TULALIP TRIBES v. BILL

8 NICS App. 51, TULALIP TRIBES v. BILL (May 2008)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

The Tulalip Tribes, Appellant (Appellee below),

Jolene D. Bill, Appellee (Appellant below).

No. TUL-Cv-ET-2007-0326 (May 22, 2008)

SYLLABUS^*

Employment court reversed tribal agency’s decision to terminate employee based on mitigating factors. Court of Appeals holds that employment court lacks authority to consider mitigating factors and is required by statute to affirm the employer’s decision when the employer has followed proper procedures. Employment court order reversed and remanded.

Before: Jane M. Smith, Chief Justice; Elizabeth F.M. Nason, Justice; Daniel Raas, Justice.

Appearances: Lisa Koop, for Appellant; Loretta James, Spokesperson for Jolene Bill; Jolene Bill, on her own behalf.

OPINION

Smith, C. J.:

This matter came before the Tulalip Tribal Court of Appeals for Oral Argument on May 2, 2008. Appellant Tribes appeared through spokesperson Lisa Koop. Appellee appeared in person and with spokesperson Loretta James.

SUMMARY

1. Jolene D. Bill was employed by the Tulalip Tribes Cultural Resources Department.

2. On September 5, 2007, Ms. Bill called in to her supervisor and the Tulalip Human Resources Department, leaving a message. Personnel listening to the messages noted her slurred speech. Ms. Bill did not appear for work on that day.

8 NICS App. 51, TULALIP TRIBES v. BILL (May 2008) p. 52

3. Ms. Bill failed to appear for work on September 6, but was on what she though was pre-approved leave. Her supervisor signed the approval on August 29, 2007 but the Executive Director did not sign prior to its submission to Payroll on September 14, 2007. A subsequent leave request was submitted by Ms. Bill on September 12, 2007 and was denied by both her supervisor and the Executive Director on September 14, 2007.

4. Ms. Bill failed to appear for work on September 7, and failed to call in until 3 p.m.

5. Ms. Bill’s failure to appear for work was due to incarceration imposed as a result of a criminal conviction.

6. On September 17, 2007, the Tribes served a notice of dismissal on Ms. Bill. The dismissal was approved by the Cultural Resources Manager, the Executive Director for Natural and Cultural Resources, and the General Manager of the Tulalip Tribes.

7. Ms. Bill filed a Notice of Appeal with the Employment Court on October 2, 2007. A hearing was held on November 21, 2007, and the dismissal was reversed. The Court found that there was no question that Ms. Bill violated HRO V. I.E., but it found mitigating factors to reverse the supervisor’s decision and reinstate Ms. Bill’s employment.

8. The Tribes timely filed an appeal. Briefing was submitted and a hearing held.

The Court of Appeals finds that the Employment Court overstepped its authority and reverses the order of November 29, 2007.

JURISDICTION

The Tulalip Court of Appeals has jurisdiction to hear this matter pursuant to the Tulalip Tribes Law and Order Code and Ordinance 84.

DISCUSSION

The Tulalip Tribes have adopted procedures for employment matters: Ordinance 84, Human Resource (HRO 84). Its purpose is to establish personnel regulations for the Tribe. HRO 84 specifies what conduct will cause disciplinary actions to be commenced and to what degree.

The Dismissal Notice given to Ms. Bill, dated September 17, 2007, listed several minor and major violations:

8 NICS App. 51, TULALIP TRIBES v. BILL (May 2008) p. 53

“Employee missed three consecutive days, one with a call in without valid reason and no supervisor approval, and the other two days with no call in or supervisor approval. This constitutes 3 unexcused absences without approved leave, 2 no call-no shows and abandonment of job. These are multiple minor and major offenses, which has result in your immediate termination as outlined in HRO 84.”

The Notice of Termination was signed by the Department Manager, The Department/Division Manager, Human Resources, and the General Manager. Terminations may be instituted for (1) multiple minor violations, (2) multiple major and minor violations, or (3) single major violation. Minor offenses include tardiness and unauthorized absence less than two hours. Major violations include unauthorized absence more than two hours and abandonment of job (two consecutive working days). Ms. Bill appealed this decision to the Employment Court.

The Employment Court determined that the Tribes had sufficient justification to terminate Ms. Bill. However, the Employment Court then found mitigating circumstances to reverse the decision of the supervisor. The Tribes appealed this decision.

Administrative courts are courts of limited jurisdiction. HRO 84 limits the authority of the Employment Court. HRO 84, X.B.9 explicitly provides that if the employee’s supervisor is found to have followed HRO 84, the decision of the supervisor shall be upheld. HRO 84 does not authorize the trial court to substitute its decision for the decision of the supervisor if the supervisor followed HR 84. Tulalip Housing Authority v. Medina, 6 NICS App. 210. Since there is no allegation or evidence that the process required by Ordinance 84 was not followed, the Employment Court was required to uphold the administrative action dismissing Ms. Bill. Tulalip Housing Authority v. Bill, 6 NICS App. 177

In administrative cases for the Tulalip Tribes, the Employment Court acts as a reviewing court not a fact-finding court, even though the same judges may sit on both courts. As a reviewing court, the Employment Court must limit its scope to a very narrow question: did the terminated employee’s supervisor correctly follow HRO 84? If the Court finds that the supervisor did follow the Ordinance, the Court must uphold the supervisor’s decision. If the supervisor did not follow HRO 84, then the Court is allowed to reinstate the employee with back pay and benefits. If the Tribes had wanted to allow the Employment Court to make other decisions, the Tribe, through their legislature, would have expanded the Court’s authority. Instead, the Tribe recognized that supervisors are in the better position to assess job performance and requirements. The same analysis applies regarding supervisors determinations of employee conduct. The supervisor has the same authority to determine whether employees who are under the Drug Court jurisdiction should have exceptions made when they have violated either the Code or HRO 84. The Employment Court does not have this power, the legislative authority of the Tribes, the Tulalip Board of Directors, has given it to the supervisor. While the Employment Court may sympathize with the employee, it was without authority to use this sympathy to alter the administrative decision so long as the supervisors followed the rules set out in HRO 84.

8 NICS App. 51, TULALIP TRIBES v. BILL (May 2008) p. 54

Since we found sufficient grounds to overturn the Employment Court’s decision on this issue alone, we will not issue any rulings on the other issues that Appellant has raised in its appeal.

Based on this, we find that the Employment Court exceeded its authority by reversing the termination of Ms. Bill. We affirm the appeal and remand this case to the Employment Court for action consistent with this Order.

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.