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6 Mash.Rep. 279, 2018 WL 1046782 (Mash. Pequot Tribal Ct.)
Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT TRIBAL NATION
v.
Derrek GUERTIN
DOCKET NO. MPTC-CV-AA-2017-113
|
FEBRUARY 6, 2018

Attorneys and Law Firms
Tawnii Cooper-Smith, Esq., for the Plaintiff
Eric W. Chester, Esq., for the Defendant

Opinion

MEMORANDUM OF DECISION
Jean M. Lucasey, Judge

Procedural History

The Plaintiff, Mashantucket Pequot Tribal Nation, commenced this action under the Mashantucket Employee Review Code, 8 M.P.T.L. ch. 1. Plaintiff appeals from the Final Decision of the Board of Review (“Board”), which reinstated and awarded full back pay1 to the Defendant, Derrek Guertin (“Employee”), as an employee of the Mashantucket Pequot Fire *281 and Emergency Services. The Board found that the Defendant’s termination was not appropriate because the policy leading to it was not uniformly applied. The Plaintiff appeals the Board’s decision on grounds that the Board had no reasonable basis to conclude that termination was not appropriate as the record contained no evidence that policies were inconsistently applied and as the Board improperly applied the unsupported finding as a mitigating circumstance.

Counsel for the Plaintiff, Tawnii Cooper-Smith, Esq., and counsel for the Defendant, Eric W. Chester, Esq., appeared before the court for a pre-hearing conference in the above matter on May 24, 2017, and the parties agreed on a briefing schedule. After granting extensions for completion of Plaintiff’s brief and for oral argument, the parties appeared for oral argument on September 22, 2017.

 

Background Facts

The Defendant was terminated from his position as a firefighter with the Mashantucket Pequot Fire Department (“MPFD”) on May 20, 2016, after the MPFD investigated an accident he had with the Engine Tank Fire Truck (“ET”), the third incident in which he damaged the ET in less than eight months. The MPFD has an Apparatus Safety Guideline that requires the use of a spotter when backing up the ET and other Apparatus and also when there is diminished clearance on either side of the Apparatus. Mr. Guertin admitted that he damaged the Apparatus2 by hitting a pillar in the station while backing into the bay without using a spotter (R. 140, 143), although he did not realize he had hit the pillar at the time. He admitted that he failed to use a spotter in backing up the ET even though people were available to spot him at the time. R. 159-60. He also admitted that, had he used a spotter per the policy, the spotter would have helped him avoid hitting the pillar. R. 161. The termination came after the Employee had already received four written warnings, the Final Written warning on December 14, 2015, for an unrelated problem.

MPFD Chief Richard Tougas testified that all three of the Employee’s incidents with the Apparatus were preventable and that Mr. Guertin was well aware of the required safety policies. R. 279-80. The Chief described an accident at the Child Development Center (“CDC”) where Mr. Guertin hit a parked car, and because of the danger of injuring a child, among other concerns, he issued a first written warning to Mr. Guertin after that incident. R. at 29, 286-87.

In the second incident with the Apparatus, where a cord-reel attached to the ET was ripped out of the truck’s ceiling and the cord reel was damaged, the Employee admitted that the cord reel’s auto-injector did not work properly at the time because he had failed to unplug it as required. R. at 162-63. That incident resulted in the Employee’s second written warning, issued on November 12, 2015.

 

I. Decision of the Board of Review

Mr. Guertin was terminated on May 20, 2016, for violating the following policies and/or procedures:
a. Standards of Conduct (Section IV—Subsection 4)3 specifically dishonesty. See R. at 21-24 for policy.
b. Mashantucket Pequot Fire Department Operational Guideline, Apparatus Safety (Policy 401.13). See R. at 25 for policy.
c. Mashantucket Pequot Fire Department Operational Guideline, Apparatus Accidents (Policy 103.9). See R. at 26 for policy.

A Board of Review convened on February 22, 2017, to hear the case. See Certification Letter, May 3, 2017; R. at 116. But see R. at III. The Board found that the Employee was given a description of the offense or conduct that formed the basis of the Disciplinary Action (R. at III), that both parties had a reasonable opportunity to present their cases and related evidence during the Board of Review hearing (Id.), and that both parties had a reasonable opportunity to present evidence of any mitigating circumstances4 (R. at IV).5

The Board’s Final Decision evinces a clear understanding of the alleged conduct by the Employee that resulted in the present termination. To wit, “[l]ack of honesty when describing the accident w[ith] the pillar. Lack of reporting the accident w[ith] pillar. Carelessness in use of fire department apparatus [and] vehicle. Poor judgment in use of F[ire] D[epartment] equipment. Hitting vehicle at CDC. Not removing cord reel from truck.”

After hearing testimony from multiple witnesses, including the Employee, and examining the documentary evidence in the record, the Board found that the Employee damaged the vehicle at the CDC, damaged the cord reel, and hit the pillar at the Fire Department. R. at IV. The Board found, however, that the Employee was honest when confronted about the pillar because he believed there was no damage. Id.

The Board was charged with explaining what factors, evidence and/or testimony it relied on in deciding whether the conduct occurred and indicating which evidence and testimony it found credible and which not. The Board found the Employee’s testimony about the pillar incident to be consistent, thus honest, and pointed to his admissions regarding the CDC accident and the cord reel incident, along with the PINs6 regarding the incidents, as proof that the conduct occurred. The Board’s decision found that “every bit of evidence was credible” except the video of the pillar incident. R. at IV. The decision explains that “[t]he video shows that Mr. Guertin hit the pillar, but does not show he got out of the truck to check.” Id.

The Board was further charged with explaining, based on its findings of what conduct occurred and which did not, which policies or procedures Employee violated. The Board found that the Employee did not violate the policy against dishonesty as it had found, above, that his testimony regarding the pillar incident was consistent and honest. R. at V. In contrast, the Board found that the Employee violated the spotter policy. Id. Finally, the Board found that the Employee did not violate the Apparatus Accidents policy because “in his mind and based on his testimony, the truck was not damaged.” Id.

The Board was asked what mitigating circumstances were presented, if any, and how such mitigating circumstance influenced the Board’s decision, if at all. The Board found what it called an inconsistent application of the spotter policy to be a mitigating factor and noted that the “disciplinary action was not consistently applied.” R. at V. They explained that “if the spotter policy was applied consistently, then it makes sense to discipline as they did.” Id. (emphasis added).

The Board was also charged with determining whether termination was appropriate for the offense or conduct and whether the termination complied with the relevant disciplinary policies and procedures. R. at VI. The Board concluded that the termination was not appropriate because the “disciplinary policy was not applied consistently among all employees who violated policies.” Id. Based on that conclusion, the Board decided to overturn the termination and to reinstate the Employee with full pay. Id.

 

II. Argument

A. Standard of Review
Title 8 provides that this court must determine whether the Board of Review’s Final Decision was appropriate by considering whether:
(1) There was a reasonable basis for the Board of Review’s consideration that the Employee did or did not violate the policies and/or procedures established by the Employer for the position held by the Employee;
(2) There was a reasonable basis to find that the Employer did or did not substantially comply with the policies and/or procedures regarding discipline;
(3) The Employee was given a description of the offense or conduct that was the basis for the Disciplinary Action and both parties were afforded a reasonable opportunity to present and refute evidence regarding the offense or conduct and/or evidence of aggravating or mitigating circumstances relating thereto;
(4) There was a reasonable basis for the Board of Review’s decision as to whether the form of discipline was or was not appropriate for the offense or conduct; and
(5) The Board of Review’s decision is in violation of tribal law or exceeds the Board’s authority under tribal law[.]
8 M.P.T.L. ch. 1 § 8(f)

Pursuant to 8 M.P.T.L. ch. 1, §§ 8(b), (c), the hearing on this matter is limited to the Record before the court, and the court will not substitute its judgment for that of the Board as to the weight of the evidence or credibility of the witnesses. The court in Yarlott v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 185, 188 (2014), emphasized the importance of not retrying the factual findings on appeal. In reviewing the Board’s decision in that case regarding whether the form of discipline imposed by management was appropriate, the Tribal Court’s role is solely to determine whether the Board’s conclusion had a reasonable basis. Id. at 188. Reasonable basis means “a determination of *284 whether there is substantial evidence in the record to support the findings of fact and conclusions drawn therefrom.” Walton v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 20, 24 (2012). “Substantial evidence is more than a scintilla. ... It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. ...” Mashantucket Pequot Gaming Enterprise v. Christison, 6 Mash.Rep. 41, 44 (2013); Yarlott, 6 Mash.Rep. at 187. “If substantial evidence exists, and if the [Board’s] conclusions are rational and reasonable, the review court would find that the [Board] had a reasonable basis for concluding that the Employee violated the policies or procedures established for the position held by the Employee. If substantial evidence does not exist, or if the [Board’s] conclusions are not reasonable or rational, the decision would constitute a clear error of judgment and the [Board] would not have a reasonable basis for concluding that the Employee violated the policies or procedures of the Gaming Enterprise.” Mashantucket Pequot Gaming Enterprise v. Scheller, 6 Mash.Rep. 126, 129 (2014) (citation omitted). Here, the Board’s conclusion that Mr. Guertin did not violate the policy against dishonesty, based largely on its findings that his testimony about the pillar incident was credible and that the video of the incident should be given little weight, is not at issue as the Plaintiff has not appealed it. What’s more, the court defers to the Board’s judgment regarding the weight of the evidence and the credibility of witnesses. See 8 M.P.T.L. ch. 1 § 8(c).

 

Question Presented

In their written briefs and at oral argument, both parties agreed that the court must decide whether termination was appropriate in light of the presented aggravating and mitigating circumstances. See Pl’s Br. at 5, Def.’s Br. at 8. The Plaintiff argues that inconsistent application of a disciplinary policy cannot be considered a mitigating circumstance and that the Record contains no evidence of inconsistent application of policies, and the Defendant argues that the court should not disturb the Board’s determination that the disciplinary policy was not followed.

 

B. Board Had Reasonable Basis to Conclude that Employee Violated Policy
Pursuant to 8 M.P.T.L ch. 1, § 8(f)(1), the court must consider whether the Board had a reasonable basis for its conclusion that Mr. Guertin did or did not violate the policies and/or procedures established by the Employer. The policy in question, Apparatus Safety, requires that “[a] spotter will be utilized in addition to the backup camera when apparatus is backing up. In instances where there is diminished clearance to either side of the apparatus, a spotter will be used.” R. at 25.

As noted above, the Board found that the Employee violated the Apparatus Safety policy. As the Employee admitted he did not use a spotter on the day of the incident even though he was aware the safety guideline required it and as no evidence in the Record contradicts his admission, ample evidence in the record supports the Board’s conclusion that he violated the policy. It is unquestioned that when he failed to use a spotter he hit the pillar, which caused damage to the ET. Consequently, the Board’s conclusion that Employee violated the policy had a reasonable basis.

 

C. Employer Substantially Complied with Its Disciplinary Policies
Under 8 M.P.T.L ch. 1, § 8(f)(2), the court determines whether the Employer substantially complied with the polices *285 and/or procedures regarding discipline. As noted above, the Board found that the Employer did not consistently apply the disciplinary policy “among all employees who violated policies.” R. at VI. An examination of the Record, however, reveals nothing to suggest that the Employer failed to comply with its disciplinary policies and/or procedures. The Record brims with evidence to the contrary. As a firefighter with the MPFD, the Employee is covered by the Collective Bargaining Agreement between the MPFD and the Firefighter’s Union. See R. at 100, et seq. Article 18 of the Collective Bargaining Agreement (R. at 94-95) sets forth Disciplinary Procedures for the department and provides that disciplinary actions under the Agreement will be “progressive and may include without limitation: written warnings, suspension and termination.” Article 18, section 1 a. (R. at 94.) The Procedures specify that “progressive discipline normally requires, prior to suspension or termination, that an Employee be given an opportunity to correct the deficiency through the issuance of guidance and/or written warnings, but that within the principle of progressive discipline, certain conduct may warrant immediate suspension or termination when appropriate.” Article 18, section 1 b (R. at 94.) The Procedures further provide that when an employee is disciplined and/or terminated, “the reason therefore will be given to the Employee in writing.” Article 18, section 1 c. The relevant portion of the Procedures dictates that warning notices issued to employees must specify the events or actions for which the notices are issued and that a copy of the written notices shall be issued to the employees. Employees are required to sign such notices for the purpose of acknowledging receipt and may include rebuttal statements along with their signatures. Article 18, section 2. (R. at 94.) The Procedures further provide that “[d]isciplinary suspensions [and] warning notices ... concerning the conduct of an Employee shall become null and void twelve (12) months after the date of issuance and may not thereafter be used as a basis for or in support of any subsequent termination or disciplinary action.” The Agreement makes clear that “[n]othing contained in this section shall preclude the use of information contained in an Employee’s personnel file in any administrative or judicial proceeding including proceedings before a Board of Review.” Article 18, section 4. R. at 95.

Nothing in the Record supports the Board’s conclusion that the Plaintiff veered from its disciplinary policies and procedures, in this case, the Disciplinary Procedures in the Collective Bargaining Agreement between the MPFD and the Firefighter’s Union. The Record brims with written warning notices signed by Mr. Guertin. See R. at 34, 37, 39, 40, 43. The Record supports the fact that Employee received written warnings four times between September 2015 and May 2016 and that the incident that sparked his firing was his fifth incident in that time frame and his third accident in which the Apparatus was damaged.

Chief Tougas and Captain Stino were both familiar with disciplinary policies and Procedures of the MPFD. Chief Tougas explained how progressive discipline works at the MPFD. R. 291. Chief Tougas was aware of two other incidents where employees received written warnings after accidents with an Apparatus, both of which occurred before he became chief. R. 298. During Tougas’s tenure as chief, just one incident occurred where another firefighter received discipline for hitting a Jersey barrier with the pick up truck, and that employee received what Captain Stino and Chief Tougas described as a “record of discussion,” which is counseling less formal than a written warning. The Chief made *286 clear in his testimony that, had the employee who hit the Jersey barrier been on a final warning at the time, he would have terminated him. R. 303. It is undisputed, however, that the employee who hit the Jersey barrier with the truck had no prior accidents. R. 271-72.

Consequently, the Board’s finding that “the disciplinary policy was not applied consistently among all employees who violated policies” has no support in the Record. In other words, substantial evidence does not exist in the Record to support the finding, resulting in clear error of judgment by the Board on this point. Without substantial evidence, see detailed discussion below, the court must find that the Board did not have a reasonable basis to conclude that the Employer did not substantially comply with its policies and/or procedures regarding discipline. 8 M.P.T.L. ch.1, § 8(f)(2). The court finds, based on the ample evidence in the record that the Employer substantially complied with its disciplinary policies and/or procedures.

 

D. Board’s Reliance on Inconsistent Application of Spotter Guideline and Disciplinary Policy Was Not Based on Substantial Evidence and Thus Had No Reasonable Basis
Pursuant to 8 M.P.T.L. ch.1 § 8(f)(3), the court must consider, among other things, whether the employee had a reasonable opportunity to present and refute evidence about the offense and any related mitigating or aggravating circumstances. The Board found the following mitigating circumstances were presented: a) “The spotter policy was not consistently applied;” and b) “His disciplinary action was not consistently applied.” The mitigating circumstances cited by the Board, however, were not only unsupported by substantial evidence in the record but also failed to meet the definition of “mitigating circumstances” established in the court’s caselaw. As to the Board’s claim that the disciplinary action was not applied consistently, the court has found, above, that the Employer substantially complied with its disciplinary policies and procedures, so any reliance on this clear error in judgment by the Board in this case is inappropriate.

The Board allowed its finding that the spotter policy was not consistently applied to influence its decision, explaining that had the spotter policy been applied consistently, it would have “[made] sense to discipline as they did.” R. at V. While substantial evidence in the Record explained that the spotter policy was considered an important safety rule by management and that the only time management excused backing up the Apparatus without using a spotter was in times of emergency or when no spotter was available, nothing in the Record supports the Board’s implicit conclusion that firefighters openly flouted the spotter policy and that management did nothing about it. Captain Stino identified one incident where an employee failed to use a spotter and got into an accident that damaged a vehicle, and that employee got a record of discussion as he had no prior incidents. Mr. Guertin was the only firefighter who received a written warning for violating the spotter policy and getting into an accident as a result. In contrast to the employee Captain Stino referenced, Mr. Guertin had two prior written warnings for damaging the vehicle at the time of the spotter incident so he was not similarly situated to the employee who received a record of discussion.

While Mr. Guertin testified that he observed others driving fire department vehicles without a spotter, R. 145, he did not suggest that management had notice of the situations and failed to apply discipline. He did not testify that he knew of any incident *287 where anyone else backed up without a spotter and had an accident that damaged the fire truck. Captain Stino testified that in the group that he supervises, firefighters always have a spotter when the truck backs up and that he requires the use of a spotter on his team. R. 192, 198.

The Record makes clear that some employees, such as Mr. Guertin, choose not to follow the spotter policy. It also makes clear that management recognizes exceptions to the policy when it cannot be followed, such as during an emergency or when no spotter is available. Neither circumstance existed here. Mr. Guertin admitted a spotter was available when he chose to back up without one and that it was not an emergency at the time. R. 139. No evidence in the Record supports the Board’s conclusion that management allows regular violation of the policy with impunity.7 Thus, no substantial evidence in the Record supports the Board’s finding that the spotter policy was not consistently applied by management, and the court finds that conclusion was inappropriate as a clear error in judgment.

The Board’s finding that the one instance where similar conduct resulted in a different disciplinary response amounted to “inconsistent application” resembles the arguments advanced by the employee in Dipietro v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 120 (2008). Dipietro was terminated for repeated tardiness. Like Guertin, while Dipietro did not contest the fact that he violated the policy on numerous occasions, he claimed he was treated differently from other similarly situated employees who committed the same violations but were not terminated. Id. at 122. To support his claims, Dipietro submitted a chart with 19 other employees who had incidents of tardiness, and three of them had more than 40 tardies similar to Dipietro. In all three cases, the court found that the employee received the next incremental level of discipline. In dismissing his appeal and upholding the termination, the court held that the employer treated each employee comparable in the imposition of discipline even though the actual disciplinary action was not uniform. Id. at 124-25. In the instant case, evidence supports only one instance of similar conduct known to management. Although that firefighter received a record of discussion and not a written warning, both Captain Stino and Chief Tougas testified that the employee had no active discipline or prior record and that it was thus appropriate to begin with a record of discussion in his case. R. at 195-200; 271-72. As in Dipietro, the fact that the discipline of Mr. Guertin and that of the other firefighter were not the same did not amount to inconsistent application of the spotter or disciplinary policies.

The Mashantucket Pequot Employee Review Code does not define “mitigating circumstances,” and case law on the subject determines mitigating circumstances based on the facts of each case. *288 The court has noted that when reviewing a case involving mitigating circumstances, “the mitigating circumstances must have some relationship to the conduct that was the basis for disciplinary action.” Mashantucket Pequot Gaming Enterprise v. Covino, 6 Mash.Rep. 79, 83 (2013). “Mitigating circumstances are those that ‘do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability,’ ” Mashantucket Pequot Tribe v. Christison, 6 Mash.Rep. 41, (2013) citing BLACK’S LAW DICTIONARY, 1002 (6th ed., 1995).

The court has most often found that mitigating circumstances involve family or medical issues. In Covino, the court found that an employee acting as the primary caregiver to her sick grandmother constituted an unusual family difficulty and was a significant mitigating circumstance. Covino, 6 Mash.Rep. at 83. The court also found the fact that the Gaming Enterprise sometimes did not issue absentee points to the employee was evidence that it was a mitigating circumstance and not just an excuse. Id. at 84.

In the instant case, nothing about Mr. Guertin’s actions in failing to use a spotter was endorsed by the management. Captain Stino and Tougas confirmed that Fire Department personnel do not always use a spotter as the guideline required but emphasized that the known instances where spotters weren’t used occurred during emergencies or when no spotter was available. Mr. Guertin admitted that when he backed up the ET into the station, spotters were available and no emergency conditions existed. Further, Chief Tougas explained that, because the garage had pull-through bays, the Employee could have driven the Apparatus around the station and pulled right into the bay without the need to back up, thus eliminating the need for a spotter and avoiding the accident altogether. R. at 273.

In Mashantucket Pequot Tribe v. Christison, 6. Mash.Rep. 41, 43 (2013), the court found that the Board’s decision to reinstate an employee was improperly influenced by unrelated mitigating circumstances. In Christison, the Board concluded that the employee had violated the Standards of Conduct and departmental rules but decided to reinstate the employee at a final warning level with no back pay. Id. After looking at evidence in the record, the court found that the Board had no reasonable basis to determine that the employee’s behavior was the result of mitigating circumstances that reduced her degree of culpability. Id. at 46. The employee’s need to go on a break or wash her hands “were not circumstances that rose to the level of an emergency” and did not excuse her behavior. Id. at 47. Furthermore, her behavior was not related to any family or medical issues. Id. Even though the employee had a blood pressure condition, it did not interfere with her job duties and was not related to the conduct in question. Id. Consequently, Mr. Guertin’s reasons for violating the policy constitute mere justification or excuse for his conduct, against the weight of Christison. No evidence in the Record suggests that the fact that other employees might have broken the same rule against backing up the Apparatus without a spotter had anything to do with Mr. Guertin’s decision to violate the policy, and his testimony makes no suggestion otherwise. Mitigating circumstances “must also be related to the conduct in question. To hold otherwise would encourage employees to abuse the provisions of Title 8.” Christison, 6 Mash.Rep at 47; Mashantucket Pequot Gaming Enterprise v. Scheller 6 Mash.Rep. 126, 130 (2014). While the Record contains evidence *289 that other firefighters besides the Employee failed to use a spotter, no evidence suggests that those violations related to Mr. Guertin’s conduct. Had evidence suggested that no spotters were available or that Guertin was responding to an emergency at the time of the accident, such facts would arise to an extenuating circumstance that would warrant mercy. The Record makes abundantly clear that was not the case, and Defendant’s raising it here amounts to no more than an excuse or an attempt to justify his conduct. Such excuse is expressly excluded from the definition of mitigating circumstance.

Based on the foregoing, the court finds inconsistent application of a policy, here the Apparatus Safety guideline, falls outside the definition of mitigating circumstances. Thus, the Board’s reliance on what it called inconsistent application of the policy as a mitigating circumstance was inappropriate.

E. Board of Review Had No Reasonable Basis to Decide That Termination Was Not Appropriate for the Offense
The court has found that the Board can reinstate employment when it concludes, supported by substantial evidence in the record, that the alleged misconduct has not occurred. In Mashantucket Pequot Tribe v. McDuffee, 6 Mash.Rep. 147, 155 (2014), the court agreed with the Gaming Enterprise that the Board could alter the form of discipline imposed by management when they found that no violation or misconduct occurred, when the discipline imposed by management was not permitted under any policy, and when there were “mitigating factors.” The Court did not agree, however, that these were the only instances where the BOR could alter the form of discipline. Id.

In Gervais v. Mashantucket Pequot Tribe, 6 Mash.Rep. 198, 205 (2014), the court held that the Board had substantial evidence to support its imposition of an alternate disciplinary sanction of reinstatement to the employee. The court reasoned that the Gaming Enterprise terminated the employee for violations of Standards of Conduct involving theft and misappropriation and the Beverage Department’s Standards and Procedures, and when the Board found that employee violated the Beverage Department Standards but did not violate the more serious charges of theft and misappropriation, the wrongful conduct was less serious than the conduct that resulted in termination. Id.

In Mashantucket Pequot Tribe v. Ju Lian Zheng, 6 Mash.Rep. 222, 227 (2014), the court held that there were not mitigating circumstances that warranted and formed the appropriate basis for the Board’s reduction in punishment from termination to suspension. The Board found that the employee had violated the Workplace Violence Policy, and the court found that a workplace culture for “horseplay and joking,” a language barrier, translation of policies and past work performance were not mitigating circumstances that the Board could use to reinstate employment. Id. at 226. See also Mashantucket Pequot Tribe v. Prentice, 6 Mash.Rep. 110, (2013) (finding the Board did not have a reasonable basis to reinstate employment when it found that employee did violate standards and policies, that termination was appropriate, and there were no mitigating circumstances).

Here, as in Ju Lian Zheng, the Board found that Guertin violated the Apparatus Safety guideline, but based its alternate form of discipline on mitigating circumstances that had no reasonable basis. The Board itself admitted that had the spotter policy been applied consistently, it would *290 have “[made] sense to discipline as they did.” As the court has found, above, that the spotter policy was applied consistently, the court finds that management’s decision to discipline Mr. Guertin by terminating him for the offense was appropriate, or “made sense” as the Board expressed it.

 

III. Conclusion

The basis for the termination was the Defendant’s failure to use a spotter, a violation that resulted in a third and final warning for accidents that resulted in damage to the Apparatus. No evidence exists in the Record to suggest that Defendant’s violation was caused by or related to the factors cited by the Board, to wit, the claim by the Defendant that the spotter policy was inconsistently applied. It is well established that “[t]he factors constituting mitigating circumstances ... must be related to the conduct in question. To hold otherwise would encourage employees to avoid the provisions of Title 8.” Mashantucket Pequot Gaming Enterprise v. Scheller, 6 Mash.Rep. 126, 131 (2014) (quoting Christison ). For the foregoing reasons, the Court finds that the mitigating circumstances cited above by the Board of Review do not form the appropriate basis for reducing punishment when the Board found the conduct occurred and when the Employer substantially followed its disciplinary procedures and policies.

Therefore, considering the oral and written arguments of the parties and the full Record before the Court, the Court finds that there was no reasonable basis for the Board’s decision to reduce the Employee’s punishment from termination to reinstatement with full pay. The Board’s decision thus exceeded its authority under tribal law and was inappropriate.

Under the circumstances, the court cannot uphold the Board’s decision to reinstate the Employee with full pay. The Board’s decision is overturned, and the Plaintiff’s appeal is sustained.

IT is so ORDERED.
All Citations
6 Mash.Rep. 279, 2018 WL 1046782

Footnotes
1	The Board’s Final Decision does not specify an award of back pay. See Record at VI. Instead, the decision contains the hand-written note: “Reinstate with full pay.” While this statement is open to interpretation, I do not analyze it here as both parties in their Briefs have interpreted the Final Decision as an award of reinstatement with “back pay.” See Def.’s Br. at 1, Pl.’s Br. at 1.
2	Apparatus is not specifically defined in the “Apparatus Safety Policy” or the “Apparatus Accidents Policy.” However, testimony established that an apparatus refers to one of the large fire engine or ladder tank trucks. R. at 140-41, 175, 184, 222.
3	The Charging Document includes the additional charge that Employee violated that portion of the Standards of Conduct that prohibits “[d]isregard or violation of safety rules or common safety practices” and makes clear that “[s]uch behavior may result in disciplinary action up to and including suspension and/or termination of employment.” R. at 17. The prepared form for the Board’s Final Decision omits any reference to disregard of the safety practices, so the Board did not consider that charge, which was No. 19 of the Standards of Conduct. Compare R. at III and at V to R. at 17. Although referenced in Plaintiff’s Brief at page 2, as the Board did not address No. 19, I do not analyze it here.
4	The materials given to the Board define “mitigating circumstances” as “those that do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.” MPGE v. Christison, 6 Mash.Rep. 41, 46, 2013 WL 1143245 (Mashantucket Pequot Tribal Ct.) citing Black’s Law Dictionary 1002 (6th ed. 1995).
5	Throughout this Memorandum of Decision, the Record of the Board of Review is cited as “R. at” followed by the page number, i.e. page 17 of the Record appears as “R. at 17” and so on.
6	PINs are Performance Improvement Notices. See R. at 18, 34, 37, 39, 40, 43 for PINs involving Employee.
7	The Defendant references Chief Tougas’s comment that he has backed up his staff SUV without a spotter (R. at 285) as an example of management’s inconsistent enforcement of the Apparatus Safety Guideline. Def.’s Br. at 8-9. See also R at V. The argument lacks merit for two reasons. 1) Nothing in the Record supports Defendant’s assertion that an SUV was covered by the Apparatus Safety Guideline; and 2) the Record contains no disciplinary action for incidents where an employee failed to use a spotter and no accident resulted. Only two incidents in the record resulted from failure to use a spotter, and both of those violations of the Guideline resulted in accidents that damaged the Apparatus. Nothing in the Record suggests that the Chief has ever had an accident with any Apparatus at the MPFD, whether as a result of failure to use a spotter or for any other reason.