that the defendant’s denial of the plaintiff’s right to present evidence
and cross-examine witnesses before the Board of Review was not harmless error,
the Mashantucket Pequot Tribal Court remands the plaintiff’s appeal for a de
novo hearing by the Board on the charge of misconduct, specifically failure to
cooperate in a company investigation.
plaintiff, a blackjack floor supervisor at Foxwoods Resort Casino, appeals the
termination of his employment by the Mashantucket Pequot Gaming Enterprise
(hereinafter, "Gaming Enterprise") pursuant to the provisions of the
Employee Appeal Law, VIII M.P.T.L. ch. 1 (hereinafter "Law).
hired as a blackjack dealer as an hourly employee in on April 1, 1992, the
plaintiff was later promoted to the position of blackjack supervisor, a
salaried position. (Record (hereinafter AR.) at 10, Affidavit of James V.
Farrell, dated September 28, 1998, p. 1, && 3-4). Several months after
his promotion, pursuant to complaints by the blackjack supervisors about “not
being paid overtime for working extra shifts and for time spent in management
meetings," the plaintiff's wages were changed to an hourly rate so he, as
a supervisor, could be paid overtime. Id.
The plaintiff's duties did not change, however. Id.
specifically "failure to cooperate in a company investigation," was
the ground for the plaintiff's suspension pending further investigation on
June 5, 1997. (R. at 13). Charles
Petchark, (hereinafter "Petchark") Director of Employee Relations,
conducted an investigation into the plaintiff's alleged misconduct.
(R. at 65, Tr. at 14). Effective
June 17, 1997, the plaintiff was terminated from his position as blackjack
floor supervisor. (R. at 10, 52).
The plaintiff received a Board of Review hearing on his appeal of his
termination on August 6, 1997. (R.
at 5, Transcript of Board hearing (hereinafter "Tr.") at 1-26).
The Board of Review panel consisted of five persons, including two
supervisors. (R. at 54-55, Tr. 3-4). During
the hearing, the plaintiff was offered the opportunity to make closing remarks
to the Board panel, but was not offered the opportunity to call or
cross-examine any witnesses appearing before the Board, namely Petchark.
(R. at 56, Tr. at 5). Although
the plaintiff was represented by an attorney, the attorney's role was limited
to answering questions asked by the Board and making a closing statement on
behalf of the plaintiff. (R. at
57, 66, Tr. at 6, 15).
Board of Review found that "termination for misconduct, specifically
failure to cooperate during the course of a company investigation was
justified." (R. at 75, Tr.
at 24). The Board found as
mitigating factors the following: that the "previous disciplines were
reviewed and had a positive effect . . . as he had no disciplines from 1993 to
the present," good evaluations, good work record, employee's statement
"that he has learned not to interfere with others' problems and not get
involved, and that "the employee stated that he could not divulge the
names on the investigation as he was bound to confidentiality by the ".A.
group." (R. at 75-76, Tr. at
24-25). Reduction of the
plaintiff's termination to a suspension with back pay was the Board's
recommended discipline. (R. at 5, 75, Tr. at 24).
memorandum dated November 6, 1997, F.M. Celey, President/CEO of the Gaming
Enterprise, agreed with the Board's finding that termination was appropriate,
however he did not agree with the recommendation to reduce it to a suspension.
(R. at 3). Rather the
President/CEO found that "[i]t is clear that the employee did interfere
with a company investigation." Id.
He further found the plaintiff's behavior "to be
inexcusable." Id. The
President/CEO decided to uphold the plaintiff's termination.
Id. This appeal
The plaintiff raises six separate arguments in support of his appeal:
There was no reasonable basis to support the finding of "misconduct, specifically failure to cooperate during the course of a company investigation . . .;"
Management failed to follow its policy regarding the disciplinary process to be followed for supervisory positions in that the Director of Employee Relations failed to conduct an appropriate "independent inquiry" of the incident leading to plaintiff's termination consistent with Gaming Enterprise policy and to bring the results of the investigation to a Senior Vice President for a determination of appropriate discipline;
Termination was not an appropriate discipline and constituted an abuse of discretion;
Plaintiff was denied a fair hearing and his due process rights under the Indian Civil Rights Act, because he was not allowed to testify in his own defense, call witnesses in his defense, or cross examine management's witnesses at the Board of Review;
Plaintiff was denied his due process rights because the President/CEO
has excessive power to overturn the Board of Review.
parties agreed to a delay in the rendering of a decision in this matter until
a case with similar issues concerning the ability to conduct cross examination
was decided by the Mashantucket Pequot Court of Appeals.
That decision has recently been rendered in Grossi v. Mashantucket
Pequot Gaming Enterprise (Memorandum of Decision dated November 5, 1998,
MPCA-98-1040) (Zampano, J.). This
Court finds, after a thorough review of the record, that the rationale of Grossi
controls the disposition of this matter.
as in Grossi, the plaintiff in the instant appeal was denied the
opportunity to present witnesses and cross-examine witnesses before the Board
of Review. The Court of Appeals
found that the denial of the opportunity to cross examine witnesses was an
error by the Gaming Enterprise that implicated "constitutional rights so
basic to a fair trial that their infraction can never be treated as harmless
error." Grossi at 5,
quoting Chapman v.California, 386 U.S. 18, 23 (1967).
Adhering to the holding of Grossi, that the Board of Review
policy denying the plaintiff the opportunity for cross-examination "is a
fundamental constitutional infirmity which per se mandates judicial
relief," this Court sustains the plaintiff's appeal.
Grossi at 6.
plaintiff argues that he was entitled to an independent inquiry of the
alleged incident of misconduct and a review of the investigation by a Senior
Vice President for a determination of appropriate discipline. Such an
inquiry and review is required for "all supervisory positions" by
the Mashantucket Pequot Disciplinary Policy. The Board of Review Policy,
however, defines a "supervisor" as "salaried employees who
are not members of the Operations and Management Committee."
(R. at 47). The
plaintiff admits in his sworn affidavit that "I went from being paid a
salary to being paid an hourly wage."
(Affidavit of James V. Farrell, p. 2, & 8.)
The Court finds based on the record presented that the plaintiff was
an hourly employee and thus does not meet the definition of a
"supervisor" for purposes of the Disciplinary Policy.
Consequently, the Gaming Enterprise was not required to have the
plaintiff's discipline reviewed by a Senior Vice President other than the
plaintiff's Senior Vice President, nor was he entitled to a three member
Board of Review comprised only of salaried supervisory employees.
plaintiff, for the reasons stated above, is entitled to a new hearing before a
Board of Review wherein he shall be allowed to call and cross-examine
witnesses. The Court has not
reached the remaining issues of the plaintiff's appeal as argued in his brief
dated April 14, 1998 in light of its decision to remand.
Plaintiff is afforded the opportunity to fully explore these issues in
his de novo hearing by the Board of Review and any further proceedings held by
IT IS HEREBY ORDERED that this matter is hereby remanded to the Gaming Enterprise for the purpose of convening a Board of Review to conduct a de novo hearing on the allegations set forth in the charging document. Such hearing shall be conducted on or before January 29, 1999. If the Board of Review hearing is not conducted as ordered herein, the Gaming Enterprise shall file a written statement with the Court with an explanation of reason(s) why the hearing was not held.
Masters, Esq., for Plaintiff
R. Godley, Esq., for Defendant
Carey, Esq., for Defendant
Anderson, Esq., for Defendant