5 NICS App. 74, HILL v. TULALIP (July 1998)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
MARYSVILLE, WASHINGTON
Charles Hill, Appellant,
v.
The Tulalip Tribes, Appellee.
No. TUL-EMP-10/97-896 (July 15, 1998)
SUMMARY
Appellant resigned his position as a temporary employee of Respondent Tribe. He was later rehired as a temporary employee. Appellant subsequently applied for, and was hired into, a regular full-time position. One-hundred seventy-four days after he was hired, the Tribes terminated Appellant’s employment, citing his status as a probationary employee who could be dismissed without cause.
The trial court found Appellant was a probationary employee and, therefore, not entitled to the protections of the Human Resources Ordinance. Appellant’s termination was upheld. We affirm.
FULL TEXT
Before: Charles R. Hostnik, Chief Justice; Lisa Brodoff, Justice; Rose E. Purser, Justice.
Brodoff, J.:
I. BACKGROUND
Appellant Charles Hill was employed in 1996 by the Tulalip Tribes (Tribes) as an on-call logger. On July 31, 1996, he resigned his temporary logging position, apparently dissatisfied with the salary and lack of permanent employment. Appellant was later rehired as a temporary employee on September 4, 1996.
On April 23, 1997, the Tribe advertised for a regular full-time position as a “timber faller.” The Appellant applied for this position and was ultimately hired by the Tribes on May 27, 1997. The letter hiring Mr. Hill into the logging position shows his status as changing from “temporary” to “regular,” and that he was being “hired” into this regular position. One hundred seventy four (174) days after he was hired, Appellant was terminated from his position by the Tribes. No cause is stated for this termination from employment. The notice states that tribal employees classified as “entry
5 NICS App. 74, HILL v. TULALIP (July 1998) p. 75
probationary” employees are considered “at will” employees per HRO 84 and may be released without cause.
It is noted for the record that Mr. Hill was absent from employment due to a neck and back injury from the time he was hired on May 27, 1997, through the date of his termination on October 10, 1997. These absence were authorized by his physician and were legitimately taken due to his disability. No evidence was presented by either party as to the reason for Mr. Hill’s termination, and no allegation was made or proven at trial by Appellant that his termination was due to his disabling condition.
Mr. Hill appealed his termination to the Employment Court. After a hearing on the issue, the Employment Court found that Mr. Hill was a “probationary” employee at the time of his discharge and, therefore, not entitled to the protections afforded by HRO 84. By order dated November 19,1997, the court found that, as a “probationary” employee, Mr. Hill could be discharged without cause, or even for bad cause. The court cited Fryberg v. The Tulalip Tribes, 4 NICS App. 129 (Tulalip Ct. Of App. 1996), for the proposition that an employee who is transferred or promoted is required to serve a probationary period of 180 calendar days before he or she becomes a “regular” in the new position. The Employment Court affirmed the Tribes’ decision to terminate Mr. Hill’s employment. It is from this order that Mr. Hill now appeals.
II. JURISDICTION
This court has personal jurisdiction over Appellant in that he is a member of the Tulalip Tribes. Territorial jurisdiction exists as the action at issue arose from employment with the Tulalip Tribes, which occurred within the exterior boundaries of the reservation. Subject matter jurisdiction exists pursuant to Tulalip Tribes Human Resources Ordinance No. 84, §I(d) and §X(B)(10), and Resolution No. 96-0020.
III. ISSUE ON APPEAL
Did the Employment Court err in affirming the termination without cause of Appellant, who was hired from a temporary logging position into a regular full-time logging position; and was the Employment Court’s decision arbitrary, capricious, or unsupported by substantial evidence?
IV. 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 from 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.
5 NICS App. 74, HILL v. TULALIP (July 1998) p. 76
The Tulalip Tribes Human Resources Ordinance, Ordinance 84, §X(B)(10).1
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 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.
V. DISCUSSION
Two provisions of HRO 84 are directly applicable to our analysis. Under HRO 84, §II(E):
Every employee, whether transferred, or promoted, or newly hired to a regular full-time or regular part-time position, is required to complete successfully a probationary period of one hundred eighty (180) calendar days from the date of employment, transfer, or promotion.
Under Subsection 4, “During the entry probationary period. . . , the employee is at-will and may be terminated without cause.” HRO 84, §II(E)(4).
Mr. Hill contends that he was neither transferred, promoted nor newly hired into the logging position. He claims that he went directly from temporary status to regular full-time status, and that his hire date should be considered the date he entered work as a temporary employee, September 4, 1996. He could cite no authority for this proposition. In fact, the definition of “temporary employee” specifically excludes the possibility of automatically becoming a regular employee by virtue of being employed for longer than six months. HRO 84, §II(D)(3).
We find that Appellant was newly hired into the position of timber faller on May 27, 1997. As a new hire, he was subject to the 180 day entry probationary period required by HRO 84, §II(E), and was an “at will” employee during that time.
This decision is supported by two previous cases decided by the appellate court. In Fryberg 4 NICS App. 129 (Tulalip Ct. Of Ap.1996), the court found that any employee, even a long term employee, who takes a new position with the tribes either through transfer, promotion, or new hire, risks at-will termination during the required 180 day probationary period under HRO 84, §II(E). The court noted the “disturbing” effect of the HRO to “in effect reduce the rights of a regular full-time employee who is promoted by requiring the employee to serve a second probationary period.” See also the concerns regarding the potential for employer abuse of this provision raised by Justice Williams in his concurring opinion. However, the court properly left any decision to change that policy to the legislative body of the tribes.
5 NICS App. 74, HILL v. TULALIP (July 1998) p. 77
It is this Court’s understanding that the tribal council has had the opportunity to reconsider its position in light of the policy concerns raised in the Fryberg opinion dated October 17, 1996. The Council has nonetheless not seen fit to change the HRO. Given the passage of time without a change in the at-will rule, it is clear that the tribes understand and have ratified the effect of the rule in taking away job protections of permanent or long term employees who may be promoted, transferred, or newly hired into regular positions. There is no basis to alter this Court’s conclusions as expressed in Fryberg.
The Appellate Court recently affirmed this position in Sheldon v. Tulalip Tribes, 5 NICS App. 67, (Tulalip Ct. App. 1998), a case factually more difficult than the case before us. There, a tribal employee of four years duration took an in-house promotion or transfer, with a starting salary at the same rate as her former position. Five days after her hire date in the new job, the employee received written notice of at-will termination. The appellate court rejected the employee’s argument that at-will terminations apply only to the “entry probationary period” for brand new hires, not to the “probationary period” for current employees. The court again held that every employee is required to serve a probationary period under HRO 84, §II (E).
We therefore find that, as either a new hire or promoted employee, Mr. Hill is subject to the 180 day probationary period and the at-will termination provisions of HRO 84, Section II (E).2Since Mr. Hill received his termination before the end of the 180 day period, his termination was proper.
VI. DECISION
Based upon the foregoing, this Court cannot find that the decision of the Employment Court was arbitrary, capricious, or unsupported by substantial evidence. Therefore, the decision of the Employment Court is AFFIRMED.
Chief Justice Hostnik and Justice Purser concur.
Hereafter cited as “HRO 84.”
The issue remains open as to whether or not there is an exception to at-will termination when the reason for termination is clearly discriminatory. For example, if the Tribes terminated Mr. H ill’s employment solely because of his disability or gender or religious views, and if that was p rove n by Appellant at the trial, this Court would have to determine if such a discriminatory reason would be permissible during the at-will probationary period. It is noted that when an employee discriminates against any person, he or she has committed a “major offense” and is subject to suspension without pay or outright dismissal. See HR O 84, §IX (c) (3) and (4). However, this issue is not squarely before this tribunal, and we leave it for another day. Appellant employees who claim a discriminatory reason for termination should make an offer of proof at trial on the issue so that the matter can be properly considered by the trial judge and any subsequent appellate panel.