CASE 0:15-cv-02769-ADM-HB Document 33 Filed 02/05/16 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Annette Nawls and Adrian Nawls, vs. Plaintiffs, Shakopee Mdewakanton Sioux Community Gaming Enterprise Mystic Lake Casino, Case No. 15-cv-2769 (ADM/HB) Defendant s Memorandum In Support Of Motion To Dismiss Defendant. Introduction The Shakopee Mdewakanton Sioux Community Gaming Enterprise ( Gaming Enterprise ) files this reply to address the arguments raised in the Nawls response. The Nawls have not met their burden to establish federal court jurisdiction and they remain silent on the dispositive issue of the Gaming Enterprise s sovereign immunity. Accordingly, the Court must dismiss this lawsuit for lack of jurisdiction. Argument I. The Nawls lawsuit must be dismissed because the Court lacks jurisdiction to hear the Nawls Title VII claims against the Gaming Enterprise. The Nawls do not argue that the Gaming Enterprise is subject to Title VII, instead, the Nawls appear to argue that, as a matter of policy, Title VII should be construed to permit a non-indian employee to file a federal court complaint against a Tribal gaming operation. Nawls Response, p. 2. The Nawls policy argument, however, fails to address Title VII s current exclusion of Indian tribes from its coverage.
CASE 0:15-cv-02769-ADM-HB Document 33 Filed 02/05/16 Page 2 of 7 A. Mr. Nawls Title VII claims are time barred. The Nawls disagree with the result, but appear to concede that Mr. Nawls Title VII claims are time barred. Nawls Response, p. 1. II. Sovereign Immunity Requires Dismissal of the Nawls Lawsuit Against The Gaming Enterprise For Lack Of Jurisdiction The Gaming Enterprise has asserted its sovereign immunity from suit and the Nawls have offered little response. The Nawls do not dispute that the Gaming Enterprise is immune from suit or argue that there is a waiver. 1 The Nawls only argue that sovereign immunity should protect all Gaming Enterprise employees. Nawls Response, p. 2. The Nawls argument does not logically relate to the doctrine of sovereign immunity for Indian tribes. Cf. American Indian Agricultural Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8 th Cir. 1985) ( immunity is thought necessary to promote the federal policies of tribal self-determination, economic development, and cultural autonomy. ). The Gaming Enterprise shares in the Tribe s sovereign immunity from suit. 1 By failing to contest the Gaming Enterprise s sovereign immunity, the Nawls may have waived any argument against the Gaming Enterprise s immunity from suit. See U.S. v. Gonzales, 90 F.3d 1363, 1369 (8 th Cir. 1996) (argument abandoned when [t]here is no specific assignment of error; indeed, there is no discussion whatsoever. ); Pino v. Higgs, 75 F.3d 1461, 1463 (10 th Cir. 1996) (failing to argue this issue in her brief, she is deemed to have waived the challenge ). These cases, however, do not involve pro se Plaintiffs, such as the Nawls. 2
CASE 0:15-cv-02769-ADM-HB Document 33 Filed 02/05/16 Page 3 of 7 III. The Nawls May Pursue Remedies in Tribal Court. The Nawls argue that the Tribal Court may provide remedies, but that the Tribal Court may not provide a fair hearing. Nawls Response, p. 4. But the Nawls have never been to Tribal Court and have submitted no evidence that the Tribal Court would not provide the Nawls with a fair hearing. The Tribe provides the following response to address the Nawls arguments pertaining to the Tribal Court. The Nawls cite to the Gaming Enterprise s policies prohibiting work place harassment, and discrimination. Nawls Response, p. 4. Yet, if these policies are relevant to the Nawls case, then they need to be considered by the Tribal Court, not this Court. The Supreme Court has repeatedly recognized Congress's commitment to a policy of supporting tribal self-government and self-determination. Consistent with this policy, the Supreme Court has determined that tribal courts are best qualified to interpret and apply tribal law. Thus, in this Circuit, we defer to the tribal courts' interpretation of tribal law. Prescott v. Little Six, Inc., 387 F.3d 753, 756 (8 th Cir. 2004) (internal citations omitted), see, Runs After v. U.S., 766 F.2d 347, 352 (8 th Cir. 1985) ( [D]isputes involving questions of interpretation of the tribal constitution and tribal law is not within the jurisdiction of the district court. ); Weeks Const., Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668, 673 (8 th Cir. 1986) ( dispute arose on the reservation and raises questions of tribal law interpretation within the province of the tribal court. ). The Nawls argue that medical coverage under the Tribe s workers compensation law was denied because Ms. Nawls was non-indian, Nawls Response, p. 3, and that Tribal law does not cover her mental or emotional claims, Id. at p. 4. While the Nawls 3
CASE 0:15-cv-02769-ADM-HB Document 33 Filed 02/05/16 Page 4 of 7 are correct that the SMSC s workers compensation laws do not provide benefits for emotional or mental conditions, this Tribal law has nothing to do with race or Tribal membership. Oddly, Ms. Nawls did not appeal an adverse decision she received from the SMSC Workers Compensation Hearing Examiner to the Tribal Court. The SMSC Hearing Examiner denied Ms. Nawls petition for workers compensation benefits because her injuries from post-traumatic stress disorder ( PTSD ) did not result from a physical injury when Ms. Nawls was a victim of an assault by Timothy McCaffrey s August 9, 2013, while she was at work. Ex. 7, 2 nd Paulson Affidavit. 2 Ms. Nawls was not denied workers compensation coverage because she was non- Indian. For example, while Minnesota civil laws do not apply here, by way of comparison, Minnesota denies compensation where mental stimulus produces mental injury. Johnson v. Paul's Auto & Truck Sales, Inc., 409 N.W.2d 506, 508 (Minn. 1987). 2 The Court may take judicial notice of the SMSC Hearing Examiner s January 19, 2015, decision on Ms. Nawls workers compensation claims, which she refers to in her Response brief. Many cases have recognized that a Court may take judicial notice of the rules, regulations and orders of administrative agencies issued pursuant to their delegated authority. International Broth. of Teamsters v. Zantop Air Transport Corp., 394 F.2d 36, 40 (6 th Cir. 1968) (citations omitted). Federal Courts have the power, in fact the obligation, to take judicial notice of the relevant decisions of courts and administrative agencies, whether made before or after the decision under review. Opoka v. I.N.S., 94 F.3d 392, 394-95 (7 th Cir. 1996). The Third Circuit Court of Appeals has taken judicial notice of a workers compensation decision while the parties were on appeal. National Ass'n of Letter Carriers, AFL-CIO v. U.S.P.S., 272 F.3d 182, 185 (3 rd Cir. 2001). Thus, the SMSC Hearing Examiner s decision is properly part of the Rule 12 record. Enervations, Inc. v. Minnesota Mining and Mfg. Co., 380 F.3d 1066, 1069 (8 th Cir. 2004), see also, Stahl v. U.S. Dept. of Agriculture, 327 F.3d 697, 700 (8 th Cir. 2003) (same). 4
CASE 0:15-cv-02769-ADM-HB Document 33 Filed 02/05/16 Page 5 of 7 According to the Nawls filings with this Court, their doctor has determined that Ms. Nawls suffers from recurrent flashback[s] & nightmares related to PTSD, which stem from Timothy McCaffrey s August 9, 2013, assault on Ms. Nawls. Nawls Response, Exhibit, p. 3, ECF No. 32-1. Ms. Nawls PTSD claims would also be excluded from workers compensation under Minnesota law. In 2014, the Minnesota Supreme Court upheld the denial of workers compensation coverage because PTSD did not cause a physical brain injury. Schuette v. City of Hutchinson, 843 N.W.2d 233, 237 (Minn. 2014). Employees in Ms. Nawls situation are then left to seek a legislative fix. See Lockwood v. Independent School District No. 877, 312 N.W.2d 924, 927 (Minn. 1981) ( If [the Legislature] wishes to extend workers' compensation coverage to mental disability caused by work-related mental stress without physical trauma, it is free to articulate that intent clearly. ). Minnesota has done just that, now allowing PTSD claims under its Workers Compensation laws, however, this 2013 amendment is only effective for employees whose injuries occurred on or after October 1, 2013. Schuette, 843 N.W.2d at 237. In other words, the Tribe s determination that Ms. Nawls PTSD injuries were not covered is the same result as that provided under Minnesota s laws at the time of the assault that is at issue and has nothing to do with Ms. Nawls status as a non-indian. The Nawls also filed a Leave of Absence Request Form with their Response. ECF No. 32-1. It s not clear how this Form supports the Nawls arguments, but Minnesota Unemployment Law Judge, Jeffrey Blomquist, has determined that Adrian Nawls never submitted the completed paperwork to Mystic Lake Casino and was not eligible for 5
CASE 0:15-cv-02769-ADM-HB Document 33 Filed 02/05/16 Page 6 of 7 unemployment benefits because he was discharged for employment misconduct. Ex. 8, p. 1, 2 nd Paulson Affidavit. On reconsideration, the Unemployment Law Judge upheld his earlier determination, once again determining that the Gaming Enterprise never received the completed forms from Nawls. Ex. 9, p. 1, Id. Finally, the Nawls may have a remedy under the SMSC Tort Claims Ordinance. The Nawls have explained to the Court that they have had more than four Attorneys, ECF No. 8, p. 1, and one of those attorneys recommended to Ms. Nawls that her next attorney consider representing Annette on any potential personal injury claim, ECF No. 9, p. 1. Indeed, the Nawls original Complaint listed Timothy Scott McCaffrey as a defendant. ECF No. 1, p. 2. The Nawls, however, have never filed a claim against the Gaming Enterprise under the Tribe s Tort Claim Ordinance and the Gaming Enterprise does not have enough information to determine whether such a claim would comply with the Tribe s two-year statute of limitations. 6
CASE 0:15-cv-02769-ADM-HB Document 33 Filed 02/05/16 Page 7 of 7 Conclusion For the foregoing reasons, the Court must dismiss the Nawls Complaint for lack of jurisdiction. Dated: February 5, 2016 /s/ Greg S. Paulson Greg S. Paulson (#0250478) greg.paulson@bpslawfirm.com BlueDog, Paulson & Small, P.L.L.P. 5001 American Boulevard West Southgate Office Plaza, Suite 500 Minneapolis, MN 55437 Telephone: (952) 893-1813 /s/ Richard A. Duncan Richard A. Duncan (#192983) richard.duncan@faegrebd.com Faegre Baker Daniels 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402-3901 Telephone: (612) 766-7000 Attorneys for Defendant Shakopee Mdewakanton Sioux Community Gaming Enterprise 7