5 NICS App. 90, TULALIP GAMING AGENCY v. MURRAY (November 1998)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
MARYSVILLE, WASHINGTON
The Tulalip Gaming Agency, Appellant,
v.
Rodney L. Murray, Appellee.
TUL-EMP-3/98-962 (November 23, 1998)
SUMMARY
In analyzing the Tulalip Tribes Human Resource Ordinance, Ordinance 84 (HRO 84), §X(B)(10), the Court of Appeals concludes that it is not required to send cases back for a new trial when the trial court’s decision is reversed on a legal conclusion as opposed to a new factual finding. The Court of Appeals reverses the trial court’s legal conclusion that the tribe’s error in calculating Appellee’s “return to work date” relieved Appellee of his responsibility to either contest the date or request additional leave without pay. Once an employee is given notice of a return to work date by his employer, it is incumbent upon the employee to notify the employer if he disputes the date or requires additional leave. Because Appellant failed to do this, the employer is no longer obligated to hold the job open for him under the court’s interpretation of HRO 84, §VIII(G)(4). Furthermore, the court found that the Appellee abandoned his job under HRO 84, §XI(B)(8), giving the tribe the right to immediately terminate his employment.
FULL TEXT
Before: Charles R. Hostnik, Chief Justice; Lisa E. Brodoff, Justice; Rose E. Purser, Justice.
Brodoff, J., writing for a unanimous panel:
I. 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.
5 NICS App. 90, TULALIP GAMING AGENCY v. MURRAY (November 1998) p. 91
II. SCOPE OF REVIEW
This Court’s scope of review of decisions from the Tulalip Employment Court is defined as follows:
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.
The Tulalip Tribes Human Resources Ordinance, Ordinance 84, §X(B)(10).1 See the Legal Analysis section for an in-depth discussion of the meaning of this standard in the context of this case.
III. ISSUE ON APPEAL
Whether the trial court erred in ordering Appellee reinstated to his position with the Tulalip Tribes Gaming Agency, when the tribe miscalculated Appellee’s return to work date.2
IV. LEGAL ANALYSIS OF STANDARD OF REVIEW
Under our interpretation of the standard of review set out in HRO 84, §X(B)(10), the Employment Court’s findings of fact are only to be reversed when they are “arbitrary, capricious, or unsupported by substantial evidence.” When the trial court’s factual findings are found to be unsupported, only then is the remedy of a “new trial” available to the appellant and required to be ordered by the Court of Appeals.
There is no need for a new trial when the only issue before the Court of Appeals is whether the trial judge correctly applied the law to the facts. We see no purpose in having a new trial to take testimony, evidence and arguments when the facts of what occurred in the matter have been already correctly determined.
We further find that HRO 84, §X(B)(10) sets forth a high standard for overturning a trial court’s factual findings by requiring that a new trial only be set where the decision is found to be arbitrary, capricious, or unsupported by substantial evidence. We are interpreting this latter part of HRO 84, §X(B)(10) as applying only to the factual findings of the trial court. This standard makes it very difficult for the appellate panel to overturn the trial court’s decision on the facts unless the finding has little or no basis in the evidence presented to that judge. This high standard makes sense. It is the trial judge, after all, who saw the witnesses, heard the testimony, asked the questions, and who has the best sense of the credibility of the witnesses. Therefore, his or her determination of
5 NICS App. 90, TULALIP GAMING AGENCY v. MURRAY (November 1998) p. 92
what happened in a particular case should be given the greatest deference and should only be overturned in extraordinary circumstances. As noted above, in the event the Court of Appeals does overturn factual findings, a new trial must be ordered.
However, the standard is lower for review of a trial court’s legal conclusions under HRO 84, §X(B)(10). This, too, makes sense, because the trial judge is in no better position to decide the meaning of the law as applied to this case than is the appellate panel. The trial judge’s presence at the hearing, ability to view the witnesses, and judgment about truthfulness, while significantly contributing to his/her decisions regarding the facts of what happened in a particular case, adds little more to his/her understanding of what the applicable law means.
As a result, we find that this standard of review requires only that we consider the trial judge’s ruling on the law, but we are free to make a different decision on any legal interpretation. We are not required to send the case back for a new trial when the trial court decision is reversed only on a legal conclusion rather than a factual finding.
We make this decision by interpreting the first part of the standard – “The jurisdiction of the Court of Appeals in appeals of Employment Court final decisions shall be to reverse the Employment Court . . .” – to apply only to the legal conclusions of the trial judge. In other words, the appellate court can only reverse the trial court on legal interpretations, but must remand for a new trial (rather than simply reverse) when it finds that the trial court’s factual findings are “arbitrary, capricious, or unsupported by substantial evidence.” We recognize that this is a strained reading of HRO 84, §X(B)(10), applying the first half of the sentence to legal conclusions and the second half to factual findings. We are concerned that we may not be reading the intent of the Board of Directors appropriately in construing this section in this fashion.
However, we are convinced that our reading of the standard of review language is reasonable, particularly in light of the inefficiency of ordering a new trial when a full, complete, and undisputed legal record has already been developed by the trial court. We invite the Board of Directors to clarify its intent in this section, if indeed our decision is an inappropriate reading of the review standard language in HRO 84, §X(B)(10).
V. FACTUAL FINDINGS
We cannot find that any of the factual findings made by the Employment Court judge were arbitrary, capricious, or unsupported by substantial evidence in this case. While we might disagree with one or more of these findings, each factual finding has substantial support in light of the entire record. Given our interpretation of the standard of review as granting great deference to the Trial Judge’s determination of what occurred, we will leave those findings unchanged. We, therefore, adopt the following factual findings of the trial court:
1. Gaming operates on a five-day work week.
5 NICS App. 90, TULALIP GAMING AGENCY v. MURRAY (November 1998) p. 93
2. The day following Mr. Murray’s final “paid leave” day was Monday, August 18, 1997.
3. A one-hundred and eighty day Leave Without Pay (LWOP) period runs from the first full work day of non-paid leave, until the first work day following the one-hundred and eightieth day of LWOP.
4. There is a policy of allowing credit for paid leave and paid work days whereby a single day of paid leave or a single work day will extend LWOP for a single day.
5. Mr. Murray received two days of credit pursuant to this policy, extending his LWOP from 180 days to 182 days.
6. Mr. Murray worked for gaming on Wednesday, February 4, 1998.
7. There is no need to receive compensation for a day’s work in order for that day to qualify as a “work day.”
8. For purposes of this proceeding, “work” is defined as activity provided by an employee at the workplace, at the request of and for the benefit of the tribe.
9. Mr. Murray “worked” at the request of a tribal agent who had apparent authority to solicit his aid and is therefore entitled to compensation and credit against his LWOP.
10. As a result of the credit earned by Mr. Murray, his leave should be extended for a period of one day from one-hundred eighty-two (182) days to one-hundred eighty- three (183) days.
11. Under either the 182 or 183 day LWOP, Mr. Murray would have been required to return to work on Monday, February 16, 1998.
We do not adopt findings #12 and #13, as they are more in the nature of legal conclusions and are determinations made by interpreting the meaning of HRO 84 rather than based on the evidence presented. However, we believe that certain facts crucial to our decision and the appropriate legal analysis were missing from the Employment Court judge’s decision. These facts were essentially undisputed by the parties. We, therefore, make the following additional factual findings based on substantial evidence in the record:
12. Mr. Murray received a letter from his employer on December 15, 1997, which enclosed the LWOP provisions of HRO 84 (pp. 36-37). See Appellee’s Ex. 3. Those pages specifically notified Mr. Murray of HRO 84, §VII(G)(4), which addresses requests for extensions of LWOP.
5 NICS App. 90, TULALIP GAMING AGENCY v. MURRAY (November 1998) p. 94
13. Mr. Murray also received a letter from his employer on January 2, 1998, which clearly set forth that the LWOP expired on February 12, 1998. Appellee’s Ex. 4. This letter quoted the HRO 84 provision stating that, if an employee does not return to work on the first scheduled work day following the expiration of the leave of absence, the employee shall be terminated from employment. That letter invited Mr. Murray to contact the Tribal Gaming Director (giving her phone number) if he had any questions concerning the contents of the letter.
14. Prior to the date he was told to be back at work, Mr. Murray never contacted the employer to either dispute the February 12, 1998, date of expiration of his leave of absence or to request an extension of his leave.
15. The next work day following the February 12, 1998, LWOP expiration was February 13, 1998. Mr. Murray failed to appear for work on that day, and he failed to call his employer to explain his absence.
16. By the time of trial on March 24, 1998, Mr. Murray still had neither returned to work nor notified his employer of whether or when he would return to work, his current medical condition, or whether he was requesting an extension of his leave.
17. The record substantiates that Mr. Murray was physically unable to return to work at least through March of 1998.
VI. LEGAL CONCLUSIONS
The trial judge concluded and we agree that Mr. Murray’s leave should have expired on Monday, February 16, 1998, instead of Thursday, February 12, 1998.3However, the trial judge went on to find that this error on the part of the employer legally requires a reversal of the termination from employment, because “Mr. Murray had no opportunity to return to work.” See Findings, Conclusions, Opinion and Order at p. 2. This is where we disagree with the trial court’s interpretation of HRO 84.
5 NICS App. 90, TULALIP GAMING AGENCY v. MURRAY (November 1998) p. 95
Under our interpretation of HRO 84, §VII(G)(4), an employer is only required to hold a job open for a maximum of 180 days unless an extension of that time is properly requested by the employee and granted by the employer. Mr. Murray never requested such an extension nor even notified the employer of his continued disability. Therefore, the tribe’s obligation to hold Mr. Murray’s job open expired on the 181st day of leave, February 17th. Since the tribe’s duty to hold the job open evaporated on that day, the termination of Mr. Murray was not wrongful. This is true even though the tribe miscalculated the date of expiration of the leave. Requiring the employer to rescind its termination and issue a new termination notice would be a useless act because Mr. Murray was physically unable to return to work at the end of the 180 day period.
Furthermore, under HRO 84, §XI(B)(8), entitled “Abandonment of Job,” Mr. Murray legally abandoned his employment by both failing to report to work on the date required and neglecting to contact the employer concerning his status or intent to return to work. He also never questioned the validity of the return to work date until the time of trial. HRO 84, §XI(B)(8) states that an employee who fails to report to work or personally contact the immediate supervisor for two (2) full working days or shifts is considered to have abandoned his job. That employee can be terminated immediately. We find that Mr. Murray’s termination from employment was legally permissible under this section of the HRO as well.
Given our conclusion that the trial court applied the wrong legal analysis in reversing Mr. Murray’s termination, but that the factual findings were not arbitrary, capricious, or unsupported by the evidence, there is no need to order a new trial in this matter. (See Legal Analysis of Standard of Review, above.)
VII. DECISION
Based upon the foregoing, this Court reverses the trial court’s legal conclusion that the tribe’s error in calculating Appellee’s return to work date relieves the employee of the responsibility to either contest the date or request additional leave without pay. We conclude that once the employee is given written notice of a return to work date by his employer, it is incumbent upon the employee to notify the employer if he disputes the return date or requests additional leave. Because the Appellee failed to return to work on February 12, 1998, and failed to inform the tribe in any way of a dispute over the return date, his health status, or any additional leave requests, the employer is no longer obligated to hold the job open for him under our interpretation of HRO 84, §VII(G)(4). Furthermore, Mr. Murray abandoned his job under HRO 84, §XI(B)(8), giving the employer the right to immediately terminate his employment.
Therefore, the decision of the Employment Court is reversed.
Chief Justice Hostnik and Justice Purser concur.
Hereafter cited as “HRO 84.”
The tribes do not appear to contest the trial court’s order that Appellee is entitled to compensation for his work on February 4, 1998 , for repair of a downed computer system. Therefore, this Court will not address this and the trial court’s decision on that issue stands.
We analyze this as follows: The employer discovered in October, 1997 that an additional 8.62 hours of sick leave were due M r. Murray. A s a result, he was give n two (2 ) full days additional pa id sick leave. Those two days should have been added as the next two working days following the exhaustion of paid leave (paid leave was exhausted on August 15, 1997 – a Friday). The next two working days were Monday, August 18 and Tuesday, August 19. Therefore, the calculation of the 180 day unpaid leave should have commenced on August 20, 1997 . Using that date as day one of unpaid leave means there were 12 days of unpaid leave in August of 1997, 30 days in September, 31 days in October, 30 days in November, 31 days in December, and 31 days in January of 1998. At that point, 165 days had expired through the end of January. This left 15 days to expire in February before the 180 day leave was used up. February 15 fell on a Sunday, so the next working day following the expiration of the full 180 days was Monday, February 16, 1998. Therefore, Mr. Murray should have been terminated the following day, Tuesday, February 17, 1998, instead of February 16 as occurred he re.