2021 WL 1346075 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT GAMING ENTERPRISE
DOCKET NO. MPTC-CV-AA-2020-116
MARCH 22, 2021
MEMORANDUM OF DECISION
Thomas J. Londregan, Judge
BACKGROUND AND FACTS
This employee appeal was brought by the Mashantucket Pequot Gaming Enterprise (hereinafter the “Gaming Enterprise”) after the Board of Review (hereinafter sometimes referred to as the “Board”) overturned the termination of its employee, Enelida Torres (hereinafter “Torres” or the “Employee”), and returned her to work with full back pay. Torres was employed as a clerk in the Count Room Department of the Gaming Enterprise. She was terminated from employment on November 7, 2019 for violation of the Gaming Enterprise’s Standards of Conduct Section II - Policy 14, specifically fighting, rude or discourteous behavior, and insubordination, and violation of the Gaming Enterprise’s Workplace Violence Policy Section I - Policy 25. R. at 13.
The Employee’s termination was based in part on a review of video surveillance (hereinafter the “video”) that captured an incident on October 21, 2019 between the Employee, Torres, and a co-worker. Torres timely appealed to the Board of Review.
The Board of Review is an impartial panel of employees who came together for a hearing on January 29, 2020, to review the disciplinary action of the Gaming Enterprise and to hear from the parties and witnesses. 8 M.P.T.L. ch. 1 § 1(d); R. at 94-126. The Board is charged with making the “Final Decision” as to whether to uphold or rescind the disciplinary action of the Gaming Enterprise. 8 M.P.T.L. ch. 1 § 1(l).
At the hearing on January 29, 2020, the Board viewed the video of the incident, reviewed the record, and heard from the parties and their witnesses. The Board found that the Employee “pushed” another employee after a verbal confrontation. R. at IV. When asked if the Board believed that the alleged conduct occurred, the Board said that it was “unsure” because the video had conduct off the screen.1 Id. The Board stated that “without seeing the physical contact,” they did not see a violation. Id. The Board found that there were mitigating circumstances due to a history of domestic violence against the Employee by her intimate partner. R. at V. Lastly, the Board found that this was a “one time affair” and that the Employee should attend “violence in the workplace training.” R. at VI.
Before discussing the particular reasons for the Board of Review’s final decision and why the Court finds there was no “reasonable basis” to support its decision in toto, the Court will comment on the record as presented to the Court. The allegations of misconduct were four in nature: (1) fighting or threatening conduct; (2) rude or discourteous behavior; (3) insubordination; and (4) violation of the Workplace Violence Policy. The Board was presented with a generic “Final Decision of the Board of Review” form to fill out and complete at the hearing’s conclusion. R. at III-VII; R. at 89-93. The form, which constitutes the Board’s final decision, does not take into account the four separate charges. The Court finds that the Board focused on the charge of “fighting.” On that charge, the Court agrees with the Board and finds that the conduct of Torres did not amount to “fighting.”
However, after reviewing the video and the record as a whole, the Court finds that Torres’s conduct was in violation of the Workplace Violence Policy (R. at 18) and constituted “rude or discourteous behavior” in violation of the Standards of Conduct Section II - Policy 14 (R. at 15-17), both of which warranted her termination.
The Court is sympathetic with Torres as she was taunted by a co-worker to the point that a verbal confrontation escalated into her pushing the co-worker. Torres admitted that she pushed the co-worker “from [her] face, and that was [her] mistake.” R. at 99. It is of no matter that the Court feels the conduct was a measured response to the taunting of another; even a measured response of pushing another employee in anger should not occur in the workplace. No matter what the provocation, the physical touching of another co-worker in anger is unacceptable behavior. The Workplace Violence Policy requires restraint in the workplace. If an employer allowed the defense of provocation to include a physical pushing in anger, it would render the Workplace Violence Policy meaningless. The decision of the Court follows.
The Tribal Court has been granted jurisdiction to review a final decision of a Board of Review. 8 M.P.T.L. ch. 1 § 2(a). The Mashantucket Pequot Tribal Nation (hereinafter the “Tribe”) has expressly waived its sovereign immunity and the sovereign immunity of any arm, department, subdivision, agency, or entity of the Tribe, with the adoption of Title 8 of the Mashantucket Pequot Tribal Laws, the Employee Review Code. See Id., § 2(b).
STANDARD OF REVIEW
The Court does not review the final decision of the Board de novo. The Court’s review is governed by 8 M.P.T.L. ch. 1 § 8(f). The Employee Review Code limits the Court’s review to the record or the evidence presented to the Board, 8 M.P.T.L. ch. 1 § 1(e), and any briefs filed by the parties or oral argument presented by the parties at the court hearing, Id., § 8(b). In conducting the review of the record, briefs filed, and the oral argument made at the court hearing, the Court cannot substitute its judgment for that of the Board of Review “as to the weight of the evidence or credibility of the witnesses.” Id., § 8(c).
The Court has to 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[.]
Id., § 8(f).
In this case, the Employee did not file a brief. At the hearing held on November 4, 2020, she told the Court that she was “special ed” and her “writing ability’s not that good....” Employee Appeal Hr’g Tr. 2, Nov. 4, 2020. She waived her right to file a brief. Employee Appeal Hr’g Tr. 4. After the hearing, the Court granted the Employee thirty days to file a supplemental brief or to hire a lawyer to file a supplemental brief on her behalf, if the Employee wanted to. Employee Appeal Hr’g Tr. 18. No brief was filed and no attorney appeared for the Employee.
Additionally, neither party claims any procedural issues under 8 M.P.T.L. ch.1 § 8(f)(3). The record further confirms that the Employee was given a description of the offense or conduct that was the basis for her termination from employment, and both parties had a reasonable opportunity to present their case and evidence, including the existence or non-existence of mitigating circumstances. R. at III, V.
Accordingly, the Gaming Enterprise can prevail in its appeal if the Court finds that: (1) the Board did not have a reasonable basis to conclude that Torres did not violate the policies of the Gaming Enterprise; and (2) the Board did not have a reasonable basis to conclude that termination was not appropriate for the conduct that it found to have occurred.
Likewise, the Employee can prevail in this appeal if the Court finds that: (1) the Board had a reasonable basis to conclude that she did not violate the policies of the Gaming Enterprise; and (2) the Board had a reasonable basis to conclude that termination was not appropriate for the conduct that it found to have occurred.
In Luond v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 116 (2014), this Court outlined the applicable principles of review:
“[A] ‘reasonable basis’ means a determination of 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. 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.
Magee v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 40, 53 (2007) (citations and quotation marks omitted).
In this case, “[i]f substantial evidence exists, and if the [Board’s] conclusions are rational and reasonable,” the Court “would find that the [Board] had a reasonable basis for concluding that the [E]mployee” did not violate “the policies or procedures established for the position held by the [E]mployee.” See George v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 322, 329 (2010) (citations and quotation marks omitted). “If substantial evidence does not exist, or if the [Board’s] conclusions are not reasonable or rational, the [final] decision would constitute a clear error of judgment and the [Board] would not have a reasonable basis for concluding that the [E]mployee” did not violate “the policies or procedures of the Gaming Enterprise.” Id.
Judicial review of an administrative decision in the context of employment appeals is extremely limited. Pena v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 297, 300 (2010).
In considering employment appeals, this [C]ourt’s role is solely to determine whether the [Board] acted arbitrarily, capriciously, or in abuse of [its] discretion. In making this determination, the [C]ourt does not retry the facts. The trial [C]ourt 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. (citations and quotation marks omitted).
1. The Board’s Final Decision
The video of the incident between Torres and her co-worker provides in part the basis of the Gaming Enterprise’s decision to terminate Torres’s employment. In addition to viewing the same video, the Board of Review heard from the parties and their witnesses and concluded that it was “unsure” that the alleged conduct occurred. R. at IV. The Board noted that the video had conduct off the screen. Id. When asked to explain what factors, evidence and/or testimony the Board relied on to decide whether the conduct occurred, the Board stated “[e]mployee words and history.” Id. The Board, therefore, found the Employee credible. The Board had the opportunity to judge the credibility of all witnesses who testified. The Board did not see the physical contact and concluded that there was no violation of the Gaming Enterprise’s policies. Id. When asked if the Board found that the conduct alleged by the Gaming Enterprise had occurred and if it constituted fighting or threatening conduct, rude or discourteous behavior, or insubordination under the Gaming Enterprise’s Standards of Conduct Section II - Policy 14, or a violation of the Workplace Violence Policy Section I - Policy 25, the Board answered that “[w]ithout seeing the physical contact we do not see violation.” Id.
This statement indicates that the Board saw the actions of the Employee on the video, considered her testimony that she “pushed” her co-worker after a verbal confrontation, and concluded that such conduct did not amount to fighting, threatening, rude or discourteous behavior, insubordination, or a violation of the Workplace Violence Policy. The Board of Review found Torres to be credible and truthful, viewed the video, and issued its final decision that she did not violate any policies of the Gaming Enterprise.
The Gaming Enterprise argues that Torres provided a written statement admitting to the conduct. R. at 48. In her statement, Torres said that when the co-worker called her a “dirty bitch” three times, she got up and went to him, where she then pushed him. Id. The Gaming Enterprise also points to Torres’s interview regarding the incident. In that interview, Torres stated that she told the co-worker to be quiet after she heard the word “bitch.” R. at 36. When the co-worker called her a “bitch,” she went over to the co-worker and asked him, “[w]hat did you say to me?” Id. He said, “[d]irty bitch.” Id. Torres then “pushed him.” Id. Based on these “admissions,” the Gaming Enterprise found sufficient evidence that Torres used foul language and/or profanity in a verbal altercation in front of other co-workers and made physical contact with a co-worker in violation of the Gaming Enterprise’s policies. R. at 38-39; see also R. at 13, 15-18.
a. The Video
The Court has reviewed the video of the incident. The video shows a male co-worker of Torres’s sitting in a chair among two other employees. He can be seen talking to a person off-screen and gesturing with his arms. Torres then comes into the scene and approaches the co-worker. The co-worker stands up and retreats; both Torres and the co-worker had their hands about waist high, and both came together in a “bump” and immediately separated. The video does not contain any further physical contact. The issue is not what the Court thinks of the video and whether the Court sees a violation of the Gaming Enterprise’s policies because the Court does not try the case de novo, nor can it substitute its judgment for that of the Board. The issue is whether the Board had a reasonable basis to conclude that the Employee did not violate the Gaming Enterprise’s policies.
b. The Board Had a Reasonable Basis for Concluding that the Employee Did Not Violate Gaming Enterprise Policy Regarding Fighting.
The Court has reviewed the record, the video of the incident, arguments of the parties, and the brief of the Gaming Enterprise. The essence of the charge against the Employee is that she engaged in fighting in violation of Standards of Conduct Section II - Policy 14. The focus of the Gaming Enterprise’s charging document and presentation to the Board was that the Employee engaged in “fighting” with a co-worker. The charging document states: “[Torres] was involved in a verbal and physical altercation in the presence of co-workers. [Torres] was in a verbal altercation with a co-worker which included profanity and then escalated to physical contact when a co-worker called her a ‘Stupid Bitch’ and [Torres] approached the co-worker and pushed him.” R. at 13. There are conflicting statements of those present as to who started the incident. The co-worker stated that Torres started it. R. at 36. Torres stated that she was not the aggressor. Employee Appeal Hr’g Tr. 9-10. Fellow co-worker and witness, Chamere Kornegay, opined that “[t]he situation ... could of all been avoided if [the co-worker] never opened his mouth and disrespect[ed] [Torres]....” R. at 30. Mr. Kornegay heard the co-worker call Torres “lazy” and then a “bitch.” Id. Mr. Kornegay couldn’t understand why the co-worker said what he did. R. at 32. Another co-worker and witness, Christopher Miner, confirmed that the co-worker called Torres a “stupid bitch,” (R. at 31), and that the co-worker told Torres that she was “lazy and should know her job,” (R. at 37).
The confidential investigation by Marie Fowler found that the co-worker initiated the conversation. R. at 38. The investigation faulted Torres for not “leav[ing] the situation” and for pushing the co-worker “in the chest, becoming the aggressor.” Id. For Torres’s conduct, the investigation found that termination from employment was warranted. R. at 38-39.
The Court finds that there was substantial evidence in the record for the Board to conclude that what transpired between the Employee and her co-worker was not a “fight.” Definitions of “fight” and “fighting” include “[contending] in battle or physical combat especially ... [striving] to overcome a person by blows or weapons,” and “design[ing], intend[ing], or train[ing] to fight in combat.” Fight, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/fight (last visited Mar. 29, 2021); Fighting, MERRIAM-WEBSTER DICTIONARY, https://www.merriamwebster.com/dictionary/fighting (last visited Mar. 29, 2021). The video itself provides a reasonable basis for the Board to have interpreted that the Employee made no attempt to engage in “battle or physical combat” with the co-worker as the physical contact was a “push,” and did not involve violent “blows or weapons.” Furthermore, there was no physical combat as the parties separated after one “bump” or “push.” The Board characterized the incident as a “push” by the Employee. The Employee’s response to the co-worker’s taunting was a measured one in “pushing” him from her face.
Having concluded that the Board had a reasonable basis for concluding that Torres did not violate the Standards of Conduct Policy Section II - Policy 14 for fighting, the Court must now determine whether Torres violated the Workplace Violence Policy, Section I – Policy 25, and the Standards of Conduct Policy Section II – Policy 14 as to rude or discourteous behavior and insubordination.
c. The Board Did Not Have a Reasonable Basis for Concluding that the Employee Did Not Violate Other Gaming Enterprise Policies.
The Board’s final decision did not include specific findings on whether the conduct was rude or discourteous, constituted insubordination, or violated the Workplace Violence Policy. No decision means no violation. The Board saw the video and concluded that the “push” or physical contact between Torres and her co-worker did not constitute a violation of the policies of the Gaming Enterprise.
Here, the Court is acting as the reviewing court for the Gaming Enterprise’s appeal of the Board’s final decision, which reinstated Torres to her position with full back pay. Consequently, the Court has the inherent discretionary authority to consider all the issues in the record and to either sustain or overturn the Board’s final decision.
(i) The Board Did Not Have a Reasonable Basis for Concluding that the Employee Did Not Violate Gaming Enterprise Policies Regarding Workplace Violence and Rude or Discourteous Behavior.
The Gaming Enterprise asserts that the Board erred in two ways: (1) in not finding that the conduct occurred; and (2) in applying mitigating circumstances of past good behavior to overturn the decision to terminate Torres’s employment. Employee Appeal Hr’g Tr. 7-8. The Gaming Enterprise further contends that Torres “admitted to being upset and using profanity and making physical contact with her co-worker and pushing him.” Employee Appeal Hr’g Tr. 6-7.
The record reveals that a member of management, Mark Sulik, told the Board that “we have a zero tolerance policy for assaulting another team member here....” before he requested that the Board uphold Torres’s termination. R. at 100. Mr. Sulik explained that Torres “was [terminated] for making physical contact with a [co-worker], specifically fighting and rude, discourteous behavior, insubordination, and” violation of the workplace violence policy. R. at 101.
The Board opined that that it was “unsure” whether the alleged conduct occurred. R. at IV. The Board also found that Torres’s conduct did not violate the Gaming Enterprise’s policies at issue because the Board explained that “[w]ithout seeing the physical contact, we don’t see violation.” Id.
The Court finds that the Board did not have a reasonable basis to conclude that Torres did not violate the Workplace Violence Policy or that her conduct did not constitute rude or discourteous behavior towards a co-worker. The Board found that Torres “pushed” another co-worker. The Board viewed the video and saw Torres approach the co-worker who immediately stood up and retreated. Torres continued towards the co-worker and eventually “pushed” him. Because the Board found that Torres “pushed” a co-worker after a verbal confrontation there is no reasonable basis for the Board to have found no violation of the policies of the Gaming Enterprise. The video itself provides substantial evidence that the Board did not have a reasonable basis to conclude that it was “unsure” whether the alleged conduct occurred, or that it did not see the physical contact. The video captures the physical contact. The physical contact may not have risen to the level of “fighting,” but it amounted to a physical contact with a co-worker. There was nothing to be “unsure” about. The physical contact, albeit not fighting, did occur and is seen on the video. Such conduct was in violation of the policies of the Gaming Enterprise. Therefore, the Court finds that there was not substantial evidence in the record to support the Board’s findings that there was neither workplace violence nor rude or discourteous behavior.
d. The Board Improperly Found and Relied Upon Mitigating Circumstances.
The Board found the existence of mitigating circumstances because Torres had been the subject of domestic abuse and had no previous history of violence in the workplace. R. at V-VI. The Board further found that termination was not appropriate because Torres had been in good standing with the Gaming Enterprise for more than a decade. R. at VI. These reasons are legally insufficient for mitigating circumstances.
Torres testified that she was dealing with a lot of personal issues on the day of the incident. R. at 99. She had just returned to work after surgery on her leg; her dad suffered a stroke and had died ten months earlier; and when her co-worker called her profane names, it took her back to her past when she was abused by a domestic partner. Id. Torres was in an abusive relationship for six years with a male partner who beat her and left her “almost dead.” R. at 103. As a result, the male partner served five years in jail and Torres was placed in a shelter. Id. When the co-worker called Torres a “dirty bitch” it reminded her of the domestic abuse she suffered sixteen years ago and it “took [her] back.” R. at 99. As a result of the co-worker’s comments, Torres acknowledged that she “did push him from [her] face, and that was [her] mistake.” Id.
The Board found Torres’s termination inappropriate because of her “good standing for more than a decade.” R. at VI. Mitigating circumstances must have some relationship to the employee’s conduct that was the basis for the termination. Mashantucket Pequot Gaming Enterprise v. Covino, 6 Mash.Rep. 79, 83 (2013). The Gaming Enterprise is correct in its arguments that prior traumatic events in the Employee’s life and the Employee’s years of good behavior and standing do not have a relationship to the alleged disciplinary conduct that led to the Employee’s termination from employment. See Mashantucket Pequot Gaming Enterprise v. Scheller, 6 Mash.Rep. 126, 130-31 (2014); Covino, 6 Mash.Rep, at 83-84.
Here, the conduct in question was a verbal and physical altercation with a co-worker. There was no issue concerning Torres’s job performance or her prior personal trauma. Torres’s years of good behavior and standing and her prior experiences as a survivor of domestic violence are not sufficiently related to the verbal and physical altercation with her co-worker so as to constitute mitigating circumstances. Consequently, the Board of Review improperly relied upon them as mitigating circumstances.
For the foregoing reasons, the Court overrules the Gaming Enterprise’s appeal for violation of the Standards of Conduct Policy Section II - Policy 14 as to the charge of fighting, but sustains the Gaming Enterprise’s appeal for violation of the Standards of Conduct Policy Section II – Policy 14 as to the charge of rude or discourteous behavior, insubordination, and for violation of the Workplace Violence Policy - Policy 25. Accordingly, the decision of the Board of Review is reversed.
Any decision based on conduct off the screen (of the video) would be based on speculation and thus would constitute reversible error.