Sheldon v. Tulalip Tribes Youth Services, (2010)

• Decision Date: 08 February 2010
• Docket Number: TUL-CV-ET-2009-0311
• Parties: BRANDY SHELDON, APPELLANT, v. TULALIP TRIBES YOUTH SERVICES, APPELLEE.
• Court: Tulalip Tribal Court of Appeals

BRANDY SHELDON, APPELLANT, v. TULALIP TRIBES YOUTH SERVICES, APPELLEE.

No. TUL-CV-ET-2009-0311

Tulalip Tribal Court of Appeals Tulalip Indian Reservation Tulalip, Washington

February 8, 2010

SYLLABUS BY THE COURT

SYLLABUS^*fn1

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.

Appearances: Richard Okrent, for Appellant; Timothy Brewer for Appellee.

The opinion of the court was delivered by: Nash, J.

Before: Jane M. Smith, Chief Justice; Douglas Nash, Justice Daniel A. Raas, Justice.

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.

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 8she 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 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...