HOOPA VALLEY TRIBAL PLANT MGMT. DEPT. v. SMITH

5 NICS App. 132, HOOPA VALLEY TRIBAL PLANT MGMT. DEPT. v. SMITH (October 1999)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY INDIAN RESERVATION

HOOPA, CALIFORNIA

Hoopa Valley Tribal Plant Management Department, Appellant,

Jamie L. Smith, Respondent.

No. A-99-002 (October 8, 1999)

SUMMARY

Appellant appeals a trial court order remanding this matter to the tribe’s Tribal Employment Rights (TERO) Commission and ordering the TERO Commission to allow Respondent an opportunity to amend her complaint and to have her case heard on its merits. The same standard of practice applies to both lay spokespersons and attorneys. The trial court erred in granting more latitude in the way Respondent’s complaint was construed.

Introductory employees have no right of appeal if they are terminated prior to conclusion of their introductory period, with the exception of alleged discrimination. Therefore, this Court’s scope of appellate review is limited solely to claims of alleged discrimination and we must dismiss unless the complaint fairly may be construed to allege discrimination as the reason for termination.

In accordance with its duty to read the facts in the record broadly and in the light most favorable to the non-moving party, the Appellate Court holds that the Respondent’s complaint could be construed as claiming that she was fired for reasons other than her job performance. Therefore, the reason for Respondent’s termination from employment and whether such reason constituted “discrimination” should first be determined by the TERO Commission. Remanded.

FULL TEXT

Before: Charles R. Hostnik, Chief Justice; Darwin S. Long Fox, Justice; Thomas W. Weissmuller, Justice.

Jamie Smith was a tribal employee serving a ninety-day probationary term when she was abruptly terminated. Her termination occurred a few days prior to expiration of her probationary period. She appealed her termination to the tribe’s Tribal Employment Rights (TERO) Commission. The employer responded with a Motion to Dismiss, contending: (1) her appeal alleged discrimination on the basis of her family relationship, and (2) family relationship discrimination is not prohibited. The TERO Commission agreed and dismissed her appeal.

5 NICS App. 132, HOOPA VALLEY TRIBAL PLANT MGMT. DEPT. v. SMITH (October 1999) p. 133

I. PROCEDURAL BACKGROUND

Appellant Hoopa Valley Tribal Plant Management Department (Employer) hired Respondent Jamie Smith on January 6, 1997. The Employer terminated Ms. Smith prior to the end of her 90-day period as an introductory employee. Ms. Smith filed a grievance with the TERO Commission alleging, inter alia, unfair treatment by her supervisor and discrimination based on her family affiliation.

The Employer filed a Motion to Dismiss Ms. Smith’s grievance, alleging that she had failed to state a claim for which relief could be granted.¹Prior to the scheduled September 11, 1997, hearing, the TERO Commission heard arguments on the Employer’s Motion to Dismiss. On September 22, 1997, the Commission filed its written decision granting the motion.

Ms. Smith appealed to the Hoopa Valley Tribal Court. On February 18, 1999, that court reversed the TERO Commission decision. The tribal court found that the TERO Commission’s dismissal of the grievance was an abuse of discretion because Ms. Smith was a layperson and, as such, should be held to a lesser pleading standard than attorneys and spokespersons. In remanding the matter to the TERO Commission, the tribal court ordered that Ms. Smith be allowed an opportunity to amend her complaint and to have her case heard on its merits.

The Employer appealed the tribal court decision to this Court of Appeals on February 22, 1999. Both parties submitted written briefs on the issues and, by agreement of the parties, oral argument was heard by teleconference on June 14, 1999.

One of the issues raised by the parties was whether the appeal from the tribal court decision by the introductory employee was timely. The issue was waived by the employee at the time of oral argument.

II. ISSUES NOT ADDRESSED

Counsel for Ms. Smith has alleged that harassment under § 5.5 of the Personnel Policies may be a separate ground for appeal, and that perhaps her original handwritten complaint could be fairly stated to be a claim of alleged harassment in violation of that section. However, we do not decide whether harassment under § 5.5 of the Personnel Policy is a separate ground of appeal for an

5 NICS App. 132, HOOPA VALLEY TRIBAL PLANT MGMT. DEPT. v. SMITH (October 1999) p. 134

introductory employee, in addition to the grounds for appeal that may exist to such an employee under § 6.1.3. of the Personnel Policy.

Counsel for Ms. Smith also argued that the discrimination standards contained in federal law, specifically Title VII, should apply in this case. Although said standards may apply by analogy, they are not binding upon this Court. See Hoopa Tribal Code § 2.1.01 and Tribal Court Rule 8(a).

III. SCOPE OF APPEAL

The scope of appeal in this case is very narrow in that it is limited solely to claims of alleged discrimination. Therefore, we must dismiss this case unless the complaint can fairly be construed to allege that Ms. Smith was terminated due to discrimination.

Section 6.1.3 of the Personnel Policies provides as follows:

If at any time during the introductory period it is determined that an employee’s performance is unsatisfactory, the employee may be terminated without the right of appeal or hearing, except in cases of alleged discrimination.

Personnel Policies and Procedures of the Hoopa Valley Tribal Council (hereinafter “Personnel Policies”), §6.1.3 [emphasis added]. It is undisputed that Jamie Smith was an introductory employee. The stated purposed of the introductory period is to evaluate the employee to see if he or she meets the required standards of the job position. See Personnel Policies §3.2.1. Such employees do not have the right to appeal if they are terminated prior to conclusion of that introductory period, with the exception of alleged discrimination.

We are also mindful that this case comes before us based upon an order granting the tribe’s Motion to Dismiss. We therefore must construe the facts in the record before us in the light most favorable to the non-moving party, who is Ms. Smith, the terminated employee.

IV. STANDARD OF PRACTICE

The parties have raised an issue as to whether a different standard of practice should exist for a layperson. Ms. Smith argues she should be granted more latitude in the way her complaint is construed because she is not a trained attorney. Precedent in this Court does not permit us that latitude:

. . . Every individual has the right to bring an action in a court of law; however, that right carries with it the concomitant responsibility of familiarizing oneself with the relevant rules and governing laws. Although this Court is ever vigilant in its efforts to ensure the fairness of proceedings involving pro se litigants, a party who represents himself is bound by the same rules of procedure and substantive law as any attorney representing him would have been.

5 NICS App. 132, HOOPA VALLEY TRIBAL PLANT MGMT. DEPT. v. SMITH (October 1999) p. 135

Pratt v. Hoopa Valley Police Dept., 5 NICS App. 56; 25 Ind. L. Rptr. 6250 (Hoopa 1998), [emphasis added]. In this Court the same standard exists for laypersons as for spokespersons or attorneys.

In its decision, the tribal court cited both Gilligan v. Jamco Development Corp., 108 F. 3rd 246, 248 (9th Cir. 1997), and the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure to support its decision. It appears the trial court varied from the standards applied against attorneys in those cases to reach an outcome in this case. According to Tribal Court Rule 8(a) and Hoopa Tribal Code §2.1.01, the trial court is required to look to tribal law, both codes and decided cases, for its precedent. The Hoopa precedent is contrary to the trial court’s decision, to the extent that the trial court found a different practice standard to exist for laypersons. Pratt, 5 NICS App. 56. On this issue, the trial court is expressly overruled.

V. DISCRIMINATION ALLEGED?

The issue before this Court is whether the complaint can fairly be construed to allege that Ms. Smith was terminated due to discrimination under §6.1.3. of the tribe’s Personnel Policies. Although this provision affords introductory employees the opportunity to be heard in cases of alleged discrimination, the provision does not define “discrimination,” nor is it defined elsewhere in the tribal code. Without a clear definition or standard of “discrimination” we must look to the record before us to see if such an allegation can be supported.

The only facts before us are contained in the original handwritten complaint from Ms. Smith and the transcript of the TERO hearing. The purpose of the introductory period is to evaluate an employee to see if he or she meets the required standards of the job position. Personnel Policies, § 3.2.1.

The tribe, as an employer, is required to complete a written evaluation of an introductory employee one month prior to the end of the introductory period. This written evaluation is to be a “ . . . detailed assessment in writing of the employee’s performance . . . .” Personnel Policies, § 6.1.1. We do not have that written evaluation in the record before us. It is undisputed that no evaluation occurred in this case.

The employer is required to provide an orientation on job requirements. Personnel Policies, §5.3(b). Ms. Smith alleges this did not occur. The tribe is also required to provide a current copy of the job description to employees. Personnel Policies, §5.3(c). Ms. Smith alleges this did not occur, despite repeated requests for a copy of her job description.

The tribe is required to inform employees of any inadequacies in their job performance, and shall provide employees the opportunity to improve performance through counseling or coaching from the supervisor. Only if counseling or coaching fails can the employee be terminated from his or her position. Personnel Policies, §5.3(e). Ms Smith alleges this did not occur.

Employees are to be informed in writing of any adverse actions that may directly affect them.

5 NICS App. 132, HOOPA VALLEY TRIBAL PLANT MGMT. DEPT. v. SMITH (October 1999) p. 136

Personnel Policies, §5.3(g). The record before us does not show that duty was met.

The Personnel Policies do not address the effect of the tribe’s failure to conduct the written evaluation thirty days prior to the conclusion of the introductory period. Although we do not decide that issue, when coupled with the purpose of the written evaluation and the facts in the record showing that various employer duties were not met (at least at this preliminary stage of the record), it is not unreasonable for an introductory employee to assume that his or her job performance was acceptable. In light of this exception, and in accord with our duty to read the facts in the record broadly, in the light most favorable to the non-moving party, Ms. Smith’s written complaint can be construed as claiming that she was fired for reasons other than her job performance.

It is possible that some form of discrimination occurred, based on the allegations of the employee’s complaint. We therefore cannot say that it is “ . . . beyond doubt that the Plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Gilligan, 108 F. 3rd 246, 248 (9th Cir. 1997). If it is possible that some form of prohibited discrimination occurred, we have no choice but to allow the employee to present her evidence. Any ambiguities are to be resolved in favor of a right of an employee to file a grievance and obtain judicial review. Hoopa Valley Tribal Code, § 13.12.1; Hoopa Valley Indian Housing Authority v. Gerstner, 3 NICS App. 250, 256; 22 Ind. L. Rptr. 6002 (Hoopa 1993).

The reason for the termination, and whether such a reason constituted “discrimination” as that term is used in §6.1.3. of the Personnel Policies should first be determined by the TERO Commission.

VI. ATTORNEYS FEES

The parties have requested an award of attorneys fees pursuant to Hoopa Tribal Code § 2.6.01(c)(1). This provision states: “All costs incurred, including court costs and legal fees, are recoverable by the prevailing party.” This appears to allow the Court discretion to award court costs and legal fees in appropriate cases.

At this preliminary stage of this proceeding, we do not believe it is appropriate to make such an award. Therefore, this issue is reserved pending final determination of this action.

VII. ORDER

Based upon the foregoing, this matter is remanded to the TERO Commission for further proceedings consistent with this Opinion.

The Motion to Dismiss was apparently filed on September 8, 1997. See Tribal Employment Rights Commission decision drafted September 15, 1997. The Motion was served on the employee by depositing it in the mail on September 8, 1997. See Certificate of Service attached to Motion to Dismiss d rafted September 8, 1997. The current TERO Rules require motions to be “ . . . submitted in writing to TE RO and m ailed or personally delivered to the other party no later than ten (10) work days prior to the hearing.” Rules for Hearings before the TERO Commission, (as amended June 10, 1998), Rule I(F). The version of this Rule in effect in September of 1997 was identical. The Motion app ears to have been untimely.