6 NICS App. 38, WAGNER v. TULALIP HOUSING AUTHORITY (March 2001)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
Daniel E. Wagner, Appellant,
v.
Tulalip Housing Authority, Respondent.
No. TUL-EMP-3/00-123 (March 27, 2001)
SYLLABUS*
Trial court, sitting as the Employment Court, upheld ten-day suspension of employee based on employee’s failure to follow a management directive. A majority of the Court of Appeals holds that trial court’s decision was not arbitrary and capricious and was supported by substantial evidence. Dissenting opinion argues that trial court failed to establish the intent element needed to support the particular offense and resultant discipline. Trial court order affirmed by a 2 – 1 majority.
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Lisa E. Brodoff, Chief Justice; Rose E. Purser, Justice; Richard A. Woodrow, Justice. |
OPINION
Woodrow, J., writing for the majority; Purser, J., concurs:
This matter came before the Tulalip Tribal Court of Appeals pursuant to a Notice of Appeal filed by Daniel E. Wagner on April 18, 2000. Appellant appeals from the Employment Court’s April 11, 2000 Findings, Conclusions, Opinion and Order affirming Mr. Wagner’s suspension from employment.
BACKGROUND
Appellant Daniel E. Wagner was employed by Respondent Tulalip Housing Authority (THA) as a Finance Supervisor. On March 21, 2000, THA suspended Mr. Wagner for ten days for violation of §IX.D.2.a of Ordinance 84, the Tulalip Tribes’ Human Rights Ordinance (HRO). Mr. Wagner’s suspension was based upon his alleged failure to return a report to his direct supervisor as instructed.
6 NICS App. 38, WAGNER v. TULALIP HOUSING AUTHORITY (March 2001) p. 39
Mr. Wagner filed a timely Notice of Appeal and Request for Hearing before the Tulalip Tribal Employment Court. Mr. Wagner requested the suspension be removed from his file, as well as back pay and compensation for benefits lost during the suspension. The Employment Court held a hearing on April 11, 2000.
The Employment Court orally entered its findings in open court and also issued its written Findings, Conclusions, Opinion and Order. The court found, inter alia, that Mr. Wagner had failed to follow a direct order of his supervisor, thereby violating the chain of command. Based on its findings, the Employment Court affirmed the findings of the administration and sustained Mr. Wagner’s disciplinary suspension. It is from this order that Mr. Wagner appeals.
JURISDICTION
This Court has personal jurisdiction over all parties to this appeal. All acts relating to this appeal occurred within the exterior boundaries of the Tulalip Indian Reservation, giving rise to this Court’s territorial jurisdiction. This Court has subject matter jurisdiction pursuant to HRO 84, §§I.d and X.B.10 and Resolution No. 96-0020.
SCOPE OF REVIEW
This Court’s scope of review of decisions from the Tulalip Employment Court is defined as follows:
The jurisdiction of 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. HRO 84, §X.B.10.
Tulalip Gaming Agency v. Murray, 5 NICS App. 90 (Tulalip, Nov. 1998).
ISSUE ON APPEAL
The sole issue on appeal is whether the Employment Court erred by upholding the decision of the Tulalip Housing Administration’s suspension of Mr. Wagner for insubordination?
FACTS
As of March 17, 2000, Mr. Wagner was employed as a supervisor by the Tulalip Housing Authority. (Reporter’s Transcript at 1). Mr. Wagner was ill and not at work on March 16, 2000. (RT 2).
On March 13 or 14, Don Hoerner, The Tribes’ Financial Manager, asked the Housing Authority’s Contracting Officer, Sheryl Wharton, via voice mail to provide him with information from the Housing Authority. (RT 30). Mr. Hoerner requested the names and amounts paid to the
6 NICS App. 38, WAGNER v. TULALIP HOUSING AUTHORITY (March 2001) p. 40
Housing Commissioners for 1999 so this information could be included in the 1999 General Council Report. (RT 33). On March 16, 2000, Ms. Wharton directed her staff to prepare a report regarding the Tulalip Housing Commissioners specifying the amount of stipend paid to each of them during the fiscal year of 1999. Mr. Hoerner requested this information by following appropriate procedure and through the proper channels of command. (RT 39).
The task of preparing the report ordinarily would have been performed by Mr. Wagner. Mr. Wagner was ill, however, and his clerk, Mr. Richard Oxstien, was assigned the job. (RT 10, 16, and 25). Mr. Oxstien completed this memorandum and gave it to Housing Manager, Cynthia Hatch-McGee, on March 17, 2000. (RT 16).
Mr. Wagner returned to work on March 17, 2000. He was present at the time that Ms. Wharton told Mr. Oxstien that the Board had reviewed the memorandum and wanted additional information regarding the dates of travel, dates of stipend payment, source of stipends and other details. (RT 16, 36). Mr. Wagner was instructed to make the requested changes to the report. (RT 27).
Mr. Wagner testified that the directions for changing the report were clear. (RT 37). He also testified that he had been directed to return the memorandum to Ms. Wharton for review. (RT 37, 40). Mr. Wagner admits that he did not change the report format as directed, nor did he return the revised report to his direct supervisor as instructed. (RT 37). It is Mr. Wagner’s understanding that his direct supervisors are Ms. Wharton and Ms. Hatch-McGee. (RT 37).
Although the changes had been requested by the THA Board of Commissioners, Mr. Wagner believed the report was requested by the Board of Directors of the Tulalip Tribes. He believed that time was of the essence and that he needed to complete and deliver the report as soon as possible. (RT 38). Mr. Wagner confirmed the information requested by contacting Mr. Hoerner. Mr. Wagner felt that since Ms. Wharton had already seen the substance of the report, no harm would follow if he disseminated the report without her reviewing it. (RT 39). It was Mr. Wagner’s understanding that Ms. Wharton was not in the office when the modified memorandum was completed on March 17; therefore, he felt he should send the memorandum on to Mr. Hoerner. (RT 39).
The chain of command in the Housing Authority moves from Mr. Oxstien to Mr. Wagner and then to Ms. Wharton and Ms. Hatch-McGee simultaneously. Mr. Wagner failed to deliver the report to Ms. Wharton, as instructed, prior to distribution. (RT 43).
ANALYSIS
This court adopts all the factual findings delineated by the Employment Court in its Findings, Conclusions, Opinion and Order filed April 11, 2000. All of these findings were supported by substantial evidence. A review of the verbatim report of the proceedings shows that the Employment Court’s decision was not arbitrary or capricious.
6 NICS App. 38, WAGNER v. TULALIP HOUSING AUTHORITY (March 2001) p. 41
In his appellate brief, Mr. Wagner argues that the lack of communication by Ms. Hatch-McGee and Ms. Wharton removes him from the chain of command. He is mistaken factually and legally. He was fully and completely informed of the required additions to the memorandum and the requirement that the memorandum be returned to Ms. Wharton prior to transmission. Furthermore, even if there had been a lack of communication, it was incumbent upon Mr. Wagner to clarify his orders before proceeding to send information out of the Housing Authority office. Mr. Wagner cites no legal authority to the contrary.
The Employment Court was correct when it noted that Mr. Wagner made a judgment call when he failed to follow the chain of command and that judgment call violated a specific directive. (RT 56). Mr. Wagner admits both that he had received clear instructions to return the report to Ms. Wharton and that he had failed to do so. In his appeal from the administrative decision to suspend him, Mr. Wagner was more forthright when he wrote. “... I could not see any reason not to sent [sic] the report for the amount on the report was the amount reported to Internal Revenue Service on form 1099 for each commissioner.” (Notice of Appeal and Request for Appeal Hearing filed March 23, 2000). Mr. Wagner ignores the sole reason for not sending the report: a direct order by his immediate supervisor not to do so.
DECISION
The decision of the Employment Court is hereby affirmed. The Employment Court’s decision was not arbitrary or capricious and was supported by substantial evidence. The suspension of Mr. Wagner by the administration of the Housing Authority was justified.
Dissenting Opinion
Brodoff, C.J.:
I dissent. I would remand this case back to the trial court for a new trial on the limited factual issue of whether or not “insubordination” as defined below occurred here.
The trial court made factual findings and a legal conclusion that the appellant, Mr. Wagner, failed to follow the “chain of command”, and thus the suspension was upheld. See Findings, Conclusions, Opinion and Order II. (11). No mention is made in the opinion of the term “insubordination,” and whether or not the Appellant’s actions constituted “insubordination.” This is critical because the Appellant was disciplined based on his actions constituting “insubordination.” not for the reason that he acted outside the “chain of command.”
While there are clearly facts in the record to support the trial court’s conclusion that Mr. Wagner failed to follow the “chain of command,” such a failure is only considered a “minor offense” under HRO 84 IX.D.1.m. Punishment for a first minor offense is a “written warning notice and counseling by immediate supervisor.” HRO 84 X.A.3.a.1.
6 NICS App. 38, WAGNER v. TULALIP HOUSING AUTHORITY (March 2001) p. 42
Here, Tulalip Tribes Housing punished Mr. Wagner’s failure to follow the chain of command by labeling it “insubordination.” Because “insubordination is a “major offense” under HRO 84 IX.D.2.a., the employer was able to punish Mr. Wagner with a 10 day suspension under HRO 84 X.A.3.b.1. The trial court and the majority here affirm that decision. However, unlike the term “acting outside the chain of command,” which is easily understood on its face, the term “insubordination” is not easily defined. HRO 84 does not define anywhere what employee behaviors or activities constitute “insubordination.” This is particularly disturbing because the Tribe can punish an insubordinate employee with either suspension without pay for up to 15 days or dismissal from the position entirely. HRO 84 X.A.3.b.1. It is unfair to have such a severe punishment when employees are not given any notice of the meaning of the term “insubordinate” in the code.1
Black’s Law Dictionary defines “insubordinate” as “an act of disobedience to proper authority, especially a refusal to obey an order that a superior officer is authorized to give.” This definition requires a refusal or a conscious willfulness on the part of the employee in failing to obey an order. It requires a high level of proof as to the state of mind of the employee in failing to follow the command of a superior. None of the findings of the trial court speak to whether or not Mr. Wagner purposely refused to follow a superior’s order, because the minor offense of “acting outside the chain of command” does not require that the act be purposeful. I would therefore remand this matter back to the trial court to hear evidence on the limited issue of whether or not Mr. Wagner willfully refused to follow an order of a supervisor. If so, then the Tribe was within its rights in suspending Mr. Wagner without pay. If not, then only a first minor offense penalty is warranted, and the Tribe’s suspension was beyond its authority under HRO 84.
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.
It is within the sole discretion and authority of the tribal legislature to consider defining the term “insubordinate” in the HRO, in a way that requires a conscious refusal on the part of the employee to follow a superior’s order.