Wauneka v. Navajo Department of Law Enforcement

10 Am. Tribal Law 19
CourtNavajo Nation Supreme Court
DecidedFebruary 10, 2011
DocketNo. SC-CV-27-09
StatusPublished
Cited by1 cases

This text of 10 Am. Tribal Law 19 (Wauneka v. Navajo Department of Law Enforcement) 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
Wauneka v. Navajo Department of Law Enforcement, 10 Am. Tribal Law 19 (navajo 2011).

Opinion

OPINION

This case concerns an appeal by the Navajo Department of Law Enforcement, of a May 26, 2009 Final Damages Order of the Navajo Nation Labor Commission (Commission) in which the Commission awarded a police officer back pay, attorney’s fees, restoration of leave hours; emotional damages; and further, imposed civil fines. A portion of the Commission’s judgment has already been enforced by the Window Rock District Court via a separate action (WR-CV-296-00). NDLE appeals only the Commission’s award of emotional damages and civil fines. The Court affirms in part and reverses in part.

I

PROCEDURAL HISTORY

On May 1, 2007, Veronica Wauneka (Ap-pellee) filed an Office of Navajo Labor Relations (ONLR) charge against her employer by the Navajo Department of Law Enforcement (Appellant). On November 27, 2007, the ONLR issued her a Notice of the Right to Proceed,. On December 19, 2007, Appellee filed a complaint with the Commission alleging that Appellant had created a hostile work environment and had harassed, humiliated and intimidated her. At the time the charge was filed, Appellee held the rank of police captain and had served 30 years on the police force. A hearing was held on April 14-15, 2008. At the conclusion of the Appellant’s presentation of its case, the Appellee made a motion for a directed verdict. The Commission granted the motion on July 18, 2008.

At a separate damages hearing on October 16, 2008, Appellee and her husband Sammy Wauneka, Jr. gave testimony that Appellee had sleeplessness, dreams of killing her supervisor, suicidal thoughts, and had withdrawn from normal activities. [21]*21Transcript of Dam,ages Hearing, October 16, 2008, p. 5. She stated that the sleeplessness affected her decision-making and her balance, and was the reason she tripped and fell in March, 2006, and she received workers’ compensation and took 4 weeks family medical leave due to the fall. M at 6-7, 15, 20. Considering herself a traditional person, Appellee sought prayers “a couple of times” from her father but only sought counseling at Fort Defiance Indian Health Service (IHS) a year after symptoms arose. Id. 7-8. Appellee provided no documentation, and could recall no diagnosis nor even the name of her IHS counselor although she was continuing to see her counselor monthly through the date of the hearing. Id. at 12-14.

Appellee also testified that she was under an IHS physician’s care for chest pains commencing January, 2006. Id. at 18. Appellee’s husband Sammy Wauneka corroborated and provided more information on this, testifying that Appellee had needed to undergo physical therapy to numb pain following her “heart attack.” Additionally, Appellee sought medical help for shoulder pain, help from a dietician for weight gain, and had headaches, backaches, and muscle aches; her vision was affected and also her food intake. Id. at 19, 27-28. Mr. Wauneka testified that he observed Appellee had trouble sleeping, and that she had withdrawn into herself, and this had affected their relationship and his breathing, and turned his hair white. Id. at 11, 25-28. Id. at 25-28. Appellee’s treating physician Dr. Glass had prescribed medication for the sleeplessness, and her counselor had suggested anti-depressant medication, but Appellee took neither because “I don’t like to take pills.” Id. at 9 and 18.

Appellee was never suspended nor terminated at work. Id. at 19. Appellee claimed “emotional damages” in the amount of $65,000, back pay for what the Appellee would have earned had she been given a higher performance rating on her job evaluation, and reinstatement of sick and annual leave hours used when she tripped and fell. Appellee stated that she either paid or agreed to pay her father $130 for prayers. There were no out of pocket expenses related to the counseling. Id. at 13,16.

On May 26, 2009, the Commission issued its decision awarding Appellee $9,911.20 in back pay based on a step increase that Appellee would have earned had she been given the step increase; $8,337.60 in attorney fees; restored to Appellee 8 hours sick leave and 72 hours annual leave; and $30,000 in emotional damages. Additionally, the Commission imposed $5,000 in civil fines sua sponte, payable by Appellant to the Navajo Nation Controller.

On June 8, 2009, Appellant filed with the Commission a petition to stay execution of the May 26, 2009 judgment. That same day, Appellant filed a Notice of Appeal to this Court, which we dismissed on July 14, 2009 due to non-receipt of the record. On August 12, 2009, we vacated the dismissal upon Appellant’s showing that it had timely filed a Request to Enlarge Time to Transmit Record with the Commission without also informing this Court. We also established the requirement that in future, this Court shall also be notified when such requests are made to the lower tribunal. Appellant submitted its brief on October 12, 2009 appealing only the emotional damages and civil fine. Appellee did not file a response.

On July 20, 2009 Appellee sought enforcement of the Commission’s May 26, 2009 judgment in the Window Rock District Court pursuant to 15 N.N.C, § 612(C), filing under No. WR-CV-296-09. However, Appellant having previously complied with all elements of the Commis[22]*22sion’s May 26, 2009 judgment except the issues on appeal, on November 30, 2009 Appellant filed with this Court a Petition to Stay Execution of the district court enforcement proceedings with regard to only the emotional damages and civil fine. On February 4, 2010, the district court ordered Appellant to pay any outstanding amounts to Appellee immediately. Appellant renewed its motion to stay execution, and we issued an order staying the district court’s order pending the outcome of this appeal on February 17, 2010.

Appellant next filed a Motion for Ruling on Appellate Record following which Ap-pellee did not file any response. On December 11, 2010, Appellee conceded that the Court should grant Appellant’s motion due to the absence of a response. On December 22, 2009, we granted Appellant’s motion. The Court now enters its decision based on the appellate record.

II

STANDARD OF REVIEW

Generally, the decisions of a quasi-judicial administrative agency are reviewed under an abuse of discretion standard. Manygoats v. Atkinson Trading Co, 8 Nav. R. 321, 336, 4 Am. Tribal Law 655 (Nav.Sup.Ct.2003). However, the Commission’s award of emotional damages involves a legal conclusion as to whether the claim is grounded in Appellant’s conduct under the proper legal standard, and further involves a legal measure of damages. As such, it is subject to de novo review “with no deference given to the Commission’s interpretation of the law.” Tso v. Navajo Housing Authority, 8 Nav. R. 548, 555, 5 Am. Tribal Law 438 (Nav.Sup.Ct.2004). Additionally, the Commission’s imposition of a civil fine involves the adoption and application of legal standards for an intentional violation of the Navajo Preference in Employment Act (NPEA), which will be reviewed de novo.

III

ISSUES

The issues in this case are (a) whether emotional damages were properly determined and awarded in a remedial order to cure a violation of the NPEA; and (b) whether a civil fine was properly imposed.

IV

EMOTIONAL DISTRESS REMEDIAL ORDERS

In Yazzie v. Navajo Sanitation, we found that 15 N.N.C.

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Bluebook (online)
10 Am. Tribal Law 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wauneka-v-navajo-department-of-law-enforcement-navajo-2011.