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: 

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### 19nMr. Justice Frank 

### I. Haswell delivered the Opinion of the Court. This is an appealby a state agency from a summary judgment in favor of its employee on hiswage claim. Michael D. Massa has been employed since July 1, 1969, by the Department of Social and Rehabilitation Services of the State ofMontana (SRS). Massa had firstbeen a welfare counselor, laterwas promoted to a supervisory position which he held for about two years, and finally onNovember 

### 5, 1973, was transferred back to welfare counselor at his request so he could work directly withwelfare recipients, rather than in a supervisory capacity. This last transfer resulted in a salary reduction from $900per month whichMassa had been receiving as district supervisor inMissoula to $820per month as a welfare counselor. Massa's job c1assification and wage rate were governed by stateMerit 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 theerror, SRS began collecting the alleged overpayment ($640) by monthly deductions fromMassa's salary. Massa claimed he was entitled to a monthly salary of $900
as a welfare counselor under stateMerit System regulations. After failing to resolvehis claim administrativelywithin the agency, Massa filed suit in the district court ofMissoula County. Following completion of the pleadings and pretrial discovery, both Massa and SRSmoved 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 Systemregulations providing for a salary of $900per 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 fromMassa for the alleged overpayment, and 

### (4) awardingMassa his costs of suit. ThereafterMassa's attorneys filed a cost bill which included $850as 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 stateMerit System regulations governMassa's job classification and wage rate to the extent they
are applicable to the facts ofMassa's case. SRS contendsMassa's situationwas 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 situationwas covered by stateMerit System regulations at the time of transfer and that hewas entitled to a job classificationand wage rate of "Counselor 11, salary grade 18, step 6" with a salary of $900per month,pursuant to these regulations. The controlling provision onMassa's job classification is the reassignment provision in the stateMerit System regulations: "Reassignment means a change in title of an employee for other than disciplinary reasons from one class to anotherhaving 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.StateMerit System regulations furtherprovide: "An employeewho is reassignedwill be paid the same salary as before reassignment, except that his salary may not be above the newmaximum 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 regulationsprovide: "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,.withall 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 employmentwith SRS. He specificallyasked for a job transferwithin the agency and remained continually employed by SRS. SRS next contends thatMassa's wage claim isbarred because he did not request a hearing within 30days before the Merit System Councilpursuant to the regulations. This contention is withoutmerit for atleast 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, 143Mont. 32, 386 P.2d 739. The judgment of the district court isaffirmed. We tax as costs on appeal an attorney's fee inthe sum of $800 for the services of respondent's attorneys in this appeal. 

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We Concur: ".
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