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5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997)

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IN THE TULALIP TRIBAL COURT OF APPEALS

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TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Dell Renecker,Appellant/Defendant,

v.

Tulalip Casino,Respondent/Plaintiff.

No. TUL-EMP-11/96-667 (May 29, 1997)

SUMMARY

In September of 1996, an employee of Respondent Tulalip Casino filed a grievance against her supervisor, Appellant herein, with regard to incidents that took place in November of 1995 and July of 1996. Respondent Casino terminated Appellant’s employment in November of 1996. Finding that the grievance against Appellant and his termination were not procedurally related, the trial court upheld Appellant’s suspension. Court of Appeals finds that employer’s failure to follow its own personnel policies and procedures results in fatal flaw.

FULL TEXT

Before: Elbridge Coochise, Chief Justice; Larry King, Justice; Yvonne M. Leveque, Justice.

Appearances: Dell Renecker, Appellant; Carlos Echevarria, spokesperson for Appellant; Dean Fryberg, Jr., spokesperson for Tulalip Casino; Lee Topash, representative for Tulalip Casino.

King, J., writing for a unanimous panel:

I. NATURE OF ACTION

Employee Renecker appeals a decision of the Tulalip Employment Court which upheld his suspension by his employer, The Tulalip Casino.

II. BACKGROUND

On November 5, 1996, Renecker was working in his capacity as a first line supervisor at the Tulalip Casino. On that day he was served with a notice of suspension which outlined three separate incidents in which Renecker allegedly made gender and race biased statements against an employee who he supervised and one incident in which he allegedly threatened her.

5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 2

The Tulalip Tribes have a detailed Human Rights Ordinance (HRO 84) which allows for a suspension of an employee if he or she commits a “major offense” within the meaning of HRO 84 (IX)(D)(2). The parties agree that any one of the four allegations involves “major offenses” and, if proven, could result in suspension or dismissal. The parties also agree that conditions of Renecker’s employment are subject to the procedures and rules detailed in HRO 84. (This agreement is implicit in the parties’ positions: Renecker relies on procedural errors and the Casino relies on substantive violations of rules of conduct.) The transcript offers no evidence of a formalized employment agreement other than HRO 84.

The above referenced notice of suspension was the result of a grievance filed against Renecker by an employee he supervised, one Kim Sanderson. The grievance, which was filed on September 16, 1996, references in strong language the above incidents of racial and gender slurs and threats which, according to Sanderson, occurred “approximately November of 1995” and “around July 6, 1996.”

HRO 84 (X)(B)(1) addresses in relevant part the filing of grievances:

Employee grievances must be in writing, specific, and clearly express an employee’s dissatisfactions with a job-related employment practice or a job-related decision of supervisors. (b) If the supervisor is considered to be the problem then a formal grievance is filed. This requires a written grievance from the employee and a written response from the supervisor. The written grievance and response are then submitted to the next level of supervision, with copies to the human resources office. A written grievance filed more than twenty days from the date of the event that caused the grievance shall not be considered.either may submit a notice of dissatisfaction to the supervisor rendering the decision within five working days of receipt of the decision. This notice will be a request to have the case submitted to the C.E.O. for review and consideration. [Emphases added].

The parties agree that subsection (b) was violated because the grievance was filed more than “20 days from the date of the event that caused the grievance.” (Sanderson’s September 16, 1996, grievance stated that the most recent event was “sometime around July 6, 1996.”)

III. JURISDICTION

This Court has personal jurisdiction as Appellant is a member of the Tulalip Tribes. Territorial jurisdiction exists as the action occurred within the exterior boundaries of the Tulalip

5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 3

Reservation. Subject matter jurisdiction exists as the action was under the Tulalip Tribes’ Human Resources Ordinance.

IV. ISSUE

Does the employer’s violation of the tribe’s personnel ordinance invalidate the employee’s suspension?

The Tulalip Casino argues that the error referenced above is harmless and that such a technicality should not bar the Casino from taking disciplinary action against Renecker in this case. The Tulalip Employment Court agreed with this position when it found as a matter of law that HRO 84 (X)(B)(1)(b) did not apply “to the disciplinary procedure initiated against him.”

We do not agree with the Casino’s position or with the Employment Court’s interpretation of the Tulalip Human Resources Ordinance.

V. DISCUSSION

The court below seems to rest its opinion, at least in part, on the premise that disciplinary action against Renecker was not procedurally related to the grievance against him by Sanderson. We disagree with this interpretation for the following reasons:

1. A close reading of the entire HRO 84 shows that procedures and substantive outcomes are closely related when an employee files a grievance against her supervisor. Within HRO 84 (I)(A), which defines its purpose, is the following language: “Every employee can use the ordinance as a basis for making decisions about their employment status, the status of their supervisor, and the status of the employees supervised by them.” (Emphasis added).

2. The grievance filed by Sanderson was against Renecker. Sanderson’s grievance involves allegations that Renecker committed “major offenses,” some of which were said to have occurred an entire year before Renecker was disciplined. Discipline followed grievance as an automatic result. One process relied on the outcome of the other. The two are procedurally and substantively connected.

3. Contrary to the opinion of the Employment Court we find that the Casino violated Renecker’s rights when it did not take disciplinary action in a timely fashion. HRO 84 (X)(A)(8) establishes the “date for taking disciplinary action” as follows:

Disciplinary actions under this Ordinance must be taken within twenty days from the date of discovery of the event or events for which the disciplinary action is taken; or if the event leading to discipline requires investigation, from the date that the investigation is considered complete. Supervisors must document an investigation. (Emphasis added).

5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 4

Because we believe that the entire HRO 84 is for the benefit of both the accused and the accuser, it follows that Renecker’s rights under the HRO 84 should attach at the same time of the alleged incidents. This, we believe, is the “date of discovery” referenced in HRO 84 (X)(A)(8). Any other interpretation would allow the Casino to “investigate” an incident for an indefinite amount of time; in this case for approximately one year, in other cases for possibly several years.

4. The short time frames for taking action under the HRO 84 serve a useful purpose. They afford all accused employees an opportunity to gather fresh evidence and witnesses with reliable memories so that they can defend themselves against clear allegations. Without these safeguards the “who, what, where and when” of a statement made in the context of a busy work environment can become quite unclear. This potentiality becomes evident upon review of the transcript in the instant case.

Under the HRO 84, allegations must be documented and investigated quickly. Then, following the investigation, disciplinary action must be accomplished quickly. There is nothing in the HRO 84 that indicates that the parties cannot mutually agree to extend any given time frame; however, the record shows no such extension in the case before us.

5. The law in this area is in a state of flux; however, certain principles seem to be developing and may serve as guidance in the future:

(a) With few exceptions, case law does not require employers to develop and utilize employee policy manuals such as the HRO 84 in the instant case; however, the employer’s act of voluntarily issuing and operating under a policy manual can lead to obligations that govern the employment relationship. Thompson v. St. Regis Paper Company, 102 Wn. 2d 219, 685 P. 2d 108 (1984).

(b) The principle reason employers issue such manuals is to create an atmosphere of fair treatment and job security for their employees. Parker v. United Airlines Inc., 32 Wn. App. 722, 649 P. 2d 181 (1982).

(c) Once an employer announces a specific policy or practice, especially in light of the fact that he expects employees to abide by the same, the employer may not treat its policies as mere technicalities when expedience seems to so require. Toussaint v. Blue Cross, 408 Mich. 579, 292 N.W. 2d 880 (1980).

VI. CONCLUSION

There is no indication of any malice on the part of the Casino. In fact there is ample evidence that the Casino committed procedural errors in a quest for a just result. Regardless of this, however, we conclude that the Casino’s failure to follow its own policies and procedures results in a fatal flaw.

5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 5

VII. ORDER

We hereby REVERSE the Employment Court's decision to uphold the November 5, 1996, suspension of Mr. Renecker.

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The state’s legislature legalized sports betting in Washington at tribal casinos only. Mobile betting will only be allowed while on tribal land.

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Sports betting in Washington will be allowed only at tribal casinos once it launches. Just because a tribe can offer WA sports betting does not necessarily mean it will choose to do so.

There are 30 tribal casinos in the state of Washington operated by 24 tribes:

When Will Tulalip Casino Reopen

It’s important to note that this may not be the path forward for Washington sports betting after all. Eric Persson, CEO of Maverick Gaming, which owns 19 of the state’s card rooms, said he would sue over the bill’s emergency clause.

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Online Washington sports betting is technically allowed but only on tribal land.

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Tulalip Casino Application

Whether any tribes launch an app for Washington sports betting while on tribal land is up in the air. For instance, casinos in Mississippi have had the option to launch a mobile sports betting app geofenced to the casino since sports betting started in August 2018, but none have.

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