14 NICS App. 15, BROWN v. PUYALLUP TRIBE (May 2016)

IN THE PUYALLUP TRIBAL COURT OF APPEALS

PUYALLUP INDIAN RESERVATION

TACOMA, WASHINGTON

Lauren Brown, Plaintiff/Appellant,

v.

Puyallup Tribe of Indians, Defendant/Appellee.

NO.    PUY-CV-AP-2014-0074 (May 25, 2016)

SYLLABUS^*

Appellant argued that tribal court made various errors in interpretation and application of tribe’s code when it upheld her termination. Court of Appeals confirmed that appellant’s issues were heard at all levels and ruled on appropriately using the proper scope of review. Court of Appeals affirmed the ruling to uphold appellant’s termination.

Before:	Randy A. Doucet, Chief Judge; Jerry R. Ford, Judge; Gregory M. Silverman, Judge.
Appearances:	Lauren Brown, pro se; Robert W. Novasky, Fosberg & Umlauf, P.S., for Appellee.

OPINION

Ford, J.:

This appeal by Lauren Brown (Brown) is the culmination of the review process following the termination of her employment with the Puyallup Tribe (Tribe). Brown alleges that the Puyallup Tribal Court (Tribal Court), acting as a reviewer of the administrative decision to uphold her termination, made various errors in interpretation and application of the Puyallup Tribal Code, the evidence presented and the conclusions made by the Step Three (3) Grievance Committee (Committee).

This is an issue of first impression for this court as there has never been an appeal from a completed grievance procedure under Puyallup Tribal Code 460.02 (c). The two previous cases

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Earl v. Puyallup Tribe 11 NICS App.73(Puyallup Tribal Ct. App. 2013) and Rivera v. Puyallup Tribe 12 NICS App.44 (Puyallup Tribal Ct. App. 2014) dealt with subsidiary issues.¹

PRELIMINARY MOTION

At the Oral Argument, we took under advisement the Tribe’s Motion regarding Late Filing of Brown’s Reply Brief. The filing date for a reply brief to an Appellee’s Response Brief is set forth in Puyallup Tribal Code 4.36.360. Brown had 15 days after receipt of the Tribe’s Brief to file her reply. Brown did not do so. The code contains the word shall which makes the requirement mandatory. However, the code is silent as to what remedy is appropriate. It is within the discretion of this Court to determine how to proceed. A close look at the procedural history of this case shows various delays and even a lost portion of the Step 3 transcript. Combining these various deviations from code mandated process with the fact that the reply brief had very little new content and the Tribe had several months to consider the document in preparation for oral argument, there was no prejudice to the Tribe. Brown’s Reply Brief will be admitted and made part of the record.

FACTS

The basic facts of Brown’s employment and the dates etc. of her termination are not in significant dispute. What is contested are alleged errors in the process and interpretation of the code applicable to this termination. Brown was first hired by the Tribe on May 16, 2003 as an Assistant Prosecutor/Juvenile Presenting Officer. As of July, 2009 Brown was transferred to the Puyallup Tribe Children Services Department (PTCS) in which she served at the time of her termination as a CPS Investigator and Day Care Warrantor. After a series of events, which are in dispute and form the basis of Brown’s factual dispute with her dismissal, Brown was terminated from her position in a meeting on April 9, 2013 in which she was given a letter of termination.

On April 13, 2013, Brown filed a Grievance with the Tribe to commence a review of her termination which was acknowledged by the Tribe and an Informal Review was held with Brown on October 23, 2013² By letter dated October 28, 2013, Brown was informed by the Tribe that the decision to terminate her had been upheld and she was given her options for further appeals. By letter dated November 3, 2013, Brown indicated her dissatisfaction with the decision in the Informal Process and sought a full administrative hearing by a grievance committee (Step 3).

That hearing was held February 19-20, 2014 and finished May 14-15, 2014.³ Testimony was taken and arguments were heard by the Committee. The Committee reached a decision and disclosed that decision to the parties in a letter dated May 20, 2014 in which a simple check box format was used (very similar to a Jury Verdict form in a criminal case), which was signed by all

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members of the Committee. No findings of fact were made to support the decision to uphold the termination.⁴

Pursuant to the employment code, Brown sought a judicial review by the Tribal Court which was held June 2, 2015 after a further one-year delay.⁵ The court was not provided a full transcript of the grievance hearing as several hours were inadvertently lost through no fault of Brown.⁶ It appears that Brown was allowed substantial time to present her case before the Tribal Court, including arguing about the contents of the missing transcript. The Tribal Court issued a written order on June 9, 2015 upholding Brown’s termination. Brown timely filed the instant appeal.

                    ISSUES PRESENTED

In her brief, Brown presents four issues on appeal:

APPLICABLE TRIBAL CODE

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The Puyallup Tribal Code concerning the grievance policy used here is found in section 460.02(c) which states in pertinent part:

Step 3- Personnel Committee    

    3.1    In order to appeal to Step 3. The Grievant must give written notice of appeal to the Department and a copy to the program director, using the form attached to these Policies as Part D to appendix D, within 5 working days after s/he receives the determination made in Step 2.

    3.2    The Grievance shall be considered by a Personnel Committee selected by the Department for each hearing. The Committee shall consist of three program directors chosen randomly by the Department. The Department shall have the discretion to modify the composition of the Committee for each hearing to exclude from participation any director who has been involved in the action that is not the subject of the grievance, or who for any other reason cannot be a fair, unbiased decision maker.

3.3        The Committee shall conduct the hearing according to the procedures contained in Appendix G to these Policies.⁸ The Committee shall determine whether the Grievant has demonstrated that the disciplinary action or other action complained of:

3.3.1    Violated the Personnel Policies or other provisions of applicable law;

3.3.2    Subjected the Grievant to conditions that are inappropriate in the work place; or

3.3.3    Imposed on the Grievant requirements or obligations inappropriate in the work place.

3.4        The Committee shall render a decision in writing and provide its decision to the Grievant, the respondent, and the Department no later than five working days after the close of the hearing.

3.5        If the Grievant is dissatisfied with the decision reached in this Step 3, s/he may appeal the decision to Step 4.

Step 4- Limited Review by Tribal Court:

4.1    In order to appeal to Step 4, The Grievant must file an action at the trial level in Puyallup Tribal Court, following the Tribe’s Rules of Civil Procedure and any other

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applicable rules and laws, with copies to the Department and to the program director, within five (5) working days after the close of the hearing.⁹

4.2        The only defendant in such an action shall be the Puyallup Tribe.

4.3        The Puyallup Tribal Court shall have jurisdiction over such actions, limited to a review of the record developed in Steps 1, 2 and 3 of the grievance, supplemented by legal briefs or other similar written arguments, and by oral argument, submitted by the Grievant and the program director or their respective representatives or attorneys. Written briefs and oral argument shall be submitted on an expedited schedule established by the Court in each case.

4.4        The Court’s review shall be limited to the following issues:

4.4.1 Whether the disciplinary action or other action complained of:

4.4.1.1    Violated the Personnel Policies or other provision of applicable law;

4.4.1.2    Subjected the Grievant to Conditions that are inappropriate in the workplace; or

4.4.1.3    Imposed on the Grievant requirements or obligations inappropriate in the workplace;

4.5        The Court shall render a decision in each case within five (5) working days of the presentation of oral argument

4.6        Appeals from rulings of the Tribal Court under the grievance procedure shall be governed by the Tribe’s Judicial Code and shall be limited to the issues listed in subsection(c) of this Step 4.    

SCOPE OF REVIEW

The scope of appellate review is set forth in the Puyallup Tribal Judicial code which states as follows:

4.16.400 Considerations governing reversal, modification, or remand of trial court decision

Except as provided, the decision of the trial court will be reversed, modified, or remanded only:

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The specific provision of 460.02 (c) controls and limits the scope of review of this court and as such, we must determine if the Court erred in its decision by violating the specific terms of the Puyallup Grievance Policy that guide its actions.

APPLICATION OF THE CODE TO THE ISSUES PRESENTED

FIRST ISSUE

The Tribal Court misinterpreted the procedural responsibility and the scope of their review specifically by indicating the “court reviews the record of the proceedings below and does not weigh the evidence or the testimony of the Step 3 Grievance hearing but determines whether there is substantial evidence to support the findings of the Personnel Committee”.

This issue is one of law and it therefore reviewed De Novo by this court. Lomeli v. Kelly 12 NICS App. 1 (Nooksack Tribal Ct. App. 2014).

The clear language of 460.2(c) states the Tribal Court in Step 4 is tasked with the responsibility to review the administrative process of the grievance procedure to determine if there has been a violation of the three specific provisions set forth there. Such a review is by nature limited in scope and is truly appellate in nature. The Tribal Court does not take new evidence but concerns itself through a review of the record made below, the briefs of the parties and oral arguments as to whether substantial evidence exists to support the decision of the Step 3 Panel.

It would be to place an almost impossible burden on the Tribal Court to determine the veracity of the testimony presented and the impact of the documents placed into evidence. If it had been the intent of the Tribe for the Tribal Court to be the conductor of the primary hearing, the Tribe would have eliminated the Step 3 provision and placed the trial responsibilities with the Tribal Court. Instead, the burden of conducting the hearing was placed with the administration of the Tribe as is shown by both the explicit language of 460.02 (c) and the actual manner in which the hearing was held. Great effort was made by the three lay program managers making up the Committee to conduct a hearing with two experienced attorneys representing the parties. Evidence was presented and testimony was taken. There were objections, argument and rulings. Simply spoken, it was the trial.

The Tribal Court in its order made it very clear that it was reviewing the record to determine if there was substantial evidence to warrant the findings of the Committee on the

14 NICS App. 15, BROWN v. PUYALLUP TRIBE (May 2016) p. 21

key issues presented to it. This is a procedure well known in most courts where there is a review of a decision by a court sitting in judicial review of administrative hearings. For example, in Hoopa Valley Housing Authority v. Gerstner 3 NICS 250 (Hoopa Valley Ct. App.1993) it was held:

This Court has had a prior opportunity to address this issue in Ames v. Hoopa Valley Tribal Council and Hoopa Valley Department of Public Safety, No. C-90-026 (Nov. 14, 1991). In that case, Chief Justice Irvin, in her concurring opinion, reviewed the standard by which the United States Federal Courts hear appeals from agency hearings under the Federal Administrative Procedures Act.

The opinion of Chief Justice Irvin was a concurring opinion, which was not specifically adopted by the majority and, therefore, is not controlling or binding upon this Court. However, the reasoning of that concurring opinion is sound, and this Court hereby adopts the substantial evidence test as set forth by Chief Justice Irvin in Ames as the appropriate standard by which due process hearings are to be reviewed. (Hoopa at 263)

We adopt the substantial evidence test which is to be used in Step 4 hearings. Brown’s Issue #1 is without merit.

ISSUE TWO

The Tribal Court erred when they [sic] determined that Ms. Brown was not prejudiced due to the missing audio tape of the last three (3) hours of the 3rd Step Hearing due to the fact that the witness perjured themselves during said testimony which was in complete contradiction of Ms. Brown’s witness testimony and evidence submitted.

It is very unfortunate that the last three hours of the Step 3 hearing was inadvertently lost. That portion of the hearing involved the presentation of witnesses by the Tribe and cross examination by Brown. However, we are not convinced that this action was done in a manner to prevent Brown from having her claim fully heard according to Puyallup Tribal law. It is not apparent that having the Tribal Court only review the evidence most favorable to Brown prejudiced her in any manner and the possibility that opposing testimony might be highly contradictory to Brown’s presentation is not only expected but highly routine in modern trial practice.

The Tribal Court allowed Brown to fully brief and argue the positions she took on cross examination during the Tribe’s case and she has not demonstrated a significant prejudice.¹⁰ If the positions of the parties had been switched and the Tribe had been seeking the prevention of the Grievance from being heard based upon the failure of the Tribe to provide the necessary transcript, we find the result would not be different, since justice required this case to go ahead.

14 NICS App. 15, BROWN v. PUYALLUP TRIBE (May 2016) p. 22

Further, the Tribe throughout this review substantially complied with the provisions of 460.02(c) and did not prevent Brown from having a complete and meaningful opportunity to present her position at all levels of the review.¹¹ Cummings v. K’ima Medical Center 12 NICS App. 79 (Hoopa Valley Tribal Ct. App. 2014).

There was substantial evidence in the record to support the Tribal Court’s conclusion that there was no violation of the three standards of review.

ISSUE THREE

The Tribal Court erred by stating to consider the evidence presented during the 3rd Step Hearing and making a determination that “the Grievance Panel Committee” did not violate the Puyallup Tribe’s Personnel Policies and Procedures during the third step hearing rather than consider the totality of all 3 previously conducted Steps.

This issue appears to present an argument that is purely semantic in nature. Brown was allowed to fully explore in 3+ days of testimony absolutely every germane aspect of her termination process. Brown cannot now say that the Committee failed to consider the whole process in making their determination. The panel was given instructions about what they were to do and Brown was given significant input into what evidence and testimony was to be allowed. The Tribal Court made specific reference in its order that it had considered all aspects of the administrative process. And it is clear that all aspects of this determination including the Step 1 informal process were delved into in quite some detail at the Step 3 hearing. Issue Three is without merit and is rejected by this Court.

ISSUE FOUR

The Tribal Court misinterpreted the procedural responsibility and the scope of their[sic] review specifically by indicating the “court reviews the record of the proceedings below and does not weigh the evidence of the Step 3 Grievance Committee hearing but determines whether there is substantial evidence to support the findings of the Personnel Committee.

This issue is simply a reworded version of issue one and is rejected for the same reasons listed above.¹²

CONCLUSION

Brown was given every opportunity to question her termination and she did so. For much of the process she was represented by counsel who aptly steered her case through the Step 3

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Hearing. The system set up by the Tribe to allow employees terminated for cause to seek review of their termination worked in this case. Despite some stumbles, Brown’s issues were heard at all levels, addressed by the Committee and the Tribal Court and ruled on appropriately using the proper scope of review. The Tribal Court, based upon the record before it, held there was sufficient evidence to uphold the actions of the Committee and upon review, we find substantial evidence to support the Tribal Court’s findings. We find no error in the order of the Tribal Court upholding Brown’s termination.

Therefore, the Tribal Court ruling to uphold Brown’s termination is AFFIRMED for the reasons stated herein.

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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.

Earl involved ICRA claims and Rivera focused on the exhaustion of remedies issue. Neither case involved an appeal from a completed administrative review.

Throughout the Grievance review delays, often lengthy, appeared to be the normal routine. Such delays appeared to be the result of the actions of both sides. In order to maximize the effectiveness of the process, such delays should be minimized in the future.

The Step 3 Hearing did not finish until 13 months after the determination and a review of the record indicates that testimony given by various parties was impacted by the delay. In future proceedings of this type, it will be necessary for the Tribe to insure timely compliance with not only the specific provisions of the Code but the intent to provide both sides a timely and effective review of a termination decision.

The Step 3 process has expanded thru application and it has become a trial in all but name. We strongly suggest that the format for the Step 3 Decision be changed to allow the entry of specific written factual findings to support the legal conclusions made. This will greatly aid the provision of normal due process associated with a trial and simplify the burden on the Tribal Court as it conducts the Step 4 review.

Part of this delay occurred after Brown filed suit to obtain a Stage 4 review and the Tribal Court was required to deal with various issues raised therein before ordering the commencement of the Step 4 review. This delay continued the pattern of both sides sharing the fault for the slowness of this case.

The Portion of the Step 3 Hearing lost involved the presentation of the Tribe’s case to Brown’s allegations. It should be noted that had greater care been taken to secure the transcript, then at least one issue raised by Brown would become irrelevant. There is no question that the Tribe bears the responsibility for maintaining the recordings of these hearings so that an accurate transcription can be made when requested as a part of the Step 4 process.

We cite the issues as set forth by Brown even though it is clear that there are areas in which they overlap and to a certain extent are repetitive. But in order to simplify this case, the issues will be addressed as set forth by Brown.

Appendix G is a detailed set of rules for the holding of the Step 3 Hearing. Some of the rules include the lack of subpoena power and what hearsay the committee may consider. Appendix G was discussed by the Panel and all parties prior to the commencement of testimony and there was substantial discussions and rulings by the Committee during the duration of the hearing.

Understanding the speedy requirement of the Tribal Court’s review, it is unclear why this action took a full year to come to hearing despite the actions of the parties. This delay meant that at the time of the Step 4 Order being issues, almost 26 months had passed since Brown’s termination. In future cases, the Tribal Court is instructed to engage in active case management to ensure timely hearings and decisions.

During the Step 4 process the Tribe stipulated to the full content of the lost section as claimed by Brown which obviated any possible prejudice to her.

This Court reviewed the available record which shows the detailed nature of the case presented by Brown. The Committee tried to limit Brown to the issues in front of it and limited her from bringing in collateral issues that would have made the Step 3 Process much longer and detract the concentration from being solely on Brown’s termination. Brown was not denied the opportunity to inform both the Committee and the Tribal Court of her precise positions.

Brown brings up a fifth issue in her Brief concerning whether there was a failure to compensate her for compensatory leave earned during her employment. Since we found there to be no violations of 460.02(c) to warrant relief of any sort, there is no reason to determine any compensation owing and we decline to do so.