Poll v Victor [2012] FMSC 16; 18 FSM Intrm. 235 (Pon. 2012) (5 April 2012)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2010-002

FLETCHER POLL,
Plaintiff,

vs.

BENIDO VICTOR, JOLDEN J. JOHNNYBOY, JACK J. JACK, in their official capacities as a constituted AD HOC COMMITTEE, DIVISION OF PERSONNEL ADMINISTRATION, DEPARTMENT OF FINANCE AND ADMINISTRATION, HAISER HAINRICK, in his official capacity as PUBLIC AUDITOR, EMANUEL MORI, Chief Executive of the Federated States of Micronesia, and the GOVERNMENT OF THE FEDERATED STATES OF MICRONESIA,
Defendants.
_______________________________________________

FINDINGS, CONCLUSIONS OF LAW, AND DECISION

Dennis K. Yamase
Associate Justice

Trial: June 23-24, 2011
Submitted: August 8, 2011
Decided: April 5, 2012

APPEARANCES:

For the Plaintiff: Salomon M. Saimon, Esq.

Micronesian Legal Services Corporation

P.O. Box 129

Kolonia, Pohnpei FM 96941

For the Defendants: Daniel Rescue, Jr., Esq.

Assistant Attorney General

FSM Department of Justice

P.O. Box PS-105

Palikir, Pohnpei FM 96941

* * * *

HEADNOTES

Administrative Law - Judicial Review; Public Officers and Employees
Disciplinary actions of government employees are not subject to judicial review until the administrative remedies have been exhausted and are not subject to such review thereafter except on the grounds of violation of law or regulation or of denial of due process or of equal protection of the laws. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 238 (Pon. 2012).

Administrative Law - Judicial Review; Public Officers and Employees
Under Title 52, when the FSM Supreme Court's review is for the sole purpose of preventing statutory, regulatory, and constitutional violations, review of the factual findings is limited to determining whether substantial evidence in the record supports the administrative official's conclusion that a violation justifying termination has occurred. The court is thus required to uphold the President's findings of fact if there is substantial evidence in the record to support them. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 239 (Pon. 2012).

Administrative Law - Judicial Review
A finding of fact that is unsupported by substantial evidence is "clearly erroneous." A court determines that a finding is "clearly erroneous" when, although there is some evidence to support it, the reviewing court examines all of the evidence and is left with the definite and firm conviction that a mistake has been committed. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 239 (Pon. 2012).

Administrative Law - Judicial Review; Public Officers and Employees
The court will limit itself to reviewing the ad hoc committee's decision and not deal with the issue of job abandonment when the committee's decision is affirmed since there is no need for a review of a further ground for the employee's termination. Additionally, the employee was accorded his right to appeal and did so. If he was terminated for job abandonment he would have no right to appeal. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 241 n.5 (Pon. 2012).

Administrative Law - Judicial Review; Public Officers and Employees
When the court has found substantial evidence in the record to support all three grounds for an employee's termination and is not left with the definite and firm conviction that a mistake has been committed, no mistake was committed by the ad hoc committee's findings and recommendation, and the President's affirmance. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 243 (Pon. 2012).

Constitutional Law - Due Process - Notice and Hearing; Public Officers and Employees
The National Public Service System Act and the Public Service System Regulations establish continued employment for non-probationary national government employees by limiting the permissible grounds and specifying the necessary procedures for their dismissal. This is sufficient protection of the right to continued national government employment to establish a non-probationary employee's property interest which may not be taken without due process, including notice and an opportunity to be heard. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 244 (Pon. 2012).

Constitutional Law - Due Process
The fundamental concept of procedural due process is that the government may not strip a citizen of life, liberty, or property in an unfair, arbitrary manner. Before such important individual interests are exposed to possible governmental taking or deprivation, the Constitution requires that the government follow procedures calculated to assure a fair and rational decision making process. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 245 (Pon. 2012).

Public Officers and Employees
When an employee's termination, effectuated on October 28, 2009, could not have taken effect before he was given an opportunity to be heard, which he later received at the ad hoc committee hearing, his termination would be effective, at the earliest, on the December 21, 2009 date of the ad hoc committee's decision because the ad hoc committee hearing was his first opportunity to respond to the charges against him. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 245 (Pon. 2012).
Debtors' and Creditors' Rights - Setoff; Evidence; Public Officers and Employees
When there was evidence of the terminated employee receiving approval of an advance leave request of 60 hours, but there was no evidence of how much of this advance leave was actually used, how much had already been paid back, and how much was still outstanding, the court will deny the government's request to offset the employee's pay to cover for the advance leave still owed since there is a lack of evidence on this matter. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 245 (Pon. 2012).

Administrative Law - Statutory Construction; Public Officers and Employees
The statute requiring that the ad hoc committee hearing be conducted within the 15 calendar days of the receipt of the employee's appeal is directory and not mandatory, as the statute does not prescribe what happens if the prescribed time period is not adhered to. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 246 (Pon. 2012).

Torts - Infliction of Emotional Distress
A defendant must exercise due care not to cause others emotional distress that leads in turn to a foreseeable physical result. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 246 (Pon. 2012).

Torts - Infliction of Emotional Distress
One element 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, and when the plaintiff did not prove at trial any physical ailments or manifestations resulting from his employment termination, his claim must fail for lack of proof and no award of damages can be made for emotional distress. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 246 (Pon. 2012).

Attorney's Fees - Court-Awarded - Statutory; Civil Rights
When the plaintiff has pled civil rights violations and the court has found a violation of the plaintiff's due process rights, the plaintiff can be awarded his attorney's fees and costs. Poll v. Victor, [2012] FMSC 16; 18 FSM Intrm. 235, 246 (Pon. 2012).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

I. Background

Trial in this matter was held on June 23 and 24, 2011. The Plaintiff Fletcher Poll (Poll) was represented by Salomon M. Saimon, Esq. of the Micronesian Legal Services Corporation (MLSC). The Defendants Haser Hainrick (Hainrick), Public Auditor and the Federated States of Micronesia (FSM) Government were represented by Daniel Rescue, Jr., Esq., FSM Assistant Attorney General.

At the conclusion of the trial, the parties agreed to the submission of written closing arguments and the court ordered briefing on the issues related to the court's review of the Ad Hoc Committee's (Ad Hoc Comm.) Findings and Recommendation (Findings) of December 21, 2009, in light of the incomplete transcript of the Ad Hoc Comm. hearing and applicable law.

The Plaintiff Poll's Closing Arguments were filed on July 25, 2011. The Defendants Hainrick and the FSM's Submission of Closing Arguments were filed on August 1, 2011. Poll's Brief on Appeal Posture in Trial Court was filed on July 27, 2011. The Defendants' Brief Submission was filed on August 1, 2011. The Defendants' Reply to Plaintiff's Closing Argument and a Response to Plaintiff's Brief Submission were filed on August 8, 2011. Poll's Reply to Defendants' Closing Argument and a Supplement to Brief and Reply to Defendants' Brief were filed on August 8, 2011.

The court having reviewed the exhibits that were before the Ad Hoc Comm. that were stipulated to, or otherwise entered into evidence at trial, other portions of the record, the arguments of counsel, and having reviewed the parties' closing arguments and other briefs, now finds and determines as follows.

II. Preliminary Matters

Issues pertaining to the court's review of the Ad Hoc Comm.'s Findings and Recommendation and the nature of the proceeding that was held on June 23 and 24, 2011 were raised and discussed at the beginning and end of the proceeding. The proceeding was referred to as a trial and was held essentially as a trial de novo, with testimony of witnesses taken and with exhibits entered into evidence. Counsel for the parties stipulated to, or had otherwise entered into evidence, a number of exhibits, which counsel stated were submitted during the Ad Hoc Comm.'s hearing.[1]

For Poll, Exhibits A to I and K were admitted. For the Defendants, Exhibits 1, 2, 4, 8, 10, and 11 were admitted. The Defendants Exhibits 10 and 11 were not part of the Ad Hoc Comm. hearing record and were admitted over Poll's objection. Exhibit 10 was the Ad Hoc Comm.'s Findings and Recommendation, dated December 21, 2009 and Exhibit 11 was a Memorandum dated January 3, 2010, signed by the President of the FSM (President) affirming the Ad Hoc. Comm. decision.[2] Exhibits 10 and 11 are necessary to support Poll's causes of action and for a calculation of damages. These exhibits were also Exhibits F and G, attached as part of Poll's complaint.

This court's role in the review of the Ad Hoc Comm. and the President's actions is set forth in Title 52 of the F.S.M.C., Chapter 1 the National Public Service System Act, Subchapter V on Disciplinary Action. Specifically addressing judicial review of administrative hearings for government employees, 52 F.S.M.C. 157 states:

Disciplinary actions taken in conformance with this subchapter shall in no case be subject to review in the Courts until the administrative remedies prescribed herein have been exhausted; nor shall they be subject to such review thereafter except on the grounds of violation of law or regulation or of denial of due process or of equal protection of the laws.

(emphasis added).

This court has established that in reviewing the termination of government employees under Title 52, "the FSM Supreme Court will review factual findings insofar as necessary to determine whether there is evidence to establish that there were grounds for discipline." Semes v. FSM, 4 FSM Intrm. 66, 71 (App. 1989). In Semes, the court stated that:

The judicial review provisions of 52 F.S.M.C. 157 is written in restrictive form, permitting judicial review of factual findings only by implication, and then only so far as necessary to determine whether there has been a violation of law or regulation or denial of due process. This limiting language is sufficiently "explicit" to prevent the expansive judicial review of findings normally available under the [Administrative Procedures Act], which authorizes the court to "make its own factual determinations." Olter [v. National Election Comm'r[1987] FMSC 16; , 3 FSM Intrm. 123, 131 (App. 1987)]. Under [Title 52], where [the FSM Supreme Court's] review is for the sole purpose of preventing statutory, regulatory and constitutional violations, review of the factual findings is limited to determining whether substantial evidence in the record supports the conclusion of the administrative official that a violation of the kind justifying termination has occurred.

Semes, 4 FSM Intrm. at 72.

The court in Semes concluded that it was "required to uphold the President's findings of fact if there is substantial evidence in the record to support them." Id. When a finding of fact is unsupported by substantial evidence that finding is "clearly erroneous." SeeWorswick v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 462 (App. 2000); Wolphagen v. Ramp, [1999] FMSC 9; 9 FSM Intrm. 191, 194 (App. 1999).

A court determines that a finding is "clearly erroneous" when, although there is some evidence to support it, the reviewing court examines all of the evidence and is left with the definite and firm conviction that a mistake has been committed. See Kinere v. Kosrae, [1993] FMSC 43; 6 FSM Intrm. 307, 309 (App. 1993) (quoting in part, United States v. United States Gypsum Co., [1948] USSC 44; 333 U.S. 364, 395[1948] USSC 44; , 68 S. Ct. 525, 542[1948] USSC 44; , 92 L. Ed. 2d 746, 766 (1948)).

The court's review of the Ad Hoc Comm.'s decision and the President's affirmance of that decision are limited by the provisions of 52 F.S.M.C. 157 and by the appellate division decision in Semes. Under these limitations, the court has limited itself to a review of the record set forth in the stipulated to, or otherwise entered into evidence, exhibits during the trial that the parties had asserted had been submitted during the Ad Hoc Comm.'s hearing.

Poll's complaint states seven causes of action, the first six relate to the public service system termination process. The seventh cause of action is on the intentional infliction of emotional distress. To address Poll's contentions other than those relating to the review of the Ad Hoc Comm.'s Findings and Recommendation and the President's affirmance, and for the calculation of damages, the court will consider other evidence submitted at trial.[3]

The stipulated to, or entered exhibits at trial, that were a part of the Ad Hoc Comm.'s hearing include the following for Poll:

Plaintiff's Exhibit A– Memorandum from the National Public Auditor Haser Hainrick to Investigator III Fletcher Poll, on the subject of "Termination of Employment", dated October 27, 2009.

Plaintiff's Exhibit B– Letter from MLSC Staff Attorney Salomon M. Saimon, Esq. to the National Public Auditor Haser Hainrick, re: Fletcher Poll, dated November 4, 2009.

Plaintiff's Exhibit C– Letter from the National Public Auditor Haser Hainrick (signed by the Acting Public Auditor) to Staff Attorney Salomon M. Saimon, Esq., re: Fletcher Poll, dated November 6, 2009.

Plaintiff's Exhibit D– Letter from MLSC Staff Attorney Salomon M. Saimon, Esq. to Acting Assistant Secretary for Personnel Administration Maria Shoniber, re: Fletcher Poll – Notice of Appeal, dated November 6, 2009.

Plaintiff's Exhibit E– Memorandum from Investigative Auditor III Fletcher Poll to the National Public Auditor Haser Hainrick, on the subject of "Advance Leave Request", dated October 6, 2009.

Plaintiff's Exhibit F (Document 1)– Memorandum from the National Public Auditor Haser Hainrick to Assistant Secretary for Personnel Administration Maria Shoniber, re: Fletcher Poll's second advance leave request, dated October 6, 2009.

Plaintiff's Exhibit F (Document 2)– Memorandum from the National Public Auditor Haser Hainrick to Assistant Secretary for Personnel Administration Maria Shoniber, re: Fletcher Poll's first advance leave request, dated September 16, 2009.

Plaintiff's Exhibit G– Memorandum from Investigative Auditor III Fletcher Poll to the National Public Auditor Haser Hainrick, on the subject of (first) "Advance Leave Request", dated September 16, 2009.

Plaintiff's Exhibit H– Case Briefing re: Investigator Poll's caseload, dated May 27, 2008.

Plaintiff's Exhibit I– Memorandum from the Chief Litigation, Department of Justice Kembo Mida, Jr., Esq., on the subject of Operation Dogfish, dated August 18, 2008.

Plaintiff's Exhibit K– Certificate of participation from the Association of Certified Fraud Examiners to Fletcher Poll, dated July 30, 2002.

The stipulated to, or entered exhibits at trial, that were a part of the Ad Hoc Comm.'s hearing include the following for the Defendants:

Defendant's Exhibit 1– Table entitled "Breakdown of Fletcher Poll's Time Sheets from 2006 to 2009"; Table stating, "Please obtain the Updated Leave Balances to the following:"; and Table entitled "National Account Distribution".

Defendant's Exhibit 2– Listing of cases for Fletcher Poll and Kelly Samuel for years 2007 to 2009, undated.

Defendant's Exhibit 4– Report entitled, "Information regarding Investigator Poll's work performance", the first paragraph of this report stated that: "The following contained information documenting e-mail communications, status reports and Investigation Management meetings regarding Fletcher Poll's work performance starting from January of 2007 to the time of adverse action."
Defendant's Exhibit 8 (Document 1)– Memorandum from Chief Investigator Sophia Pretrick to Investigator III Fletcher Poll on the subject of "Fletcher Poll's work performance", dated October 15, 2008.

Defendant's Exhibit 8 (Document 2)– Memorandum from the Chief Investigator to the Public Auditor on the subject of "Fletcher Poll's Active cases", dated October 14, 2008.

The following Defendant's Exhibits 10 and 11 were not a part of the Ad Hoc Comm. hearing record, but were admitted into evidence as they were necessary to support Poll's causes of action, were attached as exhibits to Poll's complaint, and were used for the calculation of damages.

Defendant's Exhibit 10– Ad Hoc Comm.'s "Findings and Recommendation" in the matter of Mr. Fletcher Poll v. FSM Public Auditor, dated December 21, 2009.

Defendant's Exhibit 11– Memorandum to the President from the Acting Secretary, Personnel Administration through the Secretary, Finance and Administration, on the subject of the "Ad Hoc Review Panel's Opinion in "Fletcher Poll v. Office of the Public Auditor", dated December 21, 2009. The President signed off on this memorandum affirming the Ad Hoc Comm.'s Findings and Recommendation on January 3, 2010.

A part of the transcripts of the Ad Hoc Comm. hearing that were able to be transcribed was also brought to the court's attention, but was not admitted during trial and is not considered by the court in its decision.[4]

Other evidence presented at trial going to Poll's termination date, the date when the FSM stopped paying Poll, the date of the President's affirmance of the Ad Hoc Comm.'s Findings and Recommendation, Poll's leave situation, and Poll's attempts to find work after his termination are also considered as going to the issue of a violation of Poll's constitutional due process rights and damages relating to FSM liability for payroll payments owed to Poll.

III. The Record and Findings

The court finds that based on its thorough review of the parts of the record before the Ad Hoc Comm. that were stipulated to, or otherwise entered into evidence by the parties, there is substantial evidence supporting the Ad Hoc Comm.'s Findings and Recommendation and the President's affirmance necessary to affirm both decisions.

The Ad Hoc Comm.'s Findings and Recommendation concluded that Poll had excessive absenteeism, poor work performance, and was insubordinate.[5] The findings stated that Poll had been working for the government for 22 years and did not have annual or sick leave which shows the constant use of the leaves. The findings stated that Poll's supervisor had produced documents during the hearing showing unsatisfactory work performance over the years prior to his termination. The findings stated that Poll had applied for leave to accompany his daughter to the United States (U.S.) and his request was denied by the Public Auditor, yet he went on the trip in flagrant disregard to authority. The findings further stated that the testimony during the hearing revealed that the Defendant did his best to afford every opportunity to Poll to improve his work performance and attendance through counseling, but that it was unsuccessful.

From a thorough review of the stipulated to, or entered exhibits of both parties, the submissions and briefs of both parties, the relevant arguments of counsel, and the record in this matter, the court makes the following determinations as to whether there is substantial evidence in the record to support the conclusion that a violation justifying termination has occurred. Semes, 4 FSM Intrm. at 72. The evidence before the Ad Hoc Comm. and/or evidence admitted during trial going to the alleged constitutional due process violation and/or damages were as follows:

1. On October 27, 2009 the National Public Auditor Haser Hainrick issued a memorandum to Investigator III Fletcher Poll terminating his employment. Pl. Ex. A. Poll is a public service system employee. Pl. Ex. B. The memorandum cited Poll's abandonment of his position when he left on a trip to the U.S. mainland to accompany his daughter, in the absence of approval of his advance leave request. The memorandum further stated that he had been warned and reprimanded for excessive absences and poor work performance. Pl. Ex. A.

2. On October 28, 2009, Poll received the memorandum and was asked to collect his things and leave the office. He was not allowed back into the office after this date. His pay was discontinued from on or around this date.

3. The memorandum notified Poll that he had 15 days to appeal his case after confirming his receipt of the memorandum and that his rights were set forth in the Public Service System Regulations. Pl. Ex. A.

4. On November 6, 2009, Poll filed his notice of appeal. Pl. Ex. D. Poll brought this matter before the Ad Hoc Comm. on December 3, 2009 and the hearing was held at the Office of Personnel Administration Conference Room in Palikir, Pohnpei. The hearing was completed on December 7, 2009. Def. Ex. 10. Poll was represented by attorney Saimon at the hearing.

5. The Ad Hoc Comm. issued its Findings and Recommendation affirming the decision of management to terminate Poll on December 21, 2009 and the President affirmed the Ad Hoc Comm.'s decision on January 3, 2010. Def. Ex. 10 and 11.

6. On October 6, 2009, Poll had requested 104 hours of advance leave to accompany his daughter to the U.S. mainland. This request was denied. Poll left on this trip. Pl. Ex. A, B, and E.

7. On September 16, 2009, Poll had requested advance leave to attend the funeral of his son in law. Sixty hours of advance leave was approved and authorized. Poll took this leave and attended the funeral and other related events. Pl. Ex. F; Def. Ex. 4.

8. On October 15, 2008, a Memorandum to Poll from Chief Investigator Sophia Pretrick (Pretrick) reprimanded Poll for low productivity, frequent absenteeism, and appearance of unethical conduct. Def. Ex.1, 2, and 8.

9. On November 18, 2009, a letter of warning was sent to Poll from the Public Auditor regarding the slow progress on his assigned cases and for not disclosing a conflict of interest. The letter also stated that there is a point where the next appropriate form of discipline would be considered. Def. Ex. 1, 2, and 4.

10. In 2007, Acting Chief Investigator Pretrick had rated Poll's performance as less than satisfactory. Def. Ex. 4.

11. In 2009, concern was raised over Poll's attendance, health, and work performance by the Public Auditor and Chief Investigator Pretrick. Poll made requests for advances of leave in the fall of 2009. A first request of 60 advance leave hours was granted for Poll to attend the funeral of his son in law. A second request for 104 hours for Poll to accompany his daughter to the U.S. mainland to assist her with affairs related to her husband's death was denied, but Poll left on the trip anyway. Poll's written notice of termination was signed on October 27. 2009 and Poll received it on October 28, 2009. Def. Ex. 1, 2, and 4; Pl. Exs. A to G.

12. After Poll was terminated on October 28, 2009, he attempted to find work, but did not find any full-time employment.

IV. Analysis

A. Substantial Evidence

Based upon a review of the Ad Hoc Comm. hearing record that was before the court, the court finds substantial evidence to support the Ad Hoc Comm.'s Findings and Recommendation and the President's affirmance of that decision.

Substantial evidence in support of the Ad Hoc Comm.'s finding of excessive absenteeism is found in Defendant's Exhibits 1 and 4 and Plaintiff's Exhibits A, C, E, F, and G. Substantial evidence in support of the Ad Hoc Comm.'s finding of poor work performance is found in Defendant's Exhibits 2, 4, and 8 and Plaintiff's Exhibits A, C, H, and I. Substantial evidence in support of the Ad Hoc Comm.'s finding of insubordination is found in Defendant's Exhibits 4 and 8 and Plaintiff's Exhibits A, B, C, D, E, F, and G.

The court having found substantial evidence in the record to support all three grounds for Poll's termination that were considered by the Ad Hoc Comm., it is not left with the definite and firm conviction that a mistake has been committed. See Kinere 6 FSM Intrm. at 307. No mistake was committed, as there is substantial evidence to support management's decision to terminate, the Ad Hoc Comm.'s Findings and Recommendation, and the President's affirmance.[6]

B. Right to Due Process Prior to Termination

The National Public Service System Act[7] and the Public Service System Regulations establish continued employment for non-probationary national government employees by limiting the permissible grounds, and specifying the necessary procedures for their dismissal. Suldan v. FSM (II), [1983] FMSC 14; 1 FSM Intrm. 339, 351-54 (Pon. 1983). This is sufficient protection of the right to continued national government employment to establish a property interest for non-probationary employees which may not be taken without due process, including notice and an opportunity to be heard. FSM Const. art. IV, § 3.

Poll cos thas that as a long time public service system employee he had a constitutionally protected property interest and was entitled to an opportunity to respond to the charges set forth in the termination memorandum of October 27, 2009. In the Semes case, the appeal court discussed in detail the employee's interest versus the government's interest. The Semes court stated that:

the right to retain governmental employment, is of great significance. While this . . . subsistence society . . . ha[s] retained that as the primary way of life, many governmental employees, especially long time ones, would find it difficult to return to the life of a farmer and fisherman. There are no welfare or unemployment compensation programs to provide for basic needs while a dismissed employee awaits the outcome of his appeal. Indeed, outside of government, there is relatively little employment . . . . The difficulty of finding alternative work surely would be increased by the fact that the applicant has been dismissed from governmental employment.

The government's interest in immediate termination does not outweigh these interests. The continued salary payments to an employee . . . would be a negligible part of the overall budget. There is no indication that Mr. Semes was a disruptive force or would have impeded government operations if allowed to continue working . . . . If the point of prompt dismissal was to impress other employees with the government's determination . . . surely that could have been accomplished by the notice of dismissal itself, even while delaying actual implementation of the dismissal . . . .

4 FSM Intrm. at 75.

While the Semes decision was over 20 years ago, the circumstances in the FSM are still largely the same and the aforementioned discussion is still very much applicable to present circumstances. The Semes court went onto conclude that:

Based upon the balancing of these interests . .&#160 conclude that constionstitutional due process requires that a nonprobationary employee . . .be given some opportunity to responthe charges against him before his dismissal may be implemented. We adopt the conclusion ofon of the Lourdermill court: "The opportunity to present reasons, either in person or in writing, why propose action should not be taken is a fundamental due process requirement. . . . The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." 470 U.S. at 546, 105 S. Ct. at 1495, 84 L. Ed. 2d at 506. Only when these conditions are fulfilled may dismissal of a tenured employee of the national government be implemented before termination of the employee's appeal rights.

Semes, 4 FSM Intrm. at 76-77.

The fundamental concept of procedural due process is that the government may not strip a citizen of "life, liberty or property" in an unfair, arbitrary manner. Before such important individual interests are exposed to possible governmental taking or deprivation, the Constitution requires that the government follow procedures calculated to assure a fair and rational decision making process. Suldan (II), 1 FSM Intrm. at 354-55; Semes, 4 FSM Intrm. at 74.

On October 28, 2009, Poll received the notice of his termination in the memorandum on "Termination of Employment" from the Public Auditor. In the memorandum he was told he had the right to appeal and that he had additional rights that were set forth in the Public Service System Regulations. He was orally instructed to leave the office and was not paid from on, or around that date. Poll appealed the termination action, a hearing was held, and the Ad Hoc Comm.'s Findings and Recommendation of December 21, 2009 and the President's affirmance of January 3, 2010 resulted.

The court finds that the termination of Poll, effectuated on October 28, 2009, 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. At the earliest, Poll's termination would be effective on the date of the Ad Hoc Comm.'s decision on December 21, 2009, because the Ad Hoc Comm. hearing was Poll's first opportunity to respond to the charges against him. Semes, 4 FSM Intrm. at 77 (termination ineffective until opportunity given to respond to charges.).

The FSM requested in its written closing arguments that if Poll was to be awarded back pay, then this amount should be off-set by the amount of hours that Poll had received in advance leave that he still owed to the government. The court finds that while there was evidence of Poll's receiving approval of an advance leave request of 60 hours, there was no evidence of how much of this advance leave was actually used by Poll, how much he had already paid back, and how much was still outstanding. There being a lack of evidence on this matter the court denies the request by the government to off-set Poll's pay to cover for the advance leave still owed.

C. Timeliness of the Hearing

There is one other contention that Poll alleges in his complaint regarding the Ad Hoc. Comm.'s appeal process and that was that the appeal hearing was conducted after the statutory called for period. 52 F.S.M.C. 155(1) on Hearing states as follows:

(1) The hearing shall be held within fifteen calendar days after the Personnel Officer receives the appeal, unless the appellant requests a delay. At the hearihe appellant annt and the responsible management official shall each have the right to be heard, to present evidence, to be confronted by all adverse witnesses, and to be represented by counsehis own choosing.

Poll did show at trial that the hearing was not conducted within the 15 calendar day time period prescribed by the statute. However, this provision appears to be directory and not mandatory, as the statutes do not prescribe what happens if the prescribed time period is not adhered to. Jonas v. Kosrae, [2001] FMKSC 7; 10 FSM Intrm. 453, 459 (Kos. S. Ct. Tr. 2001). The Ad Hoc. Comm. hearing was held with witness testimony taken and Poll does not contend that he was not afforded his right to an opportunity to be heard at the hearing.

D. Intentional Infliction of Emotional Distress

In Poll's seventh cause of action he alleges that the Defendant Hainrick's conduct was calculated to inflict emotional distress on him and that he had suffered severe emotional distress. A defendant must exercise due care not to cause others emotional distress that leads in turn to a foreseeable physical result. Eram v. Masaichy, [1995] FMCSC 9; 7 FSM Intrm. 223, 226-27 (Chk. S. Ct. Tr. 1995).

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. Poll did not prove at trial any physical ailments or manifestations resulting from his termination from employment and therefore his claim must fail for lack of proof. Hauk v. Board of Dirs., [2002] FMCSC 15; 11 FSM Intrm. 236, 241 (Chk. S. Ct. Tr. 2002).

There is no evidence in the record of a physical injury to Poll or of any physical manifestation of emotional distress by Poll, therefore no award of damages can be made for emotional distress. Hauk v. Lokopwe, [2006] FMSC 2; 14 FSM Intrm. 61, 65 (Chk. 2006).

E. Attorney's Fees and Costs for Civil Rights Violation

Poll's Fifth Cause of Action was for Civil Rights Violations. Since the court finds a violation of Poll's due process rights, the court awards Poll his attorney's fees and costs which shall be submitted to the court within 20 days of service of this decision on him. The Defendants shall then have 10 days to respond to the submission.

V. Conclusion

The Ad Hoc Comm.'s Findings and Recommendation and the President's affirmance of that decision are supported by substantial evidence and are hereby affirmed. The court, however, determines that Poll remained an employee of the government up to December 21, 2009 when the Ad Hoc Comm. issued its Findings and Recommendation. Poll is entitled to his pay from October 28, 2009 through December 21, 2009, minus the income and social security tax withholdings, which shall be remitted to the proper authorities. The prior attempt to dismiss Poll on October 28, 2009 was violative of due process and thus remained ineffective. Poll prevails on his allegation of a civil rights violation and is therefore awarded attorney's fees and costs which shall be submitted to the court as directed above.

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^[1] 52 F.S.M.C. 155(2) provides the following with regard to a Ad Hoc Comm. hearing:

(2) At the hearing, technical rules of evidence shall not apply and evidence shall be taken stenographically or by recording machine. The committee shall on its own motion or on that of the Personnel Officer, management, or the appellant, subpoena witnesses and tangible evidence, when such witnesses or evidence are relevant and material to the hearing. Hearings shall be public except when the appellant requests a closed hearing.

^[2] This memorandum was dated December 21, 2009, and was signed and dated by the President on January 3, 2010.

^[3] The proceedings in this matter allowed the court to review the stipulated record of the Ad Hoc Comm.’s hearing that was made available to the court by the parties as part of the trial. While not complete, the court found substantial evidence in the available record to affirm the Ad Hoc Comm.’s Findings and the President’s affirmance. The proceedings also allowed the parties to submit evidence going to Poll’s other cause of action not dealing with the review of the Ad Hoc Comm. and the President’s actions and for ascertaining certain damages.

^[4] The Acting Assistant Secretary for the Personnel Office Maria Shoniber stated in an affidavit, dated February 4, 2011, that she attempted to transcribe the audio tapes of the Ad Hoc Comm. hearing, but that there was nothing on the first tape and the second tape was incomplete. She was able to transcribe only a portion of the second tape.

^[5] One other issue was stated in the Ad Hoc Comm.’s Findings and Recommendation and that was job abandonment. The Ad Hoc Comm. stated that this issue is irrelevant and that it would leave that issue for the court to decide. Based on the other three issues, the Ad Hoc Comm. affirmed the decision of management to terminate Poll’s employment. The court has limited itself to reviewing the Ad Hoc Comm.’s decision and has not dealt with the issue of abandonment and since the Ad Hoc Comm.’s decision is affirmed there is no need for a review of a further ground for Poll’s termination. Additionally, Poll was accorded his right to appeal and did so. If he was terminated for job abandonment he would have no right to appeal.
^[6] The role of the highest management official, in this case the President, was discussed in detail in Suldan v. FSM (II), [1983] FMSC 14; 1 FSM Intrm. 339, 358-60 (Pon. 1983). That court stated:

Section 156 does not affirmatively state that the final decision of the highest management official must be based on the evidence presented at the hearing. The Act merely says that the committee shall transmit its statement, "with such supporting documentation as it deems appropriate," to the highest management official. Although the highest management official must make the final decision, Congress did not spell out the requisite depth of that official's involvement in the process.

This combination of detailed and elaborate procedures for the ad hoc committee and no explicit guidance for the management official suggests primary congressional reliance on the committee with an expectation that the highest management official's role would normally be peripheral. The provifor a final decisiecision by the official apparently is in the nature of a safeguard, against decisions either patently unfair temployee or seriously at odds with agency or branch policy. Then implication of n of thof the statutory scheme is that . . . the highest management official would normally accept the committee's recommendation without extended consideration. Nothing in tt suggests that in providinviding this flexibility and opportunity for supervisory participation by the highest management official, Congress intended to undercut the procedural safeguards erected in the Act's preceding sections.

Id. at 358-59.

^[7] Title 52, Chapter 1 of the F.S.M.C.