8 NICS App. 93, FRYBERG v. TULALIP TRIBAL GAMING AGENCY (December 2008)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
Valene Fryberg, Appellee,
v.
Tulalip Tribal Gaming Agency, Appellant.
No. TUL-CV-ET-2008-0109 (December 4, 2008)
SYLLABUS*
Trial court issued order reinstating employee based on employer’s failure to notify employee whether employee had satisfied conditions of a prior disciplinary order. Majority decision of Court of Appeals holds that the employee’s dismissal was based on the employee’s performance subsequent to the prior disciplinary order, and therefore notice of compliance with that prior order could form a basis for reversing the employer’s decision. Minority opinion, concurring in part and dissenting in part, would have remanded for a determination of whether the conduct that constituted the basis for dismissal should have been addressed within the context of the prior disciplinary order. Trial court order reversed by majority decision.
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Jane M. Smith, Chief Justice; Douglas Nash, Justice; John C. Sledd, Justice. |
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Lena Hammons, for Appellant; Valene Fryberg, pro se. |
Majority Opinion by Nash, J.; Smith, C.J., concurs; Sledd, J, files separate opinion concurring in part and dissenting in part.
OPINION
Nash, J.:
This matter came before the Tulalip Tribal Court of Appeals pursuant to the Notice of Appeal filed by the Appellant,1 Tulalip Tribal Gaming Agency, on May 16, 2008. The Notice of
8 NICS App. 93, FRYBERG v. TULALIP TRIBAL GAMING AGENCY (December 2008) p. 94
Appeal met the requirements of the Tulalip Tribal Code. A briefing and hearing schedule was established by order of the Court. A brief was filed by the Appellant. None was filed by the Appellee. Both appeared at the hearing before this Court on September 5, 2008. The Appellant was represented by its Director, Lena Hammons and the Appellee appeared pro se.
Fryberg began her employment with the Tulalip Tribal Gaming Agency (TGA) on June 19, 2002. Beginning in May, 2004, TGA took the first in a number of actions addressing various employee rule violations by Fryberg. Over the next five years, the basis for actions included tardiness and neglect of duty; tardiness and insubordination; tardiness and negligence/careless in the performance of duties; taking more than one meal break during a shift; not completing checklist duties and requirements; signing in at QCCC on days assigned to work at Tulalip Casino; unable to contact during shift due to failure to carry a radio and/or cell phone; not completing seven TGA reports in a timely manner; negligence or carelessness in the performance of duties; and impeding the efficiency of the Tribal organization. The sanctions for these rule violations took various forms including written and verbal warnings, suspensions, a “Last Chance Agreement,” and notice of excessive absenteeism/tardiness. Fryberg was also referred to Alternative Resource Management (ARM’S) for excessive tardiness, excessive sick leave, and suspicion of alcohol use.
On October 25, 2007, Fryberg and TGA entered into a “Last Chance Agreement” which required that Fryberg complete two checklists per shift, complete reports in a timely manner, not take more than one meal break per shift, sign in at assigned duty station and carry a radio and/or cell phone at all times while on duty. By its terms, the “Last Chance Agreement” would expire January 23, 2008.
A “Last Chance Agreement” is authorized under the Tribe’s Human Resource Ordinance, section IX.C.4. A department supervisor, with specified approval and review,2 may place an employee on a “Last Chance Agreement” as an alternative to dismissal, for a period not to exceed 90 calendar days. The agreement must specify why the employee is being placed on probation and what criteria the employee must meet in order to be removed from the agreement. “At the end of a satisfactory ‘Last Chance Agreement’ period or any time preceding, the employee will be informed in writing that the employee has satisfactorily completed the probation or that the employee is being dismissed.”3 Upon the expiration of the term of the “Last
8 NICS App. 93, FRYBERG v. TULALIP TRIBAL GAMING AGENCY (December 2008) p. 95
Chance Agreement,” Fryberg was not provided with any communication regarding the satisfactory completion of the agreement or whether she would be terminated.
On February 29, 2008, Fryberg was served with a Notice of Dismissal. The Notice of Dismissal listed the following violations of regulations, policies and procedures as grounds for dismissal:
1. HRO 84, XA.3.b.2: Discipline Procedure, Major Offenses: “Second major offense of any time: Dismissal.”
2. HRO 84, IX.D.1.P: “Violation of any employment rule, including the rules, regulations and procedures of your department. Violation of the TGA Code of Ethics/Conduct, specifically:
Procedure 18: TGA employees will promptly address directives received through the chain of command.
Procedure 6: TGA employee will assume the responsibility and accountability of his/he act or omission to act.
Procedure 20: Any violation of this policy may be subject to disciplinary action as outlined in HRO 84.
3. HRO 84, IX.D.1.P: “Violation of any employment rule, including the rules, regulations and procedures of your department.” Specifically, violation of the TGA oath of office.
4. HRO 84, IX.D.1.A: “Negligence or carelessness in the performance of duties.”
5. HRO 84, IX.D.2.U: “Impeding the efficiency of the Tribal organization.”
These violations and the Notice of Dismissal were based upon the discovery by Fryberg’s supervisor, Vance Purvis that Fryberg started, but failed to complete, three Incident Log Reports. The respective entry dates for these reports are January 5, January 6, and January 22, 2008. These incomplete reports were discovered by Purvis on February 21, 2008. Purvis recalled that Fryberg had been party to a “Last Chance Agreement” and contacted her previous supervisor, Paul Wunders, in the belief that the “Last Chance Agreement” was still in effect. Wunders informed Purvis that the agreement was not in effect.
The Notice of Dismissal was received and signed by Fryberg on February 29, 2008.
8 NICS App. 93, FRYBERG v. TULALIP TRIBAL GAMING AGENCY (December 2008) p. 96
On March 14, 2008, Fryberg filed two Notices of Appeal and Request for Appeal Hearing in the Tulalip Tribal Employment Court. Following a May 5, 2008 hearing, the Tulalip Employment Court entered Findings, Conclusions and Order in the case.
The Employment Court appropriately noted that its role in an employment appeal is to determine whether the supervisor or administrator has followed the procedures outlined in HRO 84 and, that if the procedures have been followed, the court is required to uphold the decision of the supervisor or administrator. HRO 84 X.11. It necessarily follows that if the procedures are not followed, the decision will not be upheld. Id. The Employment Court held that because the TGA did not give the required notice to Fryberg under HRO IX.C.44, the procedures were not followed. The Court specifically noted that the dismissal notice referenced the “Last Chance Agreement” of October 19 (sic), 2007, but that the notice of dismissal concluded that the “Last Chance Agreement” was not in effect. Consequently, the Court ordered that Fryberg be reinstated to her position with back pay and the action expunged from her personnel file. Tulalip Employment Court, Findings, Conclusion and Order, May 6, 2008. Thereafter, TGA appealed that decision to this court.
An initial consideration for this court is whether this appeal is moot. Although a defendant’s voluntary discontinuance of challenged behavior does not ordinarily render a case moot, U.S. v. W.T. Grant, 345 U.S. 629 (1953), a case may become moot on appeal when a Defendant-Appellant voluntarily agrees to provide all the relief Plaintiff has requested and there is no risk of further harm to the Plaintiff. Board of Regents v. New Left Education Project, 414 U.S. 807 (1973), reversing as moot New Left Education Project v. Board of Regents, 472 F.2d 218 (5th Cir. 1973); Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996); see generally, Wright, Miller & Cooper, Federal Practice and Procedure, Civil §§ 3533.2, 3533.10. This is not the case here. TGA has stated that, if it prevails on appeal, it will not reinstate the dismissal of Ms. Fryberg, and will not seek to recover wages and benefits paid pending appeal. TGA has not agreed, however, that it would expunge the dismissal from Ms. Fryberg’s file, nor has it agreed never to rely on that dismissal as a factor in future employment decisions. In these circumstances the appeal is not moot. Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F. 3d 1082, 1085 (9th Cir., 2000) (not moot where defendant provides less than all relief requested); Armster v. U.S. District Court, 806 F.2d 1347 (9th Cir. 1986) (not moot where conduct discontinued but defendant maintains conduct not wrongful); see, Willard v. Ciccone, 507 F. 2d 1 (8th Cir. 1974) (suit to expunge prisoner’s disciplinary record mooted by prison’s voluntary expungement of all records).
The single remaining issue is whether Fryberg’s dismissal was proper in light of the “Last Chance Agreement” entered into between the parties on October 25, 2007. Fryberg contends
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that because she received no writing from TGA advising her that either she had satisfied the terms of the agreement or that she was being dismissed, she could not be terminated pursuant to the notice of termination she received on February 29, 2008.
In determining whether the procedures specified in HRO 84 X.11 were followed, the Employment Court looked at the “Last Chance Agreement” and held that the notice of dismissal was not proper since it was not delivered at the end of the agreement period and, consequently, that the procedures in HRO 84 X.11 were not followed. Accordingly, the Employment Court ordered that the termination of Fryberg be reversed, that she be reinstated to her position with back pay, and that the action be expunged from her personnel file.
TGA contends that the Employment Court was in error to even make reference to the “Last Chance Agreement” because a “Last Chance Agreement” is not part of any mandatory process for disciplining or dismissing employees.5 TGA asserts that it was an extra step TGA took in an effort to assist Fryberg in addressing issues that had resulted in previous disciplinary measures and to retain her as an employee. In addition, TGA argues that the Notice of Dismissal was not based upon any action that was the subject of the “Last Chance Agreement,” but different rule violations that were discovered February 21, 2008.6
We agree with TGA. If the dismissal was based upon Fryberg’s failure to satisfy the terms of that agreement, then compliance with the procedures governing “Last Chance Agreements” would be relevant. In this instance, the dismissal was based upon actions that were not within the scope of the “Last Chance Agreement” and which were discovered subsequent to the termination date of the “Last Chance Agreement.” A “Last Chance Agreement,” whether properly concluded or not, does not provide an employee with immunity from disciplinary actions discovered subsequent to the termination date of that agreement.
The decision of the Tulalip Tribal Employment Court is hereby reversed.7
8 NICS App. 93, FRYBERG v. TULALIP TRIBAL GAMING AGENCY (December 2008) p. 98
Sledd, J., concurring in part and dissenting in part:
I concur in the reversal, but for different reasons than the majority. I would remand to the Employment Court for a new hearing.
Appellee Valene Fryberg was placed on a Last Chance Agreement for failure to complete required checklists within the required time. The Agreement required her to complete such checklists and give them to her supervisor by the end of the following shift. It also required her more generally to complete reports in a timely manner. During the term of the Agreement Ms. Fryberg again failed to file reports on time. For failure to provide timely reports, she was fired.
Under the terms of Ordinance 84, the Gaming Agency was required to complete a written evaluation of Ms. Fryberg’s performance at or before the expiration of the Last Chance Agreement, and to give her a notice that she had either complied with the terms of the Agreement and would be retained, or had not done so and would be fired. During and after the term of the Agreement, TGA failed to provide the required notice. Thereafter it fired Ms. Fryberg. For TGA’s failure to comply with the terms of Ordinance, the firing was reversed by the Employment Court.
The function of the Employment Court and this Court in reviewing the Tribes’ termination of an employee is limited to determining whether the employer followed the terms of Ordinance 84. It is undisputed that TGA did not follow the terms of Ordinance 84 because it did not provide Ms. Fryberg the required notice at or before the end of her last chance agreement. The question is the legal consequence of that omission.
TGA argues and the majority agrees that compliance with the Last Chance Agreement and related Ordinance provisions are not relevant to the firing because the Agreement was an optional action, and that TGA’s failure to follow the law regarding an optional action cannot be the basis for reversal of its decision. I disagree. Entering the Agreement was optional, but once TGA chose to do so it was obliged to follow the Agreement and those parts of Ordinance 84 which authorized the Agreement. 8
I also disagree with the majority’s determination that the Agreement is irrelevant because Ms. Fryberg was fired for conduct outside its scope. The additional misconduct that was the basis for termination was the failure to complete three reports in January and February, 2008. As the termination notice says, “this same problem was addressed in the Last Chance Agreement,”
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which was also instituted because of a reporting omission – the failure to file timely checklists in September, 2007.
Had Ms. Fryberg been fired for conduct after the Last Chance Agreement expired, or of a type different than what the Agreement covered, I might agree that TGA’s violation of the Agreement and related Ordinance requirements was irrelevant, but that is not the case.
This, however, does not resolve the matter. At oral argument TGA pointed out that the Ordinance allows it to impose discipline up to twenty-five business days after misconduct is discovered. This provision is in tension with the law’s requirement that, at or before the expiration of a last chance agreement, a decision be made and notice given to either terminate or retain the employee. It is this Court’s task to harmonize these conflicting provisions if possible, so that each is given effect.
A reading of the Ordinance that required a notice to terminate at or before the expiration of a last chance agreement, regardless of whether there was as-yet-undiscovered misconduct covered by the agreement, would read the twenty-five day discovery rule out of existence. It would also reward an employee for his or her ability to conceal misconduct until the agreement expired. On the other hand, a reading of the law that allowed the employer to terminate after the agreement expired, provided the termination came within twenty-five days after the misconduct, would read out of existence the time limit for notification imposed by the Agreement and the Ordinance. Such an interpretation would also reward TGA’s inattention to employee performance.
I would resolve the tension between these sections of the Ordinance by holding that an employee may be fired for misconduct that occurs during, and is of the type covered by, a last chance agreement, provided the firing occurs before expiration of the agreement, or within twenty-five business days after the employer reasonably should have discovered the misconduct, whichever is later. This interpretation gives life to both provisions of the Ordinance and encourages both TGA and its employees to diligently perform their functions for the Tribes.
Because the Employment Court’s decision was made without regard to the twenty-five day discovery rule, I concur in the decision of the majority to reverse. I would, however, remand for a determination whether TGA reasonably should have discovered Ms. Fryberg’s incomplete reports in its database and acted upon them before the expiration of the Last Chance Agreement. Because the majority would reverse outright, I dissent in part.
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.
The Tulalip Tribal Gaming Agency was the Appellee before the Employment Court, but is the Appellant before this court. Ms. Fryberg, the Appellant below, is the Appellee here.
There has been no claim by Appellee that there were any deficiencies in the issuance of the “Last Chance Agreement”.
The wording of this provision is worthy of some legislative attention. By its terms, the time for notice that the agreement has satisfactorily been completed or that the employee is being dismissed is “at the end of a satisfactory ‘Last Chance Agreement’ period. . .” Presumably, if the agreement period is completed in satisfactory form, there would not be a notice of dismissal.
“At the end of a satisfactory ““Last Chance Agreement”” period or any time preceding, the employee will be informed in writing that the employee has satisfactorily completed the probation or that the employee is being dismissed.”
The provision in the HRO regarding “Last Chance Agreement”s is permissive – “A department supervisor . . . may place an employee on a “Last Chance Agreement” . . . “ HRO 84 IX C.4.
Dismissals must take place within 25 business days from the date of discovery of the event or events for which the disciplinary action is taken. HRO X A.9
Despite the rather confusing language of HRO 84 X.B.12 that suggests that the “jurisdiction” of this Court may be limited to ordering a new trial, there is no need for the Employment Court to hold a new trial when, as here, there are no material facts in dispute and our decision reversing the Employment Court is based entirely on the proper interpretation of the governing law. See Tulalip Tribal Gaming Agency v. Halfmoon and Stamp, 7 NICS App. 143, 147 – 149 (Tulalip Tribal Ct. App. 2006); Tulalip Tribal Gaming Authority v. Murray, 5 NICS App. 90, 91 – 92 (Tulalip Tribal Ct. App. 1998). See also, Tulalip Housing Authority v. Bill, 6 NICS App. 177 (Tulalip Tribal Ct. App. 2004); Tulalip Housing Authority v. Medina, 6 NICS App. 210 (Tulalip Tribal Ct. App. 2004).
TGA also notes that the termination notice and the agreement cited violations of different employment rules. Both relied on the same type of employee conduct, however – the failure to make timely reports.