DAVIS v. TULALIP TRIBES

5 NICS App. 11, DAVIS v. TULALIP TRIBES (August 1997)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Esther Davis, Appellant,

The Tulalip Tribes, Appellee.

No. TUL-EMP-1/97-695 (August 26, 1997)

SUMMARY

Appellant’s employment was terminated after she failed to report to work and failed to notify her supervisor, a violation of the Tulalip Human Resources Ordinance (HRO). Appellant had been disciplined twice before in the same year. The HRO requires employee to notify her supervisor that she will be absent. The HRO also requires dismissal of an employee who has been subject to three disciplinary proceedings in one year. Appellant did not notify her supervisor and was dismissed. The trial court affirmed her dismissal. Finding the trial court did not abuse its discretion, we affirm.

FULL TEXT

Before: Charles R. Hostnik, Chief Justice; Thomas P. Keefe, Jr., Justice; Thomas W. Weissmuller, Justice.

Appearances: Carlos Echevarria, spokesperson for Appellant; Michael Taylor, counsel for Respondent.

Weissmuller, J.:

Appellant, Esther Davis, by this action, seeks redress from the order of the Tulalip Employment Court dated February 15, 1997. Ms. Davis appeals from the trial court’s order affirming her dismissal from employment. Ms. Davis relies on Tulalip Tribes, Human Resource Ordinance 84 (hereinafter “HRO 84").

I. STATEMENT OF FACTS

Ms. Davis was employed by the Tulalip Tribes. Her employee file reveals that she has been disciplined by the tribe on two prior occasions. The first two actions (one resulting in a warning, the

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other in a suspension) are not in dispute and are not addressed on appeal.¹ Including the present action, Ms. Davis has been disciplined three times within a one year period. The Tulalip Human Resources Ordinance (HRO 84) requires that an employee be dismissed as part of a “progressive discipline” policy if she becomes the subject of three disciplinary proceedings within the course of one year. HRO 84, Section X (A).

The tribe alleges that Ms. Davis missed a day of work due to illness but failed to call her supervisor as required by HRO 84, Section VII (K)(1)(a). Ms. Davis does not dispute that she failed to report to work on December 9, 1996.

Ms. Adams, the Customer Relations Manager, is also Ms. Davis’ immediate supervisor. Transcript, pp. 11-12. During the lower court proceeding, Ms. Adams testified that she had counseled Ms. Davis on the need to contact her directly when calling in sick. Further, Ms. Adams testified that she provided Ms. Davis with a memo to this effect. A copy of the memo in question was provided to the trial court as Exhibit 2. Transcript, pp. 13, 16-17. Ms. Adams also testified that Ms. Davis did not call her directly on December 9, 1996.

Ms. Davis’ testimony shows that she called the print shop and informed a fellow employee that she would be sick; she admits, however, that she did not call her supervisor directly. Ms. Davis testified that she left a message on the tribal voice mail system indicating that she would not be in due to illness. Ms. Davis then offered conflicting testimony when she authenticated a note for the lower court which she claimed had been sent as an apology for failing to call in as required.

II. ISSUES PRESENTED

1) May a supervisor require that an employee contact the supervisor directly when calling in sick to work?

2) Did the trial judge abuse his discretion when he affirmed the order of the Tribal Administration?

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III. DISCUSSION

A. May a supervisor require that an employee contact the supervisor directly when calling in sick to work?

The first issue before the Court requires us to examine the reasonableness of the Tribal Administration in requiring a call directly to the supervisor. The plain language of HRO 84, Section VII (K)(1)(a) states:

Employees must notify their supervisor by 8:30 A.M. or no later than a half hour after their regular work day begins, when they are physically unable to report to work (mi). Otherwise, the absence shall be changed to leave without pay and shall be recorded as “unexcused” (mi) whether the employee was actually sick or not.

HRO 84, Section VII (K)(1)(a) (emphasis ours).

The clear language of the statute indicates that the “supervisor” must be contacted. It does not state the “office of the supervisor” or the “office” in general; rather, it expressly directs an employee to contact an individual as opposed to an administrative body.

In contrast, the Tulalip Gaming Ordinance (Ordinance 55A), contains a special variance for the Casino to overcome the requirement of contacting a “supervisor” directly. Ordinance 55A allows a more relaxed procedure for reporting absences. Presumably, supervisors roam the Casino floor and are often unavailable to receive calls. Ordinance 55A requires only that employees contact a main number if they will be unable to work. By contrast, HRO 84, Section VII (K)(1)(a) specifically requires an employee to notify his supervisor.

It would be unreasonable for this Court to disregard the plain language of Ordinance 84. We will not so strain its interpretation as to rule that reliance upon the plain language would constitute an abuse or an unreasonable act on the part of the administration. It was appropriate for the supervisor to require that Ms. Davis call her directly.

B. Did the trial judge abuse his discretion when he affirmed the order of the Tribal Administration?

In order to affirm the findings of the administration, the judge of the Employment Court must address the following issues: (1) did Appellant commit the act alleged by the tribe; (2) was the act a violation of HRO 84 or some lawfully enacted variance of HRO 84; and (3) did the tribe act reasonably in pursuing the particular course of disciplinary action taken in this case, i.e., dismissal?

Although the findings of the trial judge are not laid out in this manner in the court order, we can deduce that the above were “found” by the judge because he affirmed the order of the administration. With regard to the first prong, the record reveals direct testimony to the effect that

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the supervisor did not receive a call from Ms. Davis. The record also reveals that Ms. Davis, herself, offered conflicting testimony on this issue.

When reviewing the findings of fact of the lower court, this Court must find some abuse of discretion on the part of the judge before we may disturb the lower court order. An abuse of discretion does not exist if the findings of the judge are supported by substantial evidence. Hoopa Valley Indian Housing Authority v. Gerstner, 3 NICS App. 250, 263 (Hoopa 1993). Substantial evidence is “evidence which would convince an unprejudiced, thinking mind of the truth of a declared premise.” Lower Elwha v. Elofson, 4 NICS App. 99 (Lower Elwha 1996), citing Freeburg v. Seattle, 71 Wash. App. 367,859 P.2d 610 (1993).

This factual review is deferential. It requires us to view the evidence and the reasonable inferences drawn therefrom in “the light most favorable to the party who prevailed in the highest forum that exercised fact finding authority.” Elofson, 4 NICS App. 99, 103 (Lower Elwha 1996) (citing Freeburg, 71 Wash. App. at 371).

It is the role of the fact finder to make determinations regarding the credibility of the witness that testifies before him and to weigh the reasonable yet competing inferences which can be drawn from that testimony. It is the role of this Court to support these factual findings unless there has been an abuse of discretion. No such abuse has occurred. We cannot disturb the trial court finding that Ms. Davis failed to call in to her supervisor.

As previously discussed, an employee’s failure to call his or her supervisor directly is a violation of HRO 84, Section VII (K)(1)(a). The second prong of our review is satisfied.

We now address the third prong of this review and examine the reasonableness of the administration’s disciplinary action. As stated above, including the action presently before us, Ms. Davis has been disciplined three times within one year period. HRO 84 requires that an employee be dismissed as part of a “progressive discipline” policy if he or she becomes the subject of three disciplinary proceedings within the course of one year. HRO 84, Section X (A). The language of the statute is clear; there can be no room for confusion. The action taken by the administration is per se reasonable.²

IV. ORDER

Based on the foregoing discussion, the February 10, 1997, Findings and Order of the Tulalip Tribal Employment Court are hereby affirmed.

Counsel for Appellant raises the issue that the two prior disciplinary actions did not comply with HRO 84 in that Appellant’s supervisor failed to provide counseling to Appellant as a part of each action. This issue is not timely and will not be addressed here. According to HRO 84 Section X(B), the issue of counseling must be addressed immediately after the initial disciplinary action is taken. Further, this issue was not raised in the court below and therefore, is not a part o f the record subject to review by this Court.

We note, however, that although counseling was not an issue expressly raised in the lower court, the testimony of Appellant’s supervisor clearly reveals that Appellant received counseling specific to the “call in” policies of HRO 84. Transcript of Tape Recording Proceedings (hereinafter “Transcript”), page 14, lines 14-20 .

Appellant alleges hostile work environment in her brief. This issue is raised for the first time on appeal. It was not addressed in the record of the Employment Court, and it would be inappropriate for this Court to reverse the Employment Court on an issue that was never raised below. We, therefore, will not address this issue.