10 NICS App. 54, BURROW v. SQUAXIN ISLAND GAMING ENTERPRISE (December 2011)
IN THE SQUAXIN ISLAND TRIBAL COURT OF APPEALS
SQUAXIN ISLAND INDIAN RESERVATION
SHELTON, WASHINGTON
KIMBERLI BURROW, Petitioner and Appellant,
v.
SQUAXIN ISLAND GAMING ENTERPRISE, Respondent and Cross-Appellant.
No. CV-2011-1103-0049 (December 19, 2011)
SYLLABUS*
Chief Executive Officer of tribal gaming enterprise terminated the employment of an at-will employee for cause. Gaming enterprise grievance committee affirmed the termination for cause while also noting the employee’s at-will status. Employment Court found that there was not cause for termination, but upheld the grievance committee’s decision to terminate the employee based on the employee’s at-will status. Court of Appeals holds (1) stating a cause for termination does not modify or abrogate the at-will status of an individual's employment, and (2) the grievance committee, not the CEO, was the entity ultimately empowered to terminate the employment. Employment Court affirmed.
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Lisa E. Brodoff, Senior Judge; Dana J. Merriman, Judge; Robert J. Miller, Judge. |
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Charles R. Hostnik, Counsel for Appellant; Mark E. Allen, Counsel for Respondent. |
OPINION
Merriman, J.:
This matter comes before the Squaxin Island Court of Appeals pursuant to a Notice of Appeal filed by Kimberli Burrow and a cross-appeal filed by the Squaxin Island Gaming Enterprises (hereinafter SIGE). Oral arguments were heard on October 25, 2011. Ms. Burrow was present and represented by Charles Hostnik. SIGE was represented by Mark Allen of the Squaxin Island Legal Department.
10 NICS App. 54, BURROW v. SQUAXIN ISLAND GAMING ENTERPRISE (December 2011) p. 55
I. Background
The Little Creek Casino and Resort (LCCR), operated by SIGE, terminated the employment of Kimberli Burrow as Director of Hotel Operations on January 28, 2011. The Notice of Separation, signed by the CEO of LCCR, Mitch Corbine, indicated that Ms. Burrow was terminated due to “gross/intentional violation of Comp Policy.” It is undisputed that Ms. Burrow rented a room to a tribal member for forty seven days at five dollars per day, while the approved Tribal member rate was $69/day during the mid-week and $89/day on weekends.
Ms Burrow grieved her termination to the Tribe's Grievance Committee, and a hearing was held on February 23, 2011. Following that hearing, the Grievance Committee issued a written decision upholding the termination “for the reasons set out in the Notice of Separation, dated January 28, 2011, coupled with the fact that Ms. Burrow is an Employee at Will.”
Ms. Burrow appealed the Grievance Committee decision to the Squaxin Island Tribal Court (hereinafter Employment Court). After hearing argument on June 7, 2011, the Employment Court ruled that “Ms. Burrow never violated any comp policy regarding hotel rates because there was never any policy to violate.” The Court upheld the Grievance Committee decision, however, on the grounds that Ms. Burrow was an “at-will” employee and no facts had been introduced indicating that the termination was contrary to public policy or that there was an implicit or express employment contract which modified or abrogated the at-will nature of her employment status.
Ms. Burrow filed a timely appeal, and SIGE filed a cross-appeal.
II. Issues on Appeal
In her notice of appeal dated June 17th, 2011, Appellant cites two grounds for appeal: (1) the Employment Court erred when it did not determine that SIGE waived the right to terminate her employment on an at-will basis, and (2) the Employment Court erred when it based its decision on the Grievance Committee determination that she could be terminated on an at-will basis when that was not a basis for the Employer's decision, thereby violating the standard of review set forth in the SIGE Personnel Policies, specifically SIGE Grievance Procedure, Comment (9)(f).
This Court finds that an analysis of the issues raised by Appellant is sufficient to reach a decision in this case, and therefore we decline to reach the merits of the cross-appeal1.
10 NICS App. 54, BURROW v. SQUAXIN ISLAND GAMING ENTERPRISE (December 2011) p. 56
III. Standard of Review
This review is to determine whether the Employment Court's decision is arbitrary, capricious, or not supported by substantial evidence. SITC 4.32.150. The Court of Appeals reviews issues of law de novo, however, and the standard outlined in SITC 4.32.150 is a standard typically applied to the fact finder rather than an appellate tribunal such as the Employment Court.2 The fact finder in these proceedings is the Grievance Committee, and this Court essentially sits in the same position as the Employment Court with regard to the decision of the Grievance Committee. Therefore, this review necessarily focuses largely on the Grievance Committee decision.
IV. Analysis
A. Did SIGE waive the right to terminate Appellant on the basis of her at-will employment status by citing the for cause provisions in her initial termination notice?
Employment with SIGE at the Little Creek Casino and Resort is governed by the “LCCR Personnel Policies” (also referred to by the parties as the “SIGE Personnel Policies” or the “LCCR Handbook”). The first page of this document is an acknowledgment page, which was signed by Appellant. Section 106(1), adopted as part of the record, outlines SIGE’s employment-at-will policy and clearly indicates that employees may be terminated at any time, for any reason, with or without cause or notice. (Emphasis added.) In addition, at the bottom of each and every page, the LCCR Personnel Policies include a brief statement reiterating the at-will nature of employment with SIGE. Appellant does not dispute the fact that she was an at-will employee at the time of her termination. She claims, rather, that her termination was solely for cause, and not on the basis of her at-will employment. Appellant argues that SIGE in fact clearly waived the right to terminate her based on the at-will status of her employment.
In support of this position, Appellant draws our attention to the Notice of Separation and asserts that SIGE knowingly waived the at-will status of her employment by citing “gross/intentional violation of Comp Policy” as the reason for her termination. The notion that SIGE somehow waived the at-will status of Appellant's employment in this manner represents a novel theory. Indeed, Appellant cites no authority for the proposition that merely providing a reason for termination wholly waives the otherwise at-will status of an individual's employment.
10 NICS App. 54, BURROW v. SQUAXIN ISLAND GAMING ENTERPRISE (December 2011) p. 57
Although we are bound by SITC 1.04.020 to decide this case without any reference to the law of other jurisdictions, we note that this Court is not aware of any authority that would compel such a clear departure from generally accepted principles of the employment-at-will doctrine. Appellant likens the ability of SIGE to waive an employee's at-will employment status to the ability of a Tribe to waive its sovereign immunity. This analogy, however, is unpersuasive. Appellant's theory of waiver in fact squarely conflicts with the explicit terms of the Tribe's written employment-at-will policy. Section 106(2) states “No Squaxin Island Gaming Enterprise representative is authorized to modify this policy for any employee or to enter into any agreement, oral or written, express or implied, that changes the at-will relationship.”
The Employment Court has previously outlined the basic principles of the employment-at-will doctrine. See, e.g., Peters v. SIGE, Cause No. CV-2010-1007-0079, Employment Court Memorandum Opinion, September 23, 2010. The Peters opinion makes clear that the Squaxin Island Tribal Court has recognized only two limited exceptions to the at-will employment doctrine, namely the public policy and implied contract exceptions. As such, we hold that stating a cause for termination does not modify or abrogate the at-will status of an individual's employment unless the cause stated violates public policy or there is some other extrinsic evidence creating an implied contract for employment. Appellant has introduced no evidence that her termination either violated a public policy or that there was an implied contract for employment that modified or abrogated Section 106 as it applied to her employment.
Therefore, we hold that SIGE’s termination for cause did not convert Ms. Burrow’s employment contract to one that could only be terminated for cause. The Grievance Committee made the final decision regarding termination in accordance with the procedures outlined in the LCCR Handbook, and the Employment Court was correct in affirming Ms. Burrow’s termination as an at-will employee wherein no cause need be stated for termination. Section 106(1) of the LCCR Handbook stating that employees may be terminated at any time, for any reason, with or without cause or notice (emphasis added) specifically allows the Grievance Committee the option of adding other bases for termination without notice. Ms. Burrow’s at-will termination by the Grievance Committee was a legally permissible additional basis for her separation.
B. Was there a violation of the standard of review set forth in the SIGE Personnel Policies?
Appellant claims there was a violation of the standard of review contained in the Grievance Procedures at Comment (9)(f). This section of the LCCR Personnel Policies states, “If the Tribal Employment Court finds that the Grievance Committee's determination that the supervisor or manager followed the SIGE Employee Handbook, the Personnel Policy Manual, or departmental policies and procedures was not arbitrary or capricious, it shall uphold the decision of the supervisor or manager.” In claiming that this standard of review was violated, Appellant essentially seems to be arguing that it was error for the Employment Court to uphold her termination while at the same time ruling that there was no basis for the Grievance Committee's
10 NICS App. 54, BURROW v. SQUAXIN ISLAND GAMING ENTERPRISE (December 2011) p. 58
finding that there had been a violation of the Comp Policy. Appellant's argument relies on the premise, therefore, that her at-will employment status did not still constitute a legitimate basis to support the Grievance Committee's decision. We disagree.
The LCCR Personnel Policies provide that the Grievance Committee's decision represents the final decision relating to termination. The Grievance Committee upheld the termination “for the reasons set out in the Notice of Separation, dated January 28, 2011, coupled with the fact that Ms. Burrow is an Employee at Will.” Appellant argues that the scope of the Grievance Committee Decision was not properly limited to the disciplinary action that was taken, suggesting that the inquiry should have been strictly limited to whether there was a violation of the Comp Policy. This argument is unconvincing, however, because that violation was merely a reason stated for the disciplinary action before the Grievance Committee. The disciplinary action itself was in fact the termination. The Grievance Committee, as part of the personnel decision making process of SIGE, was acting within its purview when it added the no-cause reason for termination.
Appellant argues further that because the Notice of Separation did not specifically cite her at-will status as a basis for termination, she was essentially deprived of the opportunity to present evidence to rebut the fact that her termination rested on the at-will nature of her employment. The difficulty with this reasoning, however, is that SIGE is under no obligation to provide at-will employees with either cause or notice for termination. Such is the nature of at-will employment. By its own terms, the at-will policy set out in Section 106(1) states unequivocally that employees may be terminated at any time, for any reason, with or without cause or notice. The fact that the Notice of Separation did not explicitly identify Appellant's at-will employment status is immaterial to its continued existence.
Appellant has not demonstrated that SIGE’s decision to terminate her employment was inconsistent with the LCCR Personnel Policies in any way. These policies make clear that she was subject to at-will employment and that SIGE’s final decision regarding her termination rested with the Grievance Committee, not the CEO of LCCR.3 Appellant's proposed interpretation of the Grievance Committee's role in her termination would effectively render it an appellate body in nature, creating a separate level of review in addition to the Tribe's
10 NICS App. 54, BURROW v. SQUAXIN ISLAND GAMING ENTERPRISE (December 2011) p. 59
Employment Court and this Court of Appeals. This is inconsistent with this Court's understanding of the Squaxin Island Tribe's judiciary system.
V. Conclusion
This Court finds that the Employment Court's decision upholding Appellant's termination was not arbitrary, capricious or unsupported by substantial evidence, and it is therefore AFFIRMED. Based on the foregoing, this Court declines to reach the merits of Appellee's cross-appeal.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
Mr. Allen stated during oral argument that SIGE would drop its cross-appeal if this Court found that Ms. Burrow was properly terminated as an “at-will” employee.
SITC 4.08.120.E places a duty upon judges to identify any additional rules needed to govern common procedural questions faced by the Court. In accordance with that duty, this Court respectfully recommends that the language of SITC 4.32.150 be clarified as to the standard of review and the remedial powers of the Court of Appeals with respect to matters appealed from the Employment Court. In cases where the Employment Court’s decision is determined to be arbitrary and capricious, SITC 4.32.150 appears to limit the remedial powers of the Court of Appeals to a remand for a new trial. This would seem to require unnecessary time and expense for both the parties and the Tribal Court when the record has already been made and the facts are not in dispute.
A review of the LCCR Handbook plainly supports this interpretation of the Grievance Committee’s role in Appellant’s termination. Section 5(c) of the grievance procedures states “at the time the employee is notified of management’s decision…, the employee may opt to continue on to the Grievance Committee.” Section 5(e) states that employees who fail to make a written request for review by the Grievance Committee to human resources within the time limits “will have exhausted their appellate rights with the SIGE organization.” Despite the imprecise use of the term “appellate” in 5(e), references such as these emphasize that the Grievance Committee’s decision represents the final decision within SIGE. Indeed, Section 9 sums up the grievance procedures as such, “Either the grievant or the SIGE may seek review of a final decision of the Grievance Committee by the Squaxin Island Tribal Employment Court after exhaustion of the grievance process within SIGE.”