Richard J. EIDEN









AUGUST 3, 1998




Finding that it lacks subject matter jurisdiction to hear an employment appeal where the plaintiff failed to request a Board of Review and exhaust all administrative remedies available to him, the Mashantucket Pequot Tribal Court grants the defendantís motion to dismiss.




O'Connell, J.


On January 13, 1998 the plaintiff's employment as a master cook at the Foxwoods Casino operated by the Mashantucket Pequot Gaming Enterprise (the "Gaming Enterprise") was terminated for excessive absenteeism.  The plaintiff attributed this to his incarceration as a result of domestic difficulties.  His wife called his supervisor and said that the plaintiff was in "rehabilitation" rather than revealing that he was then in jail, and told the supervisor that the plaintiff would explain in person what happened when he was able.  When the plaintiff finally did report to his supervisor, his employment was terminated for violating the Gaming Enterprise's "no call/no show" attendance policy.  The plaintiff did not request a Board of Review.  Rather, he filed a Notice of Administrative Appeal with this court on March 9, 1998, invoking the provisions of the Employee Appeal Ordinance, VIII M.P.T.L. ch. 1.


The Gaming Enterprise moves to dismiss the appeal for the reason that this court lacks subject matter jurisdiction over appeals by employees who have not appeared before or obtained a decision by a Board of Review.  Although the plaintiff admitted at oral argument that he was aware of the Gaming Enterprise's employment policies and that he did not request a Board of Review or ask for forms on which to request a Board of Review, he nevertheless requests this court to consider the merits of his appeal.[1]


A motion to dismiss is the proper procedural vehicle for contesting the subject matter jurisdiction of the court.  "Rule 12(b) of the Mashantucket Pequot Rules of Civil Procedure sets forth several defenses which may be made initially by motion, including lack of subject matter jurisdiction.  M.R.C.P. 12(b)(1). Mashantucket Rule 12(b) is identical to Rule 12(b) of the Federal Rules of Civil Procedure.  'For this reason, decisions of the federal courts are a useful source of guidance.'  Mamiye v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 141, 142 (1997); DeLorge v. Mashantucket Pequot Gaming Enterprise, et al, (July 23, 1997)."  Chamberlin v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 227 (1997).


"When deciding a motion to dismiss under Rule 12(b)(1), the court construes the complaint broadly and liberally, Romanella v. Hayward, 993 F. Supp. 163, 164-165 (D. Conn.1996), aff'd, 114 F.3d 15 (2nd Cir. 1997).  When a court's subject matter jurisdiction is challenged, the burden of establishing subject matter jurisdiction rests on the party asserting jurisdiction.  Id. at 165.  The court accepts all uncontroverted well-pleaded factual allegations as true, and views all reasonable inferences in plaintiff's favor.  Scheuer v. Rhodes, 416 U.S. 232 (1974); Aversa v. United States, 99 F.3d 1200 (1st Cir. 1996); Hirsch v. Arthur Anderson & Co., 72 F.3d 1085, 1088 (2nd Cir. 1995). DeLorge v. Mashantucket Pequot Gaming Enterprise, et al, supra, at 3."  Chamberlin, supra at 227-228 (quotation marks omitted).


This court lacks "the power to consider [the plaintiff's] case because of the absence of an administrative record, a jurisdictional prerequisite under the [Employee Appeal] Ordinance, [VIII M.P.T.L. ch. 1, '3(a).]."  Jeffs v. Mashantucket Pequot Gaming Enterprise, 1 MPR 32, 33 (1997).  "A necessary precondition to [an appeal under the Employee Appeal Ordinance] is a decision by a Board of Review convened in accordance with the policies and procedures of the Gaming Enterprise".  Kendall v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 57 (1995).  This court has no jurisdiction over such an appeal unless it is taken from a "final decision," which is defined in the Employee Appeal Ordinance as "a determination by the President/CEO of the Gaming Enterprise that the decision of the Board of Review, as defined by the Policies and Procedures of the Gaming Enterprise, is upheld in whole or in part." VIII M.P.T.L. ch. 1, '1(d).  "[T]he proceedings before a Board of Review are an essential part of the record on appeal."  Kendall, supra at 57.


"It is well settled that a jurisdictional prerequisite to seeking relief in a court of law is that all available administrative remedies must have been exhausted.  The plaintiff failed to exhaust his administrative remedies of a hearing before a Board of Review and a review of that Board's decision by the President/CEO of the Gaming Enterprise."  Kendall, supra at 58, (citations omitted).  This court has no jurisdiction over the plaintiff's appeal.  Healey v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 240, 241 (1997); Sheeley v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 150, 151 (1997).


The motion to dismiss is granted.


Richard J. Eiden, Pro Se Plaintiff

Jeffrey R. Godley, Esq., for Defendant

Michael P. Carey, Esq., for Defendant

Marietta S. Anderson, Esq., for Defendant

     [1]Because the plaintiff in this action made no request that a Board of Review be convened, and simply chose to appeal directly to this court without attempting to make an administrative record, this court need not and does not address any claim that the Gaming Enterprise deprived this plaintiff of rights under the Indian Civil Rights Act. 25 U.S.C. 1302.



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