                       No. 13415
      IN THE SUPREME COURT OF THE STATE OF MONTANA
                          1977


MICHAEL E. MASSA,
          plaintiff and Respondent,
   -vs-
DEPARTMENT OF SOCIAL AND
REHABILITATION SERVICES OF
THE STATE OF MONTANA,
          Defendant and Appellant.


Appeal from:     District Court of the Fourth Judicial
                  District
                 Honorable Jack L. Green, Judge presiding
Counsel of Record:
    For Appellant:
          M. Gene McLatchy argued, Helena, Montana
    For Respondent :
          Mulroney, Delaney, Dalby and Mudd, Missoula,
            Montana
          John Mudd argued, Missoula, Montana


                                 Submitted:   January 14, 1977
                                  Decided :   FEB 2 2 4977
Filed: FEB 2 2   1n
                  9
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.


        This is an appeal by a state agency from a summary judgment
in favor of its employee on his wage claim.

        Michael D. Massa has been employed since July 1, 1969,

by the Department of Social and Rehabilitation Services of the

State of Montana (SRS).   Massa had first been a welfare counselor,

later was promoted to a supervisory position which he held for

about two years, and finally on November 5, 1973, was transferred
back to welfare counselor at his request so he could work directly
with welfare recipients, rather than in a supervisory capacity.

        This last transfer resulted in a salary reduction from

$900 per month which Massa had been receiving as district supervisor
in Missoula to $820 per month as a welfare counselor. Massa's job
c1assification and wage rate were governed by state Merit System
regulations contained in a Personnel Policy Manual.   Due to an

oversight, Massa was paid at the rate of $860 per month for 16
months and upon discovery of the error, SRS began collecting the

alleged overpayment ($640) by monthly deductions from Massa's salary.

        Massa claimed he was entitled to a monthly salary of $900

as a welfare counselor under state Merit System regulations. After

failing to resolve his claim administratively within the agency,

Massa filed suit in the district court of Missoula County.
        Following completion of the pleadings and pretrial discovery,
both Massa and SRS moved for summary judgment. The district court,
the Hon. Jack L. Green, district judge, granted summary judgment to
Massa and denied summary judgment to SRS.   Judgment was entered (1)

restoring Massa to salary grade 18, step 6, of state Merit System
regulations providing for a salary of $900 per month as of the date
of transfer, (2) granting Massa all periodic adjustments and

increases from the date of transfer, (3) ordering SRS to refund
the $640 it had collected from Massa for the alleged overpayment,

and ( ) awarding Massa his costs of suit. Thereafter Massa's
     4
attorneys filed a cost bill which included $850 as attorney fees
pursuant to section 41-1306, R.C.M. 1947.    SRS now appeals from

this judgment.

        SRS assigns two issues for review:

        (1) Was Massa's voluntary request for transfer a "re-
assignment" within state Merit System regulations?

        (2)    Was Massa's administrative appeal timely?

       The parties concede that state Merit System regulations

govern Massa's job classification and wage rate to the extent they
are applicable to the facts of Massa's case.   SRS contends Massa's

situation was not covered by these regulations as they existed
at the time of transfer, or if covered, that Massa resigned and was

simultaneously reinstated entitling him to a job classification

of "Welfare Counselor 11, step 4 with a salary of $820 per month.
                                "
       We hold that Massa's situation was covered by state Merit
System regulations at the time of transfer and that he was entitled

to a job classification and wage rate of "Counselor 11, salary grade

18, step 6" with a salary of $900 per month, pursuant to these
regulations.
       The controlling provision on Massa's job classification
is the reassignment provision in the state Merit System regulations:
       "Reassignment means a change in title of an employee
       for other than disciplinary reasons from one class to
       another having a lower entrance salary." Art. 4, 719, p.23.
This provision fits Massa's situation like a glove. His title

was changed from District Supervisor to Counselor 11. The change
was voluntary and not for disciplinary reasons.     Counselor I1 had

a lower entrance salary than District Supervisor. The language
of the reassignment provision is clear and subject to no other

meaning.

           State Merit System regulations further provide:

        "An employee who is reassigned will be paid the same
        salary as before reassignment, except that his salary
        may not be above the new maximum and if his salary is
        not at a step in the new range it will be adjusted to
        the next higher step." Art. 2, Section I11 (f)       .
        (Emphasis added.)

        The maximum salary for Counselor 11 is $900 per month

at step 6. This is the job classification and wage rate contained
in the district court's judgment. It is clearly correct under the
regulation.

        The contention of SRS that Massa resigned and was simultaneously

reinstated is contrary to the facts and regulations.    The pertinent

regulations provide:
        "Resignation means the termination of employment
        at the request of the employee." Art. 4, 824, p. 23.
        "Reinstatement means a return to employment in an
        agency in the same class, or a closely related lower
        class, .with all previously accrued rights." Art. 4,
        1123, p. 23.

       Massa at no time requested a termination of his employment

with SRS nor did he ever return to employment with SRS.          He
specifically asked for a job transfer within the agency and remained
continually employed by SRS.

           SRS next contends that Massa's wage claim is barred because
he did not request a hearing within 30 days before the Merit System
Council pursuant to the regulations. This contention is without
merit f o r a t l e a s t two reasons:         (1) t h e Merit System Council

denied him a hearing, and (2) t h i s defense was never pleaded nor

proved i n t h e d i s t r i c t c o u r t and cannot be r a i s e d f o r t h e f i r s t

time on appeal.         Rule 8 ( c ) , M.R.Civ.P.;       P i c k e t t v. Kyger, 151Mont.

87, 439 P.2d 57; Close v. Ruegsegger, 143 Mont. 32, 386 P.2d 739.

           The judgment of t h e d i s t r i c t c o u r t i s affirmed.         W tax as
                                                                                  e

c o s t s on appeal an a t t o r n e y ' s f e e i n t h e sum of $800 f o r t h e s e r v i c e s

of respondent's a t t o r n e y s i n t h i s appeal.




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