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APPELLATE COURT
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Don Hahnke,
Appellant
Docket # 09-AC-024
vs.
Date: April 20, 2010
Don White,
Governmental Services,
Respondent
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FINAL DECISION
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This case has come before the Oneida Tribal Judicial System, Appellate Court. Judicial Officers
Janice L. McLester, Linda Cornelius (Pro Tem), Lois Powless, Winnifred L. Thomas and
Jennifer Webster presiding.
I. Background
This is an appeal by Don Hahnke, Appellant, of an Oneida Personnel Commission Initial Review
decision. The Initial Review decision of the Oneida Personnel Commission denied a request for
a retaliation hearing of Mr. Hahnke’s September 22, 2009 layoff. The Oneida Personnel
Commission asserts according to the Oneida Tribe’s Layoff Policy, BC-9-23-98-D, layoffs are
not for disciplinary reasons and are not subject to appeal by the employees. Mr. Hahnke alleges
the layoff to be an act of retaliation a result of his written complaint against Mr. Donald White.
Appellant, Mr. Hahnke, alleges the Personnel Commission decision to be clearly erroneous and
against the weight of the evidence. We overturn the Oneida Personnel Commission, Initial
Review decision and remand to the Personnel Commission for a hearing on the merits.
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A. Jurisdiction
This case comes to us as an appeal of an original hearing body, the Oneida Personnel
Commission. Any person aggrieved by a final decision in a contested case can seek Oneida
Tribal Judicial System review under Sec. 1.11-1 of the Oneida Administrative Procedures Act.
B. Factual Background
On September 22, 2009, Appellant, Don Hahnke, Director of the Oneida Community Education
Center, was laid off by Donald White, Division Director, Governmental Services. Mr. Hahnke
asserts the layoff to be an adverse employment action, retaliatory in nature, due to his filing of a
formal complaint against Mr. White on July 28, 2009 with Area Manager, Deborah
Thundercloud.
Respondent, Don White, asserts the layoff was made for budget reductions and is not a
disciplinary action.
The Oneida Personnel Commission determined layoffs are governed by the Oneida Tribe of
Indians Layoff Policy, are not disciplines and are not subject to appeal by the employee.
Since the merits of this case have not been determined by an original hearing body, this
Appellate Review body will not make a determination of the allegations presented. Instead our
review will be in answer to the question of whether the Personnel Commission erred in denying a
grievance hearing based on Appellant’s assertion of retaliation.
C. Procedural Background
On September 24, 2009, Appellant, Mr. Hahnke appealed to Area Manager, Deborah
Thundercloud, his layoff issued on September 22, 2009 by Don White, Governmental Services
Division Director. Ms. Thundercloud rendered decision on October 15, 2009 upholding the
layoff. On October 30, 2009 Mr. Hahnke appealed to the Oneida Personnel Commission alleging
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the layoff to be an adverse employment action, in retaliation of his filing a formal complaint
against Mr. White on July 28, 2009.
On November 24, 2009 the Initial Review Hearing Panel of the Oneida Personnel Commission
unanimously denied a grievance hearing under justification of Rule of Law, Oneida Layoff
Policy BC-9-23-98-D, Section D and E:
D.
E.
POLICY STATEMENTS
3. Routine Layoffs: All employees are subject to layoff according to
departmental job needs and budgets. Routine layoffs are subject to
management discretion, provided a departmental layoff SOP is approved
by the Oneida Human Resources Manager.
GENERAL PROCEDURES
5. Layoffs are not for disciplinary reasons and are not subject to appeal
by the employee. Layoffs shall not be used for disciplinary reasons.
On December 14, 2009, Appellant filed a Notice of Appeal according to Oneida Tribal Judicial
System Rules of Appellate Procedures, Rule 2(G) alleging the Oneida Personnel Commission
Initial Review decision of November 24, 2009 to be clearly erroneous and against the weight of
the evidence and further requests this Appellate Review body to remand to the Personnel
Commission for review.
The Appellate body deliberated on March 30, 2010 and issues its decision to overturn the Initial
Review decision of the Personnel Commission Initial Review body and remands for a hearing on
the merits of the case.
II. Issues
Is the Oneida Personnel Commission Initial Review Panel decision clearly erroneous and
against the weight of the evidence?
III. Analysis
Is the Oneida Personnel Commission Initial Review Panel decision clearly erroneous and
against the weight of the evidence?
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Yes. The Oneida Personnel Commission ruled the layoff met the criteria as cited in their Rule of
Law, Oneida Layoff Policy, BC-9-23-98-D, Section D and E:
D.
POLICY STATEMENTS
3. Routine Layoffs: All employees are subject to layoff according to
departmental job needs and budgets. Routine layoffs are subject to
management discretion, provided a departmental layoff SOP is approved
by the Oneida Human Resources Manager.
E.
GENERAL PROCEDURES
5. Layoffs are not for disciplinary reasons and are not subject to appeal
by the employee. Layoffs shall not be used for disciplinary reasons.
While this rule of law is valid under normal layoff situations, the assertions in this case go
beyond a normal layoff. The Appellant has alleged circumstances which may have lead to an
adverse employment action. Mr. Hahnke had filed a complaint against Mr. White, on July 28,
2009 with Deborah Thundercloud, more than fifty (50) days passed with no response to this
complaint. Mr. Hahnke then followed up on the complaint and the next day, September 22, 2009
was laid off.
On September 24, 2009, Ms. Thundercloud accepted, investigated and made a decision of Mr.
Hahnke’s appeal, even though the Layoff Policy states layoffs are not subject to appeal.
The real issue in this case is whether the action taken against Mr. Hahnke was in fact a good faith
lay off or something else simply labeled “lay off.” The rule that lay offs are not appealable does
not permit supervisors to take issues that would otherwise be subject to appeal, label them as a
“lay off” and then claim there is no appeal. Where, as in this case, there is a good faith
allegation that the “lay off” is not in fact a lay off but retaliatory action, the Personnel
Commission is obligated to hold a hearing to determine whether the lay off was genuine or
simply a label to disguise something impermissible. Mr. Hahnke’s claim may fail in the end, but
at least he is entitled to a determination of whether he was retaliated against.
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By the same token, employees cannot get around the prohibition against appealing lay offs by
simply asserting the lay off was retaliatory. It is reasonable that the Tribe must be able to control
the size of the work force based on need and economics. Therefore, there must be presented, as
Mr. Hahnke has done, a reasonable basis for the Personnel Commission to evaluate claim of
retaliation. Unsupported retaliation claims, which have no plausibility, do not require the
Personnel Commission to investigate further.
Having received the request for a hearing from Mr. Hahnke, the Personnel Commission
improperly denied a grievance hearing in this case. Had it not been for the complaint filed on
July 28, 2009, the Personnel Commission’s decision to deny Mr. Hahnke a grievance hearing,
justification as stated in the Layoff Policy, Section D and E, would have been correct.
The Personnel Commission committed a procedural irregularity by not accepting this case for
review when the assertion was made that an employee made a complaint and then his job was
phased out without a sufficient explanation of why that action was taken.
IV. Decision
We overturn the denial decision of the Initial Review body of the Oneida Personnel Commission
and remand to the Oneida Personnel Commission for review of the merits of Mr. Hahnke’s
alleged adverse employment action.
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By the authority vested in the Oneida Tribal Judicial System pursuant to Resolution 8-19-91A of
the General Tribal Council it is so held on this 20th day of April, 2010, in the matter of Don
Hahnke vs. Don White, Governmental Services. Docket Number 09-AC-024.
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Janice L. McLester, Lead Judicial Officer
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Linda Cornelius, (Pro Tem) Judicial Officer
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Lois Powless, Judicial Officer
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Winnifred L. Thomas, Judicial Officer
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Jennifer Webster, Judicial Officer
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