McAlvain v. Cherokee Nation Employee Appeals Board, (2013)

• Decision Date: 09 August 2013
• Docket Number: SC-2012-02
• Citation: McAlvain v. Cherokee Nation Employee Appeals Board (Judicial App. Tribunal Ct. Cherokee Nation 2013)
• Parties: IN THE MATTER OF THE APPEAL OF RACHAEL MCALVAIN, APPELLANT, v. CHEROKEE NATION EMPLOYEE APPEALS BOARD, APPELLEE.
• Court: Judicial App Tribunal Court Cherokee Nation

IN THE MATTER OF THE APPEAL OF RACHAEL MCALVAIN, APPELLANT, v. CHEROKEE NATION EMPLOYEE APPEALS BOARD, APPELLEE.

No. SC-2012-02

Supreme Court of the Cherokee Nation

August 9, 2013

Appeal from Employee Appeals Board of the Cherokee NationCase No. 11-04-RMD

Before: Darrell Dowty, Chief Justice, James G. Wilcoxen Justice, Troy Wayne Poteete, Justice, John C. Garrett Justice

OPINION

CHIEF JUSTICE DOWTY

This is an appeal of the action of the Cherokee Nation Employee Appeals Board(hereinafter EAB) dismissing the complaint of the Employee/Appellant, Rachel McAlvain for lack of jurisdiction by written order filed August 28, 2012.This Court by written Order filed April 12, 2013, has previously remanded this matter to the EAB on Appellant's appeal of the Board's previous dismissal for lack of jurisdiction filed January 25, 2012.The Order cited the lack of evidence supporting the EAB dismissal.The Appellant was denied the opportunity to put on evidence regarding her allegations at the hearing producing the order of dismissal.In the Order Remanding, this Court framed the issues before the EAB as follows:

"The Appellant Employee raised the issue that she was terminated for reasons other than cause.Article XII of the 1999 Cherokee Nation Constitution sets forth 'No employee, who having served in a position at least one year, shall be removed from the employment of the Cherokee Nation except for cause.'(emphasis added)

The Cherokee Nation in response to the Appellant/Employee's Notice of Appeal alleges that the Appellant/Employee was on 'layoff status' because her position had been eliminated due to a restructuring/reorganization of Health Services.Thus, the factual issues joined can only be resolved by evidence.

The Employee Appeals Board shall upon rendering decision in these proceedings make fact findings and set forth their conclusions of law, LA 12-96 1020 (A)(2)."

The EAB Order of Dismissal was then vacated and the matter was remanded to the EAB for further consideration consistent with this Court's Order.

The EAB then responded by receiving further evidence regarding the Nation's Motion to Dismiss.The EAB found that the Nation had met its burden for the purposes of the Motion to Dismiss and issued its written Order filed August 28, 2012, making findings of fact which supported the Nation's position that the Appellant's employment was pursuant to a layoff due to reorganization.The Board further entered conclusions of law supporting the proposition that the loss of employment pursuant to layoff is outside the jurisdiction of the Board pursuant to 51 CNCA §1004(13).The Board then, for the second time, sustained the Nation's Renewed Motion to Dismiss for Lack of Jurisdiction filed May 25, 2012.

The EAB briefly mentioned in its Order that "Appellant does allege that the "layoff" was improper" however, the Court made no findings of fact regarding the Appellant's evidence.

This Court has jurisdiction of this matter pursuant to Article XII, 1999 Constitution of the Cherokee Nationand 51 CNCA, §1025.The scope of our review is as defined at 51 CNCA, §1028.

This action was brought before the EAB by the Appellant alleging that she was "terminated" from her employment for reasons other than cause and that the purported layoff and reorganization were a subterfuge.The Appellant presented evidence supporting her allegations including that she was not afforded a required two-week notice of her layoff status;^[1] That, on the day the Appellant was sent home on leave, the administration had expressed concerns about complaints received and with her continued employment;^[2] that no "Reduction Plan" had been prepared pursuant to Human Resources Policy prior to Appellant's formal notice of layoff Status on November 10, 2011;^[3] and, that after the Appellant applied for another Nation position, the Administration took the position that the Appellant was not on layoff status so as to be entitled to preference in rehiring;^[4] Other evidence offered by Appellant was excluded by the EAB and submitted by "offer of proof".A further summary of Appellant's evidence was provided by Judge Limore in his Dissenting Opinion filed November 26, 2012.

The Nation admitted that the Appellant had "a remedy for her alleged wrong, just that it is not before this Board" relying upon the provisions of 51 CNCA, §1004(13).^[5] The EAB agreed and found that the Nation had supported its Motion with sufficient evidence of a "layoff" for the purposes of a motion to dismiss to invoke the jurisdictional limitations of CNCA §1004(13).

In 1978, the Judicial Appeals Tribunal as predecessor to this Court, in interpreting the provisions of Article XII of the Constitution of 1975 which protected employees employed for one year or more, found that the loss of employment due to elimination of a job position was "for cause" as contemplated in the Constitution and that the elimination of the position was pursuant to a "valid business judgment".^[6]The Constitution of 1999 as enacted in 2003, affords the same protection in the same language with the additional protection of "pre-termination due process".When an allegation is made that the loss of employment was not for cause, the burden is on the Nation to present evidence refuting the allegation.^[7] In this case, the allegation is that the employee was terminated for a reason other than cause and that the "layoff" was a subterfuge.The question of whether the layoff was legitimate or a subterfuge is the heart of the litigation and the Appellant is entitled to present her allegations and supporting evidence, this only after the Nation, in that same forum, has met its burden of showing that the loss of employment was for cause.^[8] The EAB declined to address this issue and made findings of fact only to support the jurisdictional question pursuant to 51 CNCA, §1004(13).It was clear in the EAB majority's oral rendition of its decision, that they made no findings as to whether it was a layoff or an improper layoff.Further,...