FSM SUPREME COURT TRIAL DIVISION

Cite as Berman v. College of Micronesia-FSM , 15 FSM Intrm. 076 (App. 2007)

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MARY BERMAN,

Plaintiff,

vs.

COLLEGE OF Micronesia-FSM

Defendant.

CIVIL ACTION NO. 2002-002

ORDER GRANTING SUMMARY JUDMENT AND DISMISSING COMPLAINT

MEMORANDUM,

Andon L. Ameraich

Chief Justice

Hearing:  August 17, 2006

Decided:  June 6, 2007

APPEARANCES:

For the Appellant:  Mary Berman, Esq., pro se.

                               P.O. Box 163

                              Kolonia, Pohnpei FM 96941

 

For the Appellee:   Stephen V. Finnen, Esq.

                              P.O. Box 1450

                              Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Pleadings; Civil Rights

      When a complaint alleges that the plaintiff was denied equal protection of the laws, the suit will be deemed a private cause of action under 11 F.S.M.C. 701 for violation of civil rights guaranteed under the FSM Constitution even though the statute is not expressly cited in the complaint. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76, 78 (Pon. 2007).

Civil Procedure - Summary Judgment

     Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and

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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 a judgment as a matter of law. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76, 78 (Pon. 2007).

Civil Rights; Constitutional Law - Equal Protection

     A person who, whether under the color of law or not, violates anotherís equal protection rights as guaranteed by sections 3 or 4 of Article 4 of the FSM Constitution would be civilly liable to the injured party. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76, 80 (Pon. 2007).

Civil Rights

     Since the College of Micronesia was created by national statute which gave it its nature and functions, and is a national government agency, and since the national government is a person for the purposes of the civil rights statute, the College is a person under the civil rights statute and would be civilly liable to a plaintiff if it violated that plaintiffís equal protection rights guaranteed by the FSM Constitution. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76, 80 (Pon. 2007).

Civil Procedure - Summary Judgment; Constitutional Law - Equal Protection

     FSM Constitution Article IV, section 4 guarantees that similarly situated individuals not be treated differently due to some sort of invidious discrimination. When a plaintiff comes forward with no admissible, competent evidence to show invidious discrimination, summary judgment is then appropriate. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76, 80 (Pon. 2007).

Constitutional Law - Interpretation

     When no reported FSM case has dealt with alleged discrimination in an academic setting, the court may consider cases from other jurisdictions in the common law tradition. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76, 81 (Pon. 2007).

Constitutional Law - Equal Protection

     For equal protection purposes, a comparison between the pay of part-time college teachers and full-time teachers is not valid when the equal protection claim rests on the difference in the pay scales for part-time and full-time teachers because the part-time and full-time teachers are not similarly situated and the FSM Constitution equal protection guarantee requires a showing that individuals subject to the alleged discrimination be similarly situated. Nor are part-time teachers an enumerated class in Article IV, section 4 and that classification does not concern a fundamental right. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76, 81-82 (Pon. 2007).

Constitutional Law - Fundamental Rights

     A fundamental right is some principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental and examples of which are the freedom of association, the right to vote, the right to travel, rights associated with certain criminal proceedings, and the right to privacy. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76, 82 (Pon. 2007).

Constitutional Law - Equal Protection

     When no Article Iv, section 4 class is at issue and no fundamental right is involved, the question is whether the classification bears a rational relationship to a legitimate governmental purpose. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76, 82 (Pon. 2007).

Constitutional Law - Equal Protection

     Paying full-time and part-time teachers at different rates per credit-hour bears a rational relationship to a legitimate governmental purpose because it allows the college flexibility with respect to its need to provide teachers on an ad hoc basis for over-enrolled classes and with its costs. Berman

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v. College of Micronesia-FSM, 15 FSM Intrm. 76, 82 (Pon. 2007).

Constitutional Law - Equal Protection; Employer-Employee

     Even assuming that the Pohnpei Wage and Hour Law applies to a governmental organization employer and assuming that a claim under the statute was pled although the statute was not mentioned in the complaint, the claim is without merit when the court has determined that the positions of full-time and part-time teachers are different and the college may maintain different pay scales for them. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76, 82 (Pon. 2007).

Civil Procedure - Summary Judgment; Constitutional Law - Equal Protection

     When the collegeís part-time and full-time teachers are not similarly situated for equal protection analysis, and when, to the extent that the part-time and full-time teachers can be viewed as engaging in similar activities, the collegeís practice of paying its full-time and part-time teachers according to different pay scales for each credit-hour taught is rationally related to a legitimate government purpose, the college is entitled to summary judgment on a part-time teacherís equal protection claim. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76, 82 (Pon. 2007).

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COURTíS OPINION

ANDON L. AMARAICH, Chief Justice:

     Plaintiff Mary Berman filed her three-count complaint on January 14, 2002. The first cause of action alleges that the defendant College of Micronesia- FSM ("COM") violated the FSM Constitution when it denied Berman equal protection of the laws based on her gender and/ or national origin by paying her less than it paid equally qualified male and/or equally qualified Micronesian teachers. The second cause of action alleges a violation of equal protection because COM applied a different pay scale to its temporary and permanent teachers. The relief sought on these two counts is a money judgment for the amount that Berman was allegedly underpaid as a result of the alleged discrimination. The third cause of action was dismissed by stipulation on May 27,2003, and is not at issue here.

     Berman does not expressly allege her first two causes of action under the FSM civil tights statute, 11 F.S.M.C. 701, which confers a private cause of action for violation of civil rights guaranteed under the FSM Constitution, and does so irrespective of whether or not the actions complained of were done under the color or authority of law. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 411 (App. 200). The statute also permits the award of attorneyís fees to the prevailing party, 11 F.S.M.C. 701(3). It is only in the context of an attorneyís fee claim that Berman references the statute in the last line of her complaintís prayer for relief section. She also refers to this statute in her response to COMís motion for summary judgment. Bermanís suit is deemed one brought under 11 F.S.M.C. 701.

     On June 27, 2005, COM filed its motion for summary judgment. On August 3, 2005, Berman filed her response, and on August 25, 2005, COM filed its reply. On September 15 2005, Berman filed her surreply. The court heard oral argument on August 17,2006.

     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, COMís motion for summary judgment is GRANTED.

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I. UNDISPUTED FACTS

     Berman, a United States citizen who is a resident of Pohnpei, was hired on a part-time basis to teach English language and criminal justice courses at COM between 1996 and 2000. She t aught from one to three classes per semester. Each class was a three-credit class, which means it met either three times a week for one hour, or twice a week for one-and-a-half hours. Each class meeting resulted in student work that required grading, so that a typical three-credit class required seven to eight hours per week of Bermanís time. Bermanís other duties included creating teaching material, keeping office hours so that students could meet with her to discuss their concerns, and assisting students before and after class.

     COM employs both temporary, part-time teachers, who are hired on a semester basis, and permanent, full-time teachers, who are usually hired under a three-year contract, but never for less than two years. The part-time teacher salary schedule defines part-time teachers as those who teach one to four three-credit classes per semester, while a full-time teacher is one who teaches four to five three-credit classes per semester for the duration of his or her contract. A full-time teacher who has an "underload," i.e., who teaches only four classes in a semester, may be assigned other projects to approximate the effort or time to teach one class. Full-time teachers are paid a salary depending on education and teaching experience. Part-time or temporary teachers are likewise paid depending on their education and experience, but under a per-hour based scale that pays according to the number of courses taught. For example, during the fall and spring semesters of 1999-2000 school year, a teacher with a doctorís or equivalent degree with more than one, but less than two years teaching experience would have been paid an annual salary of $21,658.00 per year. If the full-time teacher taught five courses in each of the two regular semesters in a teaching year for a total of ten courses, then he or she was effectively paid $2,165.80 per course ($21,658.00?10 = $2,165.80), not taking into consideration any other required duties that the full-time teacher was assigned to perform. An individual with the same qualifications during that period would have been paid $1,608.18 to teach a single three-credit course. If full-time teachers teach more than five classes a semester, or if they teach summer school, they are paid according to the part-time schedule.

     As previously noted, a full-time teacher is usually hired on a three-year contract, but for never less than two years, while part-time teachers are hired for a semester at a time. One instance where part-time teachers are hired is when a class, usually a beginning or first level class, is over-enrolled. To this extent, part-time teachers are more flexible, since they may be hired as-needed, and paid on a per course contract basis. Frequently, part-time teachers are not employed in consecutive semesters. There is no guarantee of continued employment for part-time teachers. Hiring part-time teachers results in cost savings to COM.

     COM offers extended benefits to qualified teachers, but requires that full-time, permanent employees qualify independently for these benefits. One of those benefits is a housing allowance of $600 to those teachers who do not live within the normal commuting distance of the Pohnpei COM campus at the time of hiring. COM considers anyone residing on Pohnpei to be living within the normal commuting distance. Transportation, including repatriation and shipping, are paid to qualified employees from the point of hire. These extended benefits are not available to Pohnpei residents. Under the COM policies in place at relevant times, and because she was a Pohnpei resident when hired. Berman would not have been eligible for these additional benefits even if she had been employed as a full-time teacher.

     Planning for the hiring of new permanent full-time teaching staff begins approximately two years prior to hiring. COM submits a proposed budget to the FSM Congress, which funds a substantial portion of it. The remainder comes from student tuition. After Congressís approval, the COM Finance

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Committee recommends the number of full-time teachers to be hired. These recommendations then go to the COM Board of Regents for review and final approval.

     Available COM records show that between 1996 and 2001, COM hired 300 full-time instructors, 103 of whom were female, and 197 of whom were male. During this time, females comprised 34.33 per cent of the faculty, with males accounting for the remainder. During the same period, COM employed 293 part-time teachers, of whom 127 were female (43.34 percent), and 166 were male. In the fall of 2000, COM employed 71 full-time teachers, 54 of whom were non-FSM citizens (76%), while during that same period COM employed 45 part-time teachers, 21 of whom were non-FSM citizens (46.67%). COM computed these figures based on course catalogues, which may have resulted in some teachers being counted more than once, since some teachers were included in more than one catalogue.

II. DISCUSSION

     Article IV, Section 3 of the FSM Constitution provides that "[a] person may not be deprived of life, liberty, or property without due process of law, or be denied the equal protection of the laws." Section 4 of the same article 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." A person, whether or not acting under color of law - i.e., under a claim of authority of law - who deprives another of any of these rights is civilly liable to the injured party. 11 F.S.M.C. 701(3). COM was created by national statute, and given the nature of its structure and functions, is an agency of the FSM national government. 40 F.S.M.C. 701-34. The FSM national government is a person within the meaning of 11 F.S.M.C. 701(3); Plais v. Panuelo, 5 FSM Intrm. 179, 211 (Pon. 1991), and COM, as an agency of the national government, is likewise a person for purposes of the civil rights statute. Thus COM would be civilly liable to Berman if it violated equal protection rights guaranteed to Berman under the FSM Constitution.

A. Bermanís first cause of action

     Berman urges in her first cause of action that COM denied her equal protection of the law based on her gender and/or national origin when it paid her less than it did equally qualified male teachers, and/or equally qualified Micronesian teachers. She asserts that she, as a woman and a U.S. citizen, was paid less than male and/or Micronesians were paid for performing identical work.

     Article IV, Section 4 of the FSM Constitution guarantees 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.

     There is no dispute that at relevant times COM employed male teachers who were paid more than Berman, and that COM also employed FSM citizens who were paid more than she was. In either case, Berman makes no showing that COM paid any two equally qualified part-time teachers differently, nor has she shown that COM paid any two equally qualified full-time teachers differently. Thus COMís pay scale, as applied to all of its part-time teachers, is neutral in terms of both gender and national origin, just as it is when applied to all of its full-time teachers. While Berman herself was employed only as a part-time teacher, the pay scale of full-time teachers is also relevant, since she urges that there is no difference in the work performed by the two groups. Indeed, Berman can only prevail on her first cause of action if she can make this showing, i.e., that the part-time teachers and the full-time teachers

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are similarly situated individuals. ld. Berman views the two groups as the same, and this premise is the explicit basis for her second cause of action. As explained below, the part-time teachers and full-time teachers are not similarly situated.

B. Bermanís second cause of action

     Berman alleges that it was a violation of equal protection for COM to maintain different pay scales for its full-time and part-time teachers. She maintains that the day-to-day duties of full-time and part-time teachers are essentially the same, and that as such their respective compensations, based on a proration of the higher, full-time teacher pay scale, must also be the same, taking into account training and experience. By Bermanís calculations set out in her response to COMís motion for summary judgment, one full-time teacher in 1997 was paid $2,781 to $2,858 for teaching a three-credit class, while Berman was paid only $1,606.16. Oppín [] at unnumbered 18. This figure for the full-time teacher includes a per-course proration of the $600 per month housing allowance, and is also discounted in terms of teaching experience for comparison purposes. Id. Berman, as a Pohnpei resident when she was hired, was not eligible for the housing allowance, but argue, that part-time teachers should also be paid a pro-rated portion of the housing allowance in order to make their compensation equal to that paid full-time teachers. Taking all of this into account, Berman contends that she was "denied the Ďequal protection of the lawí when the College paid her a lower rate of pay for teaching work that was Ďsubstantially identicalí to teaching work that was performed by equally-qualified full-time teachers." Oppín [] at unnumbered 2.

     A part-time teacherís contract is entered into on a per course, per semester basis, whereas a full-time teacherís contract is usually for three years, but never less than two. A full-time teacher agrees to make a commitment of years in contrast to the commitment of months made by a part-time teacher. By committing to work full-time for COM over a period of years, a full-time leacher necessarily forgoes other employment opportunities. For the full-time teachers who come from outside the FSM expressly for the purpose of teaching at COM, the commitment includes the logistics of moving and reestablishing a home in Pohnpei. On the other hand, a part-time teacher has time use options available to himself or herself that a full-time commitment would preclude, since a part-time teacher may teach anywhere from one to four, three-credit courses a semester. In contrast, a full-time teacher is obligated to teach four to five such courses. Where a full-time teacher teaches only four courses, then other duties will be assigned to make up for the "underload." These considerations underscore the intrinsic differences in the two positions.

     No reported FSM case has dealt with facts involving alleged discrimination in an academic setting of the sort at issue here. In such an instance, the court may consider cases from other jurisdictions in the common law tradition. See Rauzi v. FSM, 2 FSM Intrm. 8, 14-15 (Pon. 1985). In Brousard-Norcross v. Augustana College Assín, 935 F.2d 974, 975 (8th Cir. 1991), the appellate court upheld the trial courtís summary judgment in favor of the defendant college that dismissed the plaintiffís gender and handicap discrimination claims under applicable United States statutes, as well as plaintiffís claim under the United States Equal Pay Act of 1963. In affirming the dismissal of the Equal Pay Act claim, the appellate court held that a comparison between the pay of a tenured and an untenured professor was not valid. Id. at 979. The FSM does not have a counterpart to the United States Equal Pay Act. However, the principle is apt. A comparison between the pay of COMís part-time and full-time teachers is not valid for purposes of an equal protection analysis where the equal protection claim rests on the difference in the pay scales for part-time and full-time teachers.

     The part-time and full-time teachers are not similarly situated. Under Isaac, 8 FSM Intrm. at 336, this ends the equal protection analysis, since the equal protection guarantee of the FSM Constitution requires a showing that the individuals subject to the alleged discrimination are similarly situated.

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Moreover, neither the class of part-time teachers, of which Berman was a member at relevant times, nor the class of full-time teachers is one of the enumerated classes in Article IV, Section 4 of the FSM Constitution, which prohibits denial of equal protection based on gender, race. ancestry, national origin, language, or social status. Nor does Berman contend that the classifications concern a fundamental right, which has been defined as "ísome principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,í" Samuel v. Pryor, 5 FSM Intrm. 91, 103 n.8 (Pon. 1991) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 332, 78 L. Ed. 674 (1934)), and examples of which are the freedom of association, the right to vote, the right to travel, rights associated with certain aspects of criminal proceedings, and the right to privacy. Pryor, 5 FSM Intrm. at 103 n.8. Where no Article IV, Section 4 class is at issue, or where no fundamental right is involved, the question is whether the classification bears a rational relationship to a legitimate governmental purpose. FSM Social Sec. Admin. v. Weilbacher, 7 FSM Intrm. 137, 146 (Pon. 1995); Afituk v. FSM, 2 FSM Intrm. 260, 263 (Truk 1986).

     Although full-time and part-time teachers are not similarly situated for an analysis under Isaac, both share the obvious common characteristic that they are involved in teaching activities at COM. Viewed in this light, COMís practice of paying its part-time teachers a lesser amount per credit hour taught than it pays its full-time teachers bears a rational relationship to a legitimate COM purpose under Weilbacher. Hiring full-time and part-time teachers allows flexibility with respect to COMís need to provide teachers on an ad hoc basis for over-enrolled classes. A cost saving also results to COM, which is a legitimate COM concern given that the FSM Congress does not fully fund COM, and it must look to student tuition as a source to make up the difference. To the extent COM can control its costs, its reliance on student tuition will be less, which translates to increased student accessibility to the education services that it is COMís statutory mandate to provide. Thus COM did not violate Bermanís equal protection rights under the FSM Constitution by paying full-time and part-time teachers under two different pay scales.

     In her response to COMís motion for summary judgment, Berman contends that because she alleges that she was denied equal protection of the laws when COM paid her less than it did others for substantially identical work, this allegation implicates the Pohnpei Wage and Hour Lawís equal pay requirements. Pon. S.L. No. 2L-195-91, ß 6. COM contends in its response that Berman did not allege a claim under this statute in her complaint. In reliance on the statuteís legislative history, COM further urges that in any case, the Pohnpei Wage and Hour Law applies only to private employers, and argues that the statute is not applicable to COM if it is considered a governmental organization. Berman responds in her surreply that her complaint is sufficient to allege a claim under the statute in light of the notice pleading provision of Civil Procedure Rule 8. How COM could be put on notice that Berman was making a claim under the Pohnpei Wage and Hour Law when she did not allege it in her complaint is not apparent even if, as Berman contends, she states the facts necessary in her complaint to demonstrate a violation of the law. But even assuming a claim under the statute was pled in the absence of any reference to the statute in the complaint, and that the statute applies to governmental as well as to private employers, the claim is without merit in light of the determination that the positions of full-time and part-time teachers are different, and that COM may maintain different pay scales for them.

     There is no genuine issue as to any material fact that precludes judgment in COMís favor as a matter of law. COMís part-time and full time-teachers are not similarly situated individuals for purposes of an equal protection analysis. Moreover, to the extent that the part-time and full?time teachers can be viewed as engaging in similar activities, COMís practice of paying its full-time and part-time teachers according to different pay scales for each credit hour taught is rationally related to a legitimate government purpose. Accordingly, COM is entitled to judgment as a matter of law on both Bermanís first and second causes of action in her complaint.

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III. CONCLUSION

COMís motion for summary judgment is granted. The complaint is dismissed with prejudice.

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