6 NICS App. 17, ZACKUSE v. EDUCARE (June 2000)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
Karen Zackuse, Appellant,
v.
Tulalip Educare, Appellee.
No. TUL-EMP-12/98-1201 (June 12, 2000)
SYLLABUS*
Trial court dismissed plaintiff’s complaint for wrongful termination as moot because the agency that had employed plaintiff no longer existed and therefore, the trial court reasoned, no relief could be granted. Court of Appeals reverses ruling of trial court on issue of availability of relief, but holds that plaintiff had abandoned her position and her termination was therefore proper under applicable law. Trial court’s order dismissing the complaint therefore upheld, but on different grounds.
Before: Larry King, Chief Justice; Lisa Brodoff, Justice; John Macarro, Justice.
OPINION
Brodoff, J.:
SUMMARY
This matter came before the Tulalip Tribal Court of Appeals pursuant to appellant Karen Zackuse’s appeal of the trial court’s May 4, 1999 order dismissing her case. On February 28, 2000, following oral arguments, this Court issued a Minute Order affirming the lower court’s order. A unanimous Court now issues this Opinion.
JURISDICTION
This Court has personal jurisdiction over Appellant in that she 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.
6 NICS App. 17, ZACKUSE v. EDUCARE (June 2000) p. 18
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
ISSUE ON APPEAL
Whether Appellee Tulalip Educare properly terminated the Appellant’s employment when the appellant failed to timely respond to a written notice to come back to work.
If the Appellant’s job termination was improper, whether the trial court erred in finding that the only available remedy to Appellant in this action is the expungement of her record with the Appellee, since reinstatement to the former position was no longer possible due to the dissolution of the agency.
REVIEW OF TRIAL COURT’S FINDINGS OF FACT
This Court agrees with Judge Weisamuller’s Factual Findings # 1-6, and adopts these findings. Finding of Fact # 7 states,” The only remedies available to Appellant in this action are expungement of her record with the Appellee and reinstatement to the former position she had with Appellee and which she was dismissed from.” This statement is, in effect, a legal conclusion, not a factual finding, because it states the judge’s legal interpretation of the remedies available under HRO 84 when the employer no longer legally exists. This Court disagrees with the legal conclusion that no other remedy would be available to appellant if she were improperly terminated from her employment.2
Because the trial court never reached the central issue of whether or not Appellant was properly terminated from her position at Tulalip Educare, several necessary factual findings were not made. This court makes the following additional factual findings that were undisputed by either party to this action in their pleadings or court appearances. These additional findings are
6 NICS App. 17, ZACKUSE v. EDUCARE (June 2000) p. 19
necessary to determine the legality of the termination, before going on to resolve the issue of what, if any, additional legal remedies may be available to appellant:
1. On September 17, 1998, Appellant met with the CEO for the Tulalip Tribe and two members of the Board of Directors for the purpose of discussing her job related stress, her request to transfer to another department, and her request to be placed on leave without pay per doctor’s recommendation. Appellant did not receive a response to these requests.
2. On October 14, 1998, Appellant again submitted a request for leave without pay. Again, no response was given to the request.
3. Despite the lack of response granting Appellant’s requests for leave, the Appellant did not show up for her work with Educare from September 24, 1998 until her notice of dismissal on December 5, 1998. During this entire time frame, Appellant never called or wrote to her employer to notify it of her absences.
4. On November 24, 1998, Appellee sent a letter to Appellant advising her that she was “absent without leave” and that she was expected to return to work on November 30, 1998.
5. Appellant received this notice prior to November 30, 1998, and still she did not show up for work or notify her employer of her justification for failure to return by that day. Instead of showing up for work on November 30, Appellant waited until December 4, 1998 to send a letter to Appellee, again requesting a grant of leave without pay.
6. On December 5, 1998, Appellant received a notice of dismissal from Tulalip Educare based upon her unauthorized absences from work on December 1, 2, and 3, 1998, and her failure to timely notify the employer of her absences. Appellant was dismissed from her employment based only on her absences on December 1, 2, and 3, not for her absences in the months prior to that time. See The Tulalip Tribes Dismissal Notice dated December 4, 1998.
REVIEW OF TRIAL COURT’S LEGAL CONCLUSIONS
The trial court never reached the issue of whether or not Appellee Educare properly terminated Appellant for job abandonment, unauthorized absences, and failure to notify the employer of absences because it found no available remedy. In Conclusions of Law # 3, 4, and 5, the trial judge states: “Because the Appellee no longer exists, the remedy available to the Appellant of reinstatement to her former position of employment with Appellee is no longer available. The agreement by stipulation of Appellee to expunge the record of Appellant with it effectively delivers to her the only other remedy available to her from this Court. There is no
6 NICS App. 17, ZACKUSE v. EDUCARE (June 2000) p. 20
further need to go forward with this matter, as the appeal has become mute (sic).” Because this Court disagrees with the trial court as to the availability of other remedies, we will first determine the legality of the job dismissal.
We find that the Appellant was properly dismissed from her teaching position at Educare. Under HRO 84, a tribal employee may be dismissed for unauthorized absences of more than two hours (HRO 84 § IX.D.2.d), abandonment of job (two consecutive working days) (HRO 84 § IX.D.2.e), and failure to notify the employer of absences of the employee from work (HRO 84 § VI.C.) Both the unauthorized absences and abandonment of job are each considered “major offenses” in their own right. Under HRO § X.A.1, Major Offenses are “those acts of such a nature that the first offense indicates that continued employment of the employee is not in the best interest of the Tribes and for which an employee may be suspended or terminated.” Under HRO 84 § X.A.3.b.1, the first major offense of any type can result in suspension without pay for five to fifteen days or dismissal. HRO 84 § X.A.3.b.2 requires dismissal for a second major offense of any type.
Here, there is no factual dispute that Appellant was told by the employer to report back to work on November 30, 1998. There is also no dispute that she both failed to report to work on that day or the following three days and failed to notify the employer of her absence until after the request to report back had long passed. These failures on the part of the Appellant each alone constitutes a major offense warranting, and in fact, requiring dismissal. HRO 84 § X.A.3.b.2. Had Appellant shown up for work on November 30, she would have been entitled to the RIF policy requirement that management place her in a new position upon the dissolution of Educare. Appellant knew that Educare was soon to close, so she only needed to return to work for a short time to receive the benefits of the RIF policy. Instead, she chose to ignore the Appellee’s letter requiring her to return to work. She only responded to the letter several days after she was told to report back.
Unless the employer expressly grants a leave without pay request, the employee must report to work or timely give appropriate reasons for her failure to show up. An employee must continue to work until a determination is made by the employer to grant leave without pay (LWOP). LWOP is “ a privilege and not automatically granted.” HRO 84 § VII.G. The decision of whether or not to grant LWOP is within an employer’s discretion with the employer. HRO 84 § VII.G. Ms. Zackuse should have continued to show up for work after the request for LWOP was made in September of 1998. Educare could have dismissed her based on her failure to appear from September through November 1998, but chose instead to give Appellant one last chance to come into work and therefore secure her layoff rights. Appellant chose not to respond.
Appellant makes the additional argument that she did not understand that she was unemployed. We find this argument to be without merit based upon the fact that she received unemployment insurance during the time period in question. This shows unequivocally to the Court that she voluntarily quit her position at Tulalip Educare and that she acknowledged
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through her actions that she abandoned her job.3 To grant her compensation for the time missed at Tulalip Educare during the period in question would allow the Appellant to benefit for a period during which she received unemployment benefits, thereby causing an unjust enrichment of the Appellant. For these reasons, we find that the dismissal of Appellant was appropriate.
We disagree with the trial court that no other remedy besides expungement would have been available to Appellant had she prevailed in her appeal of the job termination. Her remedies might have included options available to other Educare employees who were involuntarily laid off: a reasonable offer of reassignment, assignment to a lower level position, and possibility of recall if the former position is reestablished within 12 months of the layoff date. HRO 84 § VI.B.4.b. However, because we find the termination lawful, none of these options are available to Appellant.
DECISION
Based on the foregoing, this court affirms the trial court’s decision to dismiss this matter, but on different grounds. We find that Appellant was properly dismissed from her position at Educare for abandonment of her position.
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.
Hereafter cited as “HRO 84.”
See analysis below on other available remedies. Although we need not reach the issue of other available remedies here because we find that Appellant was properly terminated from her position for the “major offense” of job abandonment (HRO 84 §XI.D.2.e.), we think this discussion may be of use in future cases.
The Court takes judicial notice of the State of Washington’s laws concerning unemployment insurance benefits. The benefits are not allowed when a party is discharged for misconduct, which must be proven or when a party voluntarily quits a position without good cause. The party must show good cause for quitting the position.