IN THE SUPERIOR COURT OF GUAM 2
3 JUAN P. SAN NICOLAS AND JOHN J., ) Special Proceedings No. SPO 189-10 4 SABLAN, ) ) 5 Employees, ) DECISION AND ORDER v. re: Motion for Judgment on the ) Pleadings, Summary Judgment 6 GUAM CIVIL SERVICE COMISSION ) 7 ) Respondent. ) 8 ) DAVID PEREDO, in his official capacity as ) 9 Fire Chief for the GUAM FIRE ) IO DEPARTMENT, ) ) II Real Party in Interest. ) I2 ) LOURDES M. PEREZ, in her official capacity) I3 as Director for the DEPARTMENT OF ) ADMINISTRATION, ) I4 ) Real Party in Interest. ) I5
I6
I7 INTRODUCTION I8 This matter came before the Honorable Judge Michael J. Bordallo on July 25, 2012. I9 Employees were represented by Attorney Jacqueline Taitano Terlaje. The Real parties in 20 interest, Guam Fire Department ("GFD") and Department of Administration ("DOA'') were 2I represented by Attorney Donna Lawrence and Fred Nishihara. Having reviewed the 22 memorandum and papers presented, the court now issues the following decision granting in part 23 in favor of the Petitioners and remanding in part back to the Civil Service Commission to 24 determine the duties Petitioners allegedly performed. 25 BACKGROUND 26 Petitioners are classified employees with the Guam Fire Department ("GFD"), and at all 27 relevant times as set forth in the Petition, they held the positions of Firefighter I. Petitioners are 28 of the opinion that because of their job duties and responsibilities they should be compensated
Page 1 of 12 for work performed as a Fire Captain. 2 On September 16, 2005, Petitioners made a request for a desk audit with the Department 3 of Administration ("DOA"). On May 21, 2008, DOA recommended that the Petitioners be 4 compensated for performing duties above that of a Firefighter I because they were performing 5 duties of a Fire Specialist. On June 3, 2008, the Petitioners appealed the desk audit; no action 6 was taken by the Respondents so the Petitioners filed an appeal to the Civil Service 7 Commission ("Commission") for DOA's failure to take any action on August 27, 2009. Almost 8 a year later, the Commission dismissed the appeals claiming that they lacked subject matter 9 jurisdiction over grievances and matters that pertained to classification and issues of pay on 10 August 17, 2010 1• II On September 7, 2010, Petitioners filed the instant action before the court. Real Parties in I2
I3 Interest and the Respondent filed a Motion to Dismiss on December 10, 2010. This Court issued
I4 its decision and order on May 6, 2011 and dismissed Petitioner's Verified Petition for Judicial
I5 Review for the reason that the Commission lacks jurisdiction over the Petitioner's claims. At
16 the same time, this court denied the Motion to Dismiss the Writ of Mandate because the Real
I7 Parties in Interest are under a duty to compensate the Petitioners, which gives the court I8 jurisdiction under 7 GCA § 31202. I9 Shortly after, Petitioners request this court to reconsider its dismissal on the grounds that 20 judicial review is unavailable because the petition requests review of job classification. In 2I addition, Petitioner assert that the court did not address whether an appeal of a Commission may 22 be filed under the Administrative Adjudication Law Act, 5 GCA § 9240. On September 21, 23 2011, this court denied Petitioners Motion for Reconsideration on the grounds that Petitioner's 24 claims cannot be classified as grievances according to DOA's personnel rules and regulations. 25 As such, the Commission does not have jurisdiction over Petitioner's claims because the right 26
27 1 It is also important to note that the Petitioners followed informal grievances with the Guam Fire Department, and then 28 Step 5 in the grievance appeal process with the Civil Service Commission alleging violations of the Department of Administration personnel rules and regulations.
Page 2 of12 of appeal is not established in the personnel rules governing the employees. Accordingly, the 2 court need not determine whether the AAL applies to Petitioner's claims because the court has 3 already reviewed the Commission's decision regarding jurisdiction. 4 Now, Respondents filed a Motion for Judgment on the Pleadings pursuant to 12(c), 5 12(h)(3). Petitioner filed their Opposition on January 6, 2012. This Court hereby issues its 6 decision and order granting in part in favor of the Petitioners and remanding in part back to the 7 Civil Service Commission. 8 DISCUSSION 9 Motion for Judgment on the Pleadings 10 Respondents filed a Motion for Judgment on the Pleadings pursuant to Guam Civil 11 Procedure Rule 12(c). Rule 12(c) provides: 12 After the pleadings are closed but within such time as not to delay the trial, any 13 party may move for judgment on the pleadings. If, on the motion for judgment on 14 the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed 15 of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56. 16
17 The obligation to establish that there are no material issues of fact entitling a party to 18 judgment as a matter of law is in the moving party. Guam R.Civ.Pro. 12(c). Mantanona v. 19
20 Rosenbauer, Decision and Order Motion for Judgment on the Pleadings, Civil Case No.0636-08
21 (Sep. 23, 2009)(granting Judgment on Pleadings on plaintiffs cause of action for parental loss 22 of consortium) citing McGlinch v. Shell Chern. Co., 845 F.2d 802, 810 (9th Cir. 1988). All facts 23 asserted in the pleading, including all its inferences, must be viewed in a light most favorable to 24 the non-moving party when reviewing a Rule 12(c) motion. !d. citing Madonna v. U.S., 878 25
26 F .2d 631 (2nd Cir. 1989). Additionally, all doubts must be "resolved, in the light most favorable"
27 to Petitioners. McGlinchy, supra., 845 F.2d at 810. Thus, dismissal is warranted only if it is 28 absolutely clear that Petitioners, under the facts set forth in their Petition, are not entitled to any
Page 3 of 12 relief.Id 2 On May 20, 2011, upon filing ofthe Government's answers, the pleadings closed. Trial 3 was set for November 21, 2011. Three days before trial was to start, the Government filed its 4 motion for judgment on November 18, 2011. Although the Court was displeased by 5
6 Government's untimely file of this motion, it has taken this matter under advisement and issues 7 its decision and order based on the following analysis. 8 The instant matter is a special proceedings case, thereby only certain motions are 9 permitted. The Guam Rules of Civil Procedure Rule 12(c) are inapplicable in the current matter. 10
I! Under Guam law, 7 GCA §31208 dictates the permitted motions for a Writ of Mandate and
12 states "on the trial, applicant is not precluded by the answer from any valid objection to its 13 sufficiency, and may countervail it by proof either in direct denial or by way of avoidance" 14 In other words, Respondents are only permitted to answer the Verified Petition. As such, this 15 Court will treat Respondent's opposition to the Verified Petition, a Motion to Dismiss filed 16
17 December 10, 2010, as the answer. Accordingly, the Court DENIES Respondent's Rule 12(c)
18 motion and will treat it as a valid objection the Petitioner's sufficiency by way of avoidance and 19 analyze this motion as summary judgment. Respondents seek to dismiss the Writ of Mandate. 20 Writ of Mandate 21
22 Respondent essentially request for summary judgment on the Writ of Mandate in their
23 favor. Summary judgment is appropriate if the pleadings, depositions, interrogatories and
24 admissions on file together with the affidavits, if any show the there is no genuine issue as to 25 any material fact and that the moving party is entitled to judgment as a matter of law. Guam R. 26 Civ. P. 56(c). Izuka Corp. V. Kawasho International (Guam), Inc., 1997 Guam 10 ~7. 27 [A] party seeking summary judgment always bears the initial responsibility of 28 informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions Page 4 of12 on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. 2
3 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
4 The Court must have subject matter jurisdiction to adjudicate Petitioner's claims. 5 Respondent's answer objects to whether Petitioners has properly alleged facts supporting subjec 6 matter jurisdiction under 7 G.C.A. §31202, which dictates when and by what court can issue 7 Writ of Mandate and states: 8
9 "It may be issued by any court, except a commissioner's court or police court, to any inferior tribunal, corporation, board, or person to compel the performance of 10 an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right II or office to which he is entitled, and from which he is unlawfully precluded by 12 such inferior tribunal, corporation, board, or person. "
13 GFD and DOA contend as a matter of law that Petitioners cannot obtain writ relief in this matte 14 under Section 31202. This Court stated in Guam Music v. Illagan case (SP-219-08) (Decisio 15 and Order) (January 28, 2010) that Petitioner must assert facts sufficient to support th 16
17 conclusion that there is not a "plain, speedy, and adequate remedy in the ordinary course of law.'
18 7 G.C.A. §31203. 19 After further review of DOA's Personnel Rules and Regulation, the Court corrects it 20 earlier decision and finds the Civil Service Commission does have jurisdiction over certai 21 grievances as well as adverse actions pursuant to Rule 2.014(f), not Rule 12.902(a). See DO 22
23 Personnel Rules and Regulation, Rule 5.014(f). Although Rule 12.301(e) mandates appeals fro
24 classification determinations are not covered by grievance procedures, the esc does hav 25 jurisdiction under Rule 5.014(f) which authorizes the CSC to review such appeals. Accordingly 26 the Court finds Petitioners to be entitled to Writ Relief and remands in part back to the Civi 27 Service Commission providing Petitioners have complied with the procedures set forth in th 28
Page 5 of12 regulations and rules. esc is to determine the exact duties allegedly performed as well as th 2 any defenses 2 Respondents raised in their opposition. 3 In the Verified Petition, Petitioners seek a writ of mandate. "[T]he extraordinary remed 4 of mandate is discretionary, and carries a threshold of satisfying certain statutory requirements .. 5
6 .. " Carlson v. Perez, 2007 Guam 6, ~ 66. When a court is faced with the question of whether t
7 issue a writ of mandamus, it must inquire whether all ofthe following conditions have been met: 8 (1) the respondent is an inferior tribunal, corporation, board, or person; (2) the respondent ha 9 failed to perform a clear and present duty; (3) the duty entails ministerial action, the assumptio 10
II of jurisdiction, the exercise of discretion, or the abuse of discretion; (4) the petitioner ha
12 another, adequate remedy at law; and (5) the petition is verified. Bank of Guam v. Reidy, 2001
13 Guam 14, ~ 27. 14 The Superior Court may grant a writ of mandamus "where there is not a plain, speedy 15 and adequate remedy in the ordinary course of law. It must be issued on the verified petition o 16
17 the party beneficially interested. 7 GCA § 31203 (2005) A writ of mandate is reviewed de novo.
18 The Court in Guam election Com 'n, 2007 Guam 20 ~ 26 held the Petitioner has the burden o 19 showing that a writ of mandamus should issue. 20 When mandamus is sought against a governmental body, a court must determine whethe 21 the act involves the exercise of discretion or a ministerial duty. United Ass 'n of Journeymen v. 22
23 City and County of San Francisco, 32 Cal. App. 4th 751, 759, 38 Cal, Rptr.2d 280, 284 (Cal. Ct.
24 App. 1995) Mandamus generally will not issue unless there is a clear right in the Petitioner to th 25 relief sought, a plainly defined and ministerial duty on the part of the Real Parties in Interest t 26 honor that right, and no other adequate remedy, either judicial or administrative available Ban 27
28 2 Respondents have raised the defense of laches, unclean hands, waiver, and statute of limitations.
Page 6 of12 of Guam v. Reid, 2001 Guam 14, See also Gilsson v. United States Forest Service, 55 F.3d 1325 2 1327 (th Cir. 1995)(failure to exhaust administrative remedies results in a lack of subject matte 3 jurisdiction). Accordingly, Mandamus is appropriate only where there is a "clear, present an 4 ministerial duty to act" Holmes v. Territorial Land Use Comm 'n, 1998 Guam 8 ~ 11 5
6 There are two main issues which are in dispute: 1) whether Petitioner has exhausted al
7 legal and administrated remedies and 2) whether Petitioner performed Fire Captain Duties fro 8 2001 to 2008. The latter issue will be remanded back to the Civil Service Commission. Th 9 Court finds the CSC does have jurisdiction over job re-classification appeals pursuant to Rul 10
II 5.014(f). The recommendation of the DOA desk audit classified Petitioner's duties an
12 responsibilities as Fire Specialist; however, DOA denies that there was a detail assignment o 13 Petitioners, Answer of DOA, p.6, ~52. Petitioners dispute the re-classification by the desk audi 14 and contend they were performing duties at a Fire Captain level. Therefore, at a minimum, th 15 CSC will find Petitioners are entitled to Fire Specialist pay as recommended by the desk audit. 16
17 At most, Petitioners will be entitled to Fire Captain pay as alleged in the Petition.
18 The Court will now address whether other administrative or judicial remedies ar 19 available. DOA sets out procedure to obtain administrative remedies available in their Personne 20 Rules & Regulations. Respondents contends Petitioners have failed to pursue their lega 21 remedies available to them by failing to file a direct action in Superior Court for money damage 22
23 or an injunction at any time between 2001 and 2002 and the filing of this action on Septembe
24 17, 2010. Although Petitioners filed their Petition in an untimely manner, ten years later, th 25 Court will discuss the merits on the case based on the following analysis. 26 Although the Court has jurisdiction pursuant to Rule 2.014(f), Petitioner's argument i 27 based on informal grievance procedures Rule 12.202. The Court will briefly discuss the merits o 28
Page 7 ofl2 Petitioners argument. However, it is important to note Petitioner did not follow the formal tim 2 limitations in the grievance procedures necessary to seek compensation since 2001. Th 3 grievance should have been filed within 15 days of the alleged violation, not 5 years after. Se 4 DOA Personnel Rules and Regulations Chapter 12, Informal Grievance Procedure Rule 12.202. 5
6 This Court finds by not abiding by the correct procedures, Petitioners missed their window o
7 opportunity and have no other recourse for compensation from 2001 until 15 days befor 8 September 16, 2005 when formal grievance procedure initiated. At the same time, DOA also di 9 not follow the time limitations as set out in Chapter 12 and failed to render a decision within 10
11 reasonable time. Petitioners initiated informal grievance procedures in 2005, but DOA did no
12 render a decision until 2008. Regardless, the CSC does not have jurisdiction under Rule 12.202
13 of DOA Personal Rules and Regulations, thus further analysis of this issue is moot. 14 The Court finds Petitioners claim is based on reclassification of their position. Thus, it i 15 under Rule 2.202 that the Court has jurisdiction over the instant matter. It is important to not 16
17 that due to characterizing their claim to be a grievance, Petitioners argument is based on thei
18 actions abiding to the wrong procedure. In any event, the correct procedure is dictated in DO 19 Personnel Rules and Regulations Rule 5.014 which set forth the guidelines for administrativ 20 review regarding reclassification of positions. Employee requests for administrative review shal 21 be filed with the Director within twenty (20) calendar days of the date the notice of classificatio 22
23 action was sent to the department. See Rule 5.014(d). Subsequently, an employee may file
24 written appeal with the CSC within fifteen (15) calendar days upon receipt of the decision. Se 25 Rule 5.014(t). 26 Since DOA and GFD Department Head disputes the alleged detail assignment, the Cou 27 does not have a date as to when notice of reclassification was alleged issued. Nonetheless, th 28
Page 8 of 12 Court finds it is unlikely Petitioners administrative review was timely requested within twent 2 (20) days. This is primarily based on the fact that Petitioners waited four (4) years to file for 3 desk audit. On June 3, 2008, Petitioners appealed the desk audit results, nine (9) days after DO 4
5 issued its findings regarding classification results. Regardless of the time limitations, viewing th
6 evidence in a light most favorable to the Petitioners, the Court will assume for arguments sak
7 Petitioners satisfied the requirements set forth in Rule 5.0 14(d). In the interests of judicia 8 efficiency, the Court will assume Petitioners abided by the correct time procedures and thus wer 9 permitted to their appeal to the esc. 10
11 The Court will now discuss the time period which Petitioners is entitled to compensation
12 starting chronologically from the initiation of grievance procedures until Petitioners promotion 13 In total, the Petitioners seek compensation for two (2) years and eight (8) months' time. Unde 14 Guam law, Respondents cite to 4 G.C.A. §4117 states in the pertinent part as follows: 15 "No Employee shall be temporarily assigned or detailed to a position nor shall the 16 employee assume the duties and responsibilities of a position other than the one to 17 which he has been appointed for a period in excess of ninety (90) days unless the appointing authority obtains an exemption upon written application to the 18 Director of Administration. No exemption shall be granted to the ninety (90) day detail limitation except upon express approval by the Director of Administration." 19
20 Pursuant to Section 4117 the maximum amount DOA can authorize for a temporary assignment 21 is ninety (90) days. Respondents argue Petitioner's claims are limited to t he ninety (90) day 22
23 time limitation for permissible detail pay under this statute. After reviewing the facts in the
24 instant matter, the Court finds the nature of the claim was not a temporary detail assignment 25 because Petitioners were eventually promoted in 2008. As such, the statute for temporary detail 26 assignments is inapplicable because the nature of the claim was to reclassify Petitioners job 27
28 position due to a change in duties and responsibilities as alleged in 2001.
Page 9 of12 Alternatively, Respondents also argue Petitioners are not entitled to retroactive pay prio 2 to their promotion to Fire Fighter II, pursuant to 4 GCA §6218.1, 3 "Whenever a classified or unclassified employee of the Government of Guam, 4 including all departments, agencies, and instrumentalities, whether or not 5 autonomous, receives an increase in pay resulting from step increase, pay range increase, promotion or any other cause, such increase in pay shall not be 6 retroactive from the date of its authorization, unless so specified by law" 7 Respondents contend Petitioner's request for back pay from 2001 till their promotion in 2008 t 8 be essentially retroactive pay. Section 6218.1 specifically prohibits retroactive pay raises b 9 stating pay raises can only be authorized after the date of authorization. Moreover, the statut 10
11 does not distinguish between date of performance and date of authorization. The Court agree
12 and finds Petitioners are not entitled to retroactive pay. 13 DOA Personnel Rules and Regulations Chapter 4 sets forth the guidelines appropriat 14 statutes for job reclassification. The Court finds Rule 4.506(e) regarding detail assignments to b 15 the most pertinent authority to the instant case and states as follows: 16
17 "No employee ... shall assume the duties and responsibilities of a position other than the one to which he has been appointed for a period in excess of 120 days 18 within a calendar year, unless the appointing authority obtains an exemption upon written application to the Civil Service Commission. Such exemption shall not 19 extend beyond an additional within that calendar year" 20 Employees serving on a detail in excess of thirty (30) calendar days in a position having a highe 21 pay grade than his regular position, shall receive a payment differential in accordance with Rul 22
23 6.008. /d. Rule 4.506(h). Based on the evidence, neither GFD nor DOA approved any detail o 24 temporary assignment for Petitioners to perform work other than that of a Fire Fighter I. Se 25 Answer filed by GFD Acting Fire Chief Mike Aguon and DOA Director Benita Manglona. Sue 26 a writing is required, if an employee is to be detailed beyond one hundred twenty (120) days t 27
28 duties and responsibilities which exceed their position.
Page 10ofl2 Although there is no written authorization, the Court finds Petitioners were performin 2 work that needed to be done. The Court finds there is no statutory or management authorit 3 which authorized 2 years and 8 months of pay for the alleged re-classification of Petitioner' 4 duties and responsibilities. Furthermore, pursuant to Rule 4.506( e), the Court is unable to gran 5
6 compensation beyond maximum allowable time period of one hundred and twenty (120
7 calendar days without express authorization by the Civil Service Commission. Thus, the Cou 8 finds at a minimum, Petitioners are entitled to one hundred twenty (120) calendar days o 9 compensation in accordance with the payment differential for their alleged performance. In vie 10
II of that, the Court remands in part back to the CSC to re-classify the duties and responsibilitie
12 Petitioners allegedly performed, provided that Petitioners complied with the procedure set fort 13 in Rule 5.014. 14 Statute of Limitations 15 Assuming arguendo Petitioners were entitled to full compensation from 2001 to 2008, 16
17 Respondents further contend Petitioners claims are barred because they violate the statute of
18 limitation found in 7 G.C.A. § 11305, which states that a person must bring "an action upon a 19 liability created by law, other than a penalty or forfeiture" within three (3) years. As such, no 20 compensation is due to him even if Petitioners did allegedly perform such Fire Captain detail. 21 Petitioners filed the instant action on September 17, 2010 and respond with the argument that 22
23 any applicable statute of limitations was equitably tolled by the government's continuing
24 violation. The Court agrees and finds the "continuing violation" ended in 2008 when Petitioners 25 were promoted. Because Petitioners filed suit in 2010, within the three (3) year statute of 26 limitations, the Court finds Petitioners claims are not barred by the statute of limitations. 27
Page 11 of12 CONCLUSION 2 Based on the foregoing, the court analyzes Petitioners Rule 12(c) motion as summar 3 judgment. As stated above, the Court GRANTS Petitioner writ relief and find Petitioners ar 4 entitled to at a minimum one hundred twenty (120) days of compensation. The Court remands i 5
6 part back to the Civil Service Commission to determine the exact duties Petitioners alleged!
7 performed and consider the defenses raised by the Respondents in their opposition. 8
9 SO ORDERED, this IZ day 10
13 LE MICHAEL J. BORDALLO 14
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