2003 SMTCA 1 October 27, 2003 Melinda Walsh, Petitioner-Appellee, vs. Stockbridge-Munsee Community, Respondent-Appellant.

Opening Statement

¶1 The Stockbridge-Munsee Community (Tribe) appeals the Stockbridge-Munsee Trial Court Decision of February 4, 2003. In that decision, the Trial Court held that the petitioner, Melinda Walsh, did establish, by a preponderance of the evidence, that she was terminated without cause. The Trial Court awarded the petitioner the following relief:

1. Reinstatement to previous position as secretary/receptionist or like position,

2. Back pay from September 15, 2000 to September 15, 2001,

3. Reinstatement of all previous benefits

4. A record of continuity in employment in Plaintiff's personnel file.

¶2 The Tribe appealed the Trial Court's decision, with oral arguments being heard on August 22, 2003 before Appellate Judges, David Raasch, Joseph Martin and Stanley Webster.

Jurisdiction

¶3 This Appellate Court asserts jurisdiction under 1.6(1) of the Stockbridge-Munsee Ordinances (SMTO). That section states, "The Stockbridge-Munsee Tribal Court of Appeals shall have jurisdiction over appeals from the Trial Tribal Court."

Scope of Review

¶4 The Stockbridge-Munsee Tribal Court Rules of Procedure limit the Appellate Court to hear only appeals concerning matters of law.1

Issues

¶5 By stipulation between the parties on February 23, 2001, the sole legal claim for the Trial Court to decide was ".…whether Ms. Walsh's employment was terminated with just cause in accordance with Section 53.3 (M), SM Ord."

¶6 The sole issue for this Appellate Court to decide is; did the Trial Court err in applying the facts to Section 53.3 (M) of the SMTO?2

Findings of Facts

¶7 The facts in this case are basically undisputed, although the question remains: do the facts presented rise to the level of 'just cause' to terminate the employment of Ms. Walsh? The Trial Court found that they did not.

¶8 On September 07, 2000, Ms. Walsh received a Stockbridge-Munsee Employee Action Notice of a five day disciplinary suspension, without pay, pending termination. On September 15, 2000, Ms. Walsh was notified that her employment was terminated effective on that date. The letter signed by Kenneth R. Ninham, gave the following grounds for termination:

1. "On 09-06-2000, a client called into the office to make an appointment to see a counselor. Melinda, you responded to this client by asking an inappropriate question which is clearly out of your role/duties as a receptionist. Melinda, you further responded to this client by stating to her, "oh co-dependency," and "co-dependency covers a lot of things." Your statement to the client is a clear violation of Section 7 page 39, (B-9). Melinda, you have been warned on several occasions not to be giving clients advise (sic) especially clinical advise (sic). Your action on 09-07-2000, same incident is another direct violation of Section 6, "Confidentiality," page 37 and a violation of Section 7 (C-1) page 40."

"Melinda, on 05-06-2000, and 05-24, 2000, you were counseled and given direction in terms of making necessary changes, and that improvement in your job performance was required. On 06-23-2000, I once again, informed you of the necessary changes that needed to take place. I have provided you with counseling in order to make the necessary changes. You have continued to disregard my directives and recommendations for making the necessary changes. Your failure to improve you job performance given sufficient time/counseling/corrective measure/direction is unacceptable.

¶9 On October 11, 2000, Ms. Walsh filed a petition for reinstatement in the tribal Trial Court, alleging that she was terminated without just cause. Ms. Walsh alleged that she was not afforded the counseling and corrective actions required pursuant to Section 07-Rules to Help, of the Information Handbook for Employees of the Mohican Nation, effective October 01, 1996.

¶10 On February 04, 2003, Trial Court judge Robert Miller ruled that the Tribe did not have cause to terminate Ms. Walsh's employment. This decision was received by the parties on or about February 11, 2003. The Tribe appealed the decision of the Trial Court, and this appellate panel now reviews the decision of the Trial Court.

Analysis

¶11 The thrust of this appeal is to determine if there was just cause to terminate Ms. Walsh's employment. First, we must look for the definition of just cause. In review of Chapter 53 of the SMTO governing employee rights, we find no definition of just cause. Therefore, we must look at prior tribal court cases where just cause was defined. Davids v. Stockbridge-Munsee Community, 98-AA-013 (1999), sets forth the standard for just cause. In Davids the Court said that just cause must be fair, impartial and consistent with the Tribe's policies and procedures.

¶12 In absence of a clear definition of just cause within the SMTO, we will proceed under the standards set forth in Davids. In the present case, the Trial Court found that Ms. Walsh was terminated without just cause. Inserting the definition of just cause in Davids, the Trial Court found that Ms. Walsh's termination was not fair, was not impartial, was not consistent with the Tribe's policies and procedures.

¶13 The purpose of the SM Employee Rights Ordinance states, in part; The Stockbridge Munsee Tribal Council further recognizes that employees of the Mohican Nation, comprised of all branches of government and business, need protection of their rights including a stable working environment and the right to file a grievance and seek assistance in solving on-the-job problems via the proper, established policies and procedures.3

¶14 In reviewing the transcript of the trial, the exhibits admitted into the record, and hearing oral arguments this appellate panel agrees with the Trial Court's determinations. If the purpose of §53.1 is to solve on-the-job problems via the proper, established policies and procedures, then the Tribe has failed in the case at hand. We agree with the Trial Court that Ms. Walsh was not given clear direction regarding job duties and responsibilities. Further, we agree with the Trial Court that Ms. Walsh "received mixed messages regarding counseling/corrective measures and direction".4

¶15 The Tribe argues that Ms. Walsh had been specifically told, in writing, on two different occasions that she was not to dispense advice to clients on the phone and not to argue with clients on the phone.5 The Trial Court found the memo in Exhibit #3 which stated; "it is important to never argue on the telephone or in person with any client even if they are wrong or up-set, and never give any client's advice leave that up to the counselors," to be advisory in nature and content. Although the Tribe argues that the memo is specific, it does not provide an adequate threshold to meet the established policies and procedures intention of the purpose of Chapter 53. The Tribe would have been in a stronger position if it had specifically set forth definitions of what constitutes advice. Further, due to the nature of Ms. Walsh's position, specific instructions on how to deal with potential clients could have been part of the training. Based on the facts presented, Ms. Walsh was not given specific guidelines and the Trial Court did not err in making that determination. This Appellate Court also finds that to be true of Exhibit #2, which is merely a list of concerns with no specific direction. Again, the Trial Court did not err in its finding that this document lacked evidence of counseling, corrective measures and suitable direction to meet the standards of progressive discipline as outlined in the Green Employee Handbook.6 If, in conjunction with these two documents, the Tribe had taken affirmative corrective measures and provided suitable direction to Ms. Walsh, it would have been in a better position to meet the just cause standard.

¶16 Other documents support Ms. Walsh's position of lack of suitable direction. The Performance Appraisal of Ms. Walsh dated 9/29/99 states in the section Specific steps employee must take to improve performance within specified time period:She has all the skills necessary to do more than is required to do the job. Would encourage to participate in any training which becomes available which would enhance existing skills or help her develop new ones. On June 23, 2000, right after the documents that the Tribe uses to establish performance issues, Ms. Walsh received another Performance Appraisal. We will note that the appraisal rating fell into the Very Good category of performance. We further note that in the section Specific areas of needed improvement, it states: Confidentiality-telephone skills-dealing with clients experiencing conflict-stress. In the section Recommendations for professional development (seminars, training, schooling, etc.), it states: Confidentiality laws that apply to AODA/Mental Health. Although these concerns are mentioned, there is nothing in the record to indicate that any of these recommended areas were provided to Ms. Walsh. This would have been the perfect time for the Tribe to establish specific guidelines, establish specific procedures and policies, and to specify training needed to meet the recommendations of the Performance Appraisal.

¶17 The Trial Court found that the described events of September 6, 2000 and September 7, 2000 did occur. These events are undisputed. However, the Trial Court found that the termination was not fair, impartial or consistent with procedural rules, based on lack of evidence of counseling, corrective measures and suitable direction to meet the standards of progressive discipline as outlined in the Green Employee Handbook. For this Appellate Court to overturn the Trial Court's decision, we must find that there was a material error in the application of the law to the facts of this case. We cannot find any material error concerning the matter of the law.

¶18 The Tribe argues that the Trial Court's decision is flawed for several reasons. One is that progressive discipline is not required by the Tribe's personnel procedures. We agree. Any requirement of progressive discipline policies would prevent the Tribe from terminating an employee who has committed serious violations that may involve criminal conduct such as theft, fraud, acts of violence or any other actions that would require immediate removal from employment. We also agree with the Tribe's position that it is not an issue as to whether, or not, the Court agrees with the Tribe's management practices. We fully agree with the Tribe's position that the purpose of the just cause standard is not for a wholesale substitution of the court's judgment for the employer's on management and personnel issues but rather a limited review by the court to ensure that the employer has followed its own procedures.7 This is exactly what the Trial Court did. It conducted a limited review of the employer's procedures and determined that Ms. Walsh was not afforded the counseling, corrective measures and suitable direction to meet the employer's standards. This Appellate Court can find no compelling errors to overturn that decision.

Conclusion

¶19 We find the Trial Court did not err in its decision, and that decision is affirmed as to its determination that Ms. Walsh's termination was without just cause.

Order

¶20 This case is remanded back to the Trial Court for a hearing to determine damages and reinstatement consistent with the findings of the Stockbridge-Munsee Court of Appeals in Stockbridge-Munsee v Joseph Miller 97-AA-004 and §53.5 (F) of the SMTO.

By the Court

This 27^th Day of October 2003

Honorable David Raasch

Honorable Joseph Martin

Honorable Stanley Webster

Footnotes

1. 1.

   Stockbridge-Munsee Tribal Court - Rules of Procedure §23 (I)

2. 2.

   §53.3 (M) Employees may not be terminated from employment without just cause.

3. 3.

   Chapter 53, Stockbridge-Munsee Tribal Law-Employee Rights Ordinance §53.1

4. 4.

   Page 4 of the Trial Court's decision.

5. 5.

   Page 6 of Respondent's Written Statement of Grounds for Appeal. Exhibits 2 and 3.

6. 6.

   Page 4 of Trial Court decision

7. 7.

   Page 12 of the Respondent's Written Statement of Grounds for Appeal