6 NICS App. 143, TULALIP TRIBES W.F.D. v. MCGAVIN (June 2004)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
The Tulalip Tribes Work First Department, Appellant,
v.
Dushaine McGavin, Respondent.
No. TUL-CV-ET-2003-0333, 0368 (June 24, 2004)
SYLLABUS*
Trial court overturned the suspension and subsequent termination of an employee because the notice of suspension was untimely based upon the date of violation identified in the notice of suspension. Court of Appeals holds that the notice of suspension could have cited to a later date as the date of violation and citation to incorrect date in notice constituted harmless error. Trial court order reversed and remanded for new hearing.
Before: Jane M. Smith, Chief Justice; Robert Anderson, Justice; Edythe Chenois, Justice (who did not appear but did participate in deliberations).
Appearances: Lael Echo-Hawk, for Appellant, The Tulalip Tribes Work First Department. Mark Napeahi, for Appellee, Dushaine McGavin.
OPINION
Smith, J.:
SUMMARY
On September 30, 2003, Ms. McGavin was summoned by her supervisor and asked if she was on pain medication. Ms. McGavin responded that she was. The supervisor determined that there was reasonable cause to perform a Urine Analysis (U.A.) on Ms. McGavin, which Ms. McGavin consented to. The U.A. was given and the test sent to a lab for analysis. On October 1, 2003, the results were given orally to the Tribes and a written notification was faxed to them on October 2, 2003, which reflected a positive UA for drugs. On October 22, 2003, a suspension notice was issued to Ms. McGavin. A hearing was scheduled for November 19, 2003. On November 18, 2003, the Tribes issued a dismissal notice to Ms. McGavin. She subsequently
6 NICS App. 143, TULALIP TRIBES W.F.D. v. MCGAVIN (June 2004) p. 144
moved for a continuance of the suspension hearing. The Court granted the Motion and a hearing was finally held on February 10, 2004. The Court determined that the Notice of Suspension given to Ms. McGavin was untimely and dismissed the suspension. The Court also dismissed the termination based upon the dismissal of the suspension action. The Tribes timely appealed this decision and oral arguments were heard on June 14, 2004. The issue before the Court was whether the Trial Court erred when it dismissed the suspension based upon untimeliness of the issuance of the Notice of Suspension. This Court is holding that the Court was in error and is remanding to the Trial Court for a new trial.
ISSUE
Did the Trial Court err when it dismissed the suspension for untimeliness based upon the violation date that was entered on the suspension notice?
DISCUSSION
The Tribes argue that they are within the time limits set by Human Resources Ordinance 84 (HRO 84), X.A.8, Date for Taking Disciplinary Action which states:
“Disciplinary actions under this Ordinance must be taken within twenty days from the date of discovery of the event or events for which the disciplinary action is taken; or if the event leading to discipline requires investigation, from the date that the investigation is considered complete. (Emphasis added)
The Tribes state that though the results of the test were transmitted orally to them on October 1, 2004, they did not want to proceed until they had written confirmation that the U.A. was positive. They did not receive the written confirmation until October 2, 2004. Appellee does not dispute that the Tribes received the written notice on October 2, 2004.
Appellee argues that the Notice of Suspension issued to her gives October 1, 2003 as the date that the alleged violation occurred and that this date must be the one used by the Court when considering timeliness for the 20-day limit. The Trial Court agreed with this argument, stating in open court that the Tribes could have used any other date for the violation, but since they used October 1, 2003, the Tribes were stuck with the consequences. If they had wanted additional time for discovery, they should have used a different date on the Notice of Suspension. This Court disagrees with that analysis.
In Tulalip Gaming Agency v. Murray, 5 NICS App. 90, the Court determined that the standard of review for review of the legal conclusions of the trial judge were lower than the usual high standard of arbitrary, capricious or unsupported by substantial evidence. The case was an employment appeal matter. The Court was unsure if it found that the trial court erred in its interpretation of law but did not err in the facts, whether they would have to send it back for a new trial. They held that they did not. They stated: “[W]e find that this standard of review
6 NICS App. 143, TULALIP TRIBES W.F.D. v. MCGAVIN (June 2004) p. 145
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.”1 We are making a different legal interpretation in the instant case.
HRO 84 gives the employer 20 days from the date of discovery of a violation or if an investigation is required, from the date that the investigation was complete. It is apparent here that the investigation was ongoing to at least October 2, 2004. The Tribes indicated that they did not want to make any accusations against an employee without concrete, written verification that a violation had occurred. That is consistent with practices which support the best interests of the employees. The fact that the date that the Tribes put on the Notice of Suspension is October 1, 2003, is not unreasonable. That is the date that the test results determined that the blood submitted for analysis contained drugs. Granted the Tribes would have been better served if they had noted on the suspension notice that their investigation was not complete until they obtained the results on October 2, 2003, but we feel that this omission is not fatal to the notice. This Court believes that this omission is harmless error. The Appellee has not shown to the Court that the difference of one day was unduly prejudicial to her. She agreed to the analysis and apparently understood that the results would be sent to an outside lab for analysis. It is not unreasonable to assume that the results would not be known until a day or two after the tests were analyzed to allow for processing and notice to the Tribe. The Tribes have shown that allowing the one day for investigation serves the best interests of the employees of the Tribe and should be compelling in interpreting the law. We agree with this argument.
Based on the foregoing, we are REVERSING the decision of the Trial Court dismissing this action for untimeliness and REMANDING this matter for a new hearing.
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.
Tulalip Gaming Agency v. Murray, 5 NICS App. 90, 92