11 NICS App. 1, MACIAS v. HOOPA VALLEY TANF (January 2013)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY TRIBE

HOOPA, CALIFORNIA

Nena Macias, Plaintiff/Appellant,

v.

Hoopa Valley Tribal TANF, et al., Defendants/Appellees.

NO. C-11-084/A-12-001 (January 24, 2013)

SYLLABUS^*

Trial court ruled that a letter provided by an employee to her supervisor objecting to the termination of her employment was “stripped” of its status as a grievance when the employee filed a “formal grievance” three days later. Although the supervisor received the letter within the 5-day timeframe for filing a grievance, because the “formal grievance” was not filed until after the statutory deadline for grieving the decision, the trial court ruled that it lacked subject matter jurisdiction. Court of Appeals holds that as a matter of law, the filing of the “formal grievance” did not render the letter to the supervisor as something other than a grievance, and that in any event, the code only requires a “summary of reasons” to be provided to an immediate supervisor within the 5-day window, and that the code authorizes a formal grievance to be filed any time thereafter. Trial court order reversed and remanded.

Before:	Eric Nielsen, Chief Judge; Matthew L.M. Fletcher, Appellate Judge; Suzanne Ojibway Townsend, Appellate Judge.
Appearances:	Nena Macias, pro se; Rebecca McMahon, Hoopa Valley Office of Tribal Attorney, for Appellees.

OPINION

I. INTRODUCTION

Appellant, Nena Macias, filed an appeal from the trial court’s order entered on May 14, 2012 dismissing her wrongful termination complaint. The trial court ruled it lacked subject matter jurisdiction because Ms. Macias failed to timely file a grievance as required under Hoopa Valley Tribal Code Personnel Policies, 30 HVTC § 9.2.

We reverse the trial court’s order.

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II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Nena Marias was employed as a Project Coordinator for the Hoopa Valley Tribal TANF Program. By letter dated September 15, 2011, Leslie Colegrove, the Program Director, terminated Ms. Macias for making unauthorized purchases using TANF prepaid gift cards.

On September 19, 2011, Ms. Macias wrote the Program Director. In her letter Ms. Macias stated she was writing “in response to my termination on September 15, 2011.” Ms. Macias also stated “I am filing a grievance. I was wrongfully terminated . . . . And I’m asking for you to reconsider your decision.” Ms. Macias’ letter explained the gift cards were used by mistake, that she was prepared to pay back the money, and that other employees who had made unauthorized purchases were not terminated but instead allowed to repay the funds.

On September 22, 2011, Ms. Macias wrote a second letter to the Program Director. That letter stated “Please accept this as my formal grievance . . . .” In that letter Ms. Macias claimed her termination violated the Tribe’s personnel policies because she was not provided counseling or the opportunity to correct any performance deficiencies before she was terminated.

On October 17, 2011, Ms. Macias filed a civil complaint in the trial court, naming the Tribe, the TANF Program, and the TANF Program Director as defendants. In her complaint Ms. Macias requested the court award her back pay. She also alleged “defamation of character” and “emotional and physical hardship.” The trial court viewed Ms. Macias’ complaint, in part, as alleging wrongful termination.¹

On February 24, 2012, the defendants moved to dismiss the complaint on three grounds: sovereign immunity based on Ms. Macias’ failure to comply with grievance procedures in 30 HVTC § 9.2, sovereign immunity based on the Program Director acting within the Director’s scope of authority, and failure to state a claim upon which relief can be granted. In support of their sovereign immunity claim for failure to comply with 30 HVTC § 9.2, the defendants argued that Ms. Macias’ September 19th letter could not be construed as a timely grievance. The defendants argued under our holding in Hostler v. Hoopa Valley Tribe, 10 NICS App. ___ (A-10-003, Hoopa Valley Tribal Ct. App. 2011),² where we ruled that a terminated employee must file a timely grievance before invoking the trial court’s subject matter jurisdiction under the Tribe’s limited waiver of sovereign immunity in 1 HVTC § 1.1.04(f), the trial court lacked subject matter jurisdiction.

On April 9, 2012, the court held a hearing on the motion. At the hearing Ms. Macias explained she submitted the September 22nd grievance letter because she did not receive a response to her September 19th letter.

On May 14, 2012, the court entered an order dismissing the complaint on the grounds it lacked subject matter jurisdiction under the Tribe’s limited waiver of sovereign immunity in 1

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HVTC § 1.1.04(f).³ It ruled under 30 HVTC §9.3 a terminated employee must file a timely grievance under 30 HVTC § 9.2, which requires that within five days calendar days following the termination notice a terminated employee submit in writing a summary of the reasons, and any documentary evidence, why the termination decision was wrong. The court held that because Ms. Macias’ September 22nd letter was not submitted within five days from the date of her termination it was untimely under 30 HVTC § 9.2. The court opined, however, that if Ms. Macias had not stated in her September 22nd letter that the letter was a “formal grievance” then her September 19th letter would have qualified as a timely 30 HVTC § 9.2 grievance. The court reasoned “the language identifying that September 22nd letter as her ‘formal grievance’ strips the earlier letter of classification as her written grievance.”

III. STANDARD OF REVIEW

Decisions by the trial court are divided into three categories for purposes of the standard of review: questions of law (reviewable de novo); questions of fact (reviewable for clear error) and matters of discretion (reviewable for “abuse of discretion”). Hostler, 10 NICS App.14, at 15; Ferris v. Hoopa Valley Tribe, 8 NICS App. 1, 2 (Hoopa Valley Tribal Ct. App. 2007) (citing Hoopa Valley Housing Authority v. Doolittle, 7 NICS App. 45, 47 (Hoopa Valley Tribal Ct. App. 2005). The court ruled as a matter of law Ms. Macias’ suit was barred under the doctrine of sovereign immunity because her September 22nd letter “strips” her September 19th letter from being classified as timely submission as required under 30 HVTC § 9.2, a prerequisite to filing a wrongful termination suit, thereby depriving the court of subject matter jurisdiction. Our review is de novo. Hostler, 10 NICS App. 14, at 16; Ferris, 8 NICS App. 1, at 2.

IV. DECISION

The sole issue on appeal is whether Ms. Macias’ September 22nd letter somehow nullified her September 19th letter as a timely written summary under the grievance procedures in 30 HVTC § 9.2. It did not.

The interpretation of any code starts with its plain language, and the ordinary meaning of its provision. Hostler, 10 NICS App 14, at 18. The language of the code itself provides the most reliable evidence of the intent of the Tribal Council. Id.

The Hoopa Valley Tribal Code Personnel Policies, 30 HVTC § 9.2, 30 HVTC § 9.3, and 30.15.1 provide:

30.9.2 EMPLOYEE GRIEVANCE PROCEDURE

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Within five (5) calendar days following any disciplinary action or termination of employment, the employee may submit in writing to his or her immediate supervisor a summary of the reasons and any documentary evidence supporting why the said action should not have been taken against the employee. If the process does not resolve the grievance to the employee’s satisfaction, the employee may submit a written grievance to the Program manager of the immediate department for which the employee works. If the Program manager of the immediate department of which the employee works does not respond within ten (10) calendar days, the prior decision shall be deemed to be upheld. Failure of the disciplined or terminate employee to follow the specified time lines shall constitute an automatic withdrawal of the grievance. With the exception of persons who have been terminated as described in §9.3 of this Ordinance, the program manager’s decision shall be final. The employee’s submission and any supervisor responses will be kept in the employee’s file.

This section shall only apply in cases where an employee or program manager (sic) employment has been terminated. After appealing a termination according to the time frames set out in * * * §9.2 of this section all non-introductory, full-time or part-time, regular employees and program managers if they choose to appeal their grievance may file a complaint in the Hoopa Valley Tribal Court according to §15.1 of this Title. Terminated employees shall have thirty (30) calendar days from the date of termination to file a complaint with the Hoopa Valley Tribal Court. * * * All untimely complaints shall be dismissed and the Hoopa Valley Tribal Court shall have no jurisdiction over the matter.

30.15.1 CIVIL ACTIONS

All non-introductory, full-time regular employees and managers may file non-frivolous complaints related to their termination from employment with the Hoopa Valley Tribe in accordance with 1 Hoopa Valley Tribal Code §1.1.04(f). Complaints must be filed with the Hoopa Valley Tribal Court within thirty (30) days of the date of termination. * * * The complaint shall be subject to the statute of limitations described in 2 Hoopa Valley Tribal Code §2.3.13(b).

In 1 HVTC §1.1.04(f) the Tribe has waived its sovereign immunity for suits based on wrongful termination. It is a limited waiver conditioned on the timely filing of a complaint under 2 H.V.T.C §2.3.13(b). To be timely a complaint must be filed within thirty days of the “date of the employee’s termination.”⁴ The date of an employee’s termination is the date the termination decision is “upheld” either because the program manager issues a decision agreeing with the termination notice or fails to respond within ten calendar days after the grievance is filed. Ferris, 8 NICS App. 1, at 6-7. An employee can only appeal a termination decision to trial

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court, after grieving the termination in compliance with 30 HVTC §9.2. Hostler, 10 NICS App 14, at 19; 30 HVTC §9.3.

Ms. Macias’ September 19, 2012 letter meets the requirements in 30 HVTC §9.2. She clearly stated the letter was submitted in response to the September 15th termination notice, she stated she was filing a grievance, the letter was a written summary of the reasons why she disagreed with the termination decision, and the letter was submitted within five days from the termination notice. That is all that is required under the code. The code does not require that the employee’s written submission be titled a “formal grievance” or even a grievance.

Moreover, the code contemplates that if after the employee submits to the employee’s immediate supervisor a written summary of the reasons why the termination decision should be reversed the issue is not resolved, the employee may then submit a “written grievance” to the Program manager. When she did not receive a response to her September 19th letter, that is what Ms. Macias did. She submitted her September 22nd “formal grievance” letter to the Program Director.⁵

The court’s reasoning that because Ms. Macias called her September 22nd letter a “formal grievance” it “strips” or nullifies her September 19th written summary is logically and legally unsupported. The court itself opined had Ms. Macias not submitted the September 22nd letter, her September 19th letter would have satisfied the requirement that she submit in writing a summary of the reasons she should not have been terminated within five days of the termination notice. Logically, if her September 19th letter met the code’s requirements of a written summary submitted to her immediate supervisor within five days of the termination notice, and we agree with the trial court that it did, the second letter to the Program Director does not change that fact.

In addition, unlike the five day requirement for submitting a written summary to the immediate supervisor, there is no specific time frame for when an employee may submit a written “formal grievance” or grievance to the Program Director following a timely submitted written summary. The plain language of the code clearly authorizes an employee to submit a second “written grievance” to the Program Director if the issue is not resolved following a timely written “summary of the reasons…the said action should not have been taken…” submitted to the employee’s immediate supervisor. 30 HVTC §9.2.

There is nothing in the record that shows the issue was resolved following Ms. Macias’ September 19th written summary to her immediate supervisor, or that she even received a response. Indeed, Ms. Macias testified she submitted the September 22nd grievance letter to the Program Director because she did not receive a response to her timely filed September 19th summary letter. In sum, Ms. Macias fully complied with the requirements in 30 HVTC §9.2.

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V. CONCLUSION AND ORDER

The order dismissing Ms. Macias’ complaint for lack of subject matter jurisdiction is reversed. This matter is remanded to the trial court.

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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.

Ms. Macias filed her suit pro se. Documents filed pro se are liberally construed pursuant to HVTC 3.100(c).

Viewable at http://www.nics.ws/hoopa/hoopa.htm pending publication.

The court did not rule on the defendants’ motion dismiss on the grounds that the complaint failed to state a claim for which relief can be granted or that the court had no subject matter jurisdiction because the Program Director acted within the Director’s scope of authority. We express no opinion on the merits of those arguments. Our review is limited to the court’s ruling dismissing the suit for lack of subject matter jurisdiction based on its determination that Ms. Macias failed to comply with for failure to comply with 30 HVTC § 9.2.

There is no dispute that Ms. Macias’ suit was timely filed.

There is nothing in the record that indicates Ms. Macias’ immediate supervisor is someone other than the Program Director, Leslie Colegrove, who issued the termination notice.