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Jim v. Shiprock Associated Schools, Inc.

United States District Court, D. New Mexico

May 29, 2019

KIM R. JIM, Plaintiff,



         This matter is before the Court on Defendant's Supplemental Motion for Summary Judgment and Memorandum in Support, filed on November 30, 2018. (Docs. 22; 23.) Having considered the motion, briefs, and relevant law, the Court finds the motion should be GRANTED and this case DISMISSED for lack of subject matter jurisdiction.

         I. Background [1]

         Plaintiff Kim R. Jim is a former employee of Defendant Shiprock Associated Schools, Inc. (SASI). (See Doc. 1 (Compl.) ¶ 5.) SASI was incorporated as a nonprofit corporation under the laws of New Mexico in 1979 (see Doc. 22-A-1 at 2) and is registered to conduct business within the Navajo Nation (Doc. 22-A-4; see also Doc. 22-A ¶ 6). At the time of the allegations in the Complaint, SASI was (and still is) authorized by the Navajo Nation Board of Education to operate Navajo community schools on the Navajo reservation in Shiprock, New Mexico, pursuant to the Navajo Nation Code, see 10 N. N.C. § 201, and the Tribally Controlled Schools Act (TCSA), 25 U.S.C. § 2501. (See Doc. 22-A ¶ 8 (citing Docs. 22-A-7A; 22-A-8); see also Doc. 22-A-1.) SASI is the grantee of “Bureau of Indian Education (BIE) funds received for operation of educational programs on the Navajo Nation for the benefit of Indian[2] students . . . and surrounding communities per the TCSA . . . .” (Doc. 22-A ¶ 9 (citing Docs. 22-A-9; 22-A-10).) SASI's Navajo community schools also “receive a small amount of U.S. Department of Agriculture school lunch funding channeled to the school through the State of New Mexico and some federal e-rate (internet infrastructure) funding awarded by the Federal Communications Commission.” (Id. ¶ 10.)

         SASI Board Members must be enrolled members of the Navajo Nation and are elected pursuant to the Navajo Nation Election Code. (See Id. ¶¶ 11-12.) See also 10 N. N.C. §§ 201-02. SASI must follow the Navajo Nation's educational laws and relevant standards. (See Doc. 22-A ¶ 15.) See also 10 N. N.C. § 200(B). The Navajo Nation Board of Education has the authority to both remove board members and to assume control of local community controlled schools if SASI fails to comply with the applicable regulations. (See Doc. 22-A ¶¶ 23, 27.) See also 10 N. N.C. §§ 106(G), 202. Over 98% of SASI's students are enrolled in federally recognized American Indian tribes (Doc. 22-A ¶ 31 (citing Doc. 22-A-30)), and approximately 80% of SASI's operational employees are enrolled members of federally recognized American Indian tribes (id. ¶ 30 (citing Doc. 22-A-29)).

         Ms. Jim alleges that SASI discriminated against her and terminated her because of her pregnancy and maternity leave. (See Compl. ¶¶ 5-13.) She now brings suit for pregnancy discrimination pursuant to Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA). (See Id. ¶ 1.) For the Court to have subject matter jurisdiction over Ms. Jim's claims, SASI must be a covered employer under both statutes. Ms. Jim argues that SASI is a covered employer. (See Doc. 27.)

         SASI contends that it is a “tribal organization” exempted from the definition of an employer under both Title VII and the ADA and disagrees that the Court has subject matter jurisdiction over this lawsuit. (See Doc. 22 at 2.) On August 28, 2018, this Court issued a Memorandum Opinion and Order converting SASI's motion to dismiss to a motion for summary judgment and giving the parties time for jurisdiction-related discovery. (See Doc. 18.) SASI's motion for summary judgment is now ready for decision.

         II. Summary Judgment Standard of Review

         Summary judgment is appropriate when the Court, viewing the record in the light most favorable to the nonmoving party, determines “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). A fact is “material” if it could influence the determination of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is “genuine” if a reasonable trier of fact could return a verdict for either party. Id. The moving party bears the initial responsibility of “show[ing] that there is an absence of evidence to support the nonmoving party's case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

         Once the moving party meets this burden, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)) (quotation marks omitted). The party opposing a motion for summary judgment “must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (citing Celotex, 477 U.S. at 324).

         III. SASI qualifies as an “Indian tribe” for purposes of Title VII and the ADA.

         Ms. Jim alleges discrimination under both Title VII and the ADA. (See Compl.) “For this Court to have subject matter jurisdiction pursuant to either” statute, SASI “must be defined as an employer or included as a covered entity under the Acts.” Giedosh v. Little Wound Sch. Bd., Inc., 995 F.Supp. 1052, 1055 (D.S.D. 1997). “Both the ADA and Title VII exclude as an employer an ‘Indian tribe,' 42 U.S.C. § 12111(5)(B)(i) and 42 U.S.C. § 2000e(b), respectively, and neither Act defines an ‘Indian tribe.'” Id. at 1055-56. The Court must decide, then, whether SASI qualifies as an “Indian tribe” for purposes of both Acts, thus excluding it from the legal requirements of Title VII and the ADA.

         “In determining whether the Board is an ‘Indian tribe,' this Court must keep in mind . . . [the] ‘settled principle of statutory construction that statutes passed for the benefit of dependent Indian tribes are to be liberally construed, with doubtful expressions being resolved in favor of the Indians.'” Id. at 1056 (quoting Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng'g, P.C., 467 U.S. 138 (1984) (internal citations omitted)). In examining a similar question, the Tenth Circuit in Dille v. Council of Energy Resource Tribes (CERT) first considered congressional intent as expressed in Title VII's legislative history. See 801 F.2d 373, 374-75 (10th Cir. 1986). The Dille plaintiffs had sued their employer-a council of 39 tribes that collectively managed energy resources-for discrimination based on sex pursuant to Title VII. Id. at 374. The Tenth Circuit determined that Title VII's legislative history makes clear that Congress intended the statute's exemption “to apply to an organization comprised of many Indian tribes[, ]” id. at 374, in part because “[t]he purposes of CERT mirror the purposes of the exemption for Indian tribes in” Title VII, id. at 375. CERT was created “to advance the economic conditions of its [39] member tribes[, which] is precisely the type of activity that Congress sought to encourage by exempting Indian tribes from the requirements of Title VII.” Id.

         Relying on the Tenth Circuit's reasoning in Dille, the Giedosh court found that the Little Wound School Board, Inc. (the Board) qualified as an “Indian tribe” for purposes of Title VII and the ADA. See 995 F.Supp.2d at 1056-59. The Giedosh court found the following factors significant: (1) the Board was a nonprofit corporation incorporated under state law, id. at 1054; (2) “the Board's membership [was] comprised solely of members of the Oglala Sioux Tribe[, ]” and board members were democratically-elected “[t]o further the Tribe's policy of community participation[, ]” id. at 1055 (citations omitted); (3) the school was required to adhere to tribal resolutions and ordinances and was tribally chartered, meaning the Tribe had the authority to “step in at any time, for good reason, and assume the control and operation of the school[, ]” id. (citations omitted); (4) “[l]ike in Dille, the purpose of establishing the organization [was] to further the development, in this case the educational development, of the children living in Indian country, and to involve the Indian community in the education of the Indian children[, ]” id. at 1057; (5) “[t]he Board is made up of members of the Tribe, and those members are democratically ...

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