Crystal Holtz v. Oneida Airport Hotel Corp. ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 15, 2020*
Decided October 21, 2020
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 20-1797
CRYSTAL HOLTZ, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. 19-C-1682
ONEIDA AIRPORT HOTEL William C. Griesbach,
CORPORATION, et al., Judge.
Defendants-Appellees.
ORDER
After she was fired from her job at an Oneida Nation-owned hotel, Crystal Holtz,
an Oneida Nation member, sued her former employer in state court for various federal,
state, and tribal law claims. Defendants removed the case to federal court. The district
court then dismissed the suit based on the doctrine of tribal sovereign immunity and,
* We have agreed to decide the case without oral argument because the brief and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 20-1797 Page 2
alternatively, Holtz’s failure to state a claim upon which relief could be granted. We
affirm, though on the alternative basis that Holtz failed to state a claim.
In her amended complaint, filed in state court, Holtz alleged essentially that the
defendants, Oneida Airport Hotel Corporation, Aimbridge Hospitality, and two high-
ranking hotel officers, conspired to wrongfully terminate her from her job in violation
of the Indian Civil Rights Act. See 42 U.S.C. § 1983; id. § 1985; 25 U.S.C. § 1302. She says
that she was escorted out of the hotel by security personnel who suspected her of
drinking alcohol based on her “droopy” eyes and “flushed” face. Shortly after the
incident, she was fired. Holtz believes she was singled out for punishment, since the
hotel does not set forth the specific protocol for drug-and-alcohol screening in its
employee handbook. She also asserted that the defendants relocated her job to another
organization to thwart the hiring and promotion of Oneida Nation members.
The defendants moved to dismiss the complaint on the ground that it was
blocked by tribal sovereign immunity. The defendants argued that Oneida Airport
Hotel Corporation was a tribal entity and thus “cloaked” with the same immunity of
the tribe itself. In the alternative, the defendants argued that Holtz failed to state a
claim.
Holtz did not file anything in opposition to the motion to dismiss, but she did
move to overturn the removal order on the grounds that her case had been removed in
bad faith and that her wrongful termination claim arose under state, not federal law.
See, e.g., Strozinsky v. Sch. Dist. of Brown Deer, 614 N.W.2d 443 (Wis. 2000).
The district court granted the motion to dismiss. At the outset, the court
dispatched Holtz’s opposition to removal, finding “no doubt” that her amended
complaint sought to state federal claims under its jurisdiction. Next, the court, noting
that Holtz’s failure to respond to the motion was itself grounds for dismissal, see E.D.
Wis. Civ. L. R. 7(d) (“Failure to file a memorandum in opposition to a motion is
sufficient cause for the Court to grant the motion.”), listed other grounds for dismissal.
First, her federal and state claims were barred by tribal sovereign immunity: The
Oneida Airport Hotel Corporation (doing business as Radisson Hotel and Conference
Center of Green Bay) was owned and operated by the Oneida Nation, a federally
recognized Indian tribe. Second, even if the defendants were not immune, the court
added, Holtz’s complaint would be dismissed for failure to state a federal claim.
No. 20-1797 Page 3
On appeal, Holtz challenges the district court’s sovereign immunity analysis,
which she faults for not ascertaining Oneida Airport Hotel Corporation’s “true
identity” through the “arm of the tribe” test. Had the court more thoroughly evaluated
these factors, Holtz maintains, it would have determined that the defendants were not
entitled to tribal sovereign immunity because the hotel is in fact a for-profit corporation
operating under a board of directors. And if the hotel is not entitled to sovereign
immunity, she continues, it follows that the other defendants—the hotel management
company Aimbridge Hospitality, Hotel President Robert Barton, and Hotel General
Manager and Aimbridge employee Steve Ninham—are also not entitled to sovereign
immunity.
We have not yet had occasion to consider the application of the “arm of the tribe”
test, and we decline to apply it here given the thin record and the availability of another
basis upon which to resolve this appeal. Even if we set aside the question of the
defendants’ sovereign immunity, the district court set forth a persuasive alternative
analysis that Holtz’s complaint must be dismissed for failure to state a claim. Holtz says
nothing about this alternative analysis in her brief on appeal, and an appellant’s failure
to address a district court’s alternative holding on an issue waives any challenge to that
holding. United States v. Fuchs, 635 F.3d 929, 933–34 (7th Cir. 2011).
As the district court explained, Holtz’s amended complaint failed to state a
federal claim. With regard to Holtz’s § 1983 claim, alleging violations under the Fifth
and Fourteenth Amendments, the court correctly concluded that none of the defendants
were persons acting under color of state law. When they are enforcing tribal laws or
managing tribal affairs, neither tribal officers and agents nor private corporations act
under color of state law. R.J. Williams Co. v. Fort Belknap Hous. Auth., 719 F.2d 979, 982
(9th Cir. 1983); Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir. 2006); West v. Atkins,
487 U.S. 42, 55–56 (1988); Spencer v. Lee, 864 F.2d 1376, 1378–82 (7th Cir. 1989) (en banc).
As for Holtz’s § 1985 claim, alleging that the defendants conspired to discharge
her in order to avoid tribal laws, this too is insufficient. To state a claim under § 1985(3),
Holtz must allege, among other things, a conspiracy to deprive “a person or class of
persons of equal protection of the laws.” Brokaw v. Mercer Cty., 235 F.3d 1000, 1024 (7th
Cir. 2000). Holtz’s allegations amount to a conspiracy to wrongfully terminate her
employment in order to avoid tribal laws. This does not amount to a plausible
allegation of an equal protection violation. In addition, Holtz did not identify any right
independently secured by state or federal law to serve as a predicate for a claim under
§ 1985(3). Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 376 (1979) (“Section
No. 20-1797 Page 4
1985(3) … creates no rights.”). Holtz suggests such a right under the Oneida Nation
Constitution, but this does not implicate any state or federal right. Holtz also fails to
state a claim under the Indian Civil Rights Act, 25 U.S.C. § 1302, which prohibits tribal
governments from passing or enforcing laws that violate certain individual rights. But
the Act does not create an independent private right of action in federal court. See Santa
Clara Pueblo v. Martinez, 436 U.S. 49, 64 (1978); Akins v. Penobscot Nation, 130 F.3d 482,
486 (1st Cir. 1997) (“With the exception of petitions for habeas corpus relief, Congress
did not intend in the ICRA to create implied causes of action to redress substantive
rights in federal court.”). And regarding her claim under the Oneida Nation’s
Constitution or laws, any asserted violations fall outside the jurisdiction of federal
courts. See Runs After v. United States, 766 F.2d 347, 352 (8th Cir. 1985); Alto v. Black,
738 F.3d 1111, 1123 n.9 (9th Cir. 2013).
We have considered Holtz’s remaining arguments and found them without
merit.
AFFIRMED