FSM SUPREME COURT TRIAL DIVISION
Cite as Alifios v. FSM Dep't of Justice 24 FSM R. 81 (Chk. 2023)
RECK ALIFIOS,
Plaintiff,
vs.
FSM DEPARTMENT OF JUSTICE, JOSES GALLEN,
in his official capacity as Secretary of Justice, FSM
NATIONAL POLICE Chuuk Office, and the FSM
NATIONAL GOVERNMENT,
Defendants.
CIVIL ACTION NO. 2021-1006
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
Larry Wentworth
Associate Justice
Decided: March 30, 2023
APPEARANCES:
For the Plaintiff:
Josef Rold, Esq.
Micronesia Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942
For the Defendant:
Josephine Leben James, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
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When the defendants' motion to dismiss for the failure to state a claim upon which the court can grant relief relies, in part, on exhibits outside the pleadings, the court has two options – it may either accept those outside matters and treat the motion as one for summary judgment under Rule 56 or it may exclude those matters and continue to treat the motion as one for dismissal for failure to state a claim upon which relief can be granted. Alifios v. FSM Dep't of Justice, 24 FSM R. 81, 84 (Chk. 2023).
When there is no reason to exclude the outside matters that are presented with a Rule 12(b)(6) motion, the court must treat the motion as one for summary judgment once all parties have had a reasonable opportunity to present all material made pertinent to such a motion under Rule 56. Alifios v. FSM Dep't of Justice, 24 FSM R. 81, 84 (Chk. 2023).
Summary judgment is proper when, viewing the facts in the light most favorable to the party against whom judgment is sought, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Alifios v. FSM Dep't of Justice, 24 FSM R. 81, 84 (Chk. 2023).
A terminated national government employee is not a national government employee after he is formally terminated, unless he prevails on his administrative appeal and is reinstated retroactively as a national government employee with back pay. Alifios v. FSM Dep't of Justice, 24 FSM R. 81, 84 (Chk. 2023).
When a terminated public service system employee was given an opportunity to be heard before his formal termination, that employee is not entitled to back pay after his termination date unless the ad hoc committee decides he was wrongfully discharged. The public service system employee's failure to take advantage of that opportunity to submit a written explanation does not mean that he did not have the opportunity to be heard. It just means that he neglected to avail himself of that opportunity. Alifios v. FSM Dep't of Justice, 24 FSM R. 81, 85 (Chk. 2023).
If any back pay is awarded for the time when the terminated employee held another job, that back pay will be mitigated – reduced – by the amount he received from his other job for that time period. Alifios v. FSM Dep't of Justice, 24 FSM R. 81, 85 (Chk. 2023).
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LARRY WENTWORTH, Associate Justice:
This comes before the court on the defendants' Motion to Dismiss, filed December 23, 2022; the Plaintiff's Opposition to Defendants' Motion to Dismiss, filed January 23, 2023; and the defendants' Reply to Plaintiff's Opposition to Defendants' Motion to Dismiss, filed January 31, 2023. The defendants are granted summary judgment in part. The court's reasons follow.
The plaintiff, Reck Alifios, was a lieutenant in the FSM National Police, stationed on Chuuk. On December 17, 2018, he received a notice of proposed termination for cause. The stated grounds were that he had made inappropriate sexual comments to female colleagues and that he had used office computers to access and send pornographic materials. The notice also gave Alifios the opportunity to provide a written explanation addressed to the Secretary of Justice (Joses Gallen), which the Secretary would then consider before making a final decision on whether to terminate Alifios. Alifios's response was due December 21, 2018. Alifios did not submit a response.
Alifios engaged the services of Micronesian legal Services Corporation ("MLSC"). On January 29, 2019, an MLSC attorney sent Secretary Gallen a letter, which complained that the December 17, 2018 notice did not contain a notification of the fifteen-day appeal period afforded Alifios by 52 F.S.M.C. 154, and asked for an administrative appeal hearing under 52 F.S.M.C. 154 and 155. On February 18, 2019, Alifios started working at the Chuuk Department of Public Safety, where his salary was lower than it had been as a national police officer.
On February 28, 2019, Secretary Gallen sent a memorandum confirming Alifios's termination and notifying him of his right to appeal within 15 days. On March 8, 2019, Alifios, citing 52 F.S.M.C. 155 and § 18.6 of the Public Service System Regulations, requested an administrative hearing to present his side. He was notified on March 13, 2019, that his appeal would be heard and, on March 27, 2019, Alifios made his selection of an administrative panel member.
The administrative appeal was heard by an ad hoc committee panel on November 8, 2019. Its decision, issued April 20, 2020, confirmed the factual allegations against Alifios, sustained his termination, and concluded that the termination would serve the good of the public service.
On May 22, 2020, Alifios, citing Poll v. Victor, 18 FSM R. 235, 246 (Pon. 2012), demanded $15,201.36 in back pay for the time between the notice of his proposed termination on December 17, 2018 to May 19, 2020, when he received the Ad Hoc panel's April 20, 2020 final decision, on the theory that he remained a national government employee until then. The FSM did not respond.
On May 27, 2021, Alifios filed suit, alleging that the defendants had violated his civil rights and his right to due process by not paying him his wages up to May 19, 2020. On June 24, 2021, the defendants filed their answer and a motion to dismiss.
The defendants moved to dismiss on the ground that the court lacked subject matter jurisdiction because the Alifios's termination, which was confirmed by the April 20, 2020 Ad Hoc Committee decision, had not been transmitted to the highest management official – the President – for that official to make the final decision and therefore Alifios had not exhausted his administrative remedies.
The court, on July 9, 2021, denied the motion to dismiss because Alifios did not seek review of, or reversal of, his termination or reversal of the Ad Hoc Committee decision, but instead only sought to be paid back wages for the time between his termination and the date when the Ad Hoc Committee affirmed that termination and that claim had not been made before the Ad Hoc Committee or mentioned in its decision.
In their current motion to dismiss for the plaintiff's failure to state a claim, the defendants contend that the FSM is not liable to Alifios for back pay because he had started working at Chuuk Public Safety (February 18, 2019) before he was terminated on February 28, 2019, and that Alifios should not be paid by two different employers for the same hours. Alifios, relying on Poll v. Victor, 18 FSM R. 235 (Pon. 2012), asserts that he remained a national government employee until he received the Ad Hoc Committee's final decision on May 19, 2020. Alifios further contends that his Chuuk state government pay would only reduce, or mitigate, the damages the FSM owed him, and therefore, deducting his Chuuk government pay from what he believes is his national government pay up until May 19, 2020, he now argues that the FSM still owes him $10,024.36. The defendants respond that Alifios was no longer a national government employee once Chuuk state government hired him, so the FSM cannot be responsible for any pay after that date.
Although the defendants' motion is brought as one for dismissal for the failure to state a claim upon which the court can grant relief, it relies, in part, on exhibits outside the pleadings. When a party, either in support or in opposition to a Rule 12(b)(6) motion to dismiss for the failure to state a claim, submits matters to the court outside of the pleadings, the court has two options – it may either accept those outside matters and treat the motion as one for summary judgment under Rule 56 or it may exclude those matters and continue to treat the motion as one for dismissal for failure to state a claim upon which relief can be granted. Fuji Enterprises v. Jacob, 21 FSM R. 355, 363 (App. 2017).
No reason to exclude this outside matter is apparent. When there is no reason to exclude the outside matters that are presented with a Rule 12(b)(6) motion, the court must treat the motion as one for summary judgment once all parties have had a reasonable opportunity to present all material made pertinent to such a motion under Rule 56. Estate of Gallen v. Governor, 21 FSM R. 477, 486 n.9 (Pon. 2018); Palasko v. Pohnpei, 20 FSM R. 90, 93 (Pon. 2015). The parties have had that reasonable opportunity.
The material facts as outlined above, supra part I., are undisputed. Summary judgment is proper when, viewing the facts in the light most favorable to the party against whom judgment is sought, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. E.g., Mailo v. Chuuk Health Care Plan, 20 FSM R. 18, 22 (App. 2015); Nahnken of Nett v. United States, 7 FSM R. 581, 586 (App. 1996).
Alifios's contention that he remained a national government employee until May 20, 2020, is incorrect. He definitely was not a national government employee after February 28, 2019, when Secretary Gallen formally terminated him. That is the last date on which Alifios can claim to have been a national government employee. (If Alifios had prevailed on his administrative appeal, he would have been reinstated retroactively as a national government employee with back pay. But he did not prevail.)
Alifios may or may not have been a national government employee after December 22, 2018, when the time had elapsed for him to respond to his proposed termination and he did not. It is unclear exactly what employment status Alifios had between his last FSM paycheck (reportedly November 27, 2018) and the Secretary's February 28, 2019 termination memorandum. Was he on some sort of administrative leave without pay? With pay?
Alifios misunderstands Poll v. Victor. In Poll v. Victor, Poll, an FSM government investigator, was, on October 28, 2009, abruptly terminated, without prior notice, for cause set out in an October 27, 2009 memorandum, which also informed him that he could appeal. 18 FSM R. at 242. He appealed, and the first chance Poll had to respond to the memorandum and its reasons for his termination was when an Ad Hoc Committee heard his appeal. Id. at 245. The committee decided, on December 21, 2009, to uphold Poll's termination. Id.
The Poll court held that since the October 28, 2009 termination "could not have taken effect prior to Poll's being given an opportunity to be heard, which he received at the Ad Hoc Comm. hearing [thus, a]t the earliest Poll's termination would be effective on the date of the Ad Hoc Comm.'s decision on December 21, 2009." Id. The Poll court accordingly awarded Poll "his pay from October 28, 2009 through December 21, 2009, minus the income and social security tax withholdings." Id. at 246.
Alifios, however, was not terminated before he had an opportunity to be heard. Alifios was given an opportunity to be heard by Secretary Gallen's December 17, 2018 notice of possible termination. Alifios's failure to take advantage of that opportunity to submit a written explanation does not mean that he did not have the opportunity to be heard. It just means that he neglected to avail himself of that opportunity.
In the matter of notice and opportunity, this case is similar to Edmund v. Oliver, 23 FSM R. 72 (Pon. 2020). The Edmund court denied a terminated Pohnpei police lieutenant's claim for back pay from the date of his termination to the date that termination was upheld on appeal because, when the Pohnpei Director of Public Safety notified that Pohnpei lieutenant that the department intended to terminate him for certain specified reasons, the Director gave him an opportunity to respond (that is, to be heard) and the lieutenant, in fact, did respond with written reasons why he should not be terminated. Id. at 78. The lieutenant was thus given notice and the opportunity to heard (and was actually heard) before he was terminated. Id. The terminated Pohnpei lieutenant was not entitled to back pay from his termination date until the date the Pohnpei Personnel Review Board upheld his termination because he would have been entitled to that back pay only if he had been wrongfully discharged, and he was not. Id.
Alifios is not entitled to back pay after his termination date until the Ad Hoc Committee's decision because he was not found to have been wrongfully discharged. It cannot be any other way. If the law were as Alifios claims, then every terminated employee would be encouraged to appeal his or her termination merely for the purpose of receiving further pay (without performing any duties) until such time as the ad hoc committee upheld the termination, regardless of whether the appeal had any merit. That would make no sense.
Accordingly, the defendants are granted summary judgment on all of Alifios's claims for back pay after February 28, 2019.
Since it is unclear what Alifios's status was between his last FSM paycheck and February 28, 2019, the court asks the parties, assuming that they have not agreed on an amount, to submit, no later than May 1, 2023, their briefs on what amounts Alifios might claim as back pay for that time period and why. Either side may respond to the other side's brief no later than May 11, 2023. If any back pay is awarded for the time between February 18, 2019, and February 28, 2019, that pay will be mitigated – reduced – by the amount Alifios received from his Chuuk Public Safety job for that time period. Sandy v. Mori, 17 FSM R. 92, 94 (Chk. 2010) (back pay award amount must be reduced by the amount of mitigated damages – by amount received from other employment).
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