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HEADNOTES

COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

I. BACKGROUND

The Defendant Bank of the Federated States of Micronesia (BFSM) filed its Motion for Summary Judgment on May 4, 2010. The Plaintiff Jace-Lynn Peniknos (Peniknos) filed her Opposition to the BFSM's Motion for Summary Judgment on May 24, 2010. The BFSM filed its Reply in Support of Motion for Summary Judgment and Motion for Enlargement of Time to File Scheduling Order on May 27, 2010. Peniknos filed her Supplement to Opposition to Motion for Summary Judgment on June 2, 2010, which included an Affidavit of Jace-Lynn Peniknos. The Defendant Yuko Nakasone (Nakasone) did not file any written position to the BFSM's Motion for Summary Judgment.

A hearing on the BFSM's Motion for Summary Judgment was held on March 4, 2011. Salomon M. Saimon, Esq. of the Micronesian Legal Services Corporation appeared on behalf of the Plaintiff Peniknos. Marstella E. Jack, Esq. appeared on behalf of the Defendant Nakasone. Stephen V. Finnen, Esq. appeared on behalf of the Defendant BFSM. Oral argument in support and in opposition to the summary judgment motion were heard. No witness testimony was taken from either party.

The court addressed a Motion for Enlargement of Time to File Scheduling Order filed May 27, 2010 and a Motion to Enlarge Time filed May 14, 2010, as preliminary matters. Having received no opposition and with sufficient cause shown, both motions were granted in open court.

The court having heard the arguments of counsel, and having considered the pleadings, motions, affidavits, and other filings by the parties, hereby enters its decision and order on the BFSM's Motion for Summary Judgment.

The BFSM is requesting that the court enter summary judgment dismissing seven out of the thirteen causes of actions in this matter. Those seven causes of action – numbers 2, 3, 9, 10, 11, 12, and 13 are either partly or wholly against the BFSM.

II. ASSERTIONS AND FINDINGS

On or about December, 2008, the Plaintiff Peniknos was hired by the Defendant Nakasone to work as a store clerk at Futago Mart. Nakasone owns Futago Mart. While employed at Futago Mart, Peniknos regularly worked shifts from Monday through Friday. Throughout her employment with Nakasone, Peniknos was earning $1.35 an hour.

Peniknos' bi-weekly pay was broken down by cash payments and deductions. Peniknos claims that there were constant unauthorized deductions which were not agreed upon at the initial period of

[18 FSM R. 477]

employment and throughout her employment with Nakasone.¹ As a result of not being paid the hours worked, Peniknos and other employees were forced to take inventories as payment for work done.²

Peniknos worked at Futago Mart until July, 2009, when she elected to terminate her employment with Nakasone with the stated reason of not being paid correctly. According to Nakasone, Peniknos had a bad work history. Nakasone contacted the BFSM and advised the bank that they should be careful with Peniknos as an employee due to her bad work history. Nakasone's Answer, ¶ 13. At the time Peniknos terminated her employment, she had worked for Nakasone\ for approximately seven months.

The BFSM in its Motion for Summary Judgment, provided the following sequence of events which covered the extent of Peniknos' employment with the BFSM:

1. On October 29, 2009, Peniknos completed and signed an application for employment with the BFSM, a private sector employer.

2. On November 5, 2009, the BFSM noted its receipt and processing of Peniknos' application.

3. On November 23, 2009, Peniknos signed an authorization to conduct a background information check. She was also provided a copy of the BFSM Employee Policy Handbook (Employee Handbook).

4. On November 25, 2009, Peniknos was hired as a customer service representative by the BFSM.

5. On or about December 15, 2009, Nakasone contacted the BFSM, and provided the BFSM information about Peniknos, specifically that she was her former employee and that they had a bad employment relationship.

6. On or about December 15, 2009, Teresia Yamaguchi, the BFSM Branch Manager (Manager Yamaguchi) asked Peniknos, if she had ever worked for other employers aside from those she listed in her application, noting that she omitted in her employment history being employed with Nakasone. Manager Yamaguchi told Peniknos that she should have been truthful and recommended she submit a resignation letter. Peniknos explained that she did work for Nakasone and did not provide that information because Nakasone was off-island.³

7. On December 16, 2009, Merlihna Weital, BFSM Human Resources Manager (Manager Weital)

[18 FSM R. 478]

telephoned Peniknos and asked her if she could come into the bank and explain her side of the story with regard to the omission. Peniknos said she would come into the bank that day. Peniknos did not report to Manager Weital as requested and did not return to the worksite thereafter.⁴

8. On December 28, 2009, Peniknos was administratively terminated by the BFSM on the grounds that she had abandoned her job or alternatively had a material omission of previous employment with Nakasone on her job application, and was an at-will employee, therefore, terminable at any time with or without cause. Peniknos was also an introductory employee at the time of her termination as she had been hired within the previous 90 days.

9. On March 15, 2010, Peniknos filed her complaint against Nakasone and the BFSM asserting thirteen causes of action in violation of contract laws and in tort.

In Peniknos' supplement to her opposition to the motion for summary judgment she submitted an affidavit in which she stated in paragraph 12 that: "I trust that I was fired because the Bank was told that I was a thief when I was in fact not because of the understanding and arrangement and that no police report was ever made that tends to incriminate the acts/arrangement that Ms. Nakasone and I had when I worked for her."

The affidavit further states in paragraph 13 that: "I have heard from the community that I was fired from the bank because I stole – information that was further spun by the bank."

III. STANDARDS FOR SUMMARY JUDGMENT

FSM Civil Rule 56(c) requires summary judgment to be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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.

In considering a summary judgment motion, the court must view the facts and inferences in a light that is most favorable to the party opposing the motion. FSM Dev. Bank v. Mudong, 10 FSM Intrm. 67, 72 (Pon. 2001). A moving party is entitled to summary judgment when it has demonstrated that there are no genuine issues of material fact remaining and that it is entitled to judgment as a matter of law. E.M. Chen & Assocs. (FSM) Inc. v. Pohnpei Port Auth., 10 FSM Intrm. 400, 405 (Pon. 2001); Dungawan v. Simina, 17 FSM Intrm. 51, 53 (Chk. 2010) (citing Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 48 (App. 1995)).

Once the moving party has presented a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing a genuine issue of material fact. The non-moving party may not rely on unsubstantiated denials of liability to carry its burden; it must present some competent evidence that would be admissible at trial which demonstrates that there is a genuine issue of fact. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 183, 184 (Pon. 2001).

FSM Civil Rule 56(c) mandates the entry of summary judgment after adequate time for discovery

[18 FSM R. 479]

and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issues as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 578 (Pon. 2002).

IV. ANALYSIS

The BFSM is requesting that the court enter summary judgment dismissing seven out of the thirteen causes of action in this matter. Those seven causes of action – numbers 2, 3, 9, 10, 11, 12, and 13 are either partly or wholly against the BFSM – and are as follows:

2. Defamation – Republisher

3. Invasion of Privacy – False Light

9. Wrongful Termination – Contracts

10. Wrongful Termination – Torts

11. Violation of Labor and Criminal Laws – Negligence Per Se

12. Negligent Infliction of Emotional Distress

13. Intentional Infliction of Emotional Distress

Peniknos brings her claims against Nakasone and the BFSM based on diversity jurisdiction. FSM Const. art. XI, § 6(b). Both Peniknos and Nakasone are FSM citizens. Peniknos claims that "ownership of Defendant BFSM is by citizens of the FSM and foreign countries," thereby creating diversity of the parties. Compl. ¶ 3, at 2.

Since the court is deciding matters of tort and contract law, this court will apply the substantive law⁵ of Pohnpei State consistent with Edwards v. Pohnpei, 3 FSM Intrm. 350, 360, n.22 (Pon. 1988):

Although the FSM Supreme Court has often decided matters of tort law without stating explicitly that state rather than national law controls, there has been acknowledgment that state law controls in the resolution of contract and tort issues. When the Supreme Court, in the exercise of its jurisdiction, decides a matter of state law, its goal should be to apply the law the same way the highest state court would.

The court addresses Peniknos' claims of wrongful termination in torts and contract against the BFSM first. The other alleged causes of action for defamation – republication, invasion of privacy – false light, violation of labor and criminal laws, and negligent and intentional infliction of emotional distress against the BFSM, flow to some extent from the alleged wrongful termination and discussion on those causes of action follow.

[18 FSM R. 480]

A. Wrongful Termination (Counts 9 and 10)

The BFSM submits that it is entitled to summary judgment on Counts 9 and 10 since Peniknos failed to establish any genuine issues of material fact regarding her termination and since it is entitled to a judgment as a matter of law. The BFSM contends that Peniknos' departure from the BFSM was not wrongful in any way, but that it was based on her abandonment of her job resulting in an administrative termination. Additionally and alternatively, the BFSM contends that Peniknos made a material omission in her employment application, that she was an introductory employee still on probation, and that she was an at-will employee who could resign or be terminated at any time for any reason.

(1) Job Abandonment

The BFSM submits that Peniknos cannot claim any "wrongful termination" on the grounds that she voluntarily abandoned her employment. The BFSM submits that its Human Resources Manager Weital called Peniknos on December 16, 2009, and asked her to come to the office and explain her side of the story with regard to an omission on her employment application. Mot., Aff. of Weital at 2. Peniknos agreed to come in on that day, but did not, and she did not go back to the bank on subsequent days. On December 28, 2009, Peniknos was terminated. Id.

Peniknos does not dispute that Manager Weital called her to come into the office. In acknowledging Manager Weital's telephone call, Peniknos through her counsel, explained at oral argument that she did not report back as directed because she did not want to continue subjecting herself to humiliation.

The court finds that Peniknos did not report to work for a total of twelve days before the termination action was taken and that such action on the part of Peniknos constitutes voluntary job abandonment. The parties provided no Pohnpei caselaw regarding abandonment in the private sector. Though not binding in private sector cases, the court examines how abandonment has been dealt with by the Pohnpei State Government, the Yap State Government, and the FSM National Government for some guidance.

The Pohnpei Public Service System has a specific statutory provision on abandonment which states as follows:

Abandonment. If an employee ceases work without explanation for not less than six consecutive working days he shall be deemed to have abandoned his position, and the management official shall file with the Director a statement showing termination of employment because of abandonment of position. The management official shall promptly transmit a copy of the statement to the employee by the most practical means.

9 Pon. C. § 2-136 (Pon. S.L. No. 2L-57-81 § 25) (emphasis added).

The court also notes the case of Dabchur v. Yap, 3 FSM Intrm. 203 (Yap S. Ct. App. 1987), where the Yap State Court discussed abandonment with regard to Yap state law which read that "If an employee ceases working without explanation for not less than six consecutive working days he shall be deemed to have abandoned his position . . . ." Yap S.L. No. 1-35, § 23. The court in Dabchur considered the employees' abandonment as a form of resignation.

At the national level, 52 F.S.M.C. 146 deals with "Resignation" and reads in pertinent part as follows: "If an employee ceases work without explanation for not less than six consecutive working

[18 FSM R. 481]

days, the management official shall file with the Personnel Officer a statement showing termination of employment because of abandonment of position. . . ."

The court finds that the period of abandonment in this case is sufficient where Peniknos had been requested to come into the work place to meet with management and did not, and when the employee subsequently did not report to the work place for twelve days at which point an administrative termination action was taken. The court finds the existing evidence sufficient to make out a prima facie case of entitlement for summary judgment for the BFSM.

To survive summary judgment, Peniknos had to establish that genuine issues of material fact exists as to whether she had voluntarily abandoned her job. Peniknos failed to offer any evidence setting forth specific facts to overcome the BFSM's voluntary job abandonment argument. On this issue she did not show that there exist any genuine issues of material fact for trial. There was no evidence presented that she had any further contact with the BFSM after being contacted by Manager Weital or any attempt to show up at work prior to the administrative termination being taken.

The court HEREBY GRANTS the BFSM's motion for summary judgment as to Counts 9 and 10 based on Peniknos' abandonment of her job. A further discussion on the other contentions of the BFSM regarding a material omission on her job application and the at-will employment status of Peniknos follows. The court considers these as separate and independent grounds upon which summary judgment could also have been granted for Counts 9 and 10. These discussions are included here since some of the discussions under these alternative arguments pertain to the consideration of summary judgment on some of the remaining counts.

(2) Material Omission

The BFSM argues that it was entitled to terminate Peniknos because "an omission on the application of her last employer is a material omission," Mot. at 10. The BFSM considers Peniknos' failure to disclose her prior employment with Nakasone on her job application a material omission.

The Application for Employment submitted by Peniknos carries the following instruction to the applicant to provide a work history:

To the Applicant: We appreciate your interest in our organization and assure you that we are sincerely interested in your qualifications. A clear understanding of your background and work history will aid us in placing you in the position that best meet your qualifications and may assist us in future upgrading.

In completing the work history section, Peniknos did not list Nakasone as a previous employer. Upon completing the application, Peniknos executed the following certification:

Mot. Ex. "B" (emphasis added).

Peniknos does not contest that there was an omission in her application. In explaining the omission, she stated that her previous employer Nakasone was off-island, Mot., Aff.of Yamaguchi, at 2, and that listing Nakasone would be an obstacle in her effort to find real employment. Opp'n, Aff.

[18 FSM R. 482]

of Peniknos at 2.

The court finds Peniknos' explanation insufficient to show a genuine issue of material fact on this issue. The court considers the certification clear on its face, which could call for discharge in the event of "omission of facts." When Peniknos certified that she provided all the information requested in her employment history, and when the employer subsequently discovered that one of her past employers was intentionally omitted, such omission constitutes a "material" omission to the applicant's work experience and would be sufficient grounds for termination.

(3) At-Will Employee

The BFSM submits that "all employees in its employee handbook" is that of an employee at-will. Mot. at 3. The BFSM contends that Peniknos was still an introductory "at-will" employee and that the BFSM's Employee Handbook specifically provides the definition and the expectations of the employment relationship. Peniknos' employment status at the time of her termination was as an introductory employee since she had been hired within the previous 90 days. Employee Handbook, 203 Employment Categories and 204 Introductory Period.

Peniknos counters that the purported "at will" employment status is "an archaic doctrine formed during the height of the Industrial Revolution in the 19th Century." Memo. Opp'n at 6 (citing H.G. WOOD, A TREATISE ON THE LAW OF MASTER AND SERVANT (1877)).

An at-will employee relationship is defined in Black's Law Dictionary, 2d Edition (2001), as "one wishes or chooses, esp. (of a legal relationship), able to be terminated or discharged by either party without cause."

The BFSM submits the following at-will employee definition: "When the employment is not for a definite term and there is no contractual or statutory restriction upon the right of discharge, an employer may lawfully discharge an employee whenever and for whatever cause he chooses without incurring liability." 53 AM. JUR. 2D Master and Servant § 43, at 117-18 (1970).

A more precise definition can be found in SHANE AND ROSENTHAL, EMPLOYMENT LAW DESKBOOK § 16.02 (1999) as follows: "The employment-at-will doctrine avows that, when an employee does not have a written employment contract and the term of employment is of indefinite duration, the employer can terminate the employee for good cause, bad cause, or no cause at all."

The BFSM asserts that Peniknos was provided a copy of the BFSM Employment Handbook, which specifically provides the nature and extent of the employment relationship:

BFSM Mot. for Summ. J. at 9 (Ex. A, § 102, at A-2).

The notice to Peniknos and thereafter her acquiescence to the employee at-will relationship is evidenced by the following certification she made on October 29, 2009: "If employed, I understand and agree that my employment may be terminated at any time, without prior notice and that my

[18 FSM R. 483]

employment will not be governed by any expressed or implied contract but is at will . . . ." Ex. B attached to BFSM's Mot. for Summ. J. at 3.

Peniknos was shown to have voluntarily signed a certification, despite the other proffered explanations, such as "I was not clearly told that I was an at will employee . . . ." Pl.'s Aff. ¶ 11, at 2.

In arguing that there is no right to private sector employment, the BFSM cited the case of Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk 1995), stating that the Semwen court had held that "there is no inherent right to private sector employment." Mot. at 10. In Semwen, the defendant Seaward Holdings argued that the right to continued private employment is not a right protected by 11 F.S.M.C. 701 (Civil Rights, Deprivation of Rights).⁶ The court in Semwen agreed to the foregoing statement in so as far as 11 F.S.M.C. 701 does not provide any protection to continued private sector employment.

Peniknos argues that an implied contract was formed between her and the BFSM when an offer by the employer "for a unilateral contract in a personnel handbook with an acceptance (by employee) employee's retention of employment w/knowledge of new or changed conditions of employment." Opp'n at 7.

Peniknos asserts that there has been some development of the at-will employee within the 20 year post industrial age. As support, she cites a Minnesota case, Pine River State Bank v. Metille, 333 N.W.2d 622 (Minn. 1983), wherein the Minnesota High Court established a two step warning similar to the three step warning in the BFSM's employment manual. Opp'n at 7.

Peniknos cites to various cases as support for her proposition that there existed an implied contract between her and the BFSM at the time of initial interview and hiring. Among those cases, she argues an implied contract relying on Touissaint v. Blue Cross & Blue Shield of Mich., 29 N.W.2d 880 (1980), which is considered a leading case on implied contracts.

Touissaint was employed in a middle management position with Blue Cross for five years. The Blue Cross employee manual provided that disciplinary procedures would be applied to all Blue Cross employees who completed their probationary period and that it was Blue Cross' policy to terminate employees only for "just cause".

This court does not find Touissaint persuasive because the facts are distinguishable. Here Peniknos was a new hire and had not completed her probationary period, whereas the plaintiff in Touissaint was employed for five years. Further, Blue Cross had a terminable for "just cause" policy, while the BFSM has a terminable with cause or no cause policy.

[18 FSM R. 484]

To further distinguish Touissaint, the BFSM acted in accordance with its interest to prevent a contract from being created, by including in its policies a clear and unambiguous disclaimer in its Employee Handbook. Section 102 on Nature of Employment in the Employee Handbook, Mot. Ex. A-2, contains the following disclaimer:

Id. (emphasis added).

As a direct response to the Touissaint decision (and other subsequent United States (U.S.) court decisions finding that the contents and representations made in employee handbooks create an implied contract), U.S. employers started including in their employee handbooks clear and express waivers to negate the existence of any implied contract. Absent a clear and express waiver, courts after Touissaint tend to consider employee handbooks carrying such language as having an implied contract.

The court finds the BFSM's specific disclaimer in its handbook is clear and unambiguous. The language of the disclaimer specifically states that the handbook is not to be construed as a contract. The court determines that the disclaimer is effective and the Employee Handbook does not create an implied employment contract in this case. Further, Peniknos was still on introductory or probationary status.

The court adopts the legal definitions of an at-will employee as provided above. Based on this and the undisputed facts before the court on summary judgment, the court construes the employee relationship between Peniknos and the BFSM at the time of her termination as that of an introductory at-will employee. Peniknos, therefore could have been terminated at any time within the introductory period with or without cause.

The following parts of this order discuss the remaining counts being challenged by the BFSM on summary judgment. All of the following counts suffer from a general failure by Peniknos to make a sufficient showing of the elements needed to support her claims and for which she would have the burden of proving at trial. See Suldan v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 574, 578 (Pon. 2002). A detailed discussion of each count follows.

B. Defamation – Republisher (Count 2)

The BFSM argues that it is entitled to summary judgment on Count 2 of the complaint relating to Defamation – Republisher as a matter of law based on Peniknos' failure to make a sufficient showing on all of the elements needed to support her claim. Id.

Peniknos is claiming that the BFSM acted as a "republisher" of a defamatory statement⁷ concerning Peniknos. Compl. at 5. The BFSM counters that "Plaintiff's Complaint is defective in that

[18 FSM R. 485]

there is no showing as to who the alleged defamatory statement was published to." Mot. at 15. Further, the BFSM contends that Peniknos failed to offer any competent evidence in response to the motion for summary judgment on this count.

In order to establish a claim for defamation – republisher, the plaintiff must prove that the BFSM republished: (1) defamatory statements; (2) a non-privileged communication to a third-party; (3) the falsity of that statement; (4) referencing Peniknos; (5) at least negligence on the part of the publisher; and prove (6) resulting injury. 50 AM. JUR. 2D Libel and Slander § 22, at 353-54 (1995).

Based on the BFSM's argument, the court determines whether or not Peniknos sufficiently showed that there was a republication of any defamatory statement(s) by the BFSM to a third party.

(1) Republication

The parties represented that Pohnpei law has not addressed a republisher's liability for another party's defamatory statement. Pohnpei generally follows the Restatement approach in its law concerning tort issues. Koike v. Ponape Rock Products, 3 FSM Intrm. 57, 64 (Pon. S. Ct. Tr. 1986). The Restatement supports the view that "one who repeats or otherwise republishes a defamatory matter is subject to liability as if he had originally published it." RESTATEMENT (SECOND) OF TORTS § 578 (1977).

What constitutes publication is provided under the RESTATEMENT (SECOND) OF TORTS § 577 (1977) as:

A republication of the defamatory matter to a third person is essential to liability under this count. Therefore, in order to establish liability, there must be evidence that a republication of defamatory matter was made by the BFSM⁸ either intentionally or negligently to a third party other than the plaintiff. In the case of slander, as opposed to libel, the act is usually the speaking of the words.

Viewing the facts in a light most favorable to Peniknos, she asserts that she heard in the community that the BFSM had fired her because she was a thief. The BFSM contends that Peniknos has not sufficiently shown that the BFSM had republished or communicated any defamatory statements concerning Peniknos to any third person.⁹ In further support of her claim of republication, Peniknos

[18 FSM R. 486]

submits in her affidavit that, "I have heard from the community that I was fired from the bank because I stole – information that was further spun by the bank." Pl.'s Aff. ¶ 13.

The BFSM points out that the Peniknos' affidavit does not specifically provide the words alleged to have been republished by the BFSM, it does not provide who at the BFSM did the republication, and it does not provide who was the third person recipient of the republication. Peniknos did not provide any other affidavit(s) to support her allegations and none from the person(s) from the community that had told her that such statement(s) were being made. Peniknos did not provide evidence of other attendant circumstances in which the court might be able to infer that defamatory information had been communicated by the BFSM to an identifiable third person.

The statement of facts that Peniknos used as support in her complaint, Memorandum in Opposition, Affidavit and at oral argument, are insufficient to show the essential element of republication by the BFSM. Peniknos did not provide any name(s) of the BFSM employee(s) that made the republication of any defamatory communication, nor when, where, and how the communication(s) occurred, and who were the recipients of such communication.

Peniknos only offers her explanation of what transpired between her and the BFSM. What Peniknos offers in support of her case are allegations tendered in an effort to allow the court to draw inferences in her favor, or a possible finding of a causal link connecting joint liability between the two defendants BFSM and Nakasone.

At oral argument, Peniknos's counsel represented to the court that as far as a republisher is liable, there must be a finding of liability on the part of the original primary publisher first in order to find liability on the part of the second publisher. The court does not find that Nakasone or the BFSM's liability requires some type of sequential pretext in the finding of liability. Peniknos pled independent causes of actions against the two named defendants. If the BFSM repeats or otherwise republishes defamatory matter, it is subject to liability as if it had originally published it and requires a similar standard of proof that would be applied to Nakasone. RESTATEMENT (SECOND) OF TORTS § 578 (1977).

Under FSM Civil Rule 56(e), when a motion for summary judgment is made and supported, an adverse party may not rest upon mere allegations, but must in response, through affidavits or other competent evidence, set forth specific facts showing there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate shall be entered against the adverse party. Suldan v. Mobil Oil Micronesia, 10 FSM Intrm., 574, 579 (Pon. 2002); Urban v. Salvador, 7 FSM Intrm. 29, 30 (Pon. 1995).

Absent any competent evidence, the plaintiff's claim of defamation – republisher against the BFSM fails a challenge by summary judgment. "A defendant moving for summary judgment may rely on the absence of evidence to support an essential element of the plaintiff's case." Suldan, 10 FSM Intrm. at 579.

[18 FSM R. 487]

The court finds that Peniknos has not sufficiently shown all of the elements necessary to sustain the count of defamation – republisher, there are no genuine issues of material fact, and that the BFSM is entitled to a judgment as a matter of law. The BFSM's motion for summary judgment is HEREBY GRANTED as to Count 2 of the complaint.

C. Invasion of Privacy – False Light (Count 3)

The court has determined that the termination of Peniknos was for job abandonment. The termination was not for any cause, though as the court has discussed above, there was ample support for a termination for a material omission, if abandonment had not been found. There was also a sufficient showing to find that the employment relationship between Peniknos and the BFSM was introductory and at-will.

For this count of invasion of privacy – false light the theory is that someone who publicizes a matter about another that places the other in a false light before the public is liable for tortious invasion of privacy if "(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." RESTATEMENT (SECOND) OF TORTS § 652E (1977).

For liability to exist for false light invasion of privacy it is not necessary, although it is often the case, that the plaintiff be defamed; the plaintiff need only be subject to an unreasonable and highly objectionable false portrayal before the public based on the sensibilities of a reasonable person. Id. cmt. B; see also 62A AM. JUR. 2D Privacy § 122 (1990); Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 456 (Chk. 1994).

The same problem existent in Peniknos' claim under the defamation – republisher count exists with this count. That is a lack of a sufficient showing that the BFSM made any kind of publication, republication, or dissemination of Peniknos being a thief and no showing of knowledge or reckless disregard in publishing the false information. A similar lack of evidence discussed in Part B(1) applies to this count and is fatal to Peniknos' overcoming summary judgment here. Also, in light of the court's finding of abandonment there is no necessary connection between the alleged information passed to the BFSM that Peniknos was a thief and Peniknos' job termination. Peniknos abandoned her job and was administratively terminated.

In order for an issue of fact to be shown it must be supported by substantial probative evidence in the record, going beyond mere allegations. The evidence must be in the nature of facts, not conclusions, unsupported allegations of counsel, opposing party's own contradictions in the record, or opposing party's subjective characterizations. On a summary judgment motion, the court must penetrate the allegations of fact contained in the pleadings and look to any evidential source to determine whether there is an issue of fact. College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 186 (Pon. 2001).

Lacking such evidence, Peniknos' arguments rest on her allegations that Nakasone contacted the BFSM, telling lies about her being a thief that caused her termination from the BFSM, and the BFSM further spreading that information, that resulted in injury. She alleges that she heard from the community that she was fired from the BFSM because she stole – information she stated that was further spun by the bank. Peniknos did not provide sufficient evidentiary information on who at the BFSM had spread this information, exactly what information was spread, who in the community received this information, and how this information resulted in damages to her.

[18 FSM R. 488]

The court also looks to the standard set in Urban, 7 FSM Intrm. 29, 32 (Pon. 1995), wherein the court stated that "unsupported statements of counsel at oral argument do not qualify as competent evidence upon which a court could find a genuine issue at trial." Further, the court cannot be expected to draw "[i]nferences that are supported by only speculation or conjecture." See Fisher v. Aanade, Inc., 519 F.3d 393, 401 (7th Cir. 2006). The Fisher court explained that the nonmoving party "must do more than raise some metaphysical doubt as to the material facts: [s]he must come forward with specific facts showing that there is a genuine issue for trial."

Peniknos's allegations, without further factual support will not withstand summary judgment. In Yurow v. Mobil Oil Micronesia, Inc., 16 FSM Intrm. 360, 364 n.1 (Yap 2009), the court ruled that "a mere factual allegation cannot create a genuine issue of material fact."

Peniknos has not shown that there are genuine issues of material fact going to this count and the BFSM is entitled to a judgment as a matter of law. Peniknos is unable to provide a sufficient showing for the elements necessary for this cause of action and partly for the reasons, set forth in Part B(1) of this order, the BFSM is entitled to a judgment as a matter of law. The BFSM's motion for summary judgment as to Count 3 is HEREBY GRANTED.

D. Violation of Labor & Criminal Laws – Negligence Per Se (Count 11)

The court has determined in Part A of this decision that Peniknos abandoned her employment with the BFSM. The BFSM subsequently processed an administrative termination of Peniknos' employment. Peniknos has not sufficiently shown any wrongful termination in violation of any specific labor or criminal laws.

Peniknos has made no specific allegation of a violation of any labor or criminal laws in her complaint or response to the summary judgment motion. Peniknos' counsel argues that this court is a notice-pleading jurisdiction and given the test of notice pleading, the facts pleaded in the complaint are sufficient to put opposing parties on notice of the plaintiff's claims. Peniknos further argued that under notice pleading requirements, the plaintiff does not have to prove her legal theory concerning liability at the summary judgment stage, and that the evidence clearly shows under the requirement of notice pleading, that there are triable issues.

The court agrees with the plaintiff's assertion that this jurisdiction follows notice pleading as opposed to a code jurisdiction.¹⁰ The court, however, disagrees with the plaintiff's contention that under the requirement of notice pleading, she does not have to sufficiently prove the elements of her case when challenged by a motion for summary judgment. On summary judgment, the plaintiff cannot rely on a notice pleading requirement which is generally used for the complaint or the initiation of a claim under the rules of civil procedure.

Some past discourse on notice pleading was briefly addressed in Faw v. FSM, 6 FSM Intrm. 33, 37 (Yap, 1993). In Faw, the court stated that our rules are "flexible and informal rather than technical" and thus, require only notice pleading. The court went on to state that the "pleading requirements of FSM Civil Rule 8(a) are to be interpreted liberally, and a complaint which states the grounds of jurisdiction and alleges facts sufficient to put the defendant on notice as to the nature and basis of the claim being made sufficiently complies with the rule. Id.

The issue disputed in Faw was a FSM Civil Rule 12(b) Motion to Dismiss for failure to state a

[18 FSM R. 489]

claim. What the Faw court was allowed to consider as sufficient to withstand a Rule 12(b) dismissal was the "Complaint" in its pleaded form. Unlike Faw, what is presently before this court is a motion for summary judgment under FSM Civil Rule 56(b), whose standards have been previously set out in Kosrae v. Worswick, 10 FSM Intrm. 288 (Kos. 2001).

Kosrae v. Worswick, 10 FSM Intrm. 288, 291-92 (Kos. 2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 254, 255, 91 L. Ed. 2d 265, 273 (1986)).

The plaintiff's counsel further argues that a scheduling order has not been issued by this court and therefore, discovery in this case has not been accomplished. "There is no requirement that a party wait until after its discovery has been answered before moving for summary judgment since a summary judgment motion may be filed at any time after the expiration of 20 days from the commencement of the action." Bank of the FSM v. Truk Trading Co., 16 FSM Intrm. 281, 284 (Chk. 2009).

The BFSM argues that the parties had sufficient time to conduct discovery in this case. The complaint was filed on March 15, 2010. The summary judgment motion was filed on May 4, 2010, and opposed on May 24, 2010. There is clearly no requirement that summary judgment must follow a court ordered discovery cut-off.

Finally, the plaintiff's counsel in arguing for a denial of summary judgment, assures this court that plaintiff will produce competent evidence at trial to prove her case. "A promise to produce admissible evidence at some future time is not the production of admissible evidence" in response to a summary judgment motion. A "contention that evidence will be introduced and that it will show certain things is hearsay, and hearsay is generally not admissible evidence, and thus cannot be relied upon to create a material issue of fact when opposing a summary judgment motion." Dereas v. Eas, 15 FSM Intrm. 135, 140 (Chk. S. Ct. Tr. 2007).

The court is left without a sufficient showing from the plaintiff to support her claims under this count. When the summary judgment opponents do not offer any affidavits or exhibits or point to any other competent evidence that would support their position, they have not met their burden of showing by competent evidence that could be admitted at trial showing that there is a genuine issue of material fact because argument alone cannot create a disputed fact that will defeat summary judgment. Truk Trading Co., 16 FSM Intrm. at 287.

There is no genuine issue of material fact with regard to this count and Peniknos is entitled to summary judgment as a matter of law. Peniknos has not cited the labor and criminal laws alleged to have been violated and has not sufficiently shown that the elements for any violation of labor and criminal laws has occurred as to the BFSM. The summary judgment as to Count 11 is HEREBY GRANTED.

[18 FSM R. 490]

E. Negligent/Intentional Infliction of Emotional Distress (Counts 12 and 13)

For both Counts 12 and 13, the court determines that Peniknos has not shown that there are any genuine issues of material fact and that as a matter of law the BFSM is entitled to summary judgment on these counts. Peniknos has not shown an essential element of negligent and intentional infliction of emotional distress.

For Peniknos's Counts 12 and 13 to survive the summary judgment motion there must be a showing of a physical manifestation of emotional distress. One of the elements of an intentional infliction of emotional distress claim is that the plaintiff must have suffered some physical manifestation of the alleged infliction of emotional distress. When the plaintiff did not allege any physical ailments or manifestations resulting from her termination from employment and other claims, her claims fail a challenge by summary judgment for lack of a sufficient showing of an element of her causes of action. Hauk v. Board of Dirs., 11 FSM Intrm. 236, 241 (Chk. S. Ct. Tr. 2002).

Since a claim for negligent infliction of emotional distress cannot be sustained without evidence of actual physical illness resulting from the mental and emotional distress, a plaintiff who fails to provide evidence of actual physical illness resulting from the defendants' actions cannot obtain any monetary recovery on the claim. Tomy v. Walter, 12 FSM Intrm. 266, 272 (Chk. S. Ct. Tr. 2003).

No specific evidence was brought forth to indicate that Peniknos has suffered any physical manifestation of emotional distress. Where the plaintiff presented no evidence of the following: that any of the BFSM's acts she complained of caused her any physical injury; that any mental anguish or emotional distress she might have had resulted in any physical manifestation; and that anyone intended or negligently inflicted emotional distress upon her, her causes of action cannot withstand a challenge by summary judgment. Hauk v. Lokopwe, 14 FSM Intrm. 61, 66 (Chk. 2006).

On these counts, Peniknos has failed to make a showing sufficient to establish the existence of an element essential to these causes of action and on which she would bear the burden of proof at trial. For the aforementioned reasons, summary judgment on Counts 12 and 13 are HEREBY GRANTED.

V. CONCLUSION

Accordingly, the Defendant BFSM is entitled to summary judgment on the seven causes of actions brought against it and discussed above. For all of the aforementioned reasons, the court HEREBY GRANTS the BFSM's motion for summary judgment on Counts 2, 3, 9, 10, 11, 12, and 13 as against the BFSM.

The parties in this matter shall confer with each other as to three alternative dates for a status conference and the Plaintiff Peniknos shall report on these dates to the court on or before Friday, January 18, 2013. The court will thereafter set a date for a status conference for discussion on any further pending pre-trial matters, including whether the BFSM may now be dismissed from this matter in light of the court's ruling on its motion for summary judgment, and discuss the setting of a trial date.

Footnotes:

¹ During the entire seven months of employment, Peniknos stated that she received only three records of wage payments from Nakasone. Compl. ¶ 8.

² According to Peniknos, Nakasone agreed to this type of arrangement and deducted such inventories taken from the employees' earnings. Compl. ¶ 10. Nakasone denied Peniknos' allegations of such arrangement to take inventories as wage payment. According to Nakasone, Peniknos was informed and advised during the job interview of the type of deductions and was paid her correct wage less the deductions that were authorized by law. Nakasone's Answer, ¶¶ 8, 9.

³ Peniknos provided further explanation to this omission in paragraphs 8 and 9 of her Affidavit executed on June 2, 2010: "I did not list Ms. Nakasone as a previous reference because Ms. Nakasone did not want to get rid of me because my take of this person was that she wanted to exploit young and unsophisticated persons to work for her. Also, I wanted to make a claim against her and was pretty sure that she knew that so listing her would be an obstacle for my efforts to find real employment." Aff. ¶ 8.

⁴ Peniknos' counsel made the representation during the hearing on March 4, 2011, that Peniknos did not show up as requested by the bank because she was previously advised by the bank's manager to submit her resignation, and she did not want to subject herself to further ridicule.

⁵ Substantive law includes "common law" as well as "statutory law."

⁶ The Plaintiff claimed that her right to private employment was being violated citing a civil rights violation under 11 F.S.M.C. 701.

⁷ Defamatory communication is defined in the Restatement as "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." RESTATEMENT (SECOND) OF TORTS § 559, at 156 (1977).

⁸ Peniknos is claiming that Nakasone is the first publisher and the BFSM is the second publisher. Since the summary judgment motion is brought by the BFSM, this court's consideration focuses on the alleged republication made by the BFSM.

⁹ The RESTATEMENT (SECOND) OF TORTS, § 613(1), at 306 (1977) provides that

¹⁰ In a code pleading jurisdictions – certain forms are to be followed or the case gets dismissed.