9 NICS App. 50, SHELDON v. TULALIP YOUTH SERVICES (February 2010)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
Brandy Sheldon, Appellant,
v.
Tulalip Tribes Youth Services, Appellee.
No. TUL-CV-ET-2009-0311 (February 8, 2010)
SYLLABUS*
Employment Court issued order upholding tribal employer’s dismissal of employee based on employee’s abandonment of job as defined by tribe’s Human Resources Ordinance. Court of Appeals holds (1) employee’s receipt of actual notice of the appeal process excuses missing initials of supervisor on form; (2) Employment Court’s findings were adequately supported by evidence in the record; and (3) agency action is entitled to a presumption of regularity and parties subject to adverse agency action bear the burden of producing evidence of irregularity of impropriety. Employment Court order affirmed.
Before: Jane M. Smith, Chief Justice; Douglas Nash, Justice; Daniel A. Raas, Justice.
Appearances: Richard Okrent, for Appellant; Timothy Brewer, for Appellee.
OPINION
Nash, J.:
Appellant is an enrolled member of the Tulalip Tribes and was employed by the Tulalip Tribal Youth Services program from 2005 until she was dismissed on June 10, 2009. She was dismissed for Abandonment of Job, HRO 84 XL.B.27. A hearing was held before the Employment Court on July 20, 2009, before Tulalip Tribal Court Judge Theresa Pouley. A decision was rendered on July 27, 2009, upholding Appellant’s dismissal. This appeal was timely filed on July 31, 2009.
9 NICS App. 50, SHELDON v. TULALIP YOUTH SERVICES (February 2010) p. 51
FACTS
The record below establishes the following facts.
Appellant was terminated for failing to report to work and failing to contact her supervisor on the employee call-in line for two consecutive days – June 8 and 9, 2009. On June 8 she clocked into work at 11:57 AM instead of her scheduled start time of 9:00 AM. Appellant testified that she went to her office, checked her calendar, used the phone and left shortly thereafter because she had what she referred to as “a nervous breakdown.”
Contrary to Appellant’s testimony, a co-worker testified that she observed the Appellant arrive, clock in, walk to the office of one of her relatives and then leave the building five or ten minutes later.
Appellant contends this was a result of insomnia and its attendant effects – a condition for which she had produced a doctor’s note saying she had insomnia and that it could be expected that she may have difficulties at work as a result. As a result of that note, her work schedule was adjusted.
Appellant testified that she did not contact her supervisor because her supervisor was not there. She further testified that she left a message the next day but could not substantiate the date or time of the call and that she did not call the call-in line, did not email, leave a message or otherwise contact her immediate supervisor.
On June 9, Appellant did not report for work, did not contact her supervisor, did not call the employee call-in line and did not request leave.
Appellant next arrived at work on Friday, June 12, 2009, to pick up her check. She was served with notice of termination at that time.
STANDARD OF REVIEW
The Court of Appeals review is to determine whether the Employment Court's decision is arbitrary, capricious or unsupported by substantial evidence. HRO 84.X.B.12
ISSUES
In her Notice of Appeal dated June 26, 2009, Appellant raises two issues: (1) that the dismissal notice was defective because the box indicating that the appeal notice had been attached was not initialed by any tribal official; and (2) that she had not abandoned her job because she had clocked in on June 8, that on the 9th she left a voice mail for her supervisor, that she had a doctor’s note stating she may have difficulties with her work due to insomnia, and that
9 NICS App. 50, SHELDON v. TULALIP YOUTH SERVICES (February 2010) p. 52
she should have been given a warning or had a discussion regarding her attendance prior to dismissal.
1. Defective Dismissal Notice
The lower court, relying upon undisputed testimony, held that the line reading “Attach Appeal Notice” on the Dismissal Notice need not be initialed. A supervisor’s initials in the appropriate place are not a requirement of the HRO although an employee must be given a copy of the appeal process. It was established that the form and copy of that process was given to the Appellant and explained to her. The decision of the lower court on this issue is affirmed.
2. Abandonment of Job
Appellant was dismissed for abandonment of her job. Abandonment is defined at H.R.O. 84 XL.B.27 as follows:
An employee who fails to report to work or has not personally contacted the immediate supervisor for two full working days or shifts will be considered to have separated/abandoned from the job. An employer [sic] who has abandoned the job may be terminated immediately.
The lower court correctly held that the provisions of this statute are disjunctive. An employee can violate this provision by either failing to report to work or not personally contacting their immediate supervisor for two full working days. The lower court upheld Appellant’s termination on the latter provision. It was established that the Appellant had not personally contacted her immediate supervisor by any means including utilizing the call-in line. It appears that appropriate use of the call-in line would be a satisfactory substitute for personal contact with an immediate supervisor because the information called in is directed to the employee’s supervisor. There is no doubt that Appellant knew of the call-in line procedure. The record contains a form detailing those procedures that was signed by Appellant on December 11, 2008. In addition, Appellant signed an Assurance Agreement on November 7, 2005, verifying that she received a copy of HRO 84, that she understood it and agreed to abide by all policies and procedures.
It having been established that Appellant did not personally contact her immediate supervisor on June 8 – 9, there is no need to consider whether clocking in for work 3 hours late and leaving 5 – 10 minutes later constitutes reporting to work.
The other issues raised by Appellant with regard to the abandonment issue are of no consequence. The doctor’s note was the basis for adjusting the Appellant’s work hours so there was obviously some discussion about its significance. By itself, the note does not eliminate or change Appellant’s obligations as an employee of the Tribe. Similarly, Appellant’s claim that she should have been given warnings about her attendance is of no avail in light of Appellant’s
9 NICS App. 50, SHELDON v. TULALIP YOUTH SERVICES (February 2010) p. 53
own confirmation that she had earlier received a copy of the HRO, that she understood its provisions and requirements and agreed to abide by them.
ISSUE RAISED ON APPEAL
Appellant raises for the first time on appeal a claim that there was insufficient evidence of Human Resources Department review of the termination notice based upon HRO 84 IX.c.6 which states:
Dismissal (Involuntary Termination): A supervisor of an employee, with the approval of the department or division manager, and a completed review by Human Resources with an authorized signature to proceed, shall forward the Termination (sic) form to the General Manager for final approval . . .
Appellant contends that the “burden is on the Tribal Agency to demonstrate that there is substantial evidence to support its findings that termination was the only appropriate remedy that could have been used with the tribal worker.” Reply Brief of Appellant, p. 3. Appellant further contends that this denies her procedural due process as required under the Constitution and that “Due process claims which affect a substantial right may be raised on appeal for the first time, because they seriously affect a substantial constitutional right and affect the fairness, integrity, or public reputation of all judicial proceedings.” Id. at 5. This court disagrees with these contentions for several reasons.
First, it is long established that the provisions of the United States Constitution do not impose limits or restrictions upon the actions of tribal governments because tribal powers are inherent and not derived from the U.S. Constitution. Talton v. Mayes, 163 U.S. 376 (1896).
Second, the due process argument is necessarily based upon a property right being affected. The Tulalip Tribe has specified that employees do not have a property right in their employment. HRO 84.X.B.8.
Finally, Appellant’s contention that the tribal agency has the burden of establishing that the action taken was appropriate is contrary to the established rule of law. The action of a governmental agency is entitled to a presumption of regularity. National Archives and Records Administration v. Favish, 541 U.S. 157, 174 (2004); Bowen v. Am. Hosp. Assn., v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, n. 9 (1983). Absent clear and credible evidence of improper agency action produced by the challenging party, courts will presume that governmental employees have properly discharged their official duties. United States v. Armstrong, 517 U.S. 456, 464 (1996); United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). The record in this case is facially sufficient and thus the burden was upon the Appellant to produce evidence of irregularity or impropriety by the Human Resources Department or its agent in the review of the dismissal at issue. That was not done either here either at trial.
9 NICS App. 50, SHELDON v. TULALIP YOUTH SERVICES (February 2010) p. 54
Consequently, even if we were to agree with Appellant’s theory regarding raising issues for the first time on appeal, which we do not decide here, we need not decide this particular issue for the foregoing reasons.
CONCLUSION
The decision of the Employment Court upholding Appellant’s dismissal for abandonment of her job was not arbitrary, capricious or unsupported by substantial evidence and is therefore affirmed. This matter is remanded back 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.