Civil Procedure – Summary Judgment – Grounds

    Summary judgment must be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 494 (Pon. 2009).

Constitutional Law – Equal Protection

    The FSM Constitution's Declaration of Rights has two equal protection guarantees. Section 3 provides that a person may not be denied the equal protection of the laws, and section 4 provides that equal protection of the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language, or social status. This is a constitutional guarantee that similarly situated individuals not be treated differently due to some sort of invidious discrimination. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 496 (Pon. 2009).

Civil Procedure – Summary Judgment – Grounds; Constitutional Law – Equal Protection

    When a plaintiff comes forward with no admissible, competent evidence to show invidious discrimination, then summary judgment is appropriate. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 496 (Pon. 2009).

Constitutional Law – Equal Protection

    In order to establish a prima facie claim of sex discrimination in the hiring process, a plaintiff must establish that 1) she is a member of a protected class; 2) she applied for and was qualified for a position for which her employer was seeking applicants; 3) despite her qualifications she was rejected; and 4) thereafter the position remained open and the employer continued to seek applicants with plaintiff's qualifications. If the plaintiff establishes the existence of these four elements, the burden shifts to defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 496 (Pon. 2009).

Constitutional Law – Equal Protection

    A plaintiff has failed to establish a prima facie case of sex discrimination in the hiring process when she was not rejected for the job, but was interviewed for the position and then hired. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 496 (Pon. 2009).

Civil Procedure – Summary Judgment – Grounds

    When genuine issues of material fact remain, summary judgment is not appropriate. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 496 (Pon. 2009).

Constitutional Law – Equal Protection

    The plaintiff's claim of invidious discrimination and that the defendant violated the FSM Constitution because the plaintiff had to fill out an employment application to be hired and while she was working for the defendant another was rehired and not required to resubmit a new job application since his resignation paperwork had not been processed, is not supported by the law and will be dismissed with prejudice. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 497 (Pon. 2009).

Constitutional Law – Equal Protection; Employer-Employee

    An employment applicant was not discriminated against when the employer chose an applicant more qualified than she. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 497 (Pon. 2009).

Constitutional Law – Due Process; Constitutional Law – Fundamental Rights

    Although an employment opportunity is a liberty interest protected by due process,, the right to governmental employment in Pohnpei is not a constitutionally-protected fundamental right, requiring invoking a strict scrutiny test. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 497 (Pon. 2009).

Constitutional Law – Due Process

    Government employment that is "property" within meaning of Due Process Clause cannot be taken without due process, but, in order for property to be protected under FSM Constitution, there must be claim of entitlement based upon governmental assurance of continual employment or dismissal for only specified reasons, and when the plaintiff does not allege that she was ever given an assurance of any kind of continual employment beyond the specific dates set forth in her short-term contract, her claim will be dismissed with prejudice. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 497 (Pon. 2009).

Constitutional Law – Due Process

    A distinction exists between a mere opportunity for employment and employment itself. When a plaintiff was not denied any employment opportunity by the defendant and she was not guaranteed

employment but was allowed to apply – on two separate occasions – for the position and interviewed after each such job application and was granted employment after the first job announcement but was not selected for employment after the second job announcement because the defendant deemed another the most qualified, the plaintiff=s claim that she was denied, without due process, any opportunity to be employed by the defendant is without merit and will be dismissed with prejudice. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 497-98 (Pon. 2009).

Civil Procedure – Pleadings – Amendment; Civil Procedure – Summary Judgment

    It is improper for a party to use summary judgment briefs to effect a de facto amendment of its pleadings to assert new causes of action. Therefore a claim that falls outside the scope of the plaintiff's complaint is not properly before the court in a summary judgment motion and will be disregarded. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 498 (Pon. 2009).

Civil Procedure – Discovery

    When a plaintiff moves to enlarge time to conduct discovery on allegedly newly-raised "novel" defenses and to file a response based thereon, but the "novel" defenses to which the plaintiff refers are merely arguments based on the law that fell within the scope of the denials set forth in the defendant's answer to the complaint, the motion to enlarge is without good cause and will be denied. Berman v. Pohnpei Legislature, 16 FSM Intrm. 492, 498 (Pon. 2009).

* * * *

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

    The court has pending before it the motion for summary judgment filed by plaintiff Mary Berman ("Berman") on September 1, 2008, to which defendant Pohnpei State Legislature (the "Legislature") filed a response on September 22, 2008. In addition, the Legislature filed its own motion for summary judgment on September 22, 2008, to which Berman filed a response on January 15, 2009. The Legislature replied to Berman's January 15 response on January 29, 2009 and Berman objected to the Legislature's reply on February 4.

    The parties filed a stipulation of facts on May 29, 2008.

    Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FSM Civ. R. 56(c). For the reasons that follow, Berman's motion for summary judgment is hereby denied in its entirety and the Legislature's motion for summary judgment is granted in part and denied in part.

I. UNDISPUTED MATERIAL FACTS

    The following facts are undisputed. In late 2002, the Legislature announced an opening for the position of staff attorney for a term of one to two years, negotiable, with an annual salary of $32,000 at the lowest level of experience (hereinafter referred to as the first job announcement). Berman applied and was interviewed for that position. Two other attorneys, Cathy Atkins and Charles Hatcher, also applied and interviewed for the position and were "short listed" as the top candidates for the job. Either Ms. Atkins or Mr. Hatcher would have been employed by the Legislature had he or she accepted a job offer, but neither did (See Exhibits E, G and J of The Legislature's response to motion for summary judgment). During the same time period when Berman applied for the attorney position, she was

counsel for the plaintiff in a civil lawsuit against the Legislature (Damarlane v. Pohnpei State Legislature).¹ The Legislature decided to hire Ms. Berman as a staff attorney on a "short-term" basis pursuant to a series of employment contracts. The first such contract was for a period of 11 weeks; others were for three-week increments. Berman worked at the Legislature under the short-term contracts until January 2004. See Aff. of Mary Berman in support of motion for summary judgment at 19. Her rate of pay was $1,230 biweekly.

    In or around June 2003, the Legislature rehired attorney Huddy Lucas, who was previously an attorney for the Legislature. He had resigned in February 2003 and was placed back on the Legislature's payroll in or about June 2003 without having to first file a job application because the Legislature had not processed his resignation paperwork.

    In either late 2003 or early 2004,² the Legislature again announced a job opening for a staff attorney position (hereinafter referred to as the second job announcement). Berman again applied and was interviewed for the position, but not hired. The Legislature hired attorney Scott G. Garvey, a male, because he was the most qualified applicant.

II. OVERVIEW OF BERMAN'S CLAIMS

    Berman's motion for summary judgment argues that the Legislature violated Sections 3 and 4 of Article IV of the FSM Constitution by (1) discriminating against her in the hiring process in connection with the first job announcement; (2) denying her employment benefits and paying her less than other male attorneys employed by the Legislature during her employment under short-term contracts from some time in 2003 to late January 2004; (3) rehiring attorney Huddy Lucas in or about June 2003 without his first filing a job application; (4) hiring Mr. Scott G. Garvey in 2004 instead of her after the second job announcement; and (5) denying her an employment opportunity without due process of law. In comparison to her motion for summary judgment, Berman's complaint, filed April 14, 2005, lists two claims for relief: the first for "Sex-Based Unequal Treatment in Hiring and Employment" and the second for "Unequal Treatment in Hiring and Employment." The court views the allegations in Berman's complaint as sufficiently broad so as to encompass the five above-listed claims.

    Berman=s motion for summary judgment also argues that the Legislature violated her right to freedom of expression. As more fully explained below, this is a new claim that does not fall within the scope of her complaint and is therefore not properly before the court.

III. DISCUSSION

    The FSM Constitution's Declaration of Rights has two equal protection guarantees. Section 3 provides that "[a] person may not . . . be denied the equal protection of the laws." FSM Const. art. IV, § 3. Section 4 provides that "[e]qual protection of the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language, or social status." FSM Const. art. IV, § 4. This is a constitutional guarantee that similarly situated individuals not be treated differently due to some sort of invidious discrimination. AHPW, Inc. v. FSM, 12 FSM Intrm. 114, 118 (Pon. 2003); Isaac v. Weilbacher, 8 FSM Intrm. 326, 336 (Pon. 1998); Youp v. Pingelap, 9 FSM Intrm. 215, 217 (Pon. 1999). When a plaintiff comes forward with no admissible, competent evidence to show invidious discrimination, then summary judgment is appropriate. Isaac, 8 FSM Intrm. at 336.

1. Discrimination in the hiring process in connection with the first job announcement

    In order to establish a prima facie claim of sex discrimination in the hiring process, Berman must establish that (1) she is a member of a protected class; (2) she applied for and was qualified for a position for which her employer was seeking applicants; (3) despite her qualifications she was rejected; and (4) thereafter the position remained open and the employer continued to seek applicants with plaintiff's qualifications. Cussler v. University of Maryland, 430 F. Supp. 602 (D. Md. 1977) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973)).³ If plaintiff establishes the existence of these four elements, the burden shifts to defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 678.

    With regard to the first job announcement, which was made in late 2002, Berman has failed to establish a prima facie case of sex discrimination in the hiring process because she was not rejected for the job. To the contrary, Berman admits that she applied and was interviewed for the attorney position and that the Legislature hired her in 2003. Berman continued to work for the Legislature under various employment contracts until late January 2004. Therefore, Berman has failed to establish a prima facie claim of sex discrimination in the hiring process as to the first job announcement and her motion for summary judgment on this claim is denied. The Legislature's motion for summary judgment on the claim of sex discrimination in the hiring process regarding the first job announcement is granted and Berman=s claim is dismissed with prejudice.

2. Wages and Employee Benefits Discrimination Claim

    Neither party met its burden of showing that no genuine issues of material fact exist with regard to Berman's claim that she was or was not entitled to higher pay and additional benefits beyond those received under her short-term contracts during the time she worked for the Legislature. For example, neither party provided the court with competent, specific evidence of the salary and benefits of any male attorney employed during that time (2003 to late January 2004) by the Legislature. These are disputed issues of material fact not proved to the satisfaction of the court by either party in their respective motions for summary judgment. Where genuine issues of material fact remain, summary judgment is not appropriate. FSM Civ. R. 56; Marcus v. Truk Trading Corp., 10 FSM Intrm. 387, 390 (Chk. 2001). Both Berman's and the Legislature's motion for summary judgment on this wages and benefits claim is denied without prejudice.

3. The Legislature's rehiring of attorney Huddy Lucas

    Without an adequate explanation of how or why, Berman concludes that the Legislature violated her Constitutional rights by rehiring Mr. Lucas in or around June 2003 without his first filing a job application, while she herself was required to file such an application before she was hired. Berman was working for the Legislature as an attorney when Mr. Lucas was rehired in 2003. Mr. Lucas had resigned from his employment in February 2003, but the Legislature did not process his resignation paperwork at that time and when he was rehired, the Legislature did not require that he resubmit a new job application. On these facts, the Legislature's actions did not constitute invidious discrimination against Berman. Berman's notion that the Legislature violated the FSM Constitution by requiring her to file a job application before she was hired but not requiring Huddy Lucas, a former employee, to file a job application before he was rehired, is not supported by the law. This claim is hereby dismissed with prejudice.

4. The Legislature's decision to hire Mr. Scott G. Garvey in 2004 instead of Berman

    When the second job announcement was made in early 2004, Berman again applied and was interviewed by the Legislature for the position. But another applicant, Mr. Scott Garvey, was more qualified than Berman and he was therefore hired by the Legislature. On these facts, the Legislature is entitled to judgment as a matter of law. Berman was not discriminated against when the Legislature chose an applicant more qualified than she. See, e.g., Cussler 430 F. Supp. at 606 07. Berman's motion for summary judgment on this claim of discrimination in connection with the second job announcement is denied. The Legislature's motion for summary judgment on this claim is granted and Berman's claim is dismissed with prejudice.

5. Denial of employment opportunity without due process of law

    Berman's motion for summary judgment relies on the case of Wadsworth v. State, 911 P.2d 1165, 1172 (Mont. 1996), for authority that the opportunity to earn a living is a fundamental right, claiming that the Legislature denied her an employment opportunity without due process of law. Berman does not state what due process she believes was denied or what process she is owed.

    This court has previously held that an employment opportunity is a liberty interest protected by due process. Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 366 (Pon. 1992). However, the right to governmental employment in Pohnpei is not a fundamental right, constitutionally protected, requiring invoking a strict scrutiny test. Paulus v. Pohnpei, 3 FSM Intrm. 208, 217 (Pon. S. Ct. Tr. 1987). It is true that government employment that is "property" within meaning of Due Process Clause cannot be taken without due process. But in order for property to be protected under FSM Constitution, there must be claim of entitlement based upon governmental assurance of continual employment or dismissal for only specified reasons. Suldan v. FSM (II), 1 FSM Intrm. 339, 351 52 (Pon. 1983). Berman does not allege that she was ever given an assurance of any kind by the Legislature of continual employment beyond the specific dates set forth in her short-term contracts.

    Berman also fails to acknowledge that a distinction exists between a mere opportunity for employment and employment itself. Ms. Berman was not denied any employment opportunity by the Legislature and she was not guaranteed employment. She was not only allowed to apply – on two separate occasions – for the attorney position, but she was also interviewed after each such job application and furthermore, was granted employment after the first job announcement. After the second job announcement, she was not selected for employment because the Legislature deemed Mr. Garvey the most qualified.

    Ms. Berman's arguments that she was denied any opportunity to be employed by the Legislature without due process are without merit. This claim is dismissed with prejudice.

IV. BERMAN'S FREEDOM OF EXPRESSION CLAIM

    The court notes that Berman's motion for summary judgment also includes a claim for a violation of her fundamental right of free speech. An individual's freedom of expression is protected by Article IV, Section 1 of the FSM Constitution, which states, "[n]o law may deny or impair freedom of expression, peaceable assembly, association, or petition." Berman's complaint does not allege a violation of her fundamental right of freedom of expression or speech. Instead, Berman raises this freedom of speech claim for the first time in her motion for summary judgment and in response to the Legislature's motion for summary judgment. Prior FSM cases have not addressed this precise scenario where a party seeks summary judgment on new claims not previously plead. Finding no applicable FSM precedent on this point, the court looks to the law of other nations for guidance. Semens v. Continental Air Lines, Inc., 2 FSM Intrm. 131, 139-40 (Pon. 1985). It is improper for a party to use summary judgment briefs to effect a de facto amendment of its pleadings to assert new causes of action. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) ("A plaintiff may not amend her complaint through argument in a brief opposing summary judgment."); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) ("[T]he Supreme Court has mandated a liberal pleading standard for civil complaints. This standard however does not afford plaintiffs with an opportunity to raise new claims at the summary judgment stage.") Berman's claim that the Legislature violated her fundamental right of free speech falls outside the scope of her complaint and is therefore not properly before this court. Accordingly, the court disregards Berman's freedom of expression claim.

V. BERMAN'S OBJECTIONS TO THE LEGISLATURE'S REPLY PAPERS

    On February 4, 2009, Berman filed an "objection to novel defense matters raised for the first time in state's [the Legislature's] reply papers; alternative motion to enlarge time to respond" on the basis that the Legislature raised affirmative defenses in its reply that were not plead in its answer. The "novel" defenses to which Berman refers are merely arguments based on the law that fall within the scope of the denials set forth in the Legislature's answer to Berman's complaint. Berman's objections to the novel defenses are hereby overruled. Berman's February 4 filing also moves to enlarge time to conduct discovery on the above-referenced novel defenses and to file a response based thereon. This litigation began in 2005. Discovery concluded in December 2008. The motion to enlarge is without good cause and is denied.

VI. CONCLUSION

    Berman's motion for summary judgment is hereby denied in its entirety.

    The Legislature's motion for summary judgment is hereby granted in part and denied in part. Berman's claim of sex discrimination and denial of equal protection arising out of a difference in her wages and benefits compared with male attorneys for the time that she worked for the Legislature between 2003 and late January 2004 is the only claim that survives summary judgment. Each parties' respective motions for summary judgment on the wages and benefits claim is denied without prejudice.

    Berman's claims that the Pohnpei State Legislature violated Sections 3 and 4 of Article IV of the FSM Constitution by discriminating against her during the hiring process in connection with the first job announcement; rehiring attorney Huddy Lucas in or about June 2003 without his first filing a job application; hiring Mr. Scott G. Garvey in 2004 instead of her after the second job announcement; and

denying her an employment opportunity without due process of law are dismissed with prejudice.