18 NICS App. 19, VELIZ v. PUYALLUP (April 2020)

IN THE PUYALLUP TRIBAL COURT OF APPEALS

PUYALLUP INDIAN RESERVATION

TACOMA, WASHINGTON

William Veliz, Appellant/Appellee,

v.

Puyallup Indian Tribe, Appellee/Appellant.

NO.    PUY-CV-AP-2019-0068/PUY-CV-AP-2019-0070 (April 13, 2020)

(Reconsideration Denied, May 15, 2020).

SYLLABUS*

Terminated tribal employee requested hearing on damages through trial court arguing his due process was denied. Trial court claimed it had jurisdiction as tribe’s sovereign immunity did not apply to employee grievance process and court awarded damages to employee. Court of Appeals ruled that trial court erred when it exceeded scope of jurisdiction allowed by tribe’s personnel policies and procedures in conducting a supplemental hearing and awarding damages. Court of Appeals reversed trial court’s decision, vacated judgement for damages and dismissed matter.

Before:

Thomas Weathers, Chief Judge; Lisa Vanderford-Anderson, Judge; Mary Finkbonner Cardoza, Judge.

Appearances:

Charles R. Hostnik for Apellant; Robert W. Novasky for Appellee.

OPINION

Vanderford-Anderson, J:

THIS MATTER comes before this Court pursuant to notices of appeal filed by both Plaintiff William Veliz on June 28, 2019 and Defendant Puyallup Indian Tribe, on July 1, 2019. Oral Argument was held on December 13, 2019.

We find that the Puyallup Indian Tribe’s sovereign immunity was not waived as to damages and the lower court exceeded its jurisdiction by providing a remedy, specifically money damages, to Veliz as part of the Puyallup Tribes’ grievance process. Therefore, the March 18,

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2019 Order is REVERSED, the Judgment for damages is hereby VACATED, and the case is dismissed.

BACKGROUND

This case has a lengthy history following the termination of Veliz’s employment from the Puyallup Indian Tribe in 2012. After he was fired, Veliz promptly invoked the Tribe’s established grievance process that is governed by the Puyallup Tribe’s Personnel Policies and Procedures Manual (“PPPM”), enacted by the Puyallup Tribal Council in 1986 and amended thereafter. The PPPM is an administrative process that has four (4) clearly outlined steps for employees/former employees to utilize who may be “dissatisfied with any disciplinary action imposed on him/her, with any term or condition of employment, or with any workplace condition.” See PPPM § 460.01(a).

In this case, Veliz sought review through the grievance process under PPPM § 460 and Step 1 and Step 2 were combined. (This is allowable under certain circumstances, which were met here). Veliz was not satisfied with the outcome of the combined Step 1/Step 2 hearing and requested a Step 3 hearing before the Personnel Committee. A Step 3 hearing was held in August 2013. The Personnel Committee which heard the Step 3 hearing denied Veliz’s request to be reinstated. As stated in the March 2014 Step 4 Ruling on Judicial Review of Step 3 Hearing, “[t]he Personnel Committee found that Mr. Veliz demonstrated that the termination:

1.    Violated the Personnel Policies or other provisions of applicable law. The committee answered “YES”, and commented: “The panel took note that the termination process was not carried out in a timely manner. The grievant was not allowed to know the full extent of the charges that resulted in his termination.”

2.    The second question was determined to be not applicable to the grievance.

3.    Imposed on the Grievant requirements or obligations inappropriate in the workplace? The committee answered “YES”, and commented: “Mr. Veliz was not given the opportunity to respond to the reasons for his termination. This violated his due process. Id.

And, although, violations were found, the Personnel Committee “determined that there were factors that made Veliz responsible for the action leading to his termination from employment.” Id.

Veliz was dissatisfied with the outcome and appealed the Step 3 decision to Step 4, which is a limited review by the Tribal Court. See PPPM 460.02(c)(4.3).

Per the PPPM, “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;

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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;

4.4.2. Whether Steps 1, 2 and 3 of the grievance procedure were conducted in substantial conformance with the requirements of this Part 460.” See PPPM 460.02(c)4.4.

The Tribal Court found that the grievance procedures did not substantially conform with the requirements of the PPPM and that there were issues that needed to be clarified. Therefore, the Tribal Court remanded the matter back to the Personnel Committee for clarification. The Personnel Committee was to:

1.    Address whether Mr. Veliz proved pursuant to his grievance that the supervisor acted outside her authority to terminate Mr. Veliz because she did not receive concurrence from the Tribal Council per policy 450.05.

2.    Address the Personnel Committee authority under Step 3 to determine whether a termination from employment is justified, or not justified.” See March 2014 Step 4 Ruling on Judicial Review of Step 3 Hearing.

The Personnel Committee reconvened and concluded it had authority to terminate Veliz and authority to determine that it was, in fact, justified. At this point the grievance process was complete.

However, over eighteen months later, Veliz revived the grievance process and requested a hearing on damages through Tribal Court. Although the Personnel Committee concluded that the termination was justified in its second Step 3 hearing, the Tribal Court held a supplemental hearing considering his request for damages based on his argument that his due process had been denied. Ultimately, the Tribal Court found that the Tribe’s sovereign immunity did not apply to the grievance process, it had jurisdiction to consider appropriate damages, and awarded damages in the amount of $336, 628.18. See Findings of Fact, Conclusions of Law, Discussion and Judgment re Damages (March 18, 2018). See also Step 4 Ruling on Judicial Review of Step 3 Hearing (March 10, 2014); Discussion, Findings & Order Re Possible Remand to Determine Damages (December 1, 2016); Discussion, Findings & Order Re Damages Not to be Considered at Trial (December 1, 2016); Discussion, Findings & Order Re/; Sovereign Immunity (December 1, 2016); Supplemental Step 4 Ruling on Judicial Review of Step 3 (June 20, 2016); Order Re Damages, Discovery, Record, Evidence, Mitigation (February 6, 2018); and Findings of Fact, Conclusions of Law, Discussion & Judgment Re Damages (March 18, 2019).

SCOPE OF APPELLATE REVIEW

As applicable here, the decision of the trial court will be reversed, modified, or remanded only where there has been an abuse of discretion that prevented a party from receiving a fair trial, where there has been error as to interpretation and/or application of

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the law by the judge, or where the verdict or decision is contrary to the law and the evidence.1

DISCUSSION

The Puyallup Tribe’s employee grievance process creates a right, a process, but not a monetary remedy. The PPPM grants a limited waiver of sovereign immunity for an administrative process for dissatisfied employees. The steps, as discussed above, are carefully laid out in the PPPM, including judicial review. The Tribal Council waived sovereign immunity for this right.

However, nowhere in those steps does the Tribal Council allow for or create any remedy such as monetary damages capable of being awarded by the Tribal Court. This Panel finds that sovereign immunity does apply and limits the actions of the Personnel Committee and Tribal Court to the actions laid out in the PPPM. Had the Tribal Council wanted the Personnel Committee to provide relief/damages in grievance hearings, it would have added that provision to the PPPM. The four-step process allows written responses and/or decisions at each step prior to Tribal Court review and allows for a very limited and specific review by the Tribal Court. The Court’s limited jurisdiction does not include an allowance for remedies. See PPPM § 460.02. The Tribal Council did not waive sovereign immunity for a monetary remedy.2

Nor does the waiver of sovereign immunity in the Tort Claims Ordinance apply. The Tort Claims Ordinance contains a limited waiver of sovereign immunity. See Puyallup Tribal Tort Claim Act Chapter 4.12. But there is no evidence that Veliz ever filed a claim under the Tort Claim Ordinance. Instead, Veliz argues, and the Trial Court agreed, that the last sentence of PTC § 412.090(c) somehow links the Tort Claim Ordinance and the Grievance process, thereby waiving sovereign immunity and giving authority for the Tribal Court to award damages. That sentence states:

[T]his Act shall not bar any person from pursuing remedies in accordance with otherwise applicable law for claims relating to worker’s compensation, unemployment compensation, or employee disciplinary actions taken pursuant to applicable Tribal personnel policies and procedures.

This language means that the Tort Claims Ordinance does not displace or replace otherwise applicable processes relating to workers’ compensation, unemployment compensation, or employee discipline. An employee could bring claims under both the Tort Claims Ordinance and the Tribal personnel policies and procedures if applicable and appropriate. Veliz did not do that in this case. The limited waiver of sovereign immunity for money damages under the Tort

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Claims Ordinance does not apply to a claim for money damages under the Tribal personnel policies and procedures.

Because there is no separate waiver of sovereign immunity for money damages under the Tribe’s Personnel and Policies Procedure Manual, this Panel finds that the Tribe has not waived its sovereign immunity as to the grievance filed by Veliz. The Tribal Court had no jurisdiction to fashion a remedy under the grievance process for money damages. But, the above language does not prohibit a future award of damages through the grievance process, should the Tribal Council amend the PPPM to allow for remedies.

CONCLUSION

We find that the Trial Court erred when it exceeded the scope of jurisdiction allowed by the PPPM in conducting a Supplemental 4th Step Hearing and awarding damages when the grievance process, a limited administrative process, did not provide authority for supplemental hearings or award of any relief without clear and unequivocal approval from the Tribal Council. In this matter, the PPPM, as approved by the Tribal Council, did not expand the grievance process, did not provide for a supplemental hearing and did not approve of an award of damages through the grievance process. Contrary to the Tribal Court, the Puyallup Tribe’s sovereign immunity should have been considered here. The Tribe’s sovereign immunity as to money damages has never been waived under the grievance process. Therefore, we REVERSE and VACATE the order awarding damages and dismiss the case.

*

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.


1

PTC § 4.16.400(c).


2

See Matheson v. Wright, 10 NICS App. 20 (Puyallup Ct. App. April 2011) (Puyallup Tribe of Indians is a federally recognized Indian tribe that enjoys sovereign immunity from suit and a waiver of that immunity cannot be implied but must be unequivocally expressed).