5 NICS App. 21, MOSES v. TULALIP TRIBES (November 1997)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
MARYSVILLE, WASHINGTON
Jon Moses, Appellant,
v.
The Tulalip Tribes, Respondent.
No. TUL-EMP-4/97-739 (November 20, 1997)
SUMMARY
Appellant was terminated from employment with Respondent Tribe because of various instances of absenteeism. The action was initially tried in trial court; however, no recording of the testimony for that trial was ever made. Appellant filed a notice of appeal, which the Court of Appeals denied for lack of a full and adequate original court transcript. The Court of Appeals remanded the matter to the trial court to establish a record. In a subsequent trial proceeding, the judge’s notes were transcribed, reviewed by the parties, and certified by the parties as to the accuracy of the transcript of the notes. Due to the lack of recorded testimony at the trial court level, the Court of Appeals cannot determine whether there was substantial evidence to support the trial court’s decision to deny relief for back pay. It is determined, however, that the issue of back pay can be summarily decided by the trial court.
FULL TEXT
Before: Douglas Hutchinson, Chief Justice; Lisa Brodoff, Justice; Charles R. Hostnik, Justice.
This matter is before the Tulalip Tribal Court of Appeals from a notice of appeal filed by Appellant Jon Moses on May 29, 1997. It appears that at the time of the original trial on May 25, 1997, a substitute court clerk was present and in charge of an audio record of the proceedings. That substitute court clerk was not familiar with the audio recording equipment and an audio record was not made.
This Court previously issued an order on June 9, 1997, denying the appeal on the basis of Rules 4.44.1 and 4.44.4 of the Tulalip Appellate Rules, because a full and adequate original court transcript was not provided. That order remanded the matter to the trial court to establish a record.
The parties had a subsequent trial proceeding where the judge’s notes were transcribed, reviewed by the parties, and both parties certified that the transcript of the notes was accurate. The
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matter is back before us for review. There still exists no verbatim record of the testimony which occurred during the course of the trial of this action.
I. JURISDICTION
This Court has personal jurisdiction over Appellant as he is a member of the Tulalip Tribes. Territorial jurisdiction exists because the acts at issue arise from the employment with the Tulalip Casino, which is within the exterior boundaries of the reservation. Subject matter jurisdiction is pursuant to Tulalip Tribes Human Resources Ordinance No. 84, Section II(E)(4) and Section X(B)(10), and Resolution No. 96-0020.
II. SCOPE OF REVIEW
This Court’s scope of review of decisions from the Tulalip Employment Court is well defined:
The jurisdiction of the Court of Appeals in appeals of Employment Court final decisions shall be to reverse the Employment Court and direct a new trial where the decision of the Employment Court is found to be arbitrary, capricious, or unsupported by substantial evidence.
The Tulalip Tribes Human Resources Ordinance, Ordinance 84, Section X(B)(10) [added by Resolution No. 96-0020, adopted February 3, 1996].
Based upon this narrow scope of inquiry, we are required to affirm the decision below unless it is found to be arbitrary, capricious, or unsupported by substantial evidence. If we can find the Employment Court’s decision to violate this standard, we cannot cure the error, but must return the case to the Employment Court for a new trial.
III. DISCUSSION
There are three issues brought to this Court for appeal. First, Mr. Moses appeals the Employment Court’s denial of the Appellant’s Motion to Dismiss or Vacate the Dismissal for Defective and Ineffective Notice. This was originally denied by the trial court on May 8, 1997, on the basis of the Tulalip Tribe’s Human Resources Ordinance (hereinafter “HRO 84”). The defects pointed out by the Appellant’s motion were found not to exist by the trial court judge.
However, whether the trial court judge acted appropriately in vacating the dismissal prior to trial or not, the result of the trial was that the dismissal was not appropriate, and the trial court therefore reinstated Mr. Moses to his position. Mr. Moses was careful to point out in his Notice of Appeal that he was not appealing his reinstatement. Assuming the effective date of reinstatement was prior to the trial court reviewing the motion to vacate the dismissal notice prior to trial, the first issue raised by Mr. Moses would appear to be moot. The dismissal from employment was
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overturned by the trial court.
The second basis for appeal raised by Mr. Moses is that the only dates that should have been considered by the trial court are February 4 and 5 of 1997. There were a series of dates that Mr. Moses was absent from work, both before and after those two dates in February. In reviewing the trial court decision, those are the only two dates that the trial court considered as appropriate for review. The trial court found that there was no excuse for Mr. Moses to be absent from work on February 4, but found that his absence on February 5 was an excused absence. The trial court opinion does not indicate that any other dates were considered. Therefore, it appears that the second ground of appeal is also moot.
The third ground of appeal is more problematic. Mr. Moses appeals the trial court’s denial of back pay. On this issue the trial court ruled as follows:
…The Appellant is reinstated to his position and this matter is remanded to the supervisor for discipline consistent for one minor offense. Relief for back pay is denied, as it is an appellant’s responsibility to file an appeal, not Human Resources.
Trial Court Decision dated May 19, 1997, at p.2.
Due to the limited scope of review available to this Court, and in light of the lack of an adequate record, we have no choice but to remand this matter unless we can find on the basis of the limited record before us that there is substantial evidence to support the trial court’s decision to deny relief for back pay.
In reviewing the documents submitted before the trial court, the dismissal was based on a number of days that Mr. Moses was absent from work. These included identified dates from January 2, 1997, through February 10, 1997. On certain of those dates Mr. Moses called in sick, called in late, left early or simply did not appear without calling. We cannot tell from the state of the record before us, what was or was not paid for the days he did not work. We also cannot tell from the record before us the dates for which Mr. Moses is seeking back pay.
Under HRO 84, Section X(B)(1)(b), a written grievance filed more than 20 days from the date of the event that caused the grievance shall not be considered. The document filed by Mr. Moses complaining of his dismissal was a Notice of Appeal to the Tribal Employment Court. This Notice of Appeal indicates that Mr. Moses was seeking “back pay to the date of my dismissal and pay for the days I was sick.” Mr. Moses acknowledges that the appeal was filed no earlier than the last week of February of 1997. See, Addendum to Motion to Reconsider, Paragraph 5, filed April 17, 1997. Therefore, to the extent he is seeking compensation for any days for which he was not paid prior to the month of February, those dates are excluded for failure to file a timely grievance under the provision specified above.
The dismissal of Mr. Moses was apparently effective on February 11, 1997. It would
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therefore appear that reinstatement of Mr. Moses would be retroactive to February 11, 1997, and he would be entitled to pay from that date forward, due to reinstatement. The actual date of reinstatement, however, is unclear from the record.
It would therefore appear that the back pay issue is narrowed substantially. The trial court found that the absence on February 4 was unexcused, but that the absence on February 5 was an excused absence. Mr. Moses objects to considering any other dates. See, Notice of Appeal, Issue #2. The record indicates that the only other dates potentially in dispute are February 6, 7, and 10. These are all the dates that Mr. Moses called in sick. We cannot determine from the record whether Mr. Moses was paid for those days that he did call in sick.
IV. SUMMARY AND ORDER OF REMAND
The parties are hereby advised that this Court has made a deliberate effort, in the interests of judicial economy, to hear and determine as many issues on appeal as possible based on the record before the Court, which does not contain a transcript of the testimony at trial. This is an unusual procedure, and one which was not undertaken lightly by this appellate panel.
The only other alternative would have been to send this matter back for an entirely new trial, and transcription of that trial testimony. After reviewing the record before us, it is the firm conviction of this panel that many of the issues raised on appeal could be summarily decided without the expense and delay of another full trial proceeding in connection with this appeal.
Based upon the foregoing, this Court finds that the first two issues on appeal are moot and are therefore dismissed.
The third issue on appeal necessitates a remand, but it is not necessary to require an entirely new trial on all of the issues initially raised in the Notice of Appeal filed by Mr. Moses on March 24, 1997.
Accordingly, this matter is remanded for determination of the following issues:
1. To determine the effective date of reinstatement; and
2. To determine whether Mr. Moses was paid for absences from work on February 4, 5, 6, and 10 of 1997; and
3. Whether it is appropriate to award Mr. Moses pay for any one or more of those dates in February, if in fact he was not paid; and
4. Whether there is some reason to deny Mr. Moses an award of back pay from the effective date of reinstatement forward.