Ref. Memo dtd.10/29/92)"

     The basis for Plaintiff's termination from the Head Teacher position is stated in a Memorandum from the Principal of Malem Elementary School to the Director of Education, dated October 29, 1992. This Memorandum was prepared after the effective date of the Personnel Action of termination, September 30, 1992. The Memorandum states: "Mixon Jonas . . . has been terminated from Head Teacher responsibilities, due to their involvement in other various activities. They also like to give this additional responsibilities to their co-workers so that they could know the scope of work they have done."

     The Plaintiff was not given a copy of this Memorandum at the time of his termination from the Head Teacher position. Plaintiff was not given written notice of the reduction in salary and termination of the Head Teacher position from the Principal, Director of Education or any other management official before or on September 30, 1992. Plaintiff was not given an opportunity for a hearing or advised of his right to appeal by the State before or on September 30, 1992. There was no written or verbal notice given by the State to the Plaintiff of his termination from the Head Teacher position prior to that action taking place. Plaintiff learned of the salary reduction and termination from the Head Teacher position in February 1993 when he visited the Department of Personnel and Employment Services.

     Plaintiff filed a grievance with the Director of Education, the late Luey Luey in March 1993. Former Director of Education Luey denied Plaintiff's grievance on May 25, 1994. The basis of the former Director's denial was that Plaintiff was given full information regarding the Head Teacher designation and gave full agreement to his temporary designation and temporary salary adjustment as Head Teacher.

     In June 1994, Plaintiff appealed the decision of the Director of Education to the Director of Personnel, the late Fred Sigrah. Plaintiff claimed higher compensation for his duties as Head Teacher under Kosrae State Code, Section 5.427 and the Executive Service Regulations, Part 6.7. In August 1994, the former Director of Personnel denied Plaintiff's appeal. The basis for the denial was that Plaintiff did not present a timely claim, within 15 days of the act forming the basis for the grievance. Pursuant to former Director Sigrah's calculation, Plaintiff should have filed his grievance by October 15, 1992.

     Another basis for the Director's denial of Plaintiff's grievance was that the "temporary promotion" explicitly stated that it would expire and that Plaintiff should have been aware of a reduction in his paycheck after September 30, 1992, sometime in October 1992. Therefore Plaintiff should have filed his grievance no later than November 1992. Therefore, former Director Sigrah denied Plaintiff's claim as being untimely, by letter dated August 1994.

     In September 1994, Director Sigrah's decision was appealed to the ESAB. No administrative action was taken on Plaintiff's appeal until 1999. In 1999, the Ad Hoc Committee held a hearing on Plaintiff's grievance. At the hearing, two claims were presented by Plaintiff. First, Plaintiff claimed that he was improperly placed at pay level 14/7 during his Head Teacher designation. Second, he claimed

[10 FSM Intrm. 458]

that he was improperly terminated from the Head Teacher position.

     The State presented the defense that Plaintiff's grievance was not timely because it was presented more than 15 days after the salary reduction and termination action on September 30, 1992. The Ad Hoc Committee rejected the State's defense and concluded that based upon precedent in this State, the 15 day limit was directory and not mandatory. The Ad Hoc Committee did not address Plaintiff's claims on the merits. The Committee referred Plaintiff's claim of improper pay level placement to the Division of Personnel, and referred the due process issue of hearing requirement to the Court.

     In January 2000, the Honorable Rensley A. Sigrah, Governor of the State of Kosrae, issued his final decision on Plaintiff's grievance. The Governor rejected the Committee's conclusion regarding the timing of Plaintiff's grievance. The Governor concluded that Plaintiff's claim was untimely and upheld the decision of the Division of Personnel on that basis. This suit followed.

II. Standard of Review.

     Kosrae State Code, Section 18.507(2) sets forth the standard of review by this Court in its judicial review of final decisions made under the State Public Service System. Section 18.507 provides that the Court shall decide all relevant questions of law and fact, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. Pursuant to Section 18.507(2), the Court is authorized to compel, or hold unlawful and set aside agency actions.

III. Issues Presented at Trial.

1. Whether Plaintiff's grievance was properly dismissed as being untimely?

IV. Legal Analysis.

     Plaintiff claims that he was improperly terminated from the Head Teacher position without any notice on September 30, 1992. Plaintiff also claims that he should have received a two step increase from 14/6 to 14/8 when he was moved into the Head Teacher position. The Defendant argues that since the "head teacher" designation is not a classified position, the regulations for compensation do not apply to Plaintiff. Therefore, Plaintiff was not entitled to a two step increase: he was only entitled to a Temporary Salary Adjustment of one step increase, which he agreed to in writing.

     The relevant facts in this case occurred from 1990 to 1992. Former Kosrae State Code, Title 5 (repealed) is applicable in this matter, and specifically to Plaintiff's position within the Executive Service System, from 1990 through 1992. Former Regulation 11, adopted in January 1987 (repealed) is also applicable to Plaintiff's claims in this matter. All references to Kosrae State Code, Title 5 and Regulation 11 are made as they existed during relevant time periods in this matter.

A. Timeliness of Plaintiff's Grievance.

     Regulation 11, Section 11.2 prescribed the grievance procedure. Section 11.2(a) requires an

[10 FSM Intrm. 459]

employee to present a grievance related to a particular act or occurrence "within 15 calendar days of the date of occurrence of the date when the employee should have become aware of it had he been exercising reasonable diligence." The act complained of in this matter was the loss of Head Teacher position and reduction in pay, pursuant to the Personnel Action Form effective September 30, 1992.

     The Personnel Action Form terminating Plaintiff from the Head Teacher position was effective September 30, 1992. One of the required signatures on the Personnel Action Form is dated October 30, 1992. Therefore, the earliest that Plaintiff could have learned of his loss of the Head Teacher" position from a reduction in his paycheck would have been sometime in November 1992. There was no evidence submitted by either party which indicated the date of the Plaintiff's first paycheck which was reduced from loss of the Head Teacher position. Therefore, the reduction in Plaintiff's paycheck could have occurred anytime after November 1, 1992.

     Plaintiff testified that he learned of his loss of Head Teacher position and salary decrease in February 1993, when he visited the Department of Personnel and Employment Services.

     Plaintiff filed his grievance in March 1993. Even assuming that Plaintiff did in fact only learn of his pay decrease in February 1993, when he visited the Department of Personnel and Employment Services, he still missed the 15 day deadline established by Regulation 11 to present his grievance. Plaintiff's grievance was presented on March 18, 1993.

     This Court has previously found that the time limits prescribed in the Executive Service Laws and Regulations are directory and not mandatory. These time limits are considered directory because the law and the regulations do not prescribe what happens if the prescribed time limits are not met. Generally, a provision is directory if it requires that certain actions be completed, but does not prescribe the result which should follow if those actions are not completed. Panuelo v. Pohnpei, 3 FSM Intrm. 76 (Pon. S. Ct. App. 1987). For example, in the case of Wibar Obet v. Kosrae State and ESAB, Civil Action No. 34-88 (Opinion, Sept. 27, 1988), this Court ruled that the 15 day limit provided by law for the ESAB to hear an appeal was not jurisdictional. The Court held that the 15 day limit is directory only. Therefore, the ESAB was still required to hear the appeal, even though the 15 day limit had expired.

     In the case of Langu v. State, this Court has determined that the 15 day time limit for filing the grievance did not apply because the State's actions in "laying off" the Plaintiffs occurred on a yearly basis. Langu v. Kosrae, 8 FSM Intrm. 427 (Kos. S. Ct. Tr. 1998). In Langu v. Kosrae, this Court held that regulatory time periods are directory and not mandatory. See id. at 435.

      I conclude, consistent with prior rulings of this Court, that Regulation 11.2.a. was directory in nature, since the provision did not specify what result happens if the employee files later than 15 days after the subject action. Following FSM and Kosrae State precedent on this issue, this Court finds that Regulation 11.2.a. is directory and not mandatory. Therefore, Plaintiff's late presentation of his grievance, on March 18, 2001, after the 15 day period specified in Regulation 11.2, does not bar Plaintiff's claim.

     The State's denial of the Plaintiff's claim based upon the ground of untimely filing, was unlawful and is therefore set aside. The State's improper denial of Plaintiff's claim was a denial of legal rights and contrary to law as established by prior Court decisions. Plaintiff's claims are now considered by the Court on its merits.

[10 FSM Intrm. 460]

B. Pay Level Classification of Plaintiff in Head Teacher Position.

     Plaintiff was classified as a Classroom Teacher II, pay level 14/6 when he was assigned additional duties and moved into the Head Teacher position for Social Studies. He received a one step pay level increase to 14/7. Plaintiff performed additional duties while he held the Head Teacher position from the time of his appointment in March 1990 to until the loss of his appointment in September 1992. Plaintiff's additional duties included designation of supplemental materials for social studies curriculum, quarterly social studies teacher meetings, designation of substitute teachers, supervision of the other social studies teachers, and serving as a resource person for social studies teachers.

     Kosrae State Code, Title 5, set forth the Executive Service System law. A position in the Executive Service is a "defined set of work responsibilities in the Executive." Kosrae State Code, Section 5.101(18). Plaintiff was assigned a defined set of work responsibilities when he was moved into the position of Head Teacher in 1990. Accordingly, Plaintiff was moved into the position of Head Teacher by his employer, State of Kosrae.

     Each Executive Service position was required to be classified by the Director of the Department of Personnel and Employment Services ("Director"). Kosrae State Code, Section 5.410 requires classification of executive branch employees. All positions in the Executive Branch fall within the Executive System and Kosrae State Code, Title 5, Chapters 4 and 5, unless exempted under Kosrae State Code, Section 5.101(18).

     Plaintiff's position as Classroom Teacher II and as Classroom Teacher II (Head Teacher) were not exempted from the Executive Service System. The Plaintiff's Personnel Action Form, effective March 11, 1990, stated that this "[a]ction doesn't effect employee's anniversary step increase date." Through moving the Plaintiff to the Head Teacher position, the State intended to keep Plaintiff within the Executive Service System and keep Plaintiff entitled to receive his anniversary step increases as provided by law and regulation. Therefore, the Head Teacher position was not exempt, and was subject to classification under Kosrae State Code, Section 5.410.

      The Director failed to classify the position of Head Teacher before, during or after Plaintiff was moved into that position. The Director did not perform his duties as required by Kosrae State Code, Section 5.410, and therefore the Director violated state law. This violation of state law continues today, as Head Teacher positions continue to be filled within the State Public Service System, but have not been classified to date.

    The movement of the Plaintiff into the position of Head Teacher required the Plaintiff to perform additional duties beyond the duties of a Classroom Teacher II.

     Kosrae State Code, Section 5.427 provides that: "If an employee performs duties in addition to those stated in the classification plan for his regular position and the compensation for the position which normally includes the additional duties is greater than his regular salary, he receives the greater salary during the period of performance."

     As Head Teacher, Plaintiff performed duties in addition to those stated in the classification plan for Classroom Teacher II. Plaintiff performed additional duties while holding the position of Head Teacher from March 1990 through September 1992.

       Regulation 11 provides several types of adjustment of salary for additional duties under Part VI: detail, acting assignment and temporary promotion. Based upon the facts in this case, I conclude that the Plaintiff was moved into the Head Teacher position by detail. Regulation 11, Section 6.2 provides:

[10 FSM Intrm. 461]

Section 6.2 is applicable to the facts in this case. Plaintiff was given a temporary assignment to the different position of Head Teacher for a maximum period of one year, with the intention that the Plaintiff would return to his regular position of Classroom Teacher II at the end of the detail, no later than one year later or March 11, 1991. The Head Teacher position was not filled by the detail assignment of the Plaintiff, since the Plaintiff continued to be the incumbent of and hold the position of Classroom Teacher II.

      Regulation 11, Section 6.5 sets out the compensation of detail assignments. Section 6.5 provides that "an employee who is temporarily assigned to a position by detail . . . shall be compensated at the step in the new pay level which is equivalent to a two step increase above his regular salary." Plaintiff, when he was moved into the detail assignment of the Head Teacher position, was given a one step increase. This one step increase in salary violated Regulation 11, Section 6.5. Plaintiff was entitled to a two step increase, from 14/6 to 14/8, on March 11, 1990, upon his movement into the Head Teacher position.

      The State's action in granting Plaintiff a one step increase on March 11, 1990 was unlawful and is therefore set aside. The State unlawfully withheld the proper compensation to the Plaintiff, a two step increase from 14/6 to 14/8, beginning with his movement into the Head Teacher position on March 11, 1990. The State shall be required provide the proper compensation to the Plaintiff, beginning with a two step increase, retroactive to March 11, 1990.

C. Termination of Plaintiff from Head Teacher Position.

       On September 30, 1992, Plaintiff was terminated from the Head Teacher position and placed back into his original position of Classroom Teacher II. Plaintiff's salary was reduced one step, from 14/8 to 14/7. The reason for Plaintiff's termination from the Head Teacher position, as stated in a written memorandum from the Principal of the Malem Elementary School to the Director of Education was "due to [Plaintiff's] involvement in other various activities." The Principal's memorandum also stated that they wanted to give the Head Teacher responsibilities to other teachers. The Plaintiff's termination from the Head Teacher position, and his reduction in salary was not based upon disciplinary reasons.

      The term "demotion" is not defined in the Kosrae State Code. Turning to the legal definition, the term "demotion" means "reduction to lower rank or grade, or to lower type of position, or to lower pay scale." Black's Law Dictionary 432 (6th ed. 1990). Plaintiff's grade was reduced from Head Teacher to Classroom Teacher II. Plaintiff's salary and pay scale were reduced one step from 14/8 to 14/7. Therefore Plaintiff was demoted.

      Kosrae State Code, Section 5.418, provides the basis for demotion and the procedure for implementing a demotion: "For disciplinary reasons based upon good cause a management official may . . . demote an employee. A . . . demotion of an employee is not effective for any purpose until the management official gives the employee written notice stating the reasons for the . . . demotion and the employee's right of appeal." (emphasis added).

      The demotion of the Plaintiff was not made for disciplinary reasons. Plaintiff's demotion from the position and salary of Head Teacher for a non-disciplinary reason was a violation of Kosrae State Code,

[10 FSM Intrm. 462]

Section 5.418. Demotion for non-disciplinary reasons was simply not permitted under Kosrae State Code, Title 5, Executive Service System.

      Regulation 11, Section 6.6 permits demotions for other reasons. However, Section 6.6 is in conflict with Kosrae State Code, Section 5.418 and is therefore an impermissible extension of the statute. Klavasru v. Kosrae, 7 FSM Intrm. 86 (Kos. 1995). Therefore, Regulation 11, Section 6.6, as it applies to non-disciplinary demotions, is invalid and is not applicable in this case.

      Kosrae State Code, Section 5.418 was further violated because the Plaintiff was not given written notice of the reason for his demotion and his right of appeal. Plaintiff claims that he never received any written notice of his demotion, except when he went to the Department of Personnel and Employment Services on his own in February 1993. Pursuant to Kosrae State Code, Section 5.418, Plaintiff's demotion was not effective for any purpose based upon the management official's failure to give the Plaintiff written notice of his demotion and his right of appeal. The State's failure to give Plaintiff the required written notice is a violation of Section 5.418, and made the demotion ineffective for any purpose. Therefore the reduction of Plaintiff's salary from 14/8 to 14/7 on September 30, 1992 was a violation of state law.

      The reduction of Plaintiff's classification and salary is also improper for another reason. The State also violated its own time limit set forth in the Personnel Action Form for the Plaintiff's temporary adjustment into the Head Teacher position. The Personnel Action Form effective March 10, 1990 stated that the Temporary Salary Adjustment was "Not To Exceed 1 Year." The State violated its own condition by continuing to keep the Plaintiff in the Head Teacher position and pay the Plaintiff the higher Head Teacher salary for more than one year, continuing after March 10, 1991, up to September 30, 1992.

      Regulation 11, Section 4.6 establishes a maximum probation period of one year. After successfully serving the probationary period, an employee may be converted to a permanent employee. Regulation 11, Section 4.3.a. provides that "a position which is established to meet continuing need of the Government, and which is authorized to last longer than one year, shall be identified as a permanent position." The Head Teacher position was established to meet the continuing need of the Government in 1990. The Head Teacher position meets the continuing need of the Government even today, as evidenced by the Head Teacher positions that are currently utilized by the Department of Education. The Plaintiff's Head Teacher position was authorized to last longer than one year: it was authorized to last approximately two years and six months. Plaintiff successfully served the full one year probationary period as Head Teacher. Plaintiff's position as Head Teacher with its higher pay level, became a permanent position on March 11, 1991, when the one year probationary period expired. See Isaac v. Weilbacher, 8 FSM Intrm. 326 (Pon. 1998).

       Plaintiff's demotion from the Head Teacher position and pay level was a violation of State law. Plaintiff's position as Head Teacher became a permanent position on March 11, 1991, after Plaintiff successfully served a one year probationary period. The State's demotion of the Plaintiff, on September 30, 1992, was unlawful and is therefore set aside. Plaintiff's salary shall be established as if the demotion never occurred. The Plaintiff shall be paid the salary of Head Teacher, beginning with pay level 14/8 on March 11, 1990 and continuing thereafter beyond September 30, 1992.

V. Damages.

     Based upon the factual findings and conclusions of law reached in this case, the Plaintiff is entitled to the following damages:

[10 FSM Intrm. 463]

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