FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2005-1023

KIMUO KIMEUO,
Plaintiff,

vs.

WESLEY SIMINA, in his official capacity as Governor of Chuuk, 
AUGUSTIN TAKASHY, in his official capacity as Acting Chief Division of Personnel, 
WILIPINAT BISALEN, in his capacity as Acting Director of Department of Administrative Services, 
and STATE OF CHUUK,
Defendants.
______________________________________________

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Dennis K. Yamase
Associate Justice

Trial: October 12, 2007
Decided: June 11, 2008

APPEARANCES:

For the Plaintiffs: Repeat Samuel
Tino Donre, Esq. (supervising attorney)
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendant: Joses Gallen, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTES

Public Officers and Employees  Chuuk

When plaintiffs sue the state for wrongful termination, the proper issue is whether the plaintiffs have shown a legal entitlement to permanent employment under the Truk State Public Service System Act. Kimeuo v. Simina, 15 FSM Intrm. 664, 666 (Chk. 2008).

Employer-Employee  Wrongful Discharge; Public Officers and Employees  Chuuk; Torts  Damages

Reinstatement to his former position and back pay to the date of his termination to the date he is reinstated are remedies generally available to an employee who has shown wrongful discharge with the amount awarded in back pay reduced to the extent the plaintiff has mitigated his damages by securing other employment. But the court cannot reinstate a terminated employee in his former position when he is past the mandatory retirement age. It can only award him back pay for time before his retirement date, and any income through alternative employment that was received for employment after he would have had to retire from his Public Service System employment will not be used to reduce the back pay award. Kimeuo v. Simina, 15 FSM Intrm. 664, 666 (Chk. 2008).

Employer-Employee  Wrongful Discharge; Public Officers and Employees  Chuuk

The applicable employment taxes should be deducted from a back pay award and paid to social security and the national government as required by law. Kimeuo v. Simina, 15 FSM Intrm. 664, 667 (Chk. 2008).

Employer-Employee  Wrongful Discharge; Public Officers and Employees  Chuuk; Torts  Damages

When no evidence was introduced at trial of how much, if any, unused annual leave the plaintiff had accrued before he was wrongfully terminated, the court cannot make an award for unused accrued annual leave. Kimeuo v. Simina, 15 FSM Intrm. 664, 667 (Chk. 2008).

Employer-Employee  Wrongful Discharge; Public Officers and Employees  Chuuk; Torts  Damages

In order to be eligible to be paid sick leave, an employee must be ill. The employee will not be paid sick leave when he was not sick. When a plaintiff was not sick when he was wrongfully terminated, he is not entitled to any sick leave. Kimeuo v. Simina, 15 FSM Intrm. 664, 667 (Chk. 2008).

Public Officers and Employees  Chuuk; Torts  Damages; Torts  Infliction of Emotional Distress

When, in a wrongful termination case, no evidence of physical pain or a physical manifestation of suffering was introduced, no damages can be awarded for pain and suffering because the rule is well settled that to award damages for pain and suffering, such must be the result of physical injury or of a physical manifestation of emotional distress. Kimeuo v. Simina, 15 FSM Intrm. 664, 667 (Chk. 2008).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This case was tried on October 12, 2007. Plaintiff Kimuo Kimeuo, Augustin Takashy, and Sanfio Sony were called as witnesses. Based upon their testimony and the evidence admitted, the court makes the following

Findings of Fact.

1.	In 1968, Kimeuo was hired as a classroom teacher on his home island of Tolensom.

2.	In the following years, he held various teaching positions and his employment was covered by the Public Service System in the Department of Education.

3.	Kimeuo applied for the vacant position of Chief of Special Programs, a Public Service System position, and was hired on October 6, 1997. This necessitated that he move from Tol to Weno. His status in the Chief of Special Programs position was made permanent by a personnel action.

4.	Kimeuo was properly hired for the position in accordance with Public Service System procedures.

5.	By personnel actions effective October 1, 2003, the account from which Kimeuo was paid was changed and his title became Chief of Special Services.

6.	Kimeuo's compensation was $642.56 biweekly plus the state paid $500 per month rent for his housing on Weno.

7.	Kimeuo was terminated on June 3, 2005, without notice and without cause when the Governor reorganized the Education Department to conform to its statutory organization, leaving another person designated as Chief of Special Programs. Kimeuo was not offered a transfer to another Public Service System position for which he was qualified.

8.	Kimeuo unsuccessfully sought alternative employment after his termination at the College of Micronesia and at a college on Guam. Kimeuo did obtain a short-term contract in December 2006 as a Chuukese language and culture instructor in the Chuuk public schools for which he was paid $4,000. Kimeuo remained in the housing on Weno and paid the rent himself.

9.	Kimeuo would have had to retire from Public Service System employment by June 12, 2006 because Chuuk state law, Chk. S.L. No. 3-95-27, § 3 (amending Truk S.L. No. 3-43, § 25) required that all Public Service System employees had to retire within 30 days of reaching the age of 60. Kimeuo reached the age of 60 on May 13, 2006.

Based on these findings the court makes the following

Conclusions of Law.

1.	Kimeuo's termination was wrongful. When plaintiffs sue the state for wrongful termination, the proper issue is whether the plaintiffs have shown a legal entitlement to permanent employment under the Truk State Public Service System Act. Robert v. Simina, 14 FSM Intrm. 438, 442 (Chk. 2006); Hauk v. Terravecchia, 8 FSM Intrm. 394, 396 (Chk. 1998). Kimeuo has shown he was entitled to permanent employment under the Truk State Public Service System Act, subject to its requirement that he retire within 30 days of turning 60, Chk S.L. No. Chk. S.L. No. 3-95-27, § 3 (amending Truk S.L. No. 3-43, § 25 (Truk State Public Service System Act)). Kimeuo was thus entitled to permanent employment until June 12, 2006.

2.	Reinstatement to his former position and back pay to the date of his termination to the date he is reinstated are remedies generally available to an employee who has shown wrongful discharge with the amount awarded in back pay reduced to the extent the plaintiff has mitigated his damages by securing other employment. Reg v. Falan, 14 FSM Intrm. 426, 436-37 (Yap 2006); see also Robert, 14 FSM Intrm. at 443. The court cannot reinstate Kimeuo in his former position because he is now past the mandatory retirement age. It can only award Kimeuo back pay for time before his retirement date.

3.	Kimeuo's income through alternative employment was all received for employment (in December 2006) after he would have to retire from his Public Service System employment by June 12, 2006. Therefore the income from the alternative employment will not be used to reduce Kimeuo's back pay award.
4.	Kimeuo was terminated June 3, 2005 and would have had to retire no later than June 12, 2006. Kimeuo therefore would have been employed for another twenty-six pay periods. Twenty-six biweekly pay periods at $642.56 per pay period equals $16,706.56, and $500 per month housing rental yields a further $6,000. The applicable employment taxes should be deducted from the $16,706.56 salary and paid to social security and the national government as required by law. Reg, 14 FSM Intrm. at 435; Ponape Transfer & Storage, Inc. v. Wade, 5 FSM Intrm. 354, 356 (Pon. 1992).

5.	At trial, Kimeuo sought to be paid unpaid accrued annual leave. No evidence was introduced of how much, if any, unused annual leave he had accrued before he was terminated. The court therefore cannot make an award for unused accrued annual leave.

6.	Kimeuo also asked at trial that he be awarded unused sick leave. In order to be eligible to be paid sick leave, an employee must be ill. The employee will not be paid sick leave when he was not sick. See Sam v. Chief of Police, 12 FSM Intrm. 587, 589 (Kos. 2004). Since Kimeuo was not sick when he was terminated, he is not entitled to any sick leave.

7.	Kimeuo's complaint also sought damages for pain and suffering. No evidence of physical pain or a physical manifestation of suffering was introduced. The rule is well settled that to award damages for pain and suffering, such must be the result of physical injury or of a physical manifestation of emotional distress. Narruhn v. Aisek, 13 FSM Intrm. 97, 99 (Chk. S. Ct. App. 2004). Therefore no damages can be awarded for pain and suffering.

Conclusion

The clerk shall enter judgment in the plaintiff's favor against the State of Chuuk for the sum of $22,706.56. The state shall deduct the appropriate income and social security taxes from the $16,706.56 of the judgment, which is Kimeuo's salary and remit those sums to the proper authorities.

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