Tulalip Tribal Gaming Agency v. Halfmoon, (2006)

• Decision Date: 05 December 2006
• Docket Number: TUL-CV-ET-2006-0046,TUL-CV-ET-2006-0047
• Citation: Tulalip Tribal Gaming Agency v. Halfmoon (Tulalip Tribal Ct. of App. 2006)
• Parties: TULALIP TRIBAL GAMING AGENCY, APPELLANT, v. MARY HALFMOON AND EDUARDO STAMP, APPELLEES.
• Court: Tulalip Tribal Court of Appeals

TULALIP TRIBAL GAMING AGENCY, APPELLANT, v. MARY HALFMOON AND EDUARDO STAMP, APPELLEES.

Nos. TUL-CV-ET-2006-0046, TUL-CV-ET-2006-0047

Tulalip Tribal Court of Appeals

December 5, 2006

SYLLABUS BY THE COURT

Employment court overturned dismissal of two casino employees, finding that substantial evidence in the record supported charges of multiple minor violations of the Tribe's Human Resources Ordinance, Gaming Ordinance, and Ethics Code, but that there was not substantial evidence sustaining allegations that the employees had committed major violations of these codes.Court of Appeals holds (1) absent a finding that the employer failed to follow the Human Resources Code, the Employment Court must uphold the administrative ruling of the employer; (2) the Employment Court did not find that the employer had failed to follow the code; and (3) provisions of the code requiring a remand for a new trial should not be applied where the facts are not contested and the only issues on appeal are issues of law.Employment Court order reversed and remanded for entry of judgment affirming the administrative decision of the employer.

Appearances: Lael Echo-Hawk for Appellant; Mary Halfmoon, pro se; Eduardo Stamp, pro se.

Before: Jane Smith, Chief Justice; Elizabeth Nason, Justice Douglas Nash, Justice.

OPINION

NASH J.

Facts

On December 24, 2005, Tulalip Tribal Gaming Agency(TGA) employees Halfmoon and Stamp, Appellees here, detained Tulalip Gaming Organization (TGO) employee Richard Simpson during work hours as a practical joke.Appellees planned to advise Simpson that he was going to be arrested for allegedly assaulting Halfmoon in retaliation for an earlier incident when Simpson and Halfmoon were snapping each other with rubber bands.Simpson was taken to a detention room where his gaming license was taken from him and he was questioned.Appellee Stamp advised Simpson that the TGA Chief Inspector had been consulted regarding the alleged assault, that Simpson could be charged under the domestic violence statute and that the Snohomish County Sheriff's Office would be coming to speak with Simpson and probably take him into custody.None of those statements were true.The incident proceeded as planned for approximately ten minutes at which time Appellees declared the matter a joke.Thereafter, none of the participants or observers informed their supervisors of the incident.

Approximately three weeks later, after hearing from TGO management of the incident, Appellant TGA conducted an investigation, during which Appellees were placed on administrative leave.Appellees were terminated from employment on January 31, 2006, for violations of the Human Resource Ordinance, the TGA Code of Ethics and violations of the Gaming Ordinance and Gaming Compact.Appellee Halfmoon was dismissed for the following reasons: (1) soliciting another employee to commit an offense; (2) conduct bringing the Tribes into disrepute; (3) impeding the efficiency of the Tribal organization; (4) inducing another employee to commit a violation of the Human Resource Ordinance(HRO 84);(5) violating the TGA Code of Ethics/Conduct Policy which requires conduct in accordance with the highest degree of morality, truthful conduct towards all persons, assumption of responsibility and accountability for his or her act or omission to act, governed by ordinary and reasonable rules of good conduct and behavior, failure to display good morals and values and commission of an act which could adversely affect the Agency (TGA).Appellee Exhibit No. 2at 1.Appellee Stamp was dismissed for the following reasons: (1) acting outside the chain of command; (2) violation of any employment rule, including the rules, regulations and procedures of his department; (3) violating the TGA Code of Ethics/Conduct Policy which require conduct in accordance with the highest degree of morality, truthful conduct toward all persons, assumption of responsibility and accountability for his or her act or omission to act, conduct governed by ordinary and reasonable rules of good conduct and behavior, failure to display good morals and values and commission of an act which could adversely affect the Agency (TGA), and intimidation, use of unjustifiable violence, force, or threats against a person; (4) attempting to threaten or intimidate another person while on the job; (5) conduct bringing the Tribes into disrepute; (6) impeding the efficiency of the Tribal organization; (7) rude, discourteous, offensive or abusive language or conduct toward supervisors, other employees; threatening, intimidating or coercing another employee; and (8) failure to meet the duties of a TGA employee as outlined in the Tulalip Tribal Gaming Ordinance.Appellee Exhibit No. 1at 1 – 2.

Procedural History

Appellees appealed their termination to the Employment Court where their appeals were consolidated for trial, which was held on March 20, 2006.In a decision rendered March 28, 2006, the Employment Court overturned the dismissal of both Appellees, finding that the alleged major violations were not supported by substantial evidence and ordered the reinstatement of the Appellees.Halfmoon v. TGA, Decision on Appeal, TUL-CV-ET-2006-0046(March 28, 2006);Stamp v. TGA, Decision on Appeal, TUL-CV-ET-2006-0047(March 28, 2006).The employment court further found that multiple minor violations could be supported by substantial evidence and that the TGA could take appropriate action based on the multiple minor violations.Id.

On March 31, 2006, the TGA filed a notice of appeal with the Tulalip Tribal Court of Appeals.On June 13, 2006, the Court of Appeals issued an order requesting supplemental information.A Supplemental Statement was filed by the Appellant TGA on July 5, 2006.Neither Appellee filed a Supplemental Statement.The Court of Appeals accepted the Notice of Appeal and a hearing was scheduled and held on September 29, 2006.

Issues on Appeal

Appellant, TGA, poses several issues on appeal, specifically:

1.The Employment Court erred in its failure to uphold the TGA's disciplinary actions when it did not find the TGA failed to adhere to the requirements of the Human Resource Ordinance.

2.The Employment Court erred when it found no substantial evidence to support a finding of major violations of the Human Resource Ordinance, department rules and Code of Ethics, the Gaming Ordinance, and the Gaming Compact.

3.The Employment Court erred when it found substantial evidence to uphold a finding of multiple minor violations, which is enough to dismiss an employee under the Human Resource Ordinance, but failed to uphold the disciplinary action.

Standard of Review

This case is governed by the laws and policies of the Tulalip Tribes.The jurisdiction of this Court in this case has been defined by tribal law.The jurisdiction of the Court of Appeals in appeals of 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.

H.R.O. § X.B.10.

Statutory Background

The Human Resource Ordinance (HRO)(Ordinance 84) defines the grounds for which an employee may be disciplined.Two different categories of actions are defined: Major and minor offenses.Major offenses are defined as:

. . . those acts included in, but not limited to, violations of the rules of employee conduct specifically set forth in this Ordinance.Major offenses are those acts of such a nature that the first offense indicates that continued employment of the employee is not in the best interests of the Tribes and for which an employee may be suspended or terminated.

H.R.O. § IX.C.5.

Minor offenses are defined as:

. . . those acts which are unacceptable if repeated, but for which the employee will not be suspended or charged for the first offense.

H.R.O. § IX.C.5.

The ordinance authorizes a supervisor, with the approval of their department or division manager, and a review by the Human Resources Department with an authorized signature, to proceed, to dismiss or involuntarily terminate an employee "who has committed (1) multiple minor, or (2) multiple major and minor, or (3) a single major violation of this Ordinance."H.R.O. § IX.C.5.

This statutory scheme is further developed by a provision of the ordinance that provides that "If the supervisor or administrator is found to have followed this Ordinance 84 . . . the decision of the supervisor or administrator shall be upheld.H.R.O. § X.B.11.(Emphasis supplied)

Analysis

This Court need only address the first issue raised by Appellant to resolve this case.

A review of the decision of the Employment Court reveals that there was no finding made that the supervisor or administrator in this case failed to comply with the provisions of the Human Rights Ordinance.Absent such a finding, the only course of action available to the Employment Court was to uphold the decision of termination since the language in H.R.O. § X.B.11 is mandatory.Further, absent such a finding, the findings made by the...