FSM SUPREME COURT APPELLATE DIVISION

Cite as Berman v. College of Micronesia -- FSM, 15 FSM Intrm. 582 (App. 2008)

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MARY BERMAN,

Appellant,

vs.

COLLEGE OF MICRONESIA -- FSM,

Appellee.

APPEAL CASE NO. P2-2007

CIVIL ACTION NO. 2002-002

OPINION

Argued:  March 28, 2008

Decided:  April 14, 2008

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
 

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

Appellate Review ) Decisions Reviewable

      Even when neither party has raised the issue, an appellate court, as a court of limited jurisdiction, is obligated to examine the basis for its jurisdiction. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 588 (App. 2008).

Judgments ) Alter or Amend Judgment; Judgments ) Relief from Judgment

      A motion to reconsider that was filed 22 days after the judgment had been entered, cannot be a Rule 54(b) motion to reconsider since those motions must be made before entry of judgment, or a Rule 59(e) motion to alter or amend judgment since a Rule 59(e) motion must "be served not later than 10 days after entry of the judgment." It can only be a Rule 60(b) motion for relief from judgment. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 588 (App. 2008).

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Civil Procedure

      When an FSM court has not previously construed the interplay between Civil Procedure Rules 59 and 60 which are identical or similar their U.S. counterparts, the court may look to U.S. sources for guidance in interpreting the rules. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 589 n.1 (App. 2008).

Judgments ) Relief from Judgment

      Even after a judgment has been properly appealed, a trial court, without appellate court permission, has the jurisdiction to both consider, and to deny a Rule 60(b) relief from judgment motion, but cannot grant a Rule 60(b) motion while an appeal is pending. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 589 (App. 2008).

Courts ) Recusal; Judgments ) Relief from Judgment

      When the trial judge has a Rule 60(b) motion before him, which is within his jurisdiction to consider and deny even though the case is on appeal, and also a motion to recuse, and when, upon receipt of a recusal motion, a justice must rule on it before proceeding any further in the matter, the trial judge is required to rule on the recusal motion before proceeding on to the Rule 60(b) motion. The trial judge therefore had the jurisdiction to, and a duty to, rule on the recusal motion. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 589 (App. 2008).

Appellate Review ) Decisions Reviewable

      A timely notice of appeal from a final decision is a prerequisite to an appellate courtís jurisdiction over an appeal. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 589 (App. 2008).

Appellate Review ) Decisions Reviewable

      Post-judgment orders are generally final decisions from which an appeal may lie and from which a separate notice of appeal must be filed if the judgment itself has been appealed. When no separate notice of appeal from a post-judgment order awarding attorneysí fees has been filed, the appellate court lacks jurisdiction to review the order even though the judgment had been appealed. This general principle is also true of any other post-judgment order for which an appellant seeks review. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 589 (App. 2008).

Appellate Review ) Decisions Reviewable; Judgments ) Relief from Judgment

      If a judgment has been appealed and a Rule 60(b) motion for relief from that judgment is afterwards denied, a separate notice of appeal from that denial must be filed for an appellate court to have jurisdiction to review the Rule 60(b) denial. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 589 (App. 2008).

Appellate Review ) Decisions Reviewable; Courts ) Recusal

      When, while the judgment was on appeal, the appellantís recusal motion was filed at the same time as her Rule 60(b) motion for relief from judgment and the recusal motion had to be decided before any action could be taken on the Rule 60(b) motion, and when the appellant did not file a separate notice of appeal from the post-judgment order denying recusal, the appellate court accordingly lacks jurisdiction to review the recusal issue. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 589 (App. 2008).

Appellate Review ) Standard of Review ) Civil Cases

      An appellate court applies the same standard in reviewing a trial courtís grant of a summary judgment motion that the trial court initially employed under Rule 56(c). It views the facts in the light most favorable to the party against whom judgment was entered and it determines de novo whether genuine issues of material fact are absent and whether the prevailing party is entitled to judgment as

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a matter of law. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 590 (App. 2008).

Constitutional Law ) Equal Protection

      The Constitutionís 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. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 591 (App. 2008).

Constitutional Law ) Equal Protection

      If the discrimination is based on the individualís membership in one of the Article IV, section 4 enumerated classes, or if the discrimination affects a "fundamental right," the law or regulation is subject to strict scrutiny review. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 591 (App. 2008).

Constitutional Law ) Equal Protection

      "Heightened scrutiny" is a level of scrutiny below strict scrutiny but above the rational relationship test that U.S. courts use in sex discrimination cases since sex is not an enumerated class in the U.S. Constitutionís equal protection clause. In the FSM, sex is an enumerated class and the higher strict scrutiny analysis is applied. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 591 n.2 (App. 2008).

Constitutional Law ) Equal Protection

      Since Article IV, section 4 prohibits discrimination based on sex, race, ancestry, national origin, language, or social status, any governmental action that classifies according to sex, race, ancestry, national origin, language, or social status constitutes an inherently suspect criteria. As such, the government must prove a compelling governmental interest in the classification. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 591 (App. 2008).

Constitutional Law ) Equal Protection

      When the appellant compares herself to two different male teachers with the same level of education, who were paid more than she because they were full-time teachers; when the only apparent reason for the pay difference is that they were full-time, not part-time, teachers; when no part-time teacher was paid more than the appellant was so that no male part-time teachers with the same level of education were paid more than she was and no FSM-citizen part-time teachers were paid more than she was; when the appellant does not claim that her status as a part-time teacher instead of being a full-time teacher was based on discrimination on the basis of sex or national origin, she has not made out a prima facie case of discrimination based on either sex or national origin and the trial court thus properly granted summary judgment in the Collegeís favor on her sex and national origin discrimination claims. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 591-92 (App. 2008).

Constitutional Law ) Equal Protection

      Equal protection of the law means the protection of equal laws. The clause requires that those similarly situated must be similarly treated. It seems also that application of the law must be equal. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 592 (App. 2008).

Constitutional Law ) Equal Protection

      Equal protection requires that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; and that no greater burdens should be laid upon one than are laid upon others in the

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same calling and condition. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 592 (App. 2008).

Constitutional Law ) Equal Protection; Constitutional Law ) Fundamental Rights

      Equal protection forbids only invidious discrimination. Where relevant differences exist between classes, different treatment by the state is permissible. However, any statute that classifies and affords different treatment is subject to the same tests as those under substantive due process: 1)  Does the legislature have power to enact the statute that classifies? 2)  Does the classification bear a rational relationship to the legislative goal? The classification is presumed to be valid and the burden of proving that the statute is without a rational relationship to the legislative objective is on the challenger of the classification. 3)  Where fundamental rights are involved, the classification constitutes a suspect criteria. As such, the burden of proving that the classification bears a close rational relationship to some compelling governmental interests shifts to the government. Fundamental rights are presumed to be absolute until the government proves a compelling governmental interest to curtail or restrain them. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 592 (App. 2008).

Constitutional Law ) Fundamental Rights

      The court should be wary of requests that it identify as fundamental any rights beyond those specified in the declaration of rights. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 592 (App. 2008).

Constitutional Law ) Equal Protection; Constitutional Law ) Fundamental Rights

      Employment is not listed as a fundamental right in the Declaration of Rights although a case has referred to "employment opportunity" as a "liberty interest." But when the interest in contention is employment pay not the opportunity for employment, being paid a lower rate than another involves a fundamental right if the reason for the lower pay is the employeeís sex, race, ancestry, national origin, language, or social status. Being paid at a lower rate for some other reason does not involve a fundamental right. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 592 (App. 2008).

Constitutional Law ) Equal Protection

       If the law does not concern an enumerated class or a fundamental right, the question becomes whether the classification is rationally related to a legitimate governmental purpose. The rational relationship test examines whether there is a reasonable justification for permitting a law or regulation that discriminates against certain classes or groups. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 592-93 (App. 2008).

Constitutional Law ) Equal Protection; Employer - Employee

      A full-time teacherís added duties, the need to forgo other employment, and the long-term commitment (three years as opposed to one semester) to teaching at the College, makes a full-time teaching position a substantially different job from a part-time teaching position. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 593 (App. 2008).

Constitutional Law ) Equal Protection; Employer - Employee

      Regardless of the applicability of a U.S. case, the appeal of the denial of the plaintiffís equal pay claim turns on whether full-time teaching positions and part-time teaching positions are similar positions and on whether there is a rational relationship between a full-time teacherís pay and a part-time teacherís pay. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 593-94 (App. 2008).

Constitutional Law ) Equal Protection

      A full-time teacherís added duties, the need to forgo other employment, and long-term commitment (three years as opposed to one semester) to teaching at the College ) are legitimate factors

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from which the court may conclude that full-time and part-time teachers are not similarly situated even though both are paid depending on their education and experience. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 594 (App. 2008).

Constitutional Law ) Equal Protection

      The appellantís assertion that she has made out a prima facie case of sex discrimination would hold water only if part-time and full-time teachers were similarly situated, thus allowing her to compare herself to a full-time teacher. It did not because, contrary to her assertions, full-time and part-time teachers are not similarly situated; because she has not claimed that she was paid less than a similarly-situated (part-time) male teacher; and because she was, in fact, the highest paid part-time teacher. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 594 (App. 2008).

Constitutional Law ) Equal Protection

      The pay difference between full-time and part-time teachers passes the rational relationship test because the full-time teacherís added duties, the need to forgo other employment, and the long-term commitment (three years as opposed to one semester) to teaching at the College are all rational and legitimate reasons for the College to pay full-time teachers at a higher rate than part-time teachers and because it is undisputed that the College had legitimate and rational reasons to employ part-time teachers, as and when needed, rather than hiring just full-time teachers. The payment of full-time teachers at the part-time rate for excess and summer classes does not change the analysis because those classes are beyond the duties that full-time teachers are obligated to perform. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 594 (App. 2008).

Constitutional Law ) Equal Protection

      A plaintiff cannot show any discrimination for summer classes pay when, for summer classes, her pay was equal or higher than any other summer instructor including those classified as full-time teachers. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 594 (App. 2008).

Constitutional Law ) Equal Protection

      For a part-time teacher to make out a prima facie case of sex discrimination she would have had to have shown that she was paid less than a male part-time teacher with the same level of education. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 595 (App. 2008).

Civil Procedure ) Pleadings

      The rules require only notice pleading, and are flexible and informal rather than technical. The complaint need only be a short and plain statement of the claim and give the defendant fair notice of the factual wrong on the basis of the facts asserted and the legal theory advanced, if one is advanced, need not be correct. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 595 (App. 2008).

Civil Procedure ) Pleadings

      Foreign law is a fact which must be pled and proven. But state law does not need to be expressly pled, because the court may take judicial notice of any state law. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 595 (App. 2008).

Evidence ) Judicial Notice

      Since the court must take judicial notice if requested by a party and supplied with the necessary information, a party, at some point, may have had to provide the trial court and the opposing party with a copy of the statute and its provisions or make them aware of it if they were not. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 595 (App. 2008).

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Constitutional Law ) Equal Protection; Employer ) Employee

      When full-time teachers and part-time teachers are not similarly situated, a plaintiff does not have a factual basis for relief under the Pohnpei Wage and Hour Law when the claim is that she was paid less than male full-time teachers because she did not perform the same work as a full-time teacher. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 595 (App. 2008).

Appellate Review ) Briefs, Record and Oral Argument

      The Complaint and Answer are pleadings that should normally be included in the appellantís appendix. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 596 n.6 (App. 2008).

Constitutional Law ) Equal Protection; Employer ) Employee; Jurisdiction ) Exclusive FSM Supreme Court

      The College is an instrumentality of the national government in the same way that the FSM Development Bank is even though its employees are not considered government employees. The College was created by Congress and is subject to suit only in the manner provided for and to the extent that suits may be brought against the National Government. So, since the national government is not subject to suit under the Pohnpei Wage and Hour Law, neither is the College. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 582, 596 (App. 2008).

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COURTíS OPINION

MARTIN G. YINUG, Associate Justice:

      This appeal is from the trial courtís grant of summary judgment in favor of the defendant, College of Micronesia-FSM, against the plaintiff, Mary Berman, on her claim that she, as a part-time instructor at the College, should not have been paid less than similarly qualified full-time instructors. We affirm the trial courtís summary judgment and we further conclude that we are without jurisdiction to review Bermanís claim that the trial judge ought to have recused himself. Our reasons follow.

I.  Background and Procedural History

      Between 1996 and 2000, the College of Micronesia-FSM hired Mary Berman several times to teach on a part-time basis. Berman, a U.S. citizen and a longtime Pohnpei resident, taught a total of eight courses during that time. The College hired part-time or "temporary" teachers on one-semester contracts to teach from one to four three-credit courses with no guarantee of any further teaching employment. Part-time teachers were often hired for classes, usually beginning or first-level courses, that were over-enrolled. In contrast, the College typically hired full-time or "permanent" teachers on three-year (but never less than two-year) contracts to teach five three-credit courses per semester, two semesters a year, for the contractís duration. Sometimes, a full-time teacher would be assigned to teach only four three-credit courses during a semester, but would then always also be assigned other duties such as curriculum development. Full-time teachers who taught a sixth class or who taught during the Collegeís summer session would be compensated for those classes at the part-time rate.

      In 2000, Berman, whose law degree is considered a doctorate, was paid $1,608.18 to teach one three-credit class. A full-time teacher with a doctorate received $21,658 (not including a housing subsidy), with the obligation to teach ten three-credit classes over two semesters as well as other duties. Berman asserts that her pay as a part-time teacher at the College violated the Constitutionís equal protection clause because, in her view, a full-time teacher was paid $2,165.80 (or $2,885 if a housing subsidy were included) to teach a three-credit course while she, as a part-time teacher, was

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only paid $1,608.18 to teach a three-credit course. Housing subsidies were available for full-time teachers only if their point of hire (the place they were recruited from) was not within normal commuting distance. Anyplace on the island of Pohnpei was considered within normal commuting distance and thus not eligible for a housing subsidy or moving expenses.

      Bermanís complaint sought relief on three causes of action. The first cause of action alleged that the Collegeís compensation of "temporary" teachers, like Berman, at a lower rate of pay than "permanent" teachers violated the FSM Constitutionís equal protection clause on the basis of national origin or gender. The second cause of action alleged that the Collegeís compensation of "temporary" teachers at a lower rate than "permanent" teachers bore no rational relationship to any governmental purpose, violating the equal protection clause. By the partiesí later agreement, the third cause of action was dismissed.

      After discovery, the College moved for summary judgment on the two causes of action left. The trial court granted the summary judgment motion on June 6, 2007. Berman v. College of Micronesia-FSM, 15 FSM Intrm. 76 (Pon. 2007). Judgment was entered in the Collegeís favor on the same day. On June 28, 2007, Berman filed a motion to reconsider summary judgment and a motion to recuse the trial judge. On July 16, 2007, she filed a notice of appeal "from the June 6, 2007 FSM Trial Courtís decision in this matter."

      On October 2, 2007, the trial judge signed, and on October 3, 2007, the clerk entered, an order denying the recusal motion and denying the motion for reconsideration. No notice of appeal from that decision was ever filed.

II.  The Recusal Issue

      In her October 3, 2007 opening brief, Berman contends that the trial judge erred by not recusing himself. We will address this issue first because, if we conclude that the trial judgeís recusal was warranted, we would not reach the appealís merits but would instead vacate the trial court judgment and remand the matter for a different trial judge to rule on the Collegeís summary judgment motion. However, before we can reach the recusal question, we must determine whether the recusal issue is properly before us.

      Even when neither party has raised the issue, we, as a court of limited jurisdiction, are obligated to examine the basis for our jurisdiction. The parties were therefore asked to brief whether we had jurisdiction to decide the recusal issue when no appeal had been filed from the trial judgeís denial. The College filed its response on March 17, 2008. Berman filed hers on March 20, 2008.

A. Trial Court Jurisdiction

      Berman first suggests that the trial judge had no jurisdiction to deny her recusal motion because, once she had filed her July 16, 2007 notice of appeal, the trial judge lost jurisdiction to rule on the motion. We conclude the trial judge not only had jurisdiction to rule on the recusal motion but was also required to rule on it since Bermanís motion to reconsider was pending before him.

      Because the motion to reconsider was filed 22 days after the judgment had been entered, it could not have been a Rule 54(b) motion to reconsider since those motions must be made before entry of judgment, or a Rule 59(e) motion to alter or amend judgment since a Rule 59(e) motion must "be served not later than 10 days after entry of the judgment." It could only have been a Rule 60(b) motion for relief from judgment. See McGoldrick Oil Co. v. Campbell, Athey & Zukowski, 793 F.2d 649, 652-53

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(5th Cir. 1986) (a reconsideration motion not timely as a Rule 59 motion can only be considered a Rule 60 motion). Even after a judgment has been properly appealed, a trial court, without appellate court permission, has the jurisdiction to both consider, and to deny a Rule 60(b) relief from judgment motion, but cannot grant a Rule 60(b) motion while an appeal is pending. Stinnett v. Weno, 8 FSM Intrm. 142, 145 & n.1 (Chk. 1997); Walter v. Meippen, 7 FSM Intrm. 515, 517-18 (Chk. 1996); see also Department of the Treasury v. FSM Telecomm. Corp., 9 FSM Intrm. 465, 467 (App. 2000); Bank of Guam v. OíSonis, 9 FSM Intrm. 197, 198-99 (Chk. 1999).

      The trial judge thus had a Rule 60(b) motion before him which was within his jurisdiction to consider and deny. Since, upon receipt of a recusal motion, a justice must rule on it before proceeding any further in the matter, 4 F.S.M.C. 124(6), the trial judge was required to rule on Bermanís recusal motion before proceeding on to her Rule 60(b) motion. The trial judge therefore had the jurisdiction to, and a duty to, rule on the recusal motion.

B. Appellate Jurisdiction

      A timely notice of appeal from a final decision is a prerequisite to our jurisdiction over an appeal. Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002). Post-judgment orders are generally final decisions from which an appeal may lie and from which a separate notice of appeal must be filed if the judgment itself has been appealed. We have already determined that when no separate notice of appeal from a post-judgment order awarding attorneysí fees is filed, we lack jurisdiction to review the order even though the judgment had been appealed. Pohnpei v. AHPW, Inc., 14 FSM Intrm. 1, 13 (App. 2006); Pohnpei v. AHPW, Inc., 13 FSM Intrm. 159, 161 (App. 2005).

      This general principle is also true of any other post-judgment order for which an appellant seeks review. In United States v. City of Chicago, 870 F.2d 1256, 1258-59 (7th Cir. 1989), the appellate court ruled that the trial courtís denial of a recusal motion four months after the appellants had appealed an order denying their intervention was not reviewable because there was no separate notice of appeal from the recusal denial. Thus, if we are to have jurisdiction to review the trial judgeís denial of Bermanís post-judgment recusal motion, Berman would have had to file a separate notice of appeal from that denial. She did not.

      Further support for this is that if a judgment has been appealed and a Rule 60(b) motion for relief from that judgment is afterwards denied, a separate notice of appeal from that denial must be filed for an appellate court to have jurisdiction to review the Rule 60(b) denial. Williams v. Chater, 87 F.3d 702, 704-05 (5th Cir. 1996); see also Stouffer v. Reynolds, 168 F.3d 1155, 1172 (10th Cir. 1999). This example is particularly apt since Bermanís recusal motion was filed at the same time as her motion to reconsider, which as noted above was a Rule 60(b) motion, and the recusal motion had to be decided before any action could be taken on the Rule 60(b) motion. If Berman had sought review of the Rule 60(b) motion denial she would have had to file a separate notice of appeal for us to have jurisdiction to review that denial. The same is true of her recusal motion denied at the same time.

      Since Berman did not file a notice of appeal from the post-judgment order denying recusal, we accordingly lack jurisdiction to review the recusal issue.

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III.  Other Issues Presented by the Appellant

      The other issues that Berman presents for our review follow. She contends the trial judge erred

1)  in deciding that teaching jobs performed by full-time and part-time teachers at the College of Micronesia are not substantially similar based upon factors not related to the actual job of teaching and therefore the court erred in deciding that full-time and part-time teachers were not required to receive the same rate of pay;

2)  in "adopting" the reasoning in Brousard-Norcross v. Augustana College Assín, 935 F.2d 974 (8th Cir. 1991), a teacher tenure case, when this case does not involve tenure and the College does not have a tenure system;

3)  in deciding that full-time and part-time teachers are not similarly situated for the purposes of equal protection analysis;

4)  in applying the "rational relationship" constitutional test when she argued that there was no rational educational reason to pay full-time and part-time teachers differently and the trial court did not reach the pay issue;

5)  by concluding that teachers do not constitute a class within the meaning of the equal protection clause;

6)  by concluding that Berman had a duty to notify the College that her claim was based on the Pohnpei Wage and Hour Law

7)  by concluding that the Pohnpei Wage and Hour Law did not apply to this case; and

8)  by deciding that the College is a national government agency and by, in her view, deciding that College employees donít have a right to equal pay for substantially equal work.

IV.  Standard of Review

       We apply the same standard in reviewing a trial courtís grant of a summary judgment motion that the trial court initially employed under Rule 56(c). We view the facts in the light most favorable to the party against whom judgment was entered and we determine de novo whether genuine issues of material fact are absent and whether the prevailing party is entitled to judgment as a matter of law. Rosario v. College of Micronesia-FSM, 11 FSM Intrm. 355, 358 (App. 2003); Chuuk v. Secretary of Finance, 9 FSM Intrm. 424, 430 (App. 2000); see also Department of Treasury v. FSM Telecomm. Corp., 9 FSM Intrm. 353, 355 (App. 2000); Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586 (App. 1996).

V.  Analysis

      Berman does not contend that there are material facts in dispute or that any "fact" in the trial courtís recitation of undisputed facts is incorrect. At oral argument, she stated that she did not disagree with any of the trial courtís "findings" but disagreed with the trial courtís decision. Berman draws different inferences and legal conclusions from those facts. She disputes that full-time and part-time teachers should properly be considered two separate classes or that their jobs are different. She asserts that their jobs are the same and they should be paid the same. Bermanís entire appeal turns on this point.

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A. Equal Protection

      Berman raises two equal protection claims. The first cause of action alleges discrimination on the basis of national origin or sex, and the second is based on the different pay scales for full-time and part-time teachers. These are two different claims, which were properly pled as two different causes of action.

      The Constitutionís 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, ß 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, ß 4. Bermanís first cause of action implicates section 4, and her second cause of action falls under section 3.

1. First Cause of Action

      The first cause of action alleges discrimination on the basis of national origin or sex, which are two of the classes enumerated in article IV, section 4. If the discrimination is based on the individualís membership in one of the section 4 enumerated classes, or if the discrimination affects a "fundamental right," the law or regulation is subject to strict scrutiny review. See Samuel v. Pryor, 5 FSM Intrm. 91, 104-07 (Pon. 1991); see also FSM Social Sec. Admin. v. Weilbacher, 7 FSM Intrm. 137, 146 (Pon. 1995). Section 4 "prohibits discrimination based on sex, race, ancestry, national origin, language, or social status. Any governmental action that classifies according to sex, race, ancestry, national origin, language, or social status constitutes an inherently suspect criteria. As such, the government must prove a compelling governmental interest in the classification." SCREP No. 23, II J. of Micro. Con. Con. 793, 797.

      Berman compares herself to two different male teachers with the same level of education, who were paid more than she because they were full-time teachers. This does not help her any on the first cause of action since the only apparent reason for the pay difference is that they were full-time, not part-time, teachers. Berman stated at oral argument that no part-time teacher was paid more than she was. Therefore no male part-time teachers with the same level of education were paid more than she was and no FSM-citizen part-time teachers were paid more than she was. Nor does she claim that her status as a part-time teacher instead of being a full-time teacher was based on discrimination on the basis of sex or national origin.

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      Therefore, as a matter of law, based on the undisputed material facts, Berman has not made out a prima facie case of discrimination based on either sex or national origin. The trial court thus properly granted summary judgment in the Collegeís favor on Bermanís first cause of action.

2. Second Cause of Action

      The second cause of action ) the pay difference between full-time and part-time teachers falls under section 3 of the Declaration of Rights. Under Section 3,

Equal protection of the law means the protection of equal laws. The clause requires that those similarly situated must be similarly treated. It seems also that application of the law must be equal. For illustration purposes, equal protection requires "that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; . . . that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition . . . ."

However, equal protection forbids only invidious discrimination. Where relevant differences exist between classes, different treatment by the state is permissible. . . .

However, any statute that classifies and affords different treatment is subject to the same tests as those under substantive due process: (1)  Does the legislature have power to enact the statute that classifies? (2)  Does the classification bear a rational relationship to the legislative goal? Again, the classification is presumed to be valid and the burden of proving that the statute is without a rational relationship to the legislative objective is on the challenger of the classification. (3)  Where fundamental rights are involved, the classification constitutes a suspect criteria. As such, the burden of proving that the classification bears a close rational relationship to some compelling governmental interests shifts to the government. Fundamental rights are presumed to be absolute until the government proves a compelling governmental interest to curtail or restrain them.

SCREP No. 23, II J. of Micro. Con. Con. 793, 796_97 (citations omitted).

       Berman asserts that the Collegeís different pay scales for full-time and part-time teachers do involve a fundamental right. For this she relies on Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364, 366 (Pon. 1992), which holds that "employment opportunity is a liberty interest protected by due process." Berman asserts that employment is a fundamental "liberty" interest with constitutional protection. Reply Br. at 5, 8.

       "[T]he Court should be wary of requests that it identify as fundamental any rights beyond those specified in the declaration of rights." Samuel, 5 FSM Intrm. at 102. Employment is not listed as a fundamental right in the Declaration of Rights. The case that Berman relies upon, Berman (I), 5 FSM Intrm. at 366, refers to "employment opportunity" as a "liberty interest." Even if "employment opportunity" were considered a fundamental right, the interest in contention in this case is employment pay not the opportunity for employment. Being paid a lower rate than another involves a fundamental right if the reason for the lower pay is the employeeís sex, race, ancestry, national origin, language, or social status. Being paid at a lower rate for some other reason does not involve a fundamental right. If the law does not concern an enumerated class or a fundamental right, the question becomes whether the classification is rationally related to a legitimate governmental purpose. Afituk v. FSM, 2 FSM Intrm. 260, 263 (Truk 1986); see also Weilbacher, 7 FSM Intrm. at 146. The rational relationship test

[15 FSM Intrm 593]

examines whether there is a reasonable justification for permitting a law or regulation that discriminates against certain classes or groups.

      Thus, the crux of Bermanís case is whether full-time and part-time teachers are similarly situated or whether the pay differential between full-time and part-time teachers is rationally related to a legitimate governmental purpose.

B. Bermanís Assignments of Error

1. Similarity of Part-time and Full-time Teaching Positions

      Berman contends that in concluding that full-time teaching positions and part-time teaching positions are not similar jobs, the court erred in relying upon factors that do not involve actual teaching. She contends that the court should not have considered factors, which the trial court did, such as a full-time teacherís forgoing other employment opportunities while a part-time teacher does not; a full-time teacher needing to relocate to and establish a home on Pohnpei; the Collegeís need to provide teachers on an ad hoc basis for over-enrolled classes; and the Collegeís need to realize a cost savings. (She calls this the trial courtís "four-part rationale.")

      Berman further contends that part-time and full-time teachers have identical jobs. She asserts that the only discernible difference between full-time and part-time teachersí duties is that full-time teachers must attend graduations ceremonies at the end of each academic year; convocation ceremonies at the start of each academic year; faculty meetings; and parties and similar "special functions." Appellantís Br. at 12.

      Although Berman asserts that these other duties do not constitute "teaching" and belittles these duties as functions where the full-time teachers "have an opportunity to chat, eat cookies, and enjoy themselves in a relaxed atmosphere for a few hours," Appellantís Br. at 12, these are nonetheless required duties which are part of the full-time teacherís job and not part of the part-time teacherís job. If Berman were to have her way, part-time teachers would be paid the same amount on a per course basis as the full-time teachers, thus leaving the full-time teachers to perform their other duties for free, which would, in effect, make them under-paid in relation to the part-time teachers.

      Furthermore, although Berman does not believe that a full-time teacherís forgoing of other employment opportunities is entitled to any compensation, it seems to us that the added duties, the need to forgo other employment, and the long-term commitment (three years as opposed to one semester) to teaching at the College, makes a full-time teaching position a substantially different job from a part-time teaching position.

2. Use of Brousard-Norcross v. Augustana College Assín

      Berman contends that it was improper for the trial court to "adopt" Brousard-Norcross v. Augustana College Assín, 935 F.2d 974 (8th Cir. 1991) because that U.S. case involved a tenure-track professor in an equal pay dispute where an equal pay claim was not made out because of the small difference in pay.

      The trial court used this case as an analogous example, saying that just as "a comparison between the pay of a tenured and an untenured professor was not valid" in Brousard-Norcross, the comparison between a full-time teacherís pay and a part-time teacherís pay was not valid in this case. Berman, 15 FSM Intrm. at 81. Regardless of Brousard-Norcrossís applicability, this appealís outcome turns on whether full-time teaching positions and part-time teaching positions are similar positions, and,

[15 FSM Intrm 594]

for the reasons given above, they are not, and on whether there is a rational relationship between a full-time teacherís pay and a part-time teacherís pay.

3. Are Full-Time and Part-Time Teachers Similarly Situated?

      Berman contends that part-time and full-time teachers are similarly situated because both are paid depending on their education and experience and because, in her view, there are "no other legitimate factors on which COMís base salary differential are based." Appellantís Br. at 16.

      The factors stated above ) the full-time teacherís added duties, need to forgo other employment, and long-term commitment (three years as opposed to one semester) to teaching at the College ) are legitimate factors from which we may conclude that full-time and part-time teachers are not similarly situated.

4. Rational Relationship Test and Teacherís Pay

      Berman contends that the trial court only ruled that the College had legitimate rational reasons for hiring part-time teachers and neglected to reach the issue of whether there was any justification to pay part-time teachers at a lower rate. She asserts that the trial court never articulated a legitimate non-discriminatory justification to pay part-time teachers less than full-time teachers. Having said that, Berman then repeats that she was paid less than a full-time male teacher with the same educational level and that this presents a prima facie case of sex discrimination requiring strict scrutiny. She further asserts that the Collegeís practice of paying full-time teachers at the part-time rate for courses taught in excess of the required five during a semester or during the summer session, supports her position.

      Bermanís assertion that she has made out a prima facie case of sex discrimination would hold water only if part-time and full-time teachers were similarly situated, thus allowing her to compare herself to a full-time teacher. But, contrary to her assertions and for the reasons stated above, full-time and part-time teachers are not similarly situated. She has not claimed that she was paid less than a similarly-situated (part-time) male teacher. She was, in fact, the highest paid part-time teacher.

      The full-time teacherís added duties, the need to forgo other employment, and the long-term commitment (three years as opposed to one semester) to teaching at the College are all rational and legitimate reasons for the College to pay full-time teachers at a higher rate than part-time teachers. The pay difference passes the rational relationship test. And it is undisputed that the College had legitimate and rational reasons to employ part-time teachers, as and when needed, rather than hiring just full-time teachers. The payment of full-time teachers at the part-time rate for excess and summer classes does not change the analysis because those classes are beyond the duties that full-time teachers are obligated to perform. Furthermore, Berman cannot show any discrimination for summer classes pay because, for summer classes, her pay was equal or higher than any other summer instructor including those classified as full-time teachers. We conclude that Berman, as the challenger, has failed to meet her burden to show that the pay differential between part-time and full-time teachers is without a rational relationship to the Collegeís objective of educating the nationís youth with the resources it has.

5. Teachers As a Class

      Berman asserts that the trial court erred by holding that the Collegeís teachers do not constitute a single class. She states that the trial court seems to be saying that a teacher must be a member of one of the Section 4 enumerated classes to be entitled to relief. She reiterates that to make out a prima facie case of sex discrimination she must show, and she claims that she has shown, that she was paid less than at least one male full-time teacher.

[15 FSM Intrm 595]

      Berman fundamentally misunderstands the trial courtís ruling. The implications of the trial court holding is that to make out a prima facie case of sex discrimination Berman would have had to have shown that she was paid less than a male part-time teacher with the same level of education. This she has not done. She insists on comparing herself to male full-time teachers who, for the reasons given above, are not similarly situated and thus are not a proper comparison.

6. Duty to Notify College of Pohnpei Wage and Hour Claim

      Berman contends that the trial court ruled that since she had not pled the Pohnpei Wage and Hour Law, Pon. S.L. No. 2L-195-91, she was not entitled to relief under that statute. She asserts that, under the notice pleading allowed by Civil Procedure Rule 8(a), her complaintís recitation of facts upon which relief under that statute could be granted was sufficient.

      The rules require only notice pleading, and are flexible and informal rather than technical. The complaint need only be a short and plain statement of the claim and give the defendant fair notice of the factual wrong on the basis of the facts asserted and the legal theory advanced, if one is advanced, need not be correct. Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113-14 (Chk. 1995); see also FSM v. Kana Maru No. 1, 14 FSM Intrm. 368, 372 (Chk. 2006); Annes v. Primo, 14 FSM Intrm. 196, 203 (Pon. 2006); Adams v. Island Homes Constr., Inc., 11 FSM Intrm. 445, 449 (Pon. 2003). Foreign law is a fact which must be pled and proven. FSM Civ. R. 44.1. But state law does not need to be expressly pled, Lumbermanís Mut. Cas. Co. v. Norris Grain Co., 343 F.2d 670, 685 (8th Cir. 1965), because the court may take judicial notice of any state law. Bower v. Casnave, 44 F. Supp. 501, 504 (S.D.N.Y. 1941). Since the court must "take judicial notice if requested by a party and supplied with the necessary information," FSM Evid. R. 201(d), Berman, at some point, may have had to provide the trial court and the College with a copy of the statute and its provisions or make them aware of it if they were not.

      But since we have concluded that full-time teachers and part-time teachers are not similarly situated, Berman does not have a factual basis for relief under the Pohnpei Wage and Hour Law.

7. Whether Pohnpei Wage and Hour Claims Apply to this Case

      Berman further asserts that she is entitled to relief under the Pohnpei Wage and Hour Law because her complaint alleged that she was paid substantially less than other employees performing the same work. Since we have concluded that the Collegeís full-time teachers and part-time teachers are not similarly situated, Berman does not have a factual basis for relief under the Pohnpei statute because she, as a part-time teacher, did not perform the same work as a full-time teacher. We need say nothing more about this assignment of error.

8. Whether College Is a National Government Agency

      Berman asserts that the College is not a government agency. Her reason for this assignment of error appears to be that the Pohnpei Wage and Hour Law does not apply to governmental agencies. However, this assignment of error would only be relevant if Berman prevailed on her contentions that she, as a part-time teacher, was similarly situated with full-time teachers. She has not.

[15 FSM Intrm 596]

      This contention is disingenuous. Berman asserted in her complaint that the College was an agency of the national government. Complaint ∂ 2 (Jan. 14, 2002).

      Her equal protection claims, and our analysis of them, are based on her premise, and our conclusion, that the Collegeís pay scales and policies are governmental action or government regulations. The College is an instrumentality of the national government in the same way that the FSM Development Bank is, e.g., FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 1, 4 (Chk. 2001), even though its employees are not considered government employees, 40 F.S.M.C. 722(1). The College was created by Congress, 40 F.S.M.C. 702, 723(1), and is "subject to suit only in the manner provided for and to the extent that suits may be brought against the National Government," 40 F.S.M.C. 724(1). So, since the national government is not subject to suit under the Pohnpei Wage and Hour Law, neither is the College.

9. Summary

      The Collegeís part-time and full-time teachers do not have the same job responsibilities, duties, and obligations, are not similarly-situated, and can therefore be treated as two separate classes paid at different pay scales. While Berman did not have a duty to plead the Pohnpei Wage and Hour Law to be entitled to relief under that statute, she has not made out a prima facie case for such relief and the College is not subject to the statute.

      Accordingly, the trial court properly granted summary judgment in the Collegeís favor on Bermanís second cause of action.

VI.  Conclusion

      Except for the recusal issue over which we have no jurisdiction, all of Mary Bermanís assignments of error hinge on the assumption that the Collegeís full-time teaching positions and part-time teaching positions are the same job. Since there are no material facts genuinely at issue and the only reasonable inference from the undisputed facts is that the Collegeís full-time teaching positions and part-time teaching positions are not the same job, the College of Micronesia-FSM was entitled to summary judgment as a matter of law. We accordingly affirm the trial court judgment. Costs shall be taxed against the appellant. FSM App. R. 39(a).

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Footnotes:

1.  When an FSM court has not previously construed an FSM procedural rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. See, e.g., Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 n.3 (App. 2000); Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994). The interplay between Civil Rules 59 and 60 has not been previously considered.

2.  At oral argument, Berman cited U.S. cases for the proposition that where there is sex discrimination courts apply a "heightened scrutiny" review. "Heightened scrutiny" is a level of scrutiny below strict scrutiny but above the rational relationship test that U.S. courts use in sex discrimination cases since sex is not an enumerated class in the U.S. Constitutionís equal protection clause. In the FSM, sex is an enumerated class and the higher strict scrutiny analysis is applied.

3. Weilbacher contains a typographical error in that it says that strict scrutiny applies to the classes listed in section 3 when section 4 is plainly meant.

4.  Berman also claims that full-time teachers were paid more than she because some (the off-island hires) were paid a housing allowance and moving expenses. As a Pohnpei resident, Berman would not have been eligible for these supplements even if she had been hired full-time. These perks are thus not properly part of Bermanís equal protection or Pohnpei Wage and Hour Law claims.

5.  Since this aspect of notice pleading has not been previously construed, and FSM Civil Procedure Rule 8 is identical or similar to its U.S. counterpart, we may look to U.S. sources for guidance in interpreting the scope of notice pleading. See supra note 1.

6.  Berman neglected to include the Complaint and Answer in her appendix, although those pleadings should normally be included in the appellantís appendix. FSM App. R. 30(a)(3).

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