White Eagle v. Ho-Chunk Nation Grievance Review Board

8 Am. Tribal Law 62
CourtHo-Chunk Nation Trial Court
DecidedApril 22, 2009
DocketNo. CV 08-17
StatusPublished

This text of 8 Am. Tribal Law 62 (White Eagle v. Ho-Chunk Nation Grievance Review Board) is published on Counsel Stack Legal Research, covering Ho-Chunk Nation Trial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White Eagle v. Ho-Chunk Nation Grievance Review Board, 8 Am. Tribal Law 62 (hochunkct 2009).

Opinion

[63]*63ORDER

TODD R. MATHA, Chief Judge.

INTRODUCTION

The Court must determine whether to remand the instant case to the Grievance Review Board (hereinafter GRB) with instructions. The Court declines to do so since the plaintiff has demonstrated an inability to satisfy the minimum require-[64]*64merits for tortious constructive discharge. The analysis of the Court follows below.

PROCEDURAL HISTORY

The petitioner, Kristin K. White Eagle, by and through Attorney Mark L. Goodman, filed her Petition for Administrative Review (hereinafter Petition) on May 8, 2008. See Employment Relations Act of 2004 (hereinafter ERA), 6 HCC § 5.85c; see also Ho-Chunk Nation Rules of Civil Procedure (hereinafter HCN R. Civ. P.), Rule 63(A)(1)(a). On May 8, 2008, the Court entered the Scheduling Order, setting forth the timelines and procedures to which the parties should adhere during the pendency of the appeal. In response, the petitioner submitted the administrative record on May 22, 2008. See HCN R. Civ. P. 63(D).

The petitioner next filed a timely Initial Brief & Motion for Evidentiary Hearing on June 5, 2008. See ERA, § 5.35e; HCN R. Civ. P. 63(D)(1). The respondent filed a timely Response Brief on July 7, 2008. See. HCN R. Civ. P. 63(E). The petitioner reiterated her earlier request on July 11, 2008, with the filing of the Motion far Evidentiary Hearing. The Court accordingly issued Notice(s) of Hearing on July 25, 2008, informing the parties of the date, time and location of a Status Hearing. The Court convened the Hearing on August 26, 2008 at 2:00 p.m. CDT.1 The following parties appeared at the Status Hearing: Attorney Mark L. Goodman, petitioner’s counsel, and Ho-Chunk Nation Department of Justice Attorney Alysia E. LaCounte, respondent’s counsel.

On October 27, 2008, the respondent submitted a compact disc recording of the April 9, 2008 GRB hearing. The petitioner subsequently filed her Initial Brief & Appendix (hereinafter Initial Brief II) on Dec. 4, 2008. See supra note 1. The respondent requested an extension to file its responsive pleading on January 5, 2009, with which the petitioner noted her assent. The Court consequently granted the request within its January 5, 2009 Order to Extend Time to Respond to Petitioner’s Initial Brief The respondent filed a timely Response Brief (hereinafter Response Brief II) on January 12, 2009, followed by petitioner’s timely Reply Brief on January 22, 2009. See HCN R. Civ. P. 63(E). Neither party requested the ability to present oral argument, prompting the Court to determine the matter on the documentary materials. Id., Rule 63(G); Scheduling Order at 3.

APPLICABLE LAW

CONSTITUTION OF THE HO-CHUNK NATION

Art. VI—Executive

Sec. 1. Composit ion of the Executive.

(b) The Executive Branch shall be composed of any administrative Departments created by the Legislature, including a Department of the Treasury, Justice, Administration, Housing. Business, Health and Social Services, Education, Labor, and Personnel, and other Departments deemed [65]*65necessary by the Legislature. Each Department shall include an Executive Director, a Board of Directors, and necessary employees. The Executive Director of the Department of Justice shall be called the Attorney General of the Ho-Chunk Nation. The Executive Director of the Department of Treasury shall be called the Treasurer of the Ho-Chunk Nation.

Art. X—Bill of Rights

Sec. 1. Bill of Rights.

(a) The Ho-Chunk Nation, in exercising its powers of self-government, shall not:

(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;

EMPLOYMENT RELATIONS ACT OF 2004, 6 HCC § 5

Ch. 1—General Provisions

Subsec. 3. Declaration of Policy.

a. This Employment Relations Act is the official employment law of the Ho-Chunk Nation. It supersedes the Nation’s Personnel Policies and Procedures Manual and all policies, rules, and regulations enacted by Legislative resolutions pertaining to the employment law of the Nation.

Subsec. 5. Employment Clause.

a. Equal Employment Opportunity. With the exception of Ho-Chunk Preference in Employment as set forth in paragraph (b), below, it will be a violation of this Act to discriminate based on an individual’s sex, race, religion, national origin, pregnancy, age, marital status, sexual orientation, or disability.

Subsec. 6. Employee Rights.

d. Harassment.

(1) Harassment (both overt and subtle) is a form of employee misconduct that both demeans another person and undermines the integrity of the employment relationship by creating an unreasonably intimidating, hostile, and objectively offensive working environment.

e. Sexual Harassment.

(1) Purpose. The purpose of the Ho-Chunk Nation sexual harassment policy is to:
(a) Prohibit sexual harassment in the workplace.
(2) Policy. Sexual harassment by or of supervisors, employees, or non-employees is strictly prohibited and will be investigated for possible disciplinary action.
(e) An employee who believes that he or she has been subjected to unwelcome sexual conduct or that there exists an objectively hostile work environment has a duty to report the situation. Such report shall be made directly to the Department of Personnel.

Ch. II—Definitions

Subsec. 7. Definitions. Whenever the following terms are used in this Act, they shall have the meanings indicated.

o. Employee. Any individual employed by the Ho-Chunk Nation, regardless of the source of funds by which the employee is paid. The term “employee” shall include any person elected or appointed. The Nation further classifies its employees as follows:

(1) At—Will Employee. An employee who is subject to termination with or without cause or notice. The employee also has the right to leave at any time for any or no reason or notice. At-will employees include Executive Managers of the Nation’s Gaming Facilities and Managers of the non-gaming revenue generating facilities. The At-Will Employee classification will be stated on the employee’s job description.

[66]*66ss. Separation.

(2) Resignation. Voluntary separation from employment in either “good standing” or “not in good standing.”
(3) Termination. Involuntary separation from employment not in good standing.

Ch. Ill—Employment Policies

Subsec. 10. Employee Separation Policy.

b. Resignation. An employee voluntarily wishing to leave employment with the Ho-Chunk Nation in good standing must file a written resignation with the immediate supervisor at least two (2) weeks prior to the effective date, stating specific reason(s) for the resignation.

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Bluebook (online)
8 Am. Tribal Law 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-eagle-v-ho-chunk-nation-grievance-review-board-hochunkct-2009.