5 NICS App. 67, SHELDON v. TULALIP (July 1998)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Wendy Sheldon, Appellant,

v.

The Tulalip Tribes, Appellee.

No. TUL-Emp-7/97-833 (July 13, 1998)

SUMMARY

Newly hired, transferred, and promoted employees of the Tulalip Tribe are required to serve a 180-day probationary period in their new positions. Appellant, employed as a bookkeeper by Respondent Tribe, responded to an “in-house promotional opportunity.” Upon being selected, she resigned her bookkeeping position and accepted the new position, thereby becoming a probationary employee in the new position. During her probationary period, Appellant was terminated for failing to meet the requirements of the Tribes’ Drug and Alcohol Policy.

The trial court found that Appellant was a probationary employee at the time of her dismissal and, therefore, was not entitled to the protections of the Human Resources Ordinance. The trial court upheld the Tribes’ decision to terminate Appellant’s employment. We affirm.

FULL TEXT

Before:            Emma Dulik, Chief Justice; Charles R. Hostnik, Justice; Larry King, Justice.

Hostnik, J.:

I. BACKGROUND

Appellant Wendy Sheldon was employed by The Tulalip Tribes (Tribes) as a Community Health Service (CHS) Billing/Bookkeeper from April of 1993 to July of 1997. Her starting salary in that position was $8.00 per hour; her ending salary was $12.51 per hour. In June of 1997, Ms. Sheldon responded to an “In-house Promotional Opportunity” announcement, which advertised an opening in the Finance Department for an Employee Benefits Specialist.

On July 7, 1997, the Human Resources Manager sent Ms. Sheldon a letter notifying her that she had been selected for the position, at a pay rate of $12.51 per hour. Ms. Sheldon formally notified her supervisor that “July 11, 1997 will be my last day working in the CHS Billing Dept.”

5 NICS App. 67, SHELDON v. TULALIP (July 1998) p. 68

In a handwritten note dated July 15, 1997, Ms Sheldon accepted the Employee Benefits Specialists position. A memo to payroll indicates that Ms. Sheldon’s hire date was July 16, 1997.

HRO 84, § II(E) provides:

Every employee, whether transferred, or promoted, or newly hired to a regular full-time or 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.

When Ms. Sheldon started work in the Employee Benefits Specialist position, she became subject to this mandatory 180-day probationary period.

On July 21, 1997, Ms. Sheldon received a Letter of Discontinuance which notified her that her position as an entry probationary employee in the Finance Department had been terminated. The following day, the Human Resources Manager sent Ms. Sheldon a letter informing her she was ineligible for employment with the Tribes because she had “not met the requirements of the tribes’ Drug and Alcohol Policy. . . .”

Ms. Sheldon appealed her termination to the Employment Court. Pursuant to a hearing, the Employment Court found that Ms. Sheldon was a probationary employee at the time of her discharge, as demonstrated by her written resignation and her application for a new position. Therefore, the court reasoned, Ms. Sheldon was not entitled to the protections of HRO 84. The Employment Court affirmed the Tribes’ decision to terminate Ms. Sheldon’s employment.

On Ms. Sheldon’s Motion for Reconsideration, the Employment Court revisited the issue. Citing HRO 84 and relying upon the precedent set by Fryberg v. Tulalip Tribes, 4 NICS App. 129 (Tulalip Ct. of App. 1996), the court affirmed its earlier decision. It is from this order that Ms. Sheldon now appeals.

II. JURISDICTION

This Court has personal jurisdiction over Appellant in that she is a member of the Tulalip Tribes. Territorial jurisdiction exists as the action at issue arose from employment with the Tulalip Casino, which is within the exterior boundaries of the reservation. Ordinance 49, §1.2. Subject matter jurisdiction exists pursuant to Tulalip Tribes Human Resources Ordinance No. 84, §§ I(D) and X(B)(10), and Resolution No. 96-0020.

III. ISSUE ON APPEAL

Did the Employment Court err in affirming the termination of Appellant, who was a regular full-time employee transferred to a new position; and was the Employment Court’s decision arbitrary, capricious, or unsupported by substantial evidence?

5 NICS App. 67, SHELDON v. TULALIP (July 1998) p. 69

IV. SCOPE OF REVIEW

This Court’s scope of review of decisions from the Tulalip Employment Court is well defined. This Court is to confine its review to the record. The decision of the Employment Court is to be upheld unless that decision is found to be arbitrary, capricious, or unsupported by substantial evidence. If such a finding is made, this Court is to reverse the Employment Court and direct a new trial. Tulalip Tribes Human Resource Ordinance No. 84 (hereinafter HRO 84), § X(B)(10). See also Fryberg v. Tulalip Casino, Cause No. TUL-Emp-4/96-500 (Ct. App. 1996).

V. DISCUSSION

This case requires the Court to review HRO 84 to determine if there is a difference between “entry probation” and “probation.” It is the Appellant’s position that “entry probation” applies only to employees who are newly hired by the tribes. Once the employee successfully completes the initial entry probationary period, the employee attains status as a regular employee. This status is important because if deficiencies are noted in the performance of a regular employee, a supervisor is required to have a meeting with the employee to discuss those problems, and the employee is allowed 60 days to correct the situation. See HRO 84, §XI(B)(6).

Appellant acknowledges that a regular employee who accepts a promotion or a transfer is required to serve a probationary period of 180 days in that new position. This is required by HRO 84, §II(E). Appellant further argues that the termination without cause subsection in HRO 84, §II(E)(4) applies only to the “entry probationary period” and not to a promotional or transfer probationary period. This argument is based upon the language of HRO 84, §II(E)(4), which states:

During the entry probationary period or its extension, the employee is at- will and may be terminated without cause . . .

Appellant argues that this provision is restricted to the initial probationary period to be served by all new hires, and does not apply to the probationary period which must be served when a regular employee is promoted or transferred to another position.

Neither the term “entry probationary period” or the term “probationary period” is defined by HRO 84. See HRO 84, §II(C). There are a number of provisions of HRO 84 which lend credence to the Appellant’s argument. For example, disciplinary probation is distinguished from the “entry probationary period” as follows:

This is not to be confused with the entry probationary period when an individual first enters tribal employment. . . .

HRO 84, §IX(C)(2) (emphasis added). The provisions of HRO 84, §II(D)(6) address the use of annual leave by an employee on entry probation. That provision states:

5 NICS App. 67, SHELDON v. TULALIP (July 1998) p. 70

An employee on entry probation governed by II(E) below, earns annual leave from the date of hire, but is not eligible to use it until completing one year of continuous service. A probationary employee is entitled to use accrued sick leave benefits beginning with the first day of employment and is eligible for health insurance coverage from the beginning of the second month of employment.

HRO 84, §II(D)(6)(emphasis added). This provision seems only to apply to a new hire, rather than to a regular employee who is serving a subsequent probationary period due to a promotion or transfer.

It therefore appears that there is support in HRO 84 for the Appellant’s argument. The use of “entry probationary period” appears to apply to new hires only. However, the Court does not find that Ms. Sheldon, while serving a probationary period in her new position, was entitled to a 60 day correction period under HRO 84, §XI(B)(6).

It is clear that even though Ms. Sheldon was a regular employee at the time of her transfer, under HRO 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 180 calendar days from the date of employment, transfer, or promotion.” HRO 84, §II(E). Therefore, Ms. Sheldon was required to complete a 180 day probationary period from the date of her transfer. Ms. Sheldon was terminated within this 180 day period while she was on probation. This appears to have been appropriate:

If at any time it becomes apparent that an individual in probationary status is not suitable for tribal employment, the employee will be terminated.

HRO 84, §XI(B)(5). That section does not distinguish between entry probation and any other type of probation. It merely refers to “an individual in probationary status.” It is acknowledged that Ms. Sheldon was in probationary status when she was terminated.

VI. TRANSFER OR PROMOTION?

Throughout the history of this case it has been unclear whether Ms. Sheldon’s new position was a promotion or transfer. One of the most common ways to determine whether a transfer or a promotion occurs is to look at the change in salary from the old position to the new position. The record in this indicates that Ms. Sheldon was employed by the Tulalip Tribes from April of 1993 to July of 1997 as a “CHS Billing/Bookkeeper.” Her starting salary in that position was $8.00 per hour, and her ending salary in that position was $12.51 per hour. See, Application for Employment, p.3.

The posted job description indicated it was an “In-House Promotional Opportunity.” See, Job Description. The letter of appointment notifying Ms. Sheldon that she was successfully appointed to the posted position indicated that the rate of pay she was to be paid in that new position was $12.51 per hour. See Letter of Appointment dated July 7, 1997. The Appellant contends the

5 NICS App. 67, SHELDON v. TULALIP (July 1998) p. 71

change in position constituted a transfer. See Transcript or Motion for Reconsideration of September 30, 1997, p.14, lines 4-6. Based upon the fact that the salary level remained the same, we view this as a transfer.

Transferred employees are still required to serve a probationary period under HRO 84, §II(E). The only exception to this is contained in §V(T), which permits regular employees to be transferred from one position as a regular employee to another position as a regular employee (therefore without the requirement to serve a probationary period in the new position) under certain circumstances. Two conditions to the direct transfer are that: (1) the approval of the Chief Executive Officer of the tribes must be obtained, and (2) this applies to Grade Levels IV, V, and VI only.

It appears that the Appellant was transferred into a Grade Level III position. Her new position was an Employment Benefits Specialist. See Job Description. A Specialist is a Grade Level III position. See HRO 84, §III(D)(5). Therefore, the exception above does not apply, and Ms. Sheldon was required to serve an initial probationary period in the new position.

VII. FAIRNESS

The initial appeal contained an allegation by Ms. Sheldon that she was denied her right of equal opportunity under the tribal Constitution. In requesting an Employment Court appeal hearing, Ms. Sheldon stated:

In furtherance, the matter of consistency in implementing the Drug & Alcohol Policies and affording an equal opportunity to be referred to a qualified agency is highly questionable. The supervisor who dismissed me in my position afforded a temporary employee (one who does not have employee benefits) an opportunity to receive treatment when she was tested positive for a controlled substance, she herself was classified as a PERSON NOT CONSIDERED REGULAR.

Notice of Appeal and Request for Appeal Hearing, dated July 31, 1997, Attachment “B” (emphasis in original). Although this is a troubling accusation, this issue was apparently abandoned at trial, and Ms. Sheldon failed to introduce any evidence in support of that allegation.

A more difficult issue for this Court to address is the fairness to Ms. Sheldon of offering to her the transfer opportunity, while not notifying her that she became an “at will” employee for the first 180 days of her employment in the new position. Although this Court did not reach that issue in the Fryberg v. Tulalip Casino case, the Court did note that Mr. Fryberg acknowledged that he accepted his promotion on the basis that he was an “at will” employee for the first 180 days. No such disclosure occurred in this case.

When Mr. Fryberg was promoted he signed a document acknowledging the “at will” status of his employment during the probationary period in the new position. That document stated, in part, as follows:

5 NICS App. 67, SHELDON v. TULALIP (July 1998) p. 72

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.

Fryberg v. Tulalip Casino, supra, at p.4. In the case before us, the Appellant has asserted that she had no knowledge that she could be terminated at-will during the probationary period if she accepted the promotion. During the trial court proceedings, the court asked the Appellant’s spokesperson whether Ms. Sheldon was subject to a mandatory 180 day probationary period when she accepted the new position. The Appellant’s representative responded as follows:

She would be subject to it, but she should have been informed. She should have been informed at the time that she was offered the position so that she could adequately consider all the elements of the change that she was about to make. . . .

Transcript of Motion for Reconsideration of September 30, 1997, p.14, lines 11-14.

It is arguable that such a disclosure might be considered a crucial element in the transfer or promotion of regular employees. While this Court believes that it is certainly a better practice to notify regular employees that they will lose valuable rights in employment by accepting a promotion or transfer for the first 180 days in that new position, the case before us is not a case where employment was terminated for no reason.

Ms. Sheldon was terminated because she failed to pass a urinalysis test. See Letter of Termination dated July 22, 1997. This is not disputed by the Appellant. Intoxication or being under the influence of alcohol or illegal drugs during work time is a major offense, which justifies dismissal. HRO 84, §§IX(C)(4) and IX(D)(2)(f,g). Cause did exist for Ms. Sheldon’s termination. As noted above, during the probationary period no cause is needed to terminate a transferred or promoted employee. The urinalysis test was conducted presumably pursuant to the authority contained in HRO 84, §VI(J). This provision requires all tribal employees at the time of hiring or promotion to sign an agreement permitting random testing for controlled substances by urinalysis.

In light of the fact that evidence exists to support a termination based upon cause, this Court finds it unnecessary to determine whether Ms. Sheldon’s constitutional right under Article VII, § 2 of the Tulalip Constitution (which affords to all members of the tribe equal opportunities to participate in the economic resources and activities of the reservation) was violated in this case due to the failure of the tribes to notify Ms. Sheldon that if she accepted the transfer she would revert to employment “at will” status for the first 180 days in the new position.

5 NICS App. 67, SHELDON v. TULALIP (July 1998) p. 73

VIII. SUMMARY

Based upon the foregoing, this Court cannot find that the decision of the Employment Court was arbitrary, capricious, or unsupported by substantial evidence. Therefore, the decision of the Employment Court is affirmed.