No. 13415 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

MICHAEL E. MASSA, 

plaintiff and Respondent, 

-vsDEPARTMENT 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 19n 
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 (4) awarding Massa his costs of suit. Thereafter Massa's 

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 "reassignment" 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 for at least two reasons: (1) the Merit System Council 

denied him a hearing, and (2) this defense was never pleaded nor 

proved in the district court and cannot be raised for the first 

time on appeal. Rule 8(c), M.R.Civ.P.; Pickett v. Kyger, 151Mont. 

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

The judgment of the district court is affirmed. We tax as 

costs on appeal an attorney's fee in the sum of $800 for the services 

of respondent's attorneys in this appeal. 

VA&A $ 

Justice 

We Concur: 

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Chief Ju 2 ice p