8 NICS App. 1, FERRIS v. HOOPA VALLEY TRIBE (January 2007)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
Boyd J. Ferris, Plaintiff/Appellant,
v.
Hoopa Valley Tribe, Defendant/Appellee.
No. C-06-010/A-06-003 (January 2, 2007)
(Reconsideration denied February 16, 2007)
SYLLABUS*
Trial court dismissed tribal employee’s complaint for wrongful termination, ruling that the date the employee received notice of termination was the date of termination under the statute, and employee’s failure to file his complaint within statutory timeframe deprived the court of subject matter jurisdiction. Court of Appeals holds that when an employee pursues an administrative grievance procedure provided by statute, the date of termination is the date that the employee exhausts his/her administrative remedies. Trial court order reversed and remanded for further proceedings.
Before: Eric Nielsen, Chief Justice; Lisa Brodoff, Justice; Suzanne Ojibway Townsend, Justice.
OPINION
I. Introduction
Appellant Boyd Ferris filed a notice of appeal on June 14, 2006. Mr. Ferris appeals the trial court’s order entered on May 26, 2006 dismissing his wrongful termination complaint.
We reverse the Tribal Court’s Order of Dismissal and remand for further proceedings consistent with this opinion.
8 NICS App. 1, FERRIS v. HOOPA VALLEY TRIBE (January 2007) p. 2
II. Factual Background and Procedural History
Boyd Ferris, a member of the Hoopa Valley Indian Tribe, was employed by the Tribe’s Public Utility District. On January 23, 2006, Mr. Ferris received a notice of termination of his employment with the District. Mr. Ferris alleged that three days later, on January 26, 2006, he filed a grievance of his termination with his immediate supervisor and later submitted his grievance to the Tribal Chair. Because he was not reinstated, on February 27, 2006, more than 30 days after the date of the notice of termination, Mr. Ferris filed a complaint for wrongful termination with the Hoopa Valley Tribal Court.
The Tribe moved to dismiss Mr. Ferris’ wrongful termination complaint as untimely. The Tribe argued that because more than thirty days had elapsed between the date Mr. Ferris received his notice of termination (January 23, 2005) and the date he filed his complaint (February 27, 2005), his suit was time barred under 2 HVTC §2.3.13(b). By order dated May 26, 2006, the trial court granted the Tribe’s motion and dismissed Mr. Ferris’ wrongful termination complaint. The court ruled that because Mr. Ferris’ complaint was filed more than 30 days from the date he received the notice of termination, his complaint was time barred and therefore the court lacked subject matter jurisdiction.
III. Standard of Review
Decisions by the trial court are divided into three categories for purposes of the standard of our review: questions of law (reviewable de novo); questions of fact (reviewable for clear error) and matters of discretion (reviewable for “abuse of discretion”). Hoopa Valley Housing Authority v. Doolittle, 7 NICS App. 45 (Hoopa Valley Tribal Ct. App. 2005) at 3; Dodge v. Hoopa Valley Gaming Commission, 7 NICS App. 51 (Hoopa Valley Tribal Ct. App. 2005) at 3.
The trial court’s findings of fact are not clearly erroneous; however, the trial court did not address or discuss the alleged grievances Mr. Ferris filed with his supervisor and the Tribal Chair prior to filing his complaint. Based on its findings of fact, the trial court concluded as a matter of law that under 2 HVTC §2.3.13(b) Mr. Ferris had only thirty days from January 23, 2005, the date on which he received his notice of termination, to file his complaint. The trial court ruled that Mr. Ferris’ complaint, filed on February 27, 2005, was time barred and therefore it had no subject matter jurisdiction pursuant to 1 HVTC §1.1.04(f). We review this question of law de novo.
IV. DECISION
This appeal requires us to interpret and apply the several Hoopa Valley Tribal Code provisions that govern the Tribe’s employment termination grievance and appeal processes.
8 NICS App. 1, FERRIS v. HOOPA VALLEY TRIBE (January 2007) p. 3
Three sections of the Hoopa Valley Tribal Code Personnel Policies, 30 HVTC § 9.2, 30 HVTC §9.3 and 30 HVTC §15.1, are relevant to this case. Those sections provide in relevant part:
30.9.2 EMPLOYEE GRIEVANCE PROCEDURE
Within five (5) calendar days following any disciplinary action or termination of employment, the employee may submit in writing to his ore her immediate supervisor a summary of the reasons and any documentary evidence supporting why the said action should not have been taken against the employee. If the process does not resolve the grievance to the employee’s satisfaction, the employ may submit a written grievance to the Program manager of the immediate department for which the employee works. If the Program manager of the immediate department of which the employee works does not respond within ten (10) calendar days, the prior decision shall be deemed to be upheld. Failure of the disciplined or terminate employee to follow the specified time lines shall constitute an automatic withdrawal of the grievance. With the exception of persons who have been terminated as described in §9.3 of this Ordinance, the program manager’s decision shall be final. The employee’s submission and any supervisor responses will be kept in the employee’s file. * * *
30.9.3 TERMINATED EMPLOYEES/PROGRAM MANAGERS
This section shall only apply in cases where an employee or program manager (sic) employment has been terminated. After appealing a termination according to the time frames set out in * * * §9.2 of this section all non-introductory, full-time or part-time, regular employees and program managers if they choose to appeal their grievance may file a complaint in the Hoopa Valley Tribal Court according to §15.1 of this Title. Terminated employees shall have thirty (30) calendar days from the date of termination to file a complaint with the Hoopa Valley Tribal Court. * * * All untimely complaints shall be dismissed and the Hoopa Valley Tribal Court shall have no jurisdiction over the matter. (emphasis added).
30.15.1 CIVIL ACTIONS
All non-introductory, full-time regular employees and managers may file non-frivolous complaints related to their termination from employment with the Hoopa Valley Tribe in accordance with 1 Hoopa Valley Tribal Code §1.1.04(f). Complaints must be filed with the Hoopa Valley Tribal Court within thirty (30) days of the date of termination. * * * The complaint shall be subject to the statute of limitations described in 2 Hoopa Valley Tribal Code §2.3.13(b). (emphasis added).
8 NICS App. 1, FERRIS v. HOOPA VALLEY TRIBE (January 2007) p. 4
The above cited code provisions reference both 2 HVTC §2.3.13(b) and 1 HVTC §1.1.04(f).1 In 1 HVTC §1.1.04(f), the Tribe has waived its sovereign immunity for suits based on wrongful termination. The limited waiver is conditioned on timely filing a complaint under 2 H.V.T.C §2.3.13(b).
Under 2 HVTC § 2.3.13(b), a wrongful termination complaint must be filed within 30 days of the “date of the employee’s termination.”
(b) * * * no complaint shall be filed in an action brought pursuant to §1.1.04(f) unless the complaint is filed within 30 days of the date of the employee’s termination.
2 HVTC §2.3.13(b) (emphasis added).
The Personnel Policy provisions allow an employee who receives a notice of termination an opportunity to seek both an internal administrative review and judicial review of the termination decision. Under 30 HVTC §9.2, if an employee chooses, the employee may seek an administrative review of a termination decision by submitting a written grievance to his or her immediate supervisor, providing reasons and “documentary evidence” to support a reversal of the termination notice. Id. The written grievance must be submitted within 5 days of the termination of employment. Id. The code, however, does not impose any time limits on either the employee or supervisor to perform any act in this stage of the grievance process.
If the grievance is not resolved with the employee’s immediate supervisor, the employee may then submit a written grievance to “the program manager of the immediate department for which the employee works.” 30 HVTC §9.2. Under this second part of the administrative grievance process, the code provides a ten day time limit. Specifically, if the program manager does not respond to the grievance within ten (10) calendar days then “the prior [termination] decision shall be deemed to be upheld.” Id.
After appealing a termination decision to the supervisor and program manager under 30 HVTC §9.2, an employee who is not satisfied with the outcome may then file an appeal from the termination decision to the tribal court, provided the appeal is filed within 30 days of the “date of
8 NICS App. 1, FERRIS v. HOOPA VALLEY TRIBE (January 2007) p. 5
the termination.” 30 HVTC §9.3. The appeal, which is filed in the form of a complaint, is likewise subject to the 30-day statute of limitations found in 2 HVTC §2.3.13(b).2 The 30-day time limit in 2 HVTC §2.3.13(b) is important because the Tribe only waives its sovereign immunity for complaints filed within that time limit. 1 HVTC §1.1.04(f).3
It also appears that a terminated employee may seek direct judicial review of the termination decision under 1 HVTC §1.1.04(f) and 30 HVTC §15.1 without first using the administrative grievance procedures in 30 HVTC §9.2. Those code provisions likewise reference the time limit in 2 HVTC §2.3.13(b). Thus, if the employee chooses to directly challenge the termination decision in the tribal court, the employee must file a complaint alleging wrongful termination “within 30 days of the date of the employee’s termination.” 2 HVTC §2.3.13(b).4
There appears to be a conflict in the codes that govern review of terminations. On the one hand, an employee is required to file an appeal of a termination “within 30 days of the employee’s termination” in order to preserve the right to judicial review following the administrative grievance process in 30 HVTC §.9.2. On the other hand, because 30 HVTC §9.2 places no time limits on the first step in this administrative grievance process, it is possible that the process may last longer than 30 days from the date the employee receives the termination notice. Because of this apparent conflict, our duty is to determine whether it is possible to interpret the provisions to give them all effect and to resolve the apparent conflict.
Where two or more existing code provisions appear to conflict, we have a duty to harmonize them to give effect to each code provision, if by doing so we preserve the sense and purpose of the code provisions and the code as a whole. See e.g., Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981). When two code provisions are capable of co-existence, unless the Tribal Council has clearly expressed its intent to the contrary, it is the duty of this court to regard each code provision as effective. See e.g., Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974).
Our starting point for the interpretation of any code provision must always be the plain language and ordinary meaning of the code provision. See e.g., Robinson v. Shell Oil Co., 519
8 NICS App. 1, FERRIS v. HOOPA VALLEY TRIBE (January 2007) p. 6
U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). This court’s primary duty in interpreting any provision of the Hoopa Valley Tribal Code is to discern and implement the intent of the Tribal Council that enacted the code provision. See e.g. Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The language of the code provision itself provides the most reliable evidence of the intent of the Tribal Council. See e.g., United States v. Turreted, 452 U.S. 576, 593, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). In interpreting a code provision, we will consider not only the “bare meaning" of a critical word or phrase, but we will also look to the placement and purpose of the word or phrase within its context in the tribal code. See e.g., Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).
1 HVTC §1.1.04(f) describes the Tribe’s limited waiver of sovereign immunity with respect to suits for wrongful termination. Whether an employee appeals from an adverse decision after going through the administrative grievance process in 30 HVTC §9.2 and § 30.9.3, or foregoes the internal grievance process and files a complaint directly in the tribal court under 30 HVTC §15.1, 1 HVTC §1.104(f) provides that the trial court has no jurisdiction to hear the matter unless the complaint is filed “within 30 days of the date of the employee’s termination” pursuant to 2 HVTC § 2.3.13(b). In order to calculate the beginning date of the 30-day period that triggers the statute of limitations and prohibits the court’s jurisdiction, we must determine the meaning of the phrase “the date of the employee’s termination.”
The intent of 30 HVTC §9.2 is to provide an employee who receives a termination notice with an administrative grievance procedure. The two-step administrative grievance procedure is complete only after the program manager (the second step in the grievance process) responds to the grievance or, after ten days have elapsed, fails to respond to the grievance. Id. If the program manager fails to respond within ten calendar days, “the prior decision shall be deemed upheld.” Id. At any point during the grievance process before the program manager has made either an adverse decision or has failed to respond within the ten-day period, the termination decision can be reversed. Because the termination decision can be reversed at any time during the grievance process, the termination decision does not become final until the decision is “upheld” either because the program manager issues a decision agreeing with the termination notice or fails to respond within ten calendar days after the grievance is filed.
This interpretation of 30 HVTC §9.2 is also consistent with the language in 30 HVTC §9.3. That provision gives an employee the right to appeal a termination decision to trial court, after grieving the termination in compliance with 30 HVTC §9.2.
We find it is possible to harmonize and give effect to the various code provisions by holding that the “date” of termination referenced in 30 HVTC §9.3, 30 HVTC §15.1 and 2 HVTC §2.3.13(b) means the date when the termination decision becomes final. Thus, if an employee chooses to exercise the right to use the administrative grievance procedures and grieves to the program manager, the termination decision only becomes final when the manager
8 NICS App. 1, FERRIS v. HOOPA VALLEY TRIBE (January 2007) p. 7
either affirmatively upholds the prior termination determination or ten calendar days after the grievance is submitted to the manager if the manager does not respond to the grievance. If, however, an employee chooses not to use the administrative grievance process, the termination decision is final on the first day following the day an employee’s right to file a grievance under 30 HVTC §9.1 and 30 HVTC §9.25 has elapsed.6 This interpretation harmonizes the various code provisions and is consistent with the Tribe’s intent to provide both an administrative grievance procedure to resolve employment termination disputes and judicial review of a termination decision.
The Tribe argues that “date of the employee’s termination” as used in 2 HVTC § 2.3.13(b) means the date of the notice of termination regardless of whether an employee timely invokes the administrative grievance procedures. If we were to adopt that argument, a supervisor could simply deny an employee who chooses to use the administrative grievance process the right to judicial review of an adverse decision by delaying the decision on the grievance until after 30 days has passed from the date of the notice of termination. We do not believe that is what the Tribal Council intended. The language of the relevant code provisions shows just opposite: a legislative intent to allow an employee to appeal to the court an adverse decision following an administrative grievance.
In its order, the trial court ruled that an employee who receives a termination notice must file an appeal with the tribal court within 30 days of the date of the notice. Its decision was based solely on its interpretation of 1 HVTC §1.1.04(f) and 2 HVTC § 2.3.13(b). It failed to discuss 30 HVTC §9.2 in its analysis. Because the trial court failed to address 30 HVTC §9.2, it understandably made no findings of fact regarding Mr. Ferris’ allegation that he timely filed an administrative grievance and therefore he timely filed his complaint following the administrative grievance process. Findings on Mr. Ferris’s allegations are necessary to determine the date of his termination and consequently whether his complaint was timely filed. Therefore, the trial court’s order is reversed and the case remanded to determine whether Mr. Ferris’ complaint was timely filed consistent with this opinion.
V. CONCLUSION AND ORDER
The Order of Dismissal is reversed. This matter is remanded to the trial court for further findings and proceedings consistent with this opinion.
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.
1 HVTC §1.1.04(f), Limited Waiver of Sovereign Immunity for Tribal Employee Wrongful Termination Civil Complaints, provides:
The Hoopa Valley Tribe hereby makes a limited waiver of sovereign immunity for actions brought in the Hoopa Valley Tribal Court solely based on the employee’s wrongful termination from employment. * * * This limited waiver of sovereign immunity shall only apply to timely filed complaints in accordance with 2 H.V.T.C §2.3.13(b). If a complaint is not filed according to 2 H.V.T.C §2.3.13(b), this Court shall have no jurisdiction over the suit and it shall be dismissed.
2 HVTC §2.3.13(b) requires that a wrongful termination complaint be filed within 30 days of the “date of the employee’s termination.”
This waiver of immunity is limited to money damages against the Tribe for actual unpaid wages and benefits not to exceed an amount equal to one (1) years wages of the employee. 1 HVTC §1.1.04(f).
Whether these provisions in fact allow an employee to file a wrongful termination suit in the tribal court without first going through the administrative grievance process in 30 HVTC §9.2 is a question we do not need to decide to resolve this case. We mention it, however, to illustrate another instance where the codes lack clarity regarding personnel issues. We note the Tribe’s legal counsel suggests that filing a grievance is not a prerequisite to filing a wrongful termination suit and that both the grievance procedure and a wrongful termination suit could occur at the same time.
Those provisions require that a grievance be filed within five days from the date of the termination notice. See, 30 HVTC §9.2 (“Within five (5) calendar days following any disciplinary action or termination of employment, the employee may submit in writing to his or her immediate supervisor a summary of the reasons and any documentary evidence supporting why the said action should not have been taken against the employee.”).
We reiterate that we do not reach the issue of an employee’s right under 30 HVTC §15.1 and 1 HVTC §1.1.04(f) to file a wrongful termination suit in tribal court without first filing a grievance.