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[10 FSM Intrm. 488]

COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

     This matter was called for trial on September 13, 2001. Trial was held on September 13, 18 and 19, 2001. Plaintiff was represented by Sasaki L. George, 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, Salpasr Tilfas, Director Henry Robert, Davin Palsis, Principal Tulen Kinere. Trial was concluded on September 19, 2001. Pursuant to the stipulation of the parties, the Court ordered that closing arguments be submitted in writing. Both parties filed their written closing arguments on September 27, 2001. Both parties filed responses to the closing arguments on October 4, 2001.

     After the trial and submission of the closing arguments and responses, the matter was taken 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 1997. The initial actions complained of that were taken by the State more than 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 Tafunsak Elementary School and an employee of the Executive Service System at all relevant times, from 1990 through 1997. On March 11, 1990, Plaintiff was assigned specific duties of "head teacher" and given a step increase in salary, from 14/9 to 14/10. Plaintiff's new position was listed as Classroom Teacher II (HT). This new position is referenced 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 heading the health/nutrition program at Tafunsak Elementary School, working directly with Heath/Nutrition Specialist Jed Ablao, making quarterly reports to Ms. Ablao, and ordering and obtaining materials for teaching activities. Plaintiff also supervised the work of four other teachers in the health/nutrition program in the area of lesson planning and curriculum mapping. 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.

     Plaintiff served as Head Teacher for seven years and seven months, from March 1990 to October 1997. Plaintiff received the one step increase for movement to the Head Teacher position in March

[10 FSM Intrm. 489]

1990. From March 1990, Plaintiff's salary was frozen at the top step of level 14, at 14/10. In October 1994, Plaintiff was reallocated to Classroom Teacher III and received an effective salary increase of one step, from 14/10 to 16/9. In November 1995, Plaintiff received a step increase, from 16/9 to 16/10. From November 1995 until Plaintiff's termination from Kosrae State Government employment in October 1997, Plaintiff's salary remained frozen at pay level 16/10.

     Plaintiff filed written grievances with the Director of Education in September 1996 and October 1996, claiming higher salary due to the added duties of the Head Teacher position. The grievance was denied in September 1998 by the Administrator of the Division of Personnel & Employment Services. The Administrator's decision was appealed to the Appeals Panel, which did not hear Plaintiff's appeal. Plaintiff retired from Kosrae State Government employment in October 1997, when he participated in the Early Retirement Program. This lawsuit 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. Kosrae State Code, 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 should have received a two-step increase on March 11, 1990 for his performance of additional duties as Head Teacher under Kosrae State Code, Section 5.427?

2. Whether Plaintiff should have been place at a higher pay level for his performance of additional duties as Head Teacher?

IV. Legal Analysis.

     Plaintiff claims that he should have received a two step increase when he was moved into the Head Teacher position. Plaintiff argues that he performed some of the duties of the Vice Principal and therefore should have been placed at pay level 21, which was the pay level assigned to the position of Vice Principal. 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 1997. Former Kosrae State Code, Title 5 (repealed) is applicable this matter, and specifically to Plaintiff's position within the Executive Service System, from 1990 through 1997. 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.

1. Pay Step Classification of Plaintiff in Head Teacher Position.

     Plaintiff was classified as a Classroom Teacher II, pay level 14/9 when he was assigned additional duties and moved into the Head Teacher position for Health and Nutrition. He received a one step pay level increase to 14/10. Step 10 is the highest step available under the statutory base salary

[10 FSM Intrm. 490]

schedule. Kos. S.C. § 5.502. Plaintiff performed additional duties while he held the Head Teacher position from the time of his appointment in March 1990 to until his retirement from Kosrae State Government employment in October 1997. These additional duties as Head Teacher included heading the health/nutrition program, working directly with Health/Nutrition Specialist Jed Ablao, making quarterly reports to Ms. Ablao, ordering and obtaining materials for teaching activities, and supervising the work of four other teachers in the health/nutrition program in the area of lesson planning and curriculum mapping.

     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." Kos. S.C. § 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.

     This Court recently ruled on similar issues in the case of Jonas v. Kosrae, 10 FSM Intrm. 453 (Kos. St. Ct. Tr. 2001). In the Mixon Jonas case, Plaintiff was also moved into the Head Teacher position from the Classroom Teacher II position. Plaintiff argued that he was entitled to a two step increase in salary. This Court agreed. The Court held that the Plaintiff was entitled to a two step increase, based upon his assignment to the Head Teacher position by detail. This Court follows the decision in Mixon Jonas v. State and finds that the Plaintiff in this case, Steven T. Tolenoa, was also entitled to a two step increase when he was appointed to the Head Teacher position in March 1990. This conclusion is based upon the following analysis.

     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 § 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."

[10 FSM Intrm. 491]

     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 October 1997.

     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:

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 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 beginning with his movement into the Head Teacher position on March 11, 1990. The State shall be required to provide the proper compensation to the Plaintiff, beginning with a salary equivalent to a two step increase, retroactive to March 11, 1990.

2. Pay Step Classification of Plaintiff in Head Teacher Position.

     Plaintiff argues that he should have been placed at pay level 21 upon his movement into the Head Teacher position. The basis for Plaintiff's argument is that the additional duties of the Head Teacher position were actually duties that were assigned to the position of Vice Principal. The Vice Principal position is classified at pay level 21.

     Plaintiff argues that under the case of Akira Timothy v. Director of Personnel, Civil Action No. 41-90, Opinion (Kos. St. Ct. Tr. Dec. 19, 1991), the proper pay level to place the Plaintiff is at level 21, the pay level of the Vice Principal position. In the case of Akira Timothy, Mr. Timothy was granted a "temporary promotion" the position of Acting Chief of Dental Division. At that time, the position of Chief of Dental Division was vacant. Mr. Timothy performed nearly all of the administrative duties of the Chief's position. The facts in the case of Akira Timothy can be distinguished from the facts in this case.

     In this case, contrary to Akira Timothy's assignment, Plaintiff was not assigned a "temporary promotion" to the position of Vice Principal. Plaintiff did not assume all of the administrative duties of the Vice Principal position. Mr. Salpasr Tilfas testified that the additional duties performed by the Plaintiff were duties that were either assigned to an Education Specialist or to the Vice Principal. The

[10 FSM Intrm. 492]

Vice Principal's position included supervision over all subjects taught at the school: not only Plaintiff's subject matter of health and nutrition. The Health/Nutrition Education Specialist's position included curriculum duties and supervision over all Health/Nutrition teachers, not just the teachers at Tafunsak Elementary School. Further, the position of the Health/Nutrition Specialist was not vacant. Unlike Akira Timothy, the Plaintiff here did not assume the duties of a vacant position. The case of Akira Timothy is distinguished from the facts in this case, and is not applicable here.

     This Court has carefully considered the appropriate remedy and damages in this case. The Court has considered the facts presented at trial of this matter, applicable law and regulations, and in attempting to do substantial justice, makes the following order: The Defendant, State of Kosrae, Department of Administration, shall classify the Plaintiff's position of Head Teacher, as required by Kosrae State Code, Section 5.410. The Defendant shall complete the classification of Plaintiff's position of Head Teacher, including position description and pay level classification. The position description and pay level classification shall be completed, filed and served upon all parties, no later than January 31, 2002. The parties thereafter shall have an opportunity to be heard upon the position description and pay level classification prepared by the Department of Administration.

V. Damages.

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

1. Compensation equivalent to a two step increase from pay level and step 14/9, effective March 11, 1990 and continuing thereafter during Plaintiff's employment with the State. The effective pay level shall be determined following classification of the Plaintiff's Head Teacher position by the State of Kosrae, Department of Administration, as ordered above in Section IV, and after parties are given an opportunity to be heard on the classification.

2. Subsequent pay level and step adjustments to reflect step increases as appropriate, salary schedule decreases and increases as mandated by State laws.

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