On June 17, 2015, the U.S. District Court for the Central District of California granted the Morongo Band of Mission Indians’ motion to dismiss a case brought against it by a slot machine attendant for wrongful termination and violation of the Family Medical Leave Act (FMLA). The employee was fired for drug use while on medical leave. The Court dismissed this case, finding that the Tribe has sovereign immunity from suit, and that the Tribe’s immunity was not abrogated by the language of the law. The case is Muller v. Morongo Casino Resort & Spa.1
The case is an important one, as it is one of the few involving whether tribes may be sued for violations of the FMLA. The FMLA itself is silent as to its applicability to tribes, but the Department of Labor asserts that the FMLA applies to tribal governments. None of the few cases on this topic squarely address the law’s applicability, however. Instead they, like this case, consider whether the tribe’s sovereign immunity applies, precluding enforcement. The most recent case on this issue, Pearson v. Chugach Government Services, Inc.2 allowed a case to move forward against a for-profit tribal corporation operating as a business. The Ninth Circuit had previously ruled that a FMLA case should be remanded so a plaintiff could exhaust tribal remedies,3 but did not address the applicability of FMLA to tribes. The only federal appeals court case to address this issue, Chayoon v. Chao4 came to the same result as the Morongo case: the FMLA does not abrogate tribal sovereign immunity. While tribes would not have a sovereign immunity defense to federal enforcement action by the Department of Labor, they could perhaps make an argument that the law does not apply to them. Given some court precedent, like FPC v. Tuscarora Indian Nation5 and Donavan v. Coeur d’Alene Tribal Farm,6 arguing that a statute of general applicability does not include tribes may be difficult.
After finding that tribal sovereign immunity was not abrogated by the FMLA, the Court also found that the Tribe’s gaming compact with the State of California contained no waiver of immunity for the employee’s claims. The Court held that neither agreeing to enact tribal standards at least as protective as the federal Fair Labor Standards Act nor waiving immunity for the purposes of personal injuries or property damages acted as a waiver of immunity for employment claims. Finally, the Court also found there was no waiver of immunity due to the Tribe’s enacting a policy similar to the FMLA, while stating a larger point that it would not infer a waiver of immunity from the adoption of any policy that does not contain a clear, explicit waiver of immunity.
The District Court recognized the Tribe’s immunity as a sovereign, but also found that the gaming facility, the Morongo Casino Resort & Spa, was an “arm of the tribe” to which the Tribe’s sovereign immunity extended. This is an important addition to the line of cases such as Allen v. Gold Country Casino7 and White v. University of California8 recognizing that sovereign immunity from suit extends to tribal entities. The Court also held that two casino officials were immune from suit because they were “tribal officials acting in their official capacities within the scope of their valid authority.” While the facts are different, the thrust of the holding is different from one recently issued by the California Court of Appeals, Cosentino v. Fuller,9 which found that tribal immunity may not apply if a court decides a tribal official is acting for allegedly personal reasons, even when in an official capacity.
Please let us know if we may provide additional information regarding the application of the Family Medical Leave Act to tribes, or any other issues raised in this Memorandum.
1Case No. ED-CV-14-02308-VAP (KK) (C.D. Cal., July 17, 2015).
2669 F. Supp. 2d 467 (D. Del. 2009).
3Sharber v. Spirit Mountain Gaming, Inc., 343 F.3d 974 (9th Cir. 2003).
4355 F.3d 141 (2nd. Cir. 2004).
5362 U.S. 99 (1960).
6751 F.2d 1113 (9th Cir. 1985). See also, Menominee Tribal Enters. v. Solis, 601 F.3d 669 (7th Cir. 2010).
7464 F.3d 1044 (9th Cir. 2006).
8765 F.3d 1010 (9th Cir. 2014).
9Case No. 6-05-0923 (4th Dist., Cal. Ct. App., May 28, 2015).