2019 WL 1313836 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
LORI ANN WILDING, Plaintiff
MASHANTUCKET PEQUOT GAMING ENTERPRISE, Defendant.
DOCKET NO. CV-AA-2018-130
MARCH 11, 2019
Attorneys and Law Firms
Lori Ann Wilding, Pro Se Plaintiff
Tawnii Cooper-Smith, Esq., for the Defendant
MEMORANDUM OF DECISION
Jean M. Lucasey, Judge
This is an employee appeal hearing for Lori Ann Wilding (hereinafter “Ms. Wilding” or “Plaintiff”), who was formerly employed by the Mashantucket Pequot Gaming Enterprise as Assistant Housekeeping Manager. Ms. Wilding was terminated from employment on December 7, 2017, for violations of the Standards of Conduct, Section II Policies 14 (Falsification, misuse, removal, or unauthorized disclosure of confidential information or records), 15 (Disregard or violation of safety rules or common safety practice), and 21 (Being out of authorized work areas during working hours). She was also terminated for violation of the Disciplinary and Performance Improvement Policy, Section II Policy 15 (Disciplinary process for salaried/supervisory positions1).
According to the Charging Document, on October 28, 2017, Ms. Wilding failed to suspend one of her team members who had received a non-negative result on a reasonable-suspicion drug test and allowed him both to continue working and to drive himself home despite the test result. R. at 38.2 On November 9, 2017, security observed Ms. Wilding and a subordinate employee on an unauthorized break, shopping at the Tanger Outlets. The Statement of Fact charges that, during the investigation, it was discovered that Ms. Wilding had personnel files of her fellow employees in her possession without the permission of her Director. Ms. Wilding admitted to the above behaviors.
Ms. Wilding appealed her termination, and a Board of Review was held on February 20, 2018, at which Ms. Wilding was found to have committed the violations charged by the Defendant. The Board consequently upheld the termination.
I. DECISION OF THE BOARD OF REVIEW
Ms. Wilding was terminated on December 7, 2017, for violating the following policies and/or procedures:
a. Standards of Conduct (Section II—Policy 14) specifically disregard or violations of safety rules or common safety practices. See R. at 15-18 for policy.
b. Standards of Conduct (Section II—Policy 14) specifically being out of authorized working areas during working hours. Id.
c. Standards of Conduct (Section II—Policy 14) specifically falsification, misuse, removal or unauthorized disclosure of confidential Gaming enterprise information or records, including but not limited to Team Member or guest records. Id.
d. Standards of Conduct (Section II—Policy 15). R. at III; R. at 18-21.
On February 20, 2018, the Board found that Ms. Wilding 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 circumstances, (R. at IV).3
The Board’s Final Decision evinces a clear understanding of the alleged conduct by Ms. Wilding that resulted in the present termination. To wit, “unauthorized break with her subordinate in uniform displaying her badge; neglected to adhere to [supervisor’s] recommendation to suspend; failure to turn over confidential files of her peers and her management [personnel] files.” R. at IV.
After hearing testimony from multiple witnesses, including Ms. Wilding, and examining the documentary evidence in the Record, the Board found that Ms. Wilding committed the above conduct alleged by management and that her conduct violated all four of the policies and procedures as set forth in the Charging Document. Id.; see also R. at 13.
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 written statements and the testimony from Ms. Wilding and her manager to be credible. As the Board panel found no mitigating circumstances were presented at the Board of Review, it concluded that termination was appropriate and that it complied with the relevant disciplinary policy and procedures including the Disciplinary and Performance Improvement Policy. The Board of Review stated that as a manager, Ms. Wilding should have been aware of the policies and procedures that she violated, and the Board accordingly upheld management’s decision to terminate her employment.
II. ARGUMENTA. 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 tribal 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. In Yarlott v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 55 (2014), the Mashantucket Pequot Court of Appeals 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 was solely to determine whether the Board’s conclusion had a reasonable basis. Id. at 63. Reasonable basis means “a determination of whether there is substantial evidence in the record to support the findings of fact and conclusions drawn therefrom.” Id. (quoting Osfield v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 1, 5 (2013)). “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) (quoting Magee v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 40, 53 (2007)).
If substantial evidence exists, and if the [Board’s] conclusion 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).
Disagreeing with the Board of Review’s decision to uphold her termination, Ms. Wilding filed her appeal with the tribal court on March 16, 2018.
Ms. Wilding filed her brief on September 28, 2018, and in it, she points to inconsistencies in the record and disputes certain allegations made against her as non-factual. She also discusses what she calls disparate treatment between her and her fellow employees, who she claims engaged in the same or similar behavior that she did but were not disciplined in the same manner, if at all. Specifically, Ms. Wilding alleges that she had made an “honest mistake” on a document, was never assigned break times or to a break area, and secured the personnel files in question because she believed that “no one was taking charge.” She claims that she was treated unfairly, especially because she was not afforded progressive discipline.
The Mashantucket Pequot Gaming Enterprise (hereinafter the “Gaming Enterprise” or “Defendant”) filed a reply brief on October 31, 2018, stating that managers are expected to take breaks at times best for the Department, that they are required to provide notice (which Ms. Wilding did not), and that Ms. Wilding had already taken her authorized one-hour of break time on the day in question before she was seen shopping during her shift. Defendant emphasized that Ms. Wilding admitted that she failed to follow the instructions on the Drug Free Workplace Drug/Alcohol Testing form, which is considered a serious breach of policy because the program is meant to prevent intoxicated or otherwise compromised employees from hurting themselves or others. Defendant further argues that, while Ms. Wilding may have thought she was “doing the right thing” by holding the personnel files to keep them safe, it was unethical, inappropriate and a violation of policy. The Defendant also argued that the Board ultimately found termination to be appropriate because, as a manager, Ms. Wilding is expected to be aware of the policies and the procedures she violated.
At hearing on her appeal to the tribal court on November 5, 2018, Ms. Wilding admitted that she violated the policies in the Charging Document and repeated her argument that she should be given her job back based on her many years of service and on her belief that termination was too harsh a penalty. The Defendant argued that the Board of Review’s decision terminating the Plaintiff, Ms. Wilding, should stand as it found no mitigating factors were presented for consideration, that she indeed violated the policies as charged and that termination was appropriate especially considering that as a manager, she was held to a higher standard in disciplinary matters.
B. The Board Had a Reasonable Basis to Conclude that the Plaintiff Violated Gaming Enterprise Policies
The tribal court’s review of this matter is limited to determining whether the Board’s conclusion had a reasonable basis. Yarlott, 6 Mash.App. at 63. The Record shows that on October 28, 2017, one of the Plaintiff’s team members was sent for a reasonable-suspicion drug test, which came back with a non-negative test result. Such result meant that the team member should either be sent home for the remainder of the shift or be suspended pending investigation depending on the range of the results, and that management was supposed to arrange transportation for him to be taken home. R. at 38. Instead of following the protocol, however, the Plaintiff allowed the team member to continue work and to drive himself home. The Plaintiff admitted that she should have read the document that management gave her to sign regarding the situation and that she should have followed through with the drug-test procedures. R. at 470–71. Instead, she simply initialed the document without reading it and took no further action until her error was later brought to her attention by management. The court hereby finds that the Board had a reasonable basis to determine that the Plaintiff violated the safety policies and procedures by failing to take action when the team member should have been sent home.
The Plaintiff admitted to the Board of Review that she went shopping with a subordinate employee toward the end of her shift on November 9, 2017. Management considered the trip to the mall to be an unauthorized break. The subordinate was in uniform and was wearing her badge, which was not allowed under the circumstances. The Plaintiff denied her break was unauthorized, (R. at 445–45), and described in detail her department’s practice regarding breaks, (R. at 453–56). While management insisted that she took her one-hour break at lunch on the day in question, (R. at 473), the Plaintiff testified that her earlier break was a short break, (R. at 460). Her lunch partner’s statement about the lunch break she took with the Plaintiff appears in the Record, however, contradicting the Plaintiff’s assertions that her lunch break was less than an hour. R. at 32. The lunch partner told management she remembered eating lunch with the Plaintiff on the day in question and that their lunch breaks would last an hour. Id. Plaintiff did not call her lunch partner as a witness to shed light on the disagreement about whether the earlier break was a short break. The Board of Review played security footage of Plaintiff and her subordinate at the outlet mall, and the recording showed that the mall visit lasted forty-one (41) minutes. With the two breaks, the Plaintiff’s total break time on the day in question amounted to almost two hours, which exceeded the allowed allotment of break time and was thus unauthorized, according to management testimony.
In the third incident within one month, during investigation into the incidents detailed above, management discovered that the Plaintiff had taken possession of certain personnel files, including that of her manager, a peer, and of herself, without authorization or knowledge of her director. The Plaintiff admitted that she kept the files in her office. R. at 33-34; R. at 465.
Here, with the Plaintiff’s admitting to the underlying actions that violated the policies as charged, with the Plaintiff’s declining the opportunity to call witnesses on her behalf, with the testimony of management’s four witnesses, and with the incident reports in the Record, the Board had substantial evidence to support its conclusion that the Plaintiff violated the policies at issue and that termination was appropriate.C. The Gaming Enterprise Substantially Complied with its Disciplinary Policies and Procedures
Pursuant to 8 M.P.T.L. ch. 1, § 8(f)(2), the tribal court must determine whether the Employer (in this instance, the Gaming Enterprise) substantially complied with the policies and/or procedures regarding discipline. The Plaintiff’s assertions that another assistant manager in her department was not disciplined for taking a break without notice or for shopping at the mall during her shift, that another employee had possession of the personnel files before the Plaintiff had them, and that that employee was similarly not disciplined are unsupported in the Record. See Pl.’s Brief at 3, 6; R. at 457. What’s more, the Board heard Plaintiff’s allegations regarding discipline of other employees, found that no mitigating circumstances were presented, and explained that the absence of mitigating circumstances did not influence the decision to uphold the termination. R. at V, VI.
While the Plaintiff argues that she should have received progressive discipline instead of being fired, (Pl.’s Brief at 6), the Disciplinary and Performance Improvement policy makes clear that progressive discipline does not apply to Salaried/Supervisory team members, such as the Plaintiff, and gives management the power to decide whether to issue written counseling or to terminate, (R. at 21). Here, management decided to suspend the Plaintiff pending investigation, as required by the policy, (R. at 21), then terminated her based on the recommendation from Employee Relations. Thus, the evidence in the Record shows substantial compliance with the Disciplinary and Performance Improvement policy.
D. The Board Had a Reasonable Basis to Determine that Termination Was Appropriate
The relevant policies provided that violations “may result in disciplinary action up to and including suspension and/or termination of employment.” R. at 15, 21. The court in Mashantucket Pequot Tribe v. Prentice, 6 Mash. Rep 110 (2013), found that where the Board concludes that an employee violated the standards and policies and that no mitigating circumstances were present, a decision by the Board to reduce the form of discipline would have no reasonable basis. Here, having found that the conduct occurred, that it violated the Standards of Conduct policy, and that no mitigating circumstances were presented, the Board properly found that termination was appropriate. Consequently, the Board had a reasonable basis for upholding the termination of the Plaintiff.
III. PLAINTIFF’S DUE PROCESS CLAIMS LACK MERIT
Pursuant to 8 MPTL ch. 1 § 3(d), either party may seek review of possible violation(s) of due process rights (as defined in 8 MPTL ch. 1 §§ 3(f),(g), infra), provided that the party seeking review adheres to the following:
... the party intending to seek review of a violation of procedural due process rights alleges such a claim(s) in the notice of appeal by stating the following information: (1) date of Disciplinary Action; (2) date of the Board of Review; (3) date of Decision of Board of Review; (4) each and every specific procedural error which the party claims constitutes a violation of procedural due process rights, specifying the date on which such act occurred and who committed such act; and (5) the alleged impact of such violation on the appealing party. Failure to comply with the foregoing constitutes a waiver of such claim(s).
As to both parties, “procedural due process rights” are defined as “the parties’ rights at the Board of Review to a meaningful opportunity to be heard including an opportunity to present witnesses and to question witnesses. Further, both parties are entitled to representation by legal counsel, if desired, retained at their own expense.” Furthermore, 8 MPTL ch. 1 § 3(g) provides that “[a]s to the Employee under this Title, ‘procedural due process rights’ shall include those rights listed in subsection 3(f) of this Title and the right to adequate notice of the Disciplinary Action, including the basis for such action.”
In her closing brief, Plaintiff asserts that she made requests that certain documentation be included in her Board of Review packet for consideration of the panel but that she was denied access to such documentation4 and it thus was not in her Board of Review packet. Pl.’s Brief at 1. She further asserts that she requested that page 103 of the Record be removed from the packet because the information actually involved another employee and not herself. She was told that the page had been removed, but she notes that page 103 nonetheless appears in the Board of Review packet.5
In response to the due process claims asserted in Plaintiff’s closing brief, Defendant argues that Plaintiff waived any due process claims by failing to list them with her Notice of Appeal as required by 8 MPTL ch. 1 § 3(d) and that her due process claims should thus be dismissed. Under Yarlott v. Mashantucket Pequot Gaming Enterprise, however, the court looks beyond the face of the Notice of Appeal and considers whether the Plaintiff preserved her due process claims by asserting them at the Board of Review hearing. In Yarlott, the Mashantucket Court of Appeals found that due to the nature of the Plaintiff’s particular allegation that he was denied the right to present evidence, namely additional surveillance video, he could raise the allegation pursuant to 8 M.P.T.L. ch. 1 § 8(f)(3), which does not require separate pleading as does 8 M.P.T.L. § 3(d). The Yarlott court quoted Johnson v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 9 (2014), saying that, “Questions regarding the propriety of a disciplinary action, except in rare circumstances, should be presented first to the Board before they can be reviewed by the tribal court.” Yarlott, 6 Mash.App,, 62. As the Board of Review was provided at the hearing with the Yarlott record, which included the report, that meant that the Gaming Enterprise was given notice of Yarlott’s claim in not only the report of his conversation about additional video but also through Yarlott’s inquiry during his testimony at the Board of Review hearing. Thus, the Court found that Yarlott did preserve the issue during the Board of Review hearing and that the Court would thus consider his claim of a violation of his right to present evidence pursuant to 8 M.P.T.L. ch. 1 § 8(f)(3). Id. Yarlott makes it clear that the standard of review enumerated in 8 M.P.T.L. ch. 1 § 8(f)(3) also sounds in due process rights and that the Employee Review Code does not require the rights described in section 8(f)(3) to be asserted in the Notice of Appeal. As noted above, in its review of appeals of a Final Decision of the Board of Review, the tribal court must determine whether it was appropriate by considering whether “the employee was given a description of the offense or conduct” that formed the basis of the Disciplinary Action and “whether both parties were given a reasonable opportunity to present and refute evidence regarding the offense or conduct and/or evidence of aggravation or mitigating circumstances relating thereto ....” Id.
Here, Plaintiff’s brief argues that she requested “attendance of the management team” so that she could check their timing of events against the Record, especially in regards to the personnel-files violation, but that a representative from Team Member Relations told her that she couldn’t put such information into the Board of Review packet. Pl.’s Brief at 1. At the hearing, she confirmed on the record that she had the opportunity to review the Board of Review Record and to supplement it with additional information before the hearing commenced. R. at 442. Plaintiff testified at the Board of Review that she “asked for [management’s] attendance records” so that she could “show the Board” when certain managers were on vacation but that she was denied, so she couldn’t answer with certainty as to the dates that the files were in her office. R. at 467. Similar to the plaintiff in Yarlott, it is undisputed that during her Board of Review the Plaintiff here raised the issue of being denied access to attendance records of management, and the court thus finds that she preserved the issue and therefore must consider her claim of a violation of her right to present evidence pursuant to 8 M.P.T.L. ch. 1 § 8(f)(3).
The Board of Review found that the Plaintiff improperly held onto confidential personnel files in violation of Standards of Conduct (Section II—Policy 14) specifically falsification, misuse, removal or unauthorized disclosure of confidential Gaming Enterprise information or records, including but not limited to Team Member or guest records. The Board clearly indicated that no mitigating factors were present. Nothing in the Record suggests that the Board would have viewed Plaintiff’s handling of the personnel files differently had she been allowed to access management’s attendance records in order to better explain the timing of the situation. Having heard Plaintiff’s testimony on the issue and examined the documents in the Record surrounding the personnel files, the Board focused on the Plaintiff’s admitted awareness that she had been in possession of files of her peers and managers and that she failed to report this to any member of management and that she even “opened [the] file of a peer and shared it with a another peer.” R. at V. The Board’s Final Decision indicated no concern whatsoever with the timing of the violation, only with the fact that Plaintiff admittedly and knowingly retained the files in violation of the policy. In light of the foregoing, the court finds that the fact that Plaintiff was denied access to management’s attendance records had no bearing on the Final Decision of the Board.
A review of the record shows that the Plaintiff was given an opportunity at the Board of Review to present witnesses on her own behalf, which opportunity she expressly declined, (R. at 443, 471), and to question witnesses, which she did extensively. In her closing argument at the Board of Review, she explained that she did not call witnesses on her own behalf because she “wasn’t denying the allegations” and that she would have brought “somebody to back [her] up” otherwise. R. at 506. In light of the foregoing, the court finds that the Plaintiff was afforded a reasonable opportunity to present and refute evidence regarding the offense or conduct and/or evidence of aggravating or mitigating circumstances relating thereto as required by 8 M.P.T.L. ch. 1. § 8 (f)(3).
Plaintiff’s brief raises further claims sounding in due process. See Pl’s Brief at 1. She charges that she requested that a policy on guest experience and the revised version of the same policy be included in the Board of Review packet but that she was told the original policy could not be found and the result was that neither version of the policy was included in the review packet. Finally, the Plaintiff notes that the Record references a particular email from an assistant manager but does not contain such email. See R. at 35. The Plaintiff does not allege that the absence of the guest experience policy or of the missing email hindered her opportunity to be heard. No evidence exists in the record to suggest that either version of the guest experience policy or the missing email was relevant to her termination. Further, the first time Plaintiff raised concerns about the missing policy and email was when she referenced them in her brief. Thus, when Plaintiff raised what the Defendant argued were due process claims for the first time in her brief and not in her Notice of Appeal, in violation of the requirements of 8 MPTL ch. 1 § 3 (d), her claim was untimely as not having been earlier presented at hearing as allowed by Yarlott and as set forth in the Employee Review Code. Accordingly, the court will not consider the Plaintiff’s remaining due process claims as their omission from the Notice of Appeal operated as a waiver of such claims.
The basis for the termination was the Plaintiff’s repeated violation of company policy. Substantial evidence exists in the Record to support the Board’s decision to uphold the termination, including the fact that the Plaintiff repeatedly admitted that she committed the actions alleged by the Defendant. For the foregoing reasons, the court finds that the Board’s Final Decision was appropriate when it found the conduct occurred and that the Employer substantially followed its disciplinary procedures and policies in disciplining a supervisory employee.
Therefore, considering the oral and written arguments of the parties and the full Record before the court, the court finds that the Board had a reasonable basis for its decision to uphold the Employee’s termination. Under the circumstances, the court must uphold the Board’s decision. The Plaintiff’s appeal is dismissed. Judgment HEREBY enters for the Defendant.
IT IS SO ORDERED.
BY THE COURT,
2019 WL 1313836
The relevant section of the policy states that salaried and supervisory team members, such as the Plaintiff, are considered to hold professional/management positions and “will be held to higher standards than Hourly/Non-Supervisory Team Members. The progressive disciplinary process provided to Hourly/Non-Supervisory Team Members does not apply to Salaried/Supervisory Team Members.” R. at 21 (emphasis added).
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.
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), citing Black’s Law Dictionary 1002 (6th ed. 1995).
Plaintiff charges that her request for “attendance of the management team” to be included in the packet was denied and that the Record shows that she was thus “unable to fully answer questions” about the timing of events, especially about the files. Plaintiff further charges that she asked for a policy on guest experience and the revised version of the same policy to be included in the packet but that she was told the original policy could not be found and the result was that neither version of the policy was included in the review packet. Finally, the Plaintiff notes that the Record references a particular email from an assistant manager but does not contain such email. See R. at 35.
The court does not consider Plaintiff’s speculation that the Defendant’s failure to remove page 103 from the Record could have led a Board of Review member to assume the document referenced her behavior when it was actually the behavior of a different supervisor. The incident described on page 103 occurred in 2007; nothing in the transcript of the Board of Review makes reference to the incident described on page 103; and the only incidents the Board considered in upholding the termination were from October 2017 through November 2017. Thus, the Record reflects that page 103 was not relevant to the Board’s deliberation.