2021 WL 5013894 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT TRIBAL NATION
OCTOBER 7, 2021
MEMORANDUM OF DECISION
Edward B. O’Connell, Judge
In this appeal brought pursuant to the Employee Review Code, 8 M.P.T.L. ch. 1, the appellant, the Mashantucket Pequot Tribal Nation (hereinafter “Tribe”), appeals the final decision of the Board of Review (hereinafter “Board”) to overturn the Tribe’s termination of the appellee, Carrie-Ann Davis (hereinafter “Ms. Davis”), and award her three months’ back pay.
The extraordinary time period of this matter should be addressed. This administrative appeal was brought before the Court in the spring of 2019, now over two years ago. This Court, like many if not all courts in the nation, has been afflicted with the unprecedented Covid-19 pandemic, the ensuing closures and shutdowns associated with the pandemic, and the necessity of the attorneys, staff and judiciary to navigate the vagaries of the pandemic. This has resulted in uncommonly long deferrals of decisions. This case is among those deferred decisions1.
Ms. Davis was employed as a surveillance officer in the Surveillance Department of the Tribe (hereinafter “Surveillance Department” or “management”). Her primary job duties consisted of monitoring security cameras. Def.’s Br. 2; R. at 291. She began having health problems prior to May 26, 2018. On August 27, 2017, monitor room supervision observed Ms. Davis asleep at her workstation in the surveillance monitor room for eight minutes. The next day, August 28, 2017, monitor room supervision again observed Ms. Davis asleep at her workstation in the surveillance monitor room for nine minutes. R. at 88. On both occasions, monitor room supervision took control of Ms. Davis’ workstation cameras three to four times and moved them as a way to confirm that Ms. Davis was in fact asleep. R. at 88, 90. Ms. Davis did not wake up or respond in any way to the movement of her workstation cameras and remained asleep. Id.
These two episodes resulted in a Performance Improvement Notice dated September 5, 2017 that constituted a Final Warning. Ms. Davis provided a written statement regarding these two incidents explaining that her “condition is not falling asleep,” but instead “due to some medical issue” where she would slur her speech, go out for a few seconds and then become coherent again as if nothing had occurred. She was aware of the moving cameras. Ms. Davis noted that she had informed management about her medical issue and the fact that she was seeing two doctors to address her medical issue. She further explained that these episodes tended to occur when the room was warm, quiet, and she concentrated or focused too hard on something. Ms. Davis opined that her issue, although happening more frequently, was getting better because she would try “to break that feeling” by getting up, eating, speaking to someone, getting water, going to the restroom, or doing a different assignment. R. at 89.
Ms. Davis’ medical issue continued. On May 26, 2018, the surveillance shift manager observed her asleep at her workstation in the surveillance monitor room for eight minutes. R. at 66-67. The surveillance shift manager approached Ms. Davis’ workstation and leaned in closer to her, but she did not respond and her eyes remained closed. The surveillance shift manager then tapped on Ms. Davis’ workstation and told her to “wake up,” at which time, she did awaken. As a result of this episode, Ms. Davis was suspended pending further investigation on June 12, 2018. R. at 66. She provided a written statement regarding the incident. Ms. Davis explained that the room was warm and quiet, and she was watching her camera when she closed her eyes. She did not believe that this episode was similar to previous ones and she noted that “this was not a case of sleeping.” R. at 67.
On July 2, 2018, Ms. Davis was advised that the Tribe was terminating her employment. R. at 16, 54. According to the Charging Document, the “evidence reflects that [Ms. Davis] was observed sleeping by her co-worker,” as review of the camera coverage shows that Ms. Davis “has her head tilted down, when management walks over and awakens her.” The Charging Document further states that the Tribe terminated Ms. Davis’ employment because she violated the Tribe’s Standards of Conduct Section IV Subsection 4, specifically loafing or sleeping on the job. R. at 15.
On March 13, 2019, the Board convened for a hearing on Ms. Davis’ appeal of her termination. R. at III-VI; R. at 250-312. The Board was informed that Ms. Davis had been terminated for “misconduct” (R. at 255) and violating the Standards of Conduct Section IV Subsection 4, specifically loafing, or sleeping on the job (R. at III). Upon considering the evidence, the Board issued a final decision returning Ms. Davis to work on a final warning with three months’ back pay. R. at VI. Explaining its decision, the Board wrote “[w]e felt that [her] medical condition warrents [sic] return.” R. at III. The Board found that Ms. Davis “was caught with her eyes ‘closed’ which is [a] policy violation of sleeping/loafing on the job,” in which termination is appropriate, but Ms. Davis “had mitigating medical conditions identified in [her] file.” R. at IV. The Board further found that “undiagnose[d] medical condition at [the] time of [Ms. Davis’] termination” was a mitigating circumstance that influenced the Board’s decision because “she’s activley [sic] seeking treatment and under doctors[‘] care.” R. at V.
The Tribe now appeals the Board’s final decision to this Court, claiming that the Board erred in finding and applying a mitigating circumstance to Ms. Davis’ conduct. The Tribe argues that there was not a reasonable basis for the Board to have reduced Ms. Davis’ termination and ordered back pay.
STANDARD OF REVIEW
This Court has been granted jurisdiction to review a Board’s final decision. 8 M.P.T.L. ch. 1 § 2(a). The Employee Review Code limits the Court’s review to the record, Id. § 8(b), the evidence presented to the Board, Id. § 1(e), and any briefs filed by the parties and oral argument presented by the parties at the court hearing, Id. § 8(b). The Court cannot substitute its judgment for that of the Board “as to the weight of the evidence or credibility of the witnesses.” Id. § 8(c).
Title 8 of the Employee Review Code requires the Court to determine whether the Board’s final decision was appropriate by asking 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 laws or exceeds the Board’s authority under tribal law.
Id. § 8(f). A “reasonable basis” exists when there is “substantial evidence” in the record to support the Board’s factual findings and when the Board’s conclusions derived from those factual findings are rational and reasonable. George v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 322, 329 (2010). As a result, the record must contain “substantial evidence” for the Board’s final decision to have a “reasonable basis.”
Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The evidence must afford a substantial basis of fact from which the fact in issue can be reasonably inferred and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. It is not necessary that such evidence be unequivocal, but rather that it support the [Board’s] findings.
Mashantucket Pequot Gaming Enterprise v. Scheller, 6 Mash.Rep. 126, 129 (2014) (quoting Magee v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 40, 53 (2007) (citations and quotation marks omitted)).
If substantial evidence exists, and if the [Board’s] conclusions are rational and reasonable, the reviewing 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.
Id. (quoting George v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 322, 329 (2010) (citations and quotation marks omitted)).
Judicial review of the administrative decision to suspend or terminate an employee at the Gaming Enterprise is extremely limited. In considering employment appeals, this court’s role is solely to determine whether the [Board] acted arbitrarily, capriciously, or in abuse of [its] discretion. In making this determination, the court does not retry the facts. The trial court may not retry the case or substitute its own judgment for that of the [Board] on the weight of the evidence or on questions of fact.
Id. (quoting Pena v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 297, 300 (2010) (citations and quotation marks omitted)).
EMPLOYEE REVIEW CODE FACTORS
As set forth in Title 8 of the Employee Review Code, there are five factors which the Court should consider in determining whether the Board’s final decision is appropriate2. Here, the Tribe calls into question only one of those factors. “Whether the employee was given ... a reasonable opportunity to present ... evidence of ... mitigating circumstances relating [to the conduct that was the basis of the disciplinary action].” 8 M.P.T.L. ch. 1 § 8(a)(3). Consequently, the Court need not address the other four factors which comprise the standard of review.
Both parties agree to the facts of the incident. R. at IV; Pl.’s Br. 3; Def.’s Br. 3; R. at 263-64. Accordingly, both parties stipulated to the fact that Ms. Davis did “close” her eyes in violation of Standards of Conduct Section IV Subsection 4, specifically sleeping on the job. R. at IV-V; Pl.’s Br. 3-4; Def.’s Br. 3; R. at 263-64. The Court agrees, and finds that the record contains substantial evidence that constitutes a reasonable basis for the Board’s conclusion that Ms. Davis “closed” her eyes in violation of the prohibition against sleeping on the job. The only issue that separates the parties is the Board’s finding and application of mitigating circumstances3.
“In the context of the Employee Review Code, ‘[m]itigating 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.” ’ ” Scheller, 6 Mash.Rep. at 130 (quoting Mashantucket Pequot Gaming Enterprise v. Christison, 6 Mash.Rep. 41, 46 (2013)). Mitigating circumstances are factors surrounding an event which shed additional light on that event in such a way as to make the conduct appear less blameworthy or flagrant than was originally perceived. Mitigating circumstances must relate to the conduct in question that formed the basis for the disciplinary action. Mashantucket Pequot Gaming Enterprise v. Ju Lian Zheng, 6 Mash.Rep. 222, 226 (2014); Scheller, 6 Mash.Rep. at 131; Mashantucket Pequot Gaming Enterprise v. Covino, 6 Mash.Rep. 79, 83 (2013). See Scheller, supra, where court declined to expend mitigating circumstances to factors unrelated to the conduct in question.
In the instant matter, the Board found that both parties had a reasonable opportunity to present evidence of the existence or non-existence of mitigating circumstances, and whether Ms. Davis “had mitigating medical conditions identified in [the] file.” R. at IV. The Board further found that Ms. Davis’ undiagnosed medical condition at the time of termination was presented as a mitigating circumstance which influenced the Board’s final decision because she was “activley [sic] seeking treatment [and was] still under doctors[‘] care.” R. at V. The Board’s explanation of its final decision stated that Ms. Davis’ “medical condition warrents [sic] [her] return [to work]” with a “final warning” and “back pay 3 months to be rewarded to [Ms.] Davis.” R. at VI.
Ms. Davis testified that on May 26, 2018, the surveillance monitoring room where she was watching the security cameras at her workstation was “really warm” and she “closed [her] eyes” as “[t]hey were just burning.” She then heard her surveillance shift manager approach her, tap on her desk, and say “no more sleeping.” According to Ms. Davis, she wasn’t sleeping. Unlike previous incidents, during the incident on May 26, 2018 she was aware of her surroundings and could hear her colleagues speaking in the room. R. at 268; 277. At this time, Ms. Davis was still seeing two doctors in an effort to obtain a diagnosis that would explain her ongoing medical issues. She was also experiencing incidents similar to the one on May 26, 2018 outside of work, including when she was driving or conversing with other individuals. R. at 268. When neither of her doctors could diagnose her medical condition, she went to a different primary care physician who tested and diagnosed her with sleep apnea. Ms. Davis testified that while the average person has four apneas, or instances where a person may unknowingly stop breathing, in a night, she had 144 apneas during her sleep test in December 2018. R. at 269-70. She further stated that the doctors administering the test became so concerned by the amount of apneas she had during the first part of the test that for the second part of the test, they made her wear a breathing mask. Ms. Davis further explained that because sleep apnea symptoms “just happen” without an individual being aware that they are happening, she did not use an intermittent or a continuance leave to address her sleep apnea, which at the time of the incident remained undiagnosed. R. at 270.
Following her diagnosis of sleep apnea, doctors prescribed Ms. Davis a CPAP machine to wear at night. She received a CPAP machine in March, 2019. R. at 269. The CPAP machine consists of a mask that Ms. Davis wears every night and blows oxygen into her body so that she does not stop breathing in her sleep, and allows her to obtain a restful continuous sleep. In addition to the CPAP machine, Ms. Davis changed her diet, lost weight, and was prescribed new medications to treat her sleep apnea. R. at 272. She reported that after the proper diagnosis and treatment for her sleep apnea, she has more energy and does not feel tired during the day. And to Ms. Davis’ knowledge, she has not experienced any more incidents related to her sleep apnea since her diagnosis and treatment. R. at 278-80. Ms. Davis stated that “[i]t is a marked difference.” One of the Tribe’s witnesses, the Manager of Administration in the Surveillance Department, testified that under the circumstances, especially given the seriousness of job duties as a surveillance office, Ms. Davis could not return to work and be an effective Team Member. R. at 293-95. Ms. Davis disagreed. R. at 272. She testified that with her sleep apnea diagnosis and its medical treatment, she would be able to perform the duties of her job as a surveillance officer without incident.
Medical records and reports contained within the record confirm Ms. Davis’ diagnosis and treatment. On August 25, 2017, two days prior to her first incident at work, Ms. Davis visited her primary care provider, Olympia Gregory, APRN, to address her medical condition concerning fatigue. R. at 234-35. Ms. Davis reported to her primary care provider with the following relevant complaints: “slurred speech, falling asleep for a couple of seconds, exhausted all the time,” and “episodes where she is in a conversation then stops talking for a few seconds then comes back.” R. at 233. Her primary care provider summarizes that Ms. Davis “has had a couple of episodes of excessive fatigue where she seems to slur her words and then seems to be sleeping/sleepy but still hears stuff.” Ms. Davis’ primary care provider then ordered hormone treatment, routine labs, and a follow-up visit. R. at 234.
Ms. Davis visited her primary care provider again on November 3, 2017 to address in part “falling asleep at work.” Her primary care provider made in part note of a neurological consult and the possibility of narcolepsy to be determined by a medical doctor. R. at 230. She also recommended hormones and supplements, and discussed the importance of diet, nutrition and lifestyle on Ms. Davis’ health. R. at 229. Ms. Davis saw her primary care provider next on May 4, 2018 and then on June 18 for an unrelated matter.
Ms. Davis had another visit with her primary care provider on June 14, 2018 where she addressed in part Ms. Davis’ “sleep disturbance,” and they discussed the incident on May 26, 2018 that led to Ms. Davis’ termination. R. at 221-22. Ms. Davis’ primary care provider recommended hormones and supplements, and discussed the importance of diet, nutrition and lifestyle on Ms. Davis’ health. R. at 221.
In a letter dated July 26, 2018, Ms. Davis’ primary care provider states that Ms. Davis “has a history of Adrenal Fatigue Syndrome” which may exacerbate her abnormal sleep patterns including narcolepsy. Her primary care provider describes narcolepsy as “a sleep disorder characterized by excessive sleepiness and wakefulness so at time [a person] may appear to be either asleep when awake or vice versa.” Ms. Davis’ primary care provider concludes: “[w]e are in the process of fully diagnosing and developing a treatment plan and management strategies for the narcolepsy, including neurological consultation and determining the appropriate use of medication to help maintain alertness during work hours.” R. at 208.
On December 12, 2018, Ms. Davis visited Dr. Richard Wilcon, MD, as a new patient. R. at 209. Dr. Wilcon noted that Ms. Davis “has been falling asleep at work.” R. at 210. He further reported that Ms. Davis “has daytime somulence [sic] and snoring at night,” and “suspect[ed] sleep apnea,” and “order[d] [a] sleep study.” R. at 212. The split-night polysomnogram or sleep study began on December 17, 2018. R. at 212-213. The sleep study confirmed a diagnosis of severe sleep apnea and sleep disturbance related hypoxemia. One of the recommendations following the sleep study was that Ms. Davis use a CPAP machine every night. R. at 213.
The Tribe asserts that the Board erred when it found that Ms. Davis’ medical condition was a mitigating circumstance that warranted her reinstatement because her medical condition was unrelated to the her conduct. Pl.’s Br. 3-4. The Tribe contends that the incident on May 26, 2018 was an intentional act by her to close her eyes, whereas the incidents prior to May 26, 2018 may have concerned Ms. Davis’ medical condition. The Tribe points to the fact that Ms. Davis herself stated that during the incident at issue on May 26, 2018 she was not sleeping, and that the May 26, 2018 incident differed from her previous incidents of sleeping on the job. Pl.’s Br. 4. The Tribe also reasons that Ms. Davis had multiple opportunities and coping strategies to address her medical condition to prevent the incident that led to her termination. R. at 264-65. As a result, the Tribe argues that there was no reasonable basis for the Board to return Ms. Davis to work on a final warning and to order three months’ back pay for Ms. Davis. Pl.’s Br. 4.
Ms. Davis responds that prior to the May 26, 2018 incident which led to her termination, she had not been fully diagnosed with severe sleep apnea and had experienced previous incidents where she would close her eyes and appear to be asleep, but would feel aware of her surroundings so as not to feel like she was sleeping. Def.’s Br. 8. Ms. Davis further asserts that upon being fully diagnosed with severe sleep apnea, she learned from her medical providers that her medical condition could account for all of her symptoms, including those incidents where Ms. Davis felt aware of her surroundings and was not sleeping, but appeared to be asleep from an outsider’s perspective. R. at. 261-62. She testified at her Board of Review hearing that the incident on May 26, 2018 was caused by her sleep apnea. R. at 268-69; 273; 303. She further contends that the record includes an abundance of medical records and reports that document her medical condition, including a narrative report from her primary care provider that her sleep disorder4 was causing the incidents at work that ultimately led to her termination. Def.’s Br. 8. As a result, Ms. Davis argues that the Board had substantial evidence to conclude that her medical condition was a mitigating circumstance that related to the incident on May 26, 2018 and warranted her reinstatement and three months’ back pay. Def.’s Br. 8-9.
Here, the Board considered Ms. Davis’ medical condition to be identified in the record by way of her medical files and reports. Those medical files and reports provide support for the Board’s conclusion that despite the fact that Ms. Davis was actively seeking treatment for her medical condition, it remained undiagnosed at the time of her termination. Ms. Davis’ medical files and reports contained within the record further document that she received a correct diagnosis of severe sleep apnea after her termination. In addition, the record includes medical files and reports that point to sleep apnea or a similar sleep disorder as the cause of her daytime sleepiness, and would account for Ms. Davis’ behavior during the incident that led to her termination. The record contains substantial evidence that the incident on May 26, 2018 was caused by and was related to Ms. Davis’ medical condition, which was ultimately diagnosed as severe sleep apnea. Stated differently, Ms. Davis’ medical condition, severe sleep apnea, was a mitigating circumstance which caused and was directly related to her violation of the Tribe’s prohibition against sleeping on the job. For this reason, the Court finds that the Board properly relied upon Ms. Davis’ medical condition, severe sleep apnea, as a mitigating circumstance.
Substantial evidence exists in the record to support the Board’s final decision to overturn the Tribe’s termination of Ms. Davis and award her three months’ back pay. Accordingly, the Tribe’s appeal is dismissed and the Board’s final decision is sustained.
The Clerk is directed to schedule a hearing for the imposition of further remedies consistent with the Employee Review Code.
Many of our sister courts have very large backlogs of administrative appeals caused by the pandemic. This Court takes no satisfaction in observing that the time frame of the instant matter is not unusual.
See page 5; supra.
There was some discussion of whether management had followed the proper procedure in issuing Ms. Davis a First, Second and Final Warning, rather than warning her three times before her Final Warning. The Board found that the act of skipping the third warning may have been justified given the severity of the violation. The parties discussed this finding at the Board of Review hearing, but did not argue the finding further in their briefs or at oral argument. The Tribe states in its brief that the issue “[is] not the focus of this appeal.” Appellant’s Br. at 3-4.
Ms. Davis’ primary care provider (APRN Olympia D. Gregory) initially suspected she had narcolepsy, but later she was formally diagnosed with severe sleep apnea by Dr. Richard Wilcon.