4 NICS App. 129, FRYBERG v. TULALIP CASINO (October 1996)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
MARYSVILLE, WASHINGTON
Tim Fryberg, Appellant
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.
FULL TEXT
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
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.