Toledo v. Bashas' Dine Market

6 Am. Tribal Law 796
CourtNavajo Nation Supreme Court
DecidedAugust 17, 2006
DocketNo. SC-CV-41-05
StatusPublished
Cited by8 cases

This text of 6 Am. Tribal Law 796 (Toledo v. Bashas' Dine Market) is published on Counsel Stack Legal Research, covering Navajo Nation Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toledo v. Bashas' Dine Market, 6 Am. Tribal Law 796 (navajo 2006).

Opinion

OPINION

The Navajo Nation Labor Commission (Commission) found that Harrison Toledo (Toledo), a Bashas’ employee, sexually harassed a fellow employee in violation of Bashas’ Member Handbook, and therefore was terminated for “just cause” under the Navajo Preference in Employment Act (NPEA). The Commission also:found that Bashas’ violated three other provisions of the NPEA, but only issued a remedial order for one of those violations. The Court affirms the Commission.

I

Appellant Toledo was an Assistant Night Crew Chief at Bashas’ Dine Market # 35 located in Window Rock. On April 29, 2004, Toledo was terminated from his employment with Bashas’ based on alleged misconduct involving verbal and physical harassment of a fellow Bashas’ employee. During an investigation into the incident, Toledo admitted that he had touched the breast of the employee while on duty. The investigation revealed that Toledo had previously had a sexual relationship with the employee, and indicated that he wished to rekindle that relationship.

Toledo filed a complaint with the Commission alleging, among other things, that he was fired without “just cause,” as required by the NPEA. At the proceeding, Toledo denied he had touched the employee’s breast. He also stated that he did not need training on sexual harassment to know that touching a female employee’s breast was “wrong.” The Commission upheld the termination, concluding that Toledo had touched the employee’s breast, and had sexually harassed that employee in violation of Bashas’ Member Handbook. In addition, the Commission found that Bashas’ violated three sections of the NPEA: 15 N.N.C. S (504(B)(8), because it stated an “at-will” employment policy in its Handbook, 15 N.N.C. S 604(A)(2), by failing to have an affirmative action plan, and 15 N.N.C § 605, by failing to send workforce reports to the Office of Navajo Labor Relations (ONLR). The Commission ordered Bashas’ to amend its at-will employment policy within sixty days, but ordered no remedy for the other two violations, [798]*798stating that they were “harmless” violations because virtually all of Bashas’ workers on the Navajo Nation were Navajo tribal members. Bashas’ did amend its at-will policy. This appeal followed. The Court held oral argument on July 13, 2006 and now issues this decision.

II

The issues in this case are (1) Whether Bashas’ had “just cause” to terminate Toledo on the basis that he sexually harassed another employee in violation of Bashas’ Member Handbook, when allegedly he received no sexual harassment training; and (2) whether the Commission erred in not granting remedial relief based on its conclusions on Bashas’ remaining violations of the NPEA: 15 N.N.C. § 604(A)(2), lack of an affirmative action plan, and 15 N.N.C § 605, failing to send workforce reports to the Office of Navajo Labor Relations.

III

This Court reviews decisions of the Commission under an abuse of discretion standard. Smith v. Navajo Nation Dep’t of Head Start, No. SC-CV-50-04, 6 Am. Tribal Law 683, 685, 2005 WL 6235868 at *1 (Nav.Sup.Ct.2005). For example, “the Commission abuses its discretion when it makes a mistake as to applicable law, that is, makes an erroneous legal conclusion.” Tso v. Navajo Housing Authority, No. SC-CV-10-02, 4 Am. Tribal Law 641, 642-43, 2003 WL 25794038 at *1-2 (Nav.Sup.Ct.2004). The Court’s review of factual findings, however, is more deferential. Id., at 4 Am. Tribal Law 641, 642-43, 2003 WL 25794038 at *1-2. This Court will find that a decision is “supported by substantial evidence” when “a ‘reasonable mind’ could accept [the evidence] as adequate to support the conclusion, even if it is possible to draw two inconsistent conclusions from the evidence.” Id. Legal conclusions are reviewed de novo, “with no deference given to the Commission’s interpretation of the law.” Smith, at 6 Am. Tribal Law at 685-86, 2005 WL 6235868, *1-2. Whether there is “just cause” for termination or whether the Commission is required to issue remedial orders for every NPEA violation are legal conclusions.

IV

Toledo argues that he never re-eeived sexual harassment training and therefore Bashas’ did not have “just cause” under the NPEA to fire him on sexual harassment grounds. The Commission made no findings on whether Bashas’ adequately trained Toledo. Generally, if training were relevant to the question of “just cause,” the Court would be required to remand the case back to the Commission for factual findings on whether Toledo received sexual harassment training, However, though Toledo argues before this Court that he lacked training, he did not assert that point in his charge or complaint. This Court recently ruled in Hood v. Navajo Nation Department of Headstart that the Commission can only make findings of fact and conclusions of law on those claims raised by the employee in his or her charge filed with ONLR and those issues remaining when the employee files a complaint with the Commission. No. SC-CV-11-05, 6 Am. Tribal Law 721, 723-24, 2006 WL 6168349 at *2-3 (Nav.Sup.n. 2006). Toledo argues to this Court that the lack of training is an affirmative violation of the NPEA requiring damages. Hood barred the Commission, and bars this Court from considering that alleged affirmative violation. Toledo also uses the alleged lack of training as a defense to Bashas’ assertion that Toledo committed sexual harassment. In this context, the lack of training is not an affirmative claim, [799]*799but a defense in response to the employer’s position that the employee was fired for “just cause.” Hood does not bar review of that defense. The Court therefore considers whether training affects whether Bashas’ fired Toledo for “just cause.”

In Smith, the Court ruled that “[j]ust cause is a broad concept that involves unique factual circumstances in each situation and therefore must be applied based on the unique facts of each case.” No. SC-CV-50-04, 6 Am. Tribal Law at 686, 2005 WL 6235868 at *2. In addition, the Court has stated that “just cause” can include “a wide range of employer justifications for adverse actions.” Dilcon Navajo Westerner/True Value Store v. Jensen, No. SC-CV-52-98, 2 Am. Tribal Law 502, 509, 2000 WL 35732586 at *5 (Nav.Sup.Ct.2000). In Smith the Court interpreted “just cause” in the context of a clear rule in a personnel manual defining conduct. The Court ruled that “ordinarily a violation of a clear rule in a personnel manual for which termination is a result of non-compliance is ‘just cause.’ ” No. SC-CV-50-04, 6 Am. Tribal Law at 686, 2005 WL 6235868 at *2.

The Commission relied on Bashas’ sexual harassment policy in its Handbook to support Toledo’s termination. That policy states that “[i]t is [Bashas’] policy to maintain a work environment free from harassment and/ or intimidation.” Handbook, Respondent’s Exhibit C, at 18. The Handbook further defines “sexual harassment” as “[h]arassment that includes any unwanted sexual advance.” Id. The Handbook includes several examples, including “[t]o make unwelcome sexual advances, request for sexual favors, or other verbal or physical contact a condition of continued employment or of any employment decision.” Id. Bashas’ did not allege in its termination notice that Toledo attempted to exchange sexual favors for a favorable employment decision. The Handbook further includes among actions constituting sexual harassment, “creat[ing] an intimidating, hostile or offensive working environment by such conduct.” Id.

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Bluebook (online)
6 Am. Tribal Law 796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toledo-v-bashas-dine-market-navajo-2006.