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4 NICS App. 129, FRYBERG v. TULALIP CASINO (October 1996)
IN THE TULALIP TRIBAL COURT OF APPEALS
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MARYSVILLE, WASHINGTON
Tim Fryberg, Appellant
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v.
Tulalip Casino, Respondent
No. TUL-EMP-4/96-500 (October 17, 1996)
SUMMARY
Appeal of Employment Court order affirming Appellant’s termination from employment without cause. Appellant was a regular, full-time employee at the time he was promoted. Pursuant to the Human Resources Ordinance, when Appellant accepted his promotion, he once again became an at-will employee for a probationary period. The trial court decision is not arbitrary, capricious, or unsupported by substantial evidence. We affirm.
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Before: Elbridge Coochise, Chief Justice; Charles R. Hostnik, Justice; Christopher P. Williams, Justice.
Hostnik, J:
This matter comes before us on Mr. Fryberg’s appeal from an Employment Court decision affirming his dismissal from employment with the Tulalip Casino. Mr. Fryberg was a regular full-time employee of the Casino when he was offered a promotion. The Human Resources Ordinance of the Tulalip Tribes provides that an employee who is transferred or promoted is required to serve a probationary period of 180 calendar days before he or she becomes a regular employee in the new position. Mr. Fryberg was promoted from a full-time position, then terminated within the 180 day probationary period. He appeals, contending that the Casino must have cause to terminate him within the probationary period. The Casino contends that employees promoted are at will employees during their probationary period, and can be terminated from employment without cause.
JURISDICTION
This Court has personal jurisdiction over Appellant as he is a member of the Tulalip Tribes. Territorial jurisdiction exists as the act at issue from the employment with the Tulalip Casino is within the exterior boundaries of the reservation. Subject matter jurisdiction is pursuant to Tulalip
4 NICS App. 129, FRYBERG v. TULALIP CASINO (October 1996) p. 130
Tulalip Casino Hotel
Tribes Human Resources Ordinance No. 84, § II (E)(4) and § X (B)(10), and Resolution No. 96-0020.
ISSUE ON APPEAL
Did the Employment Court err in affirming the termination without cause of Appellant, and was that decision arbitrary, capricious, or unsupported by substantial evidence?
SCOPE OF REVIEW
This Court’s scope of review of decisions from the Tulalip Employment Court is well defined:
The jurisdiction of the Court of Appeals in appeals from Employment Court final decisions shall be to reverse the Employment Court and direct a new trial where the decision of the Employment Court is found to be arbitrary, capricious, or unsupported by substantial evidence.
The Tulalip Tribes Human Resources Ordinance, Ordinance 84, § X(B)(10) [added by Resolution No. 96-0020, adopted February 3, 1996].
Based upon this narrow scope of inquiry, we are required to affirm the decision below unless it is found to be arbitrary, capricious, or unsupported by substantial evidence. If we find the Employment Court’s decision to violate this standard, we cannot cure the error, but must return the case to the Employment Court for a new trial.
BASIS OF APPEAL
The Casino terminated Mr. Fryberg’s employment when, in their view, he failed to successfully complete the 180 day probationary period in the position to which he had been promoted. Relying upon the following provision, the Casino severed Mr. Fryberg’s employment:
During the entry probationary period or its extension, the employee is at will and may be terminated without cause. If the supervisor recommends termination without cause during the probationary period, the employee shall not have rights to the appeal or grievance process . . . .
The Tulalip Tribes Human Resources Ordinance, Ordinance 84, § II(E)(4).
In his Notice of Appeal, Mr. Fryberg contends this provision was amended to provide that terminations during the probationary period can occur only with cause. Mr. Fryberg referred to an
4 NICS App. 129, FRYBERG v. TULALIP CASINO (October 1996) p. 131
agenda of the Tulalip Tribes Regular Board Meeting attached to his Notice of Appeal. Item 40 on that agenda was as follows:
40. RESOLUTION 96-0020 HRO AMENDMENT - TERMINATION WITHOUT CAUSE:
Motion made to pass Resolution 96-0020 amending HRO, Ordinance 84, to allow for an appeal process for any termination and add appellant [sic] court, to the appeal process.
A copy of Resolution 96-0020 has been provided to this Court, and we have reviewed it thoroughly. The amendment contains no provision that would require a showing of cause for termination during the probationary period. We therefore disagree with Mr. Fryberg’s interpretation of Resolution 96-0020.
DISCUSSION
When Mr. Fryberg was promoted, he signed a document acknowledging the at-will status of his employment:
Additionally, during your initial 180 days of employment in this position, you will be placed on probationary status. During this initial probationary period, your employment is AT WILL and you may be released at any time without cause. Advancement to regular status is contingent upon successful completion of the introductory probationary period.
Appellee’s Exhibit # 1 (emphasis in original).
Mr. Fryberg’s signed acceptance of this document suggests a waiver of his current argument. However, we need not reach that issue in light of the lack of evidence to support Mr. Fryberg’s argument that the Casino needed cause to discharge him from employment. We can find no provision to support that argument.
There has been ample review of the Casino’s decision to terminate Mr. Fryberg, both by the Employment Court and by this Court of Appeals. Mr. Fryberg’s case received that careful scrutiny, in spite of the fact that the HRO provides no right of appeal for at-will employees.
While it is disturbing that the HRO in effect reduces the rights of a regular full-time employee who is promoted by requiring the employee to serve a second probationary period, nevertheless the language of the HRO is clear and unambiguous. It is not the province of this Court to substitute its judgment in place of the legislative body of the Tulalip Tribes. We are bound to follow the clear language of the law.
4 NICS App. 129, FRYBERG v. TULALIP CASINO (October 1996) p. 132
DECISION
When Mr. Fryberg accepted his promotion, he once again became an at-will employee for 180 days. The Casino terminated him within that 180 days, and therefore was not required to show cause for termination. The Casino was merely following the clear language of the Tulalip Tribes’ HRO. The decision of the Employment Court is affirmed.
Coochise, J., concurs.
Williams, J., concurring:
I concur in the decision of the majority. I am, however, disturbed at the practical application of Tulalip Tribe Resolution 96-0020. I am concerned that the resolution, as drafted, allows for employees who are promoted to be at risk at being terminated at will. An employee who declines a promotion has more rights, to wit: must be fired with cause, than an employee who is transferred or promoted and then be discharged at will.
Thus, this resolution on its face appears to take away or eliminate very significant rights or privileges of long term employees.
I speculate that this resolution is ripe for abuse and I suspect that employees could very easily be transferred or promoted for purposes of discharging them at will. However, I find no such evidence in the record to support this contention.
Since this body is not legislative, we cannot controvert the plain language of § II.E of Human Resources Ordinance 84:
Every employee whether transferred, or promoted, or newly hired to a regular full-time or regular part-time position, is required to complete successfully a probationary period of one-hundred eighty (180) calendar days from the date of employment, transfer, or promotion . . . .
Thus, an employee could be promoted or transferred to a full or part-time position and then discharged without cause.
However, given the fact that the language is clear and unambiguous, since there is no evidence of abuse to controvert the clearly stated contention of Ordinance 84, and since the Tribe has not opted to amend the Ordinance to assure tribal employees “for cause” can for transferees or promotees the decision of the Administrative Court must be affirmed.
5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
MARYSVILLE, WASHINGTON
Dell Renecker,Appellant/Defendant,
v.
Tulalip Casino Entertainment
Tulalip Casino,Respondent/Plaintiff.
No. TUL-EMP-11/96-667 (May 29, 1997)
SUMMARY
In September of 1996, an employee of Respondent Tulalip Casino filed a grievance against her supervisor, Appellant herein, with regard to incidents that took place in November of 1995 and July of 1996. Respondent Casino terminated Appellant’s employment in November of 1996. Finding that the grievance against Appellant and his termination were not procedurally related, the trial court upheld Appellant’s suspension. Court of Appeals finds that employer’s failure to follow its own personnel policies and procedures results in fatal flaw.
FULL TEXT
Before: Elbridge Coochise, Chief Justice; Larry King, Justice; Yvonne M. Leveque, Justice.
Appearances: Dell Renecker, Appellant; Carlos Echevarria, spokesperson for Appellant; Dean Fryberg, Jr., spokesperson for Tulalip Casino; Lee Topash, representative for Tulalip Casino.
King, J., writing for a unanimous panel:
I. NATURE OF ACTION
Employee Renecker appeals a decision of the Tulalip Employment Court which upheld his suspension by his employer, The Tulalip Casino.
II. BACKGROUND
On November 5, 1996, Renecker was working in his capacity as a first line supervisor at the Tulalip Casino. On that day he was served with a notice of suspension which outlined three separate incidents in which Renecker allegedly made gender and race biased statements against an employee who he supervised and one incident in which he allegedly threatened her.
5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 2
The Tulalip Tribes have a detailed Human Rights Ordinance (HRO 84) which allows for a suspension of an employee if he or she commits a “major offense” within the meaning of HRO 84 (IX)(D)(2). The parties agree that any one of the four allegations involves “major offenses” and, if proven, could result in suspension or dismissal. The parties also agree that conditions of Renecker’s employment are subject to the procedures and rules detailed in HRO 84. (This agreement is implicit in the parties’ positions: Renecker relies on procedural errors and the Casino relies on substantive violations of rules of conduct.) The transcript offers no evidence of a formalized employment agreement other than HRO 84.
The above referenced notice of suspension was the result of a grievance filed against Renecker by an employee he supervised, one Kim Sanderson. The grievance, which was filed on September 16, 1996, references in strong language the above incidents of racial and gender slurs and threats which, according to Sanderson, occurred “approximately November of 1995” and “around July 6, 1996.”
HRO 84 (X)(B)(1) addresses in relevant part the filing of grievances:
Employee grievances must be in writing, specific, and clearly express an employee’s dissatisfactions with a job-related employment practice or a job-related decision of supervisors. (b) If the supervisor is considered to be the problem then a formal grievance is filed. This requires a written grievance from the employee and a written response from the supervisor. The written grievance and response are then submitted to the next level of supervision, with copies to the human resources office. A written grievance filed more than twenty days from the date of the event that caused the grievance shall not be considered.either may submit a notice of dissatisfaction to the supervisor rendering the decision within five working days of receipt of the decision. This notice will be a request to have the case submitted to the C.E.O. for review and consideration. [Emphases added].
The parties agree that subsection (b) was violated because the grievance was filed more than “20 days from the date of the event that caused the grievance.” (Sanderson’s September 16, 1996, grievance stated that the most recent event was “sometime around July 6, 1996.”)
III. JURISDICTION
This Court has personal jurisdiction as Appellant is a member of the Tulalip Tribes. Territorial jurisdiction exists as the action occurred within the exterior boundaries of the Tulalip
5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 3
Reservation. Subject matter jurisdiction exists as the action was under the Tulalip Tribes’ Human Resources Ordinance.
IV. ISSUE
Does the employer’s violation of the tribe’s personnel ordinance invalidate the employee’s suspension?
The Tulalip Casino argues that the error referenced above is harmless and that such a technicality should not bar the Casino from taking disciplinary action against Renecker in this case. The Tulalip Employment Court agreed with this position when it found as a matter of law that HRO 84 (X)(B)(1)(b) did not apply “to the disciplinary procedure initiated against him.”
We do not agree with the Casino’s position or with the Employment Court’s interpretation of the Tulalip Human Resources Ordinance.
V. DISCUSSION
The court below seems to rest its opinion, at least in part, on the premise that disciplinary action against Renecker was not procedurally related to the grievance against him by Sanderson. We disagree with this interpretation for the following reasons:
1. A close reading of the entire HRO 84 shows that procedures and substantive outcomes are closely related when an employee files a grievance against her supervisor. Within HRO 84 (I)(A), which defines its purpose, is the following language: “Every employee can use the ordinance as a basis for making decisions about their employment status, the status of their supervisor, and the status of the employees supervised by them.” (Emphasis added).
2. The grievance filed by Sanderson was against Renecker. Sanderson’s grievance involves allegations that Renecker committed “major offenses,” some of which were said to have occurred an entire year before Renecker was disciplined. Discipline followed grievance as an automatic result. One process relied on the outcome of the other. The two are procedurally and substantively connected.
3. Contrary to the opinion of the Employment Court we find that the Casino violated Renecker’s rights when it did not take disciplinary action in a timely fashion. HRO 84 (X)(A)(8) establishes the “date for taking disciplinary action” as follows:
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. Supervisors must document an investigation. (Emphasis added).
5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 4
Because we believe that the entire HRO 84 is for the benefit of both the accused and the accuser, it follows that Renecker’s rights under the HRO 84 should attach at the same time of the alleged incidents. This, we believe, is the “date of discovery” referenced in HRO 84 (X)(A)(8). Any other interpretation would allow the Casino to “investigate” an incident for an indefinite amount of time; in this case for approximately one year, in other cases for possibly several years.
4. The short time frames for taking action under the HRO 84 serve a useful purpose. They afford all accused employees an opportunity to gather fresh evidence and witnesses with reliable memories so that they can defend themselves against clear allegations. Without these safeguards the “who, what, where and when” of a statement made in the context of a busy work environment can become quite unclear. This potentiality becomes evident upon review of the transcript in the instant case.
Under the HRO 84, allegations must be documented and investigated quickly. Then, following the investigation, disciplinary action must be accomplished quickly. There is nothing in the HRO 84 that indicates that the parties cannot mutually agree to extend any given time frame; however, the record shows no such extension in the case before us.
5. The law in this area is in a state of flux; however, certain principles seem to be developing and may serve as guidance in the future:
(a) With few exceptions, case law does not require employers to develop and utilize employee policy manuals such as the HRO 84 in the instant case; however, the employer’s act of voluntarily issuing and operating under a policy manual can lead to obligations that govern the employment relationship. Thompson v. St. Regis Paper Company, 102 Wn. 2d 219, 685 P. 2d 108 (1984).
Tulalip Casino Website
(b) The principle reason employers issue such manuals is to create an atmosphere of fair treatment and job security for their employees. Parker v. United Airlines Inc., 32 Wn. App. 722, 649 P. 2d 181 (1982).
(c) Once an employer announces a specific policy or practice, especially in light of the fact that he expects employees to abide by the same, the employer may not treat its policies as mere technicalities when expedience seems to so require. Toussaint v. Blue Cross, 408 Mich. 579, 292 N.W. 2d 880 (1980).
VI. CONCLUSION
There is no indication of any malice on the part of the Casino. In fact there is ample evidence that the Casino committed procedural errors in a quest for a just result. Regardless of this, however, we conclude that the Casino’s failure to follow its own policies and procedures results in a fatal flaw.
5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 5
VII. ORDER
We hereby REVERSE the Employment Court's decision to uphold the November 5, 1996, suspension of Mr. Renecker.