PAP.5.12.040 Disciplinary Action Appeal Procedure

(a) Appeal Policy.

(1) It is the policy of the LCO-CHC to ensure fair and equitable treatment for employees. Therefore, the Tribe on behalf of the LCO-CHC hereby issues a waiver of its sovereign immunity pursuant to Section TCT.1.3.020 to all non-contracted employees for the limited purpose of appealing in Tribal Court as detailed in this section, any suspension or termination received by an employee pursuant Section PAP.5.12.020 of this manual. Verbal and written warnings are corrective action tools and thus are not subject to appeal.

(2) Any additional claims asserted by an employee against the LCO-CHC or the Tribe, must be filled pursuant to Section TCT.2.9.010. The Tribe on its own behalf, as well as on behalf of the LCO-CHC, has not waived its sovereign immunity with regard to any claims filed pursuant to Section TCT.2.9.010.

(b) Appeal Procedures. A formal appeal will be filed and processed in the manner described below, except that time limits may be waived or extended by written mutual consent of the parties involved.

(1) Appeal. The Employee will submit a written statement detailing the issue being appealed within three (3) working days of receiving a suspension or termination pursuant to Section PAP.5.12.020 of this manual. An Employee's failure to file an appeal within the specified time period will be considered a waiver of the formal appeal procedure and the disciplinary action will be final.

(2) If at any time during the process the Employee and the Employee's Supervisor are able to agree on a solution to the appeal filed, they may submit a joint statement outlining the acceptable terms to the Health Director. If the terms are approved by the Health Director, then the matter is settled with copies provided to the Employee and the Supervisor with a copy retained by the Human Resource Director. The Health Director decision will be final.

(c) Hearings.

(1) Scheduling of Hearings.

(A) Upon timely receipt of all appeal documentation, the Human Resource Director, or designee, will file the employment appeal with the Tribal Court and request an initial hearing.

(B) The Tribal Court shall notify the employee of the initial hearing date of their employment appeal by personal delivery or certified mail at least five (5) days prior to the scheduled hearing date.

(C) The Lac Courte Oreilles Office of the Attorney General shall be notified of all appeals by the Tribal Court in the same manner as provided in Section PAP.5.12.040(c)(1)(B), above. The Human Resource Director, or designee, shall provide the Lac Courte Oreilles Office of the Attorney General with the entire record of the grievance and all information submitted in connection to the appeal.

(D) All employees requested to testify at an employment appeal hearing, must attend the hearing when directed by the Human Resource Director, or designee. Failure to appear may result in a monetary fine or disciplinary action or both. The LCO-CHC recognizes that some employees possess official immunity and may not be compelled to testify.

(2) Tribal Court Hearings. The Tribal Court will conduct an employment appeal hearing pursuant to the provisions of this section. Any reliance by the Tribal Court upon the provisions of Chapter TCT.2 of the LCOTCL – Court and Civil Procedure Code shall be secondary to the provisions of this ordinance.

(A) The Tribal Court shall schedule an initial appearance within thirty (30) days of the filing, at which time the LCO-CHC shall enter its initial plea, the Tribal Court shall set forth a scheduling order pursuant to Section TCT.2.9.050 and shall schedule a trial date pursuant to Section TCT.2.10.010. The initial trial date shall be scheduled within sixty (60) days of the filing.

(B) the Trial shall be conducted pursuant to Subchapter TCT.2.10.

(C) The Tribal Court shall determine, by a preponderance of the evidence, whether the LCO-CHC reasonably believed that the employee committed any of the policy violation(s) upon which the discipline was based and whether the employer followed the appropriate procedural steps established in Section PAP.5.12.020 of this manual.

(i) The Tribal Court is required to defer to interpretations of this ordinance as made by the LCO-CHC [pursuant to the Chevron Doctrine], unless such interpretations are unreasonable. An action determined to be unreasonable shall be established by clear and convincing evidence.

(D) If the Tribal Court determines that the employer had a reasonable basis to believe that it met the burden of proof regarding any of the violations and the appropriate procedural steps established in Section PAP.5.12.020 of this manual were followed, it shall uphold the decision of the employer; and shall uphold all disciplinary measures taken without substituting its judgment for that of the employer.

(E) If the Tribal Court determines that the employer did not have a reasonable basis to believe that it met the burden of proof regarding any of the violations and procedural steps established in Section PAP.5.12.020 of this manual, it shall overturn the decision of the employer and order that the employee's personnel file reflect such decision conditioned on the following:

(i) Any award of back wages or other benefits that may have been withheld from the employee shall be limited to ninety (90) days;

(ii) No attorney's fees may be awarded as established in Section TCT.2.11.060.

(iii) Any award of back wages shall be reduced by all amounts earned through other employment or unemployment insurance during the time between the employee's separation and the conclusion of this action;

(iv) The employee has a duty to mitigate any award of back wages by attempting to retain other employment. In order to provide proof of mitigation, the employee must provide evidence to the Tribal Court that the employee has applied for at least one (1) equivalent positions per week.

(v) The employee is not guaranteed restoration to his or her previous position. Such reinstatement shall occur at the discretion of the LCO-CHC. If the LCO-CHC restores the employee to his or her previous position, the Human Resource Director shall meet with the employee and the department head or director and develop a work reinstatement plan including specific timelines and tasks for reintroduction into the workforce.

(F) The Tribal Court may issue its decision orally immediately. In all cases it shall issue a written decision within forty-five (45) days as established by Section TCT.2.11.040 and shall provide the parties with notice thereof. If the Tribal Court does not issue a written decision within forty-five (45) days, it is presumed that the Tribal Court has determined that the employer had a reasonable basis to believe that it met the burden of proof and as a result the action of the employer shall be upheld. The written decision shall include findings of fact, a conclusion regarding each violation, and any money judgments as conditioned in Section PAP.5.12.040(c)(2)(E), above. The decision shall be provided to each party by first-class mail to the person's last known address; electronic mail to the party and to the party's attorney or lay advocate who has filed a notice of appearance in the action; or by delivery to such person, the person's home, or the person's office.

(G) If either party disagrees with the decision of the Tribal Court, that party may appeal the decision to the Court of Appeals by filing a notice of appeal within ten (10) working days of the party's receipt of the decision pursuant to Section PAP.5.12.040(c)(2)(F) above. The filing of an appeal by the employer shall stay any action under Section PAP.5.12.040(c)(2)(E) above, pending resolution of the appeal by the Court of Appeals. Failure to abide by the timeline stated in this section shall be deemed a waiver of the disciplinary appeal and the Tribal Court's decision shall be deemed as final. A Clerk of Court shall submit to the Court of Appeals the record of the employment appeal hearing within five (5) working days of receiving a copy of the notice of appeal. The Lac Courte Oreilles Office of the Attorney General shall be notified of all appeals of a Tribal Court decision pursuant to the methods established in Section PAP.5.12.040(c)(2)(F) above.

(3) Court of Appeals Hearings. Either party may request a review of the Tribal Court's decision by the Lac Courte Oreilles Court of Appeals. The Court of Appeals review will be limited to the information presented to the Tribal Court and the limited review is to determine whether the Tribal Court committed a clear error. If the Court of Appeals finds any clear errors in the decision of the Tribal Court, it shall overturn the decision and may remand the matter back the Tribal Court for further review consistent with the Court of Appeals findings.

(A) The Court of Appeals shall have the discretion to decide whether to schedule an oral argument pertaining to an employment appeal.

(B) The Court of Appeals may issue a decision without an oral argument after reviewing the decision of the Tribal Court and the evidence submitted during the grievance and appeal processes.

(C) In all cases, the Court of Appeals shall review the findings of fact and conclusions of law solely to determine whether the Tribal Court committed a clear error. A "clear error" occurs when a decision is not reasonably supported by the facts, law, standard of review, or evidentiary standards.

(D) If the Court of Appeals determines that the Tribal Court committed a clear error, regarding any of the violations and procedural steps established in Section PAP.5.12.020 of this manual, it shall overturn the decision of the Tribal Court and may remand the matter back the Tribal Court for further review consistent with the Court of Appeals findings.

(E) If the Court of Appeals determines that the Tribal Court did not commit a clear error(s) regarding any of the violations and the procedural steps established in Section PAP.5.12.020 of this manual, it shall uphold the decision of the Tribal Court.