Mashantucket Pequot Tribal Court sustains the plaintiff's appeal of his
termination from employment as poker dealer holding that the President/CEO's
decision constituted an abuse of discretion, finding that all prior
disciplinary actions occurred more than one year prior to the latest event and
thus the President/CEO could not rely upon this incident for consideration in
terminating the plaintiff's employment under the Progressive Discipline
plaintiff, Leonard A. Fraiter, commenced this appeal from the decision of the
defendant, F.M. Celey, CEO/President of the Mashantucket Pequot Gaming
Enterprise (hereinafter "Gaming Enterprise"), terminating his
employment. This appeal was filed
pursuant to the provisions of the Employment Appeal Law VIII M.P.T.L. ch 1.
the time of the event leading to his termination the plaintiff was employed by
the Gaming Enterprise as a poker dealer in the poker department.
(R. at 10). The charging
document alleged as a violation of company policy the following:
specifically rude and discourteous behavior to a guest under the guidelines of
the Progressive Disciplinary Policy. Page
3-10 and 3-11 of the Employee Handbook state, "Rude or discourteous
behavior to a guest may result in disciplinary action up to and including
suspension and/or termination of employment.
following facts were recited in support of the charge.
December 3, 1997[sic] Leonard [plaintiff] threw a tip back at a patron and
stated, "Here, why don't I give you a tip."
After a review of this incident it was Management's decision to
separate him from employment under the guidelines of the Progressive
December 4, 1997, the plaintiff was given an official notice of unsatisfactory
performance and suspended pending further investigation.
(R. at 14). On December
23, 1997, Management of the defendant decided to terminate the plaintiff and
so notified him by telephone on December 23, 1997.
January 13, 1998, a Board of Review (hereinafter "Board") convened
to hear the plaintiff's appeal at which time the plaintiff appeared and was
heard. (R. at 7).
The Board heard testimony by the defendant and the plaintiff.
(R. at 4). The Board found
that "[t]ermination for misconduct, specifically rude and discourteous
behavior to a guest under the guidelines of the progressive disciplinary
policy was not appropriate." (R.
at 5). The Board's decision was
to reduce the termination to a final warning with full back pay.
(R. at 4).
March 11, 1998, F.M. Celey (hereinafter President/CEO"), disagreed with
this recommendation of the Board and decided to uphold the plaintiff's
termination. (R. at 2).
Specifically, the reason for the decision was stated as follows:
On December 3, 1997, the employee was rude and discourteous to a
patron. The employee threw a tip
back at a patron and stated, "here, why don't I give you a tip."
Under the guidelines of the Progressive Disciplinary Policy the
employee has received prior disciplinary violations including a suspension and
a final warning.
Findings of Fact
to the requirement that the court issue Findings of Fact with reference to the
record, the court concludes that the record supports the following relevant
December 3, 1997, Laurie LaPorte, a poker floor supervisor, was standing by a
podium checking a set-up next to table number 15.
The plaintiff was the dealer at this table.
She heard him comment about "a big fifty cent raise."
(R. at 15). When she
looked up she concluded that a player had given the plaintiff fifty cents for
a tip. She wrote in her statement
that the plaintiff picked up the fifty cents and said, "Here, why don't I
give you a tip" and threw it back at the player.
The plaintiff disputes this sequence and alleges that as he went to
push a pot to the winning player the fifty cent tip that he was given fell out
of his hands into the pot. He
could not reach into the pot and retrieve back his tip.
Due to his embarrassment he said something to the affect that it looks
like "the dealer's anted you up."
The next day, December 4, 1997, the plaintiff was suspended pending
further investigation for this incident.
On December 23, 1997, the plaintiff was terminated as the result of
this incident in violation of the guidelines of the Progressive Disciplinary
to this incident, on February 13, 1997, the plaintiff received a final warning
for misconduct. This incident
involved his evaluation as a poker dealer.
The summary comments on his evaluation sheet stated the following:
Dealer - Could Be Better . . . Attitude Needs Improvement - Customer Courtesy
is Good, But Could Also Improve.
mechanically is a good dealer. However
he projects a very negative attitude which hurts his customer courtesy skill.
With a positive attitude Leonard could be an excellent dealer.
evaluation form provides for employee comments.
In this space the plaintiff wrote the following:
would like to evaluate the same supervisors that evaluate me.
Get Even!!! Oh Boy!”
upon this expression by the plaintiff he was issued a final warning.
Management had decided that the comments he wrote were inappropriate.
(R. at 17.)
Conclusions of Law
reviewing an appeal of an employee, the court must determine whether
Management's decision was arbitrary and capricious.
VIII M.P.T.L. ch. 1, ' 8(d). Fickett v. Mashantucket Pequot Gaming
Enterprise, 1 Mash. 43, 52 (1995). This
standard of review applies to both the factual determinations and to the
conclusions of law. The Employee
Appeal Law further provides that in determining whether the decision was
arbitrary and capricious, the court must uphold the Gaming Enterprise if it
there was a reasonable basis for concluding that the employee violated
work rules, standards of conduct, or other conditions of employment for the
position held by the employee;
the Gaming Enterprise substantially complied with the policies
regarding progressive discipline in the case of minor infractions;
the employee received notice of the infraction and was provided with an
opportunity to contest the allegations and present mitigating circumstances;
the form of the discipline was appropriate and did not constitute an
abuse of discretion.
M.P.T.L. ch. 1, § 8(d).
court must look beyond the language of the CEO/President's decision to decide
whether or not there is evidence in the record to support it.
Adams v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 20,
21-22 (1996). The function of the
trial court, then, is to look only to the materials before the CEO/President
and to determine from the record whether the materials furnished justify the
reasons for the CEO/President's decision.
In so doing, this court must determine whether the CEO/President's
"decision was based upon a consideration of the relevant factors and
whether there has been a clear error of judgment . . . ." Fickett,
supra, at 52.
court finds that there is evidence in the record that substantiates the
defendant's account of the incident of December 3, 1997.
The evidence reasonably supports a finding that the plaintiff was rude
and discourteous to a patron. The
statement of Laurie LaPorte, the poker floor supervisor, substantiates the
allegation that the plaintiff threw a tip back at a patron and stated "[h]ere,
why don't I give you a tip." However,
the court's inquiry does not cease upon a finding that there was evidence in
the record to support Management's conclusion regarding the incident on
December 3, 1997.
President/CEO stated that this was a progressive disciplinary case. The
President/CEO made specific reference to a prior suspension and a final
warning. Under the guidelines
promulgated for progressive discipline, the termination must be preceded by a
prior "final warning" or a prior "suspension."
Unless Management gave a prior "final warning" or a prior
"suspension" this incident alone does not warrant termination.
Pursuant to the Progressive Discipline Policy, the President/CEO may
issue a termination as an initial disciplinary step if he concludes that the
violation is severe in nature. See
Progressive Discipline Policy '2 Policy 15, p. 4 made part of the record by
order of the court. In the case
at bar, the President/CEO did not take such action.
His decision, thus, places this case under the guidelines of the
Progressive Disciplinary Policy.
court finds that the defendant did not follow its own policy when it
terminated the plaintiff. The
disciplinary policy of the Gaming Enterprise specifically provides that:
notices of unsatisfactory performance will remain as part of the employee's
permanent file. The notice shall
be active for one year from the date of issuance (active disciplinary period)
for consideration as part of the progressive disciplinary process."
Policy '2, Policy 15, p. 5, ¶ 6.
the definition of "suspension pending investigation" the policy
action precedes all terminations where an employee's file reflects a
suspension or final warning less than one year old and a subsequent
violation has occurred, or as an initial disciplinary step when the violation
is considered severe in nature."
at 5. [emphasis added]
stated above, the President/CEO did not find that this incident warranted a
suspension pending investigation as an initial disciplinary step.
He identified this discipline as part of the Progressive Discipline
President/CEO stated in his decision that the plaintiff received prior
disciplinary violations including a suspension and a final warning.
(R. at 2).
review of the record indicates that the plaintiff did not have a suspension
less than one year old in his record. Although,
the plaintiff had a four (4) day suspension for misconduct, that incident
occurred on November 16, 1996 and a Notice of Unsatisfactory Performance was
issued on November 18, 1996. (R.
at 18). This suspension was not
"less than one year old." As
such, the President/CEO could not rely upon this incident for consideration as
part of the Progressive Disciplinary Policy.
See Disciplinary Policy '2, Policy 15, p. 2, ¶ 6.
plaintiff had a final warning less than one year old for comments he made on
his evaluation for the year 1997. These
comments which are cited above were made on February 4, 1997 and resulted in
an official Notice of Unsatisfactory Performance dated February 13, 1997, for
which the plaintiff received a "final warning" as part of the
progressive disciplinary process. However, upon close examination, this final
warning was improper and therefore can not be the basis for a step in the
progressive disciplinary process.
The incident of February 4, 1997, which lead to the final warning being
placed in the plaintiff's record, did not cite a specific violation of any
"standards of conduct." (R.
at 17). Even though the standards
of conduct state that "it is not possible to list all forms of behavior
which are considered unacceptable in the workplace" the standards of
conduct do list twenty-four (24) examples of prohibited conduct.
(R. at 11).
court can not find a violation of any behavior that would be unacceptable
based upon the incident of February 4, 1997.
The plaintiff was asked for his comments about his evaluation.
When he gave them he was disciplined.
The defendant's management apparently did not like his response to his
While the standards of conduct state that it is important to achieve
and maintain an atmosphere of respect and harmony, the court can not find as a
matter of law that after being invited to comment on the substance of his
evaluations his comments violated the standards of conduct.
By expressing his opinion as to his evaluation, management gave the
plaintiff a final warning.
This is a significant step in the Progressive Discipline Policy.
Without that final warning, the plaintiff's record would have no
disciplinary action less than one year old.
The incident of December 3, 1997, would not have resulted in a
suspension pending investigation. There must be a suspension or final warning
less than one year old for a suspension pending investigation to have issued.
At best, the plaintiff would have been suspended and given a final
warning for the December 3, 1997, incident.
"When there is an absence of proof of improper conduct on the
plaintiff's part, as a matter of law, the court must find that the plaintiff's
termination constituted an abuse of discretion."
Adams v. Mashantucket Gaming Enterprise, 2 Mash. 20, 23 (1996)
citing Mitchell v. Mashantucket Pequot Gaming Enterprise, 1 MPR 7
the above stated reasons this case is remanded to the President/CEO to impose
the appropriate and suitable disciplinary action under the Progressive
Disciplinary Policy consistent with this opinion as if the plaintiff's record
had no prior suspensions or final warnings less than one year old.
Thereafter, if the parties can not agree as to the consequences of that
decision the parties may file an appropriate motion with the court for review.
Fraiter, Pro Se Plaintiff
Godley, Esq., for Defendant
Anderson, Esq., for Defendant