6 NICS App. 30, HOOPA VALLEY FISCAL DEPT. v. STEVENSON (Feb 2001)
IN THE HOOPA VALLEY TRIBAL SUPREME COURT
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
Hoopa Valley Tribal Fiscal Department, Appellant,
v.
Robin Stevenson, Respondent.
No. A-99-013 (Feb 14, 2001)
SYLLABUS*
Trial court, sitting as court of appeals in review of a TERO decision in favor of the claimant, ruled that the TERO lacked jurisdiction over the Defendant because the Defendant had never been served or appeared. Trial court therefore reversed the TERO decision and remanded for rehearing. Defendant appealed remand order, arguing that the complaint should have been dismissed rather than remanded because the TERO lacked subject matter jurisdiction, and in the alternative, the TERO decision was not supported by substantial evidence. Court of Appeals, sitting as Hoopa Valley Tribal Supreme Court, holds that (1) allegation of discrimination in complaint establishes subject matter jurisdiction of the TERO, and (2) claimant failed to offer any evidence whatsoever in support of her discrimination claim. Trial court order vacated and TERO decision reversed.
Before: Michelle Demmert, Chief Justice; Lisa Brodoff, Justice; Robert J. Miller, Justice.
Appearances: Thomas C. Petersen, Office of Tribal Attorney, counsel for Appellant, Hoopa Valley Tribal Fiscal Department; Robert Hostler, spokesperson for Respondent, Robin Stevenson.
OPINION
This matter came before the Hoopa Valley Tribal Supreme Court pursuant to an appeal filed on October 14, 1999 by the Hoopa Valley Tribal Fiscal Department (Fiscal Department). The Tribal Employment Rights Ordinance (TERO) Commission, finding Respondent Robin Stevenson’s termination was discriminatory and wrongful, ordered reinstatement and awarded her back pay. On appeal, the tribal court, sitting in appellate review pursuant to Hoopa Valley Tribal Code (HVTC) §1.4.01(b), found that although the TERO Commission had subject matter jurisdiction over the matter, it lacked personal jurisdiction over the Fiscal Department, which had
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never received notice of, nor appeared at the TERO hearing. The appellate court reversed the TERO decision and remanded the matter for rehearing with the Fiscal Department as a named party. The Fiscal Department timely appealed to this Court, sitting as the Hoopa Valley Tribal Supreme Court pursuant to HVTC §1.4.01(b).1
I. Background
The Hoopa Valley Tribe’s Fiscal Department hired Robin Stevenson as a staff accountant on May 11, 1998. As a new employee, Ms. Stevenson was subject to a ninety-day introductory period pursuant to §3.2.1 of the Tribes’ Personnel Policies and Procedures (PPP).2 Ms. Stevenson was directly supervised by Steve Burbank, the Fiscal Department’s Chief Fiscal Officer.
On June 29, 1998, during her introductory period, Mr. Burbank directed Ms. Stevenson to submit to a “for cause” drug test pursuant to the Tribe’s Drug and Alcohol Policy. Ms. Stevenson was transported to the medical center for a urinalysis. When Ms. Stevenson arrived at the lab, she was unable to produce a sample. She was given water to drink and was told to inform the technician when she was ready to provide the sample.
Ms. Stevenson claims that she eventually did provide a sample. The Fiscal Department alleges that Ms. Stevenson never informed the lab technician she was ready to provide a sample and that no sample was ever processed.
On July 6, 1998, while Ms. Stevenson was still an introductory employee, she was terminated for failure to submit to a drug test. Ms. Stevenson filed a timely complaint with the Tribal Employment Rights Ordinance (TERO) office, alleging that her termination was based on “discrimination”. The complaint intake form named the Hoopa Valley Tribe and Steve Burbank as respondents. A Notice of Pending Investigation was served on Ms. Stevenson and Mr. Burbank.
TERO subsequently sent a memo informing the parties that the TERO Director was unable to conduct an investigation of the complaint. The memo was addressed and mailed on August 26, 1998 to Ms. Stevenson and Millie Grant. Ms. Grant, the Tribe’s Fit for Duty Officer, was the named Respondent on the memo. Neither of the original respondents, Mr. Burbank nor
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the Fiscal Department, was served with a copy of the memo. The memo further instructed the addressees:
If either party wishes a hearing before the TERO Commission, a written request must be received in the TERO Office no later than ten (10) calendar days after this report was personally delivered to you, or fifteen (15) calendar days after this report was mailed to you.
Twenty-one days after the memo was mailed, Ms. Stevenson filed a Request for Hearing. A hearing was set and a Notice of Full Hearing was served on Ms. Stevenson and Ms. Grant. Again, neither Mr. Burbank nor the Fiscal Department received notice of Ms. Stevenson’s request or the hearing notice.
The TERO Commission held a hearing on November 17, 1998. Both Ms. Stevenson and Ms. Grant attended the hearing. Neither party called witnesses or submitted documents. Mr. Burbank and the Fiscal Department did not appear. During the hearing, Ms. Stevenson did not raise the issue of discrimination which she had alleged in her original complaint; neither did she offer any evidence to support a discrimination claim. Nevertheless, in its written decision of December 1, 1998, the TERO Commission, identifying as its sole issue whether Ms. Stevenson’s termination was discriminatory or otherwise wrongful, held the termination to have been discriminatory and wrongful and ordered reinstatement and back pay.
The Hoopa Valley Tribal Fiscal Department timely appealed the TERO decision to the Hoopa Valley Tribal Court pursuant to Title 2, § 2.6.03, Title 13, §13.10 and the Rules for Hearings Before TERO Commission (Hearing Rules) §IV(1). On appeal, the Fiscal Department argued that the TERO Commission lacked subject matter jurisdiction on the grounds that:
1) Ms. Stevenson did not timely file her request for hearing;
2) Ms. Stevenson failed to follow prescribed grievance procedures;
3) The TERO Director failed to complete a mandatory pre-hearing investigation;
4) Termination for violation of the Drug and Alcohol Policy is not subject to a grievance;
5) The TERO Commission failed to name the Hoopa Valley Tribe Fiscal Department as a party to this action.
The Fiscal Department also argued that the TERO decision was arbitrary and capricious and not supported by substantial evidence.
The appellate court rejected the first four issues, holding that the TERO Commission did have subject matter jurisdiction over the proceedings. The appellate court further held, however, that the TERO Commission’s failure to name the Fiscal Department deprived it of personal jurisdiction over the Fiscal Department. Citing mootness, the court did not rule on the argument that the TERO Commission’s decision was not supported by substantial evidence. The appellate
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court reversed the TERO Commission ruling and remanded the matter back to TERO to be reheard with the Fiscal Department named as the responding party. This appeal by the Fiscal Department followed.
II. Issues on Appeal
The Fiscal Department identifies essentially the same issues on appeal to this Court which it raised before the lower court and they may be distilled as follows:
1) Whether Ms. Stevenson’s request for a TERO hearing was untimely filed, thereby depriving the TERO Commission of jurisdiction?
2) Whether an introductory employee may grieve her termination?
3) Whether the TERO Commission’s decision was supported by substantial evidence?
4) Whether Ms. Stevenson’s failure to follow the grievance procedures deprived the TERO Commission of jurisdiction?
5) Whether the TERO Director’s failure to conduct a pre-hearing investigation deprived the TERO Commission of jurisdiction?
III. Discussion
A. Did Appellant Timely File Her Request for TERO Hearing?
As a preliminary issue, we address whether Appellant timely filed her TERO hearing request in this matter. If, as the Fiscal Department argues, Appellant did not timely request a hearing, neither TERO nor the appellate court nor this Court has jurisdiction to hear this matter and the appeal must be dismissed.
It is this Court’s opinion that TERO’s memo to Appellant outlining the appeal timeline was, at a minimum, ambiguous. As the appellate court points out, it is not clear whether Ms. Stevenson’s appeal timeline begins when the TERO report is personally served or when it is mailed. Based on this ambiguity, we decline to penalize Ms. Stevenson by dismissing this matter for untimely filing.
B. May an Introductory Employee Grieve Her Termination?
Next, we address whether an introductory employee may grieve her termination to the TERO Commission. The Fiscal Department contends that she may not because: (1) she did not raise or support a claim of discrimination and (2) Title 21, the Tribe’s Drugs and Alcohol Policy, does not allow an employee who has been terminated for failure to comply with the Drug and Alcohol Policy to appeal her termination.
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The parties do not dispute that Ms. Stevenson was still an introductory employee at the time her employment was terminated. The language in PPP §6.1.3 clearly and unequivocally states that an introductory employee “may be terminated without the right of appeal or hearing, except in cases of alleged discrimination.”
We disagree with the Fiscal Department’s claim that Ms. Stevenson did not raise a discrimination claim. Although she did not raise discrimination once her case came for hearing before the TERO Commission, Ms. Stevenson’s initial complaint does claim discrimination was the basis for her termination. Thus, regardless of whether she was terminated for violating the Personnel Policies and Procedures Manual or the Drug and Alcohol Policy, Ms. Stevenson is an introductory employee alleging discrimination. Therefore, pursuant to the plain language of PPP §6.1.3, Ms. Stevenson meets the minimum threshold to allow the TERO Commission jurisdiction to hear the matter.
C. Was the TERO Decision Supported by Substantial Evidence?
Ms. Stevenson, an introductory employee who otherwise has no right to appeal her termination, attempts to bring a claim before TERO on grounds of alleged discrimination. As the claimant, she carries the burden both of pleading and showing discriminatory purpose on the part of her employer. Having met the minimum threshold pleading requirement to allow TERO to assume jurisdiction to hear the matter, Ms. Stevenson must then offer sufficient evidence to the TERO Commission to support her claim. During the TERO hearing, however, Ms. Stevenson neither raised the issue of discrimination nor offered any evidence to support such a claim. Nevertheless, the TERO Commission determined that Ms. Stevenson had been terminated for a discriminatory purpose.3
The Hoopa Valley Tribal Code does not specify the elements a complainant must show in order to establish that discrimination has occurred; however, Ms. Stevenson offered no evidence at all to support her allegations. Therefore, we need not here reach the issue of what specifically constitutes “discrimination” for purposes of an employee grievance pursuant to the Hoopa Valley Tribal Code. Clearly, the TERO decision is not supported by substantial evidence in the record – indeed, it is supported by none whatsoever – and this we hold to be reversible error.
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IV. Conclusion
Appellant argues that the TERO Commission had no jurisdiction over this matter because Ms. Stevenson was an introductory employee. We hold that TERO acquired jurisdiction when Ms. Stevenson filed her initial complaint alleging discrimination. From that point, however, Ms. Stevenson also carried the burden of producing evidence to support her claim. This she failed to do.
Nevertheless, the TERO Commission found Ms. Stevenson’s termination was discriminatory and wrongful and ordered her reinstated to her former position with back pay. The record does not support such a ruling. Not only did Ms. Stevenson fail to offer any evidence in support of her allegation; she failed entirely to even raise the issue during the TERO hearing. Therefore, we hold that the TERO Commission erred in finding discriminatory purpose in the absence of any supporting evidence. Having found error sufficient to require reversal, we decline to address the remaining issues on appeal.
Based on the foregoing, we hereby reverse the TERO Commission Decision and vacate the trial court order of remand.
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.
Section 1.4.01 of the HVTC provides:
The Tribal Court shall act as the Court of Appeals to hear appeals of TERO Commission decisions. In the event that the Tribal Court acts as the Court of Appeals, the Court of Appeals will hear the appeal of the Court of Appeals as the Hoopa Tribal Supreme Court. The decision of the Hoopa Tribal Supreme Court shall be a final decision.
Title 30 of the Hoopa Valley Tribal Code codifies the Tribe’s Personnel Policies and Procedures. Section 3.2.1 of the PPP provides, in relevant part: “All entrances and all promotional appointments are subject to an introductory period of at least ninety (90) days from the date of hire.”
The TERO Commission found in its written decision that a refusal to grant an introductory employee a hearing would have constituted a denial of due process and that such a denial would be discriminatory. As previously discussed, an employee within the first ninety days of her employment is an introductory employee whose employment may be terminated without the right of appeal or hearing. Therefore, it does not appear that a denial of a hearing necessarily constitutes a denial of due process.
Further, this Court suggests that a denial of due process would not constitute “discrimination” except in the broadest sense of the word – that is, every terminated employee has been treated differently than those employees who have not been terminated. We suggest that this difference in treatment, in itself, does not constitute impermissible discrimination. We recognize, however, that the Hoopa Valley Tribal Council has not defined “discrimination” anywhere in the Hoopa Valley Tribal Code. We properly leave to that legislative body the task of defining the term “discrimination” if it chooses to do so.