After sustaining the plaintiff’s appeal from the termination of her
employment, the Mashantucket Pequot Tribal Court awards judgment in the amount
of $25,701.90, finding that the plaintiff is entitled to reinstatement, back
wages, medical insurance premiums, and 401(k) contributions, but denies the
claim for attorney’s fees finding that the CEO/President’s decision was
not a substantial abuse of discretion
Memorandum of Decision dated March 26, 1998, this court sustained the
plaintiff's appeal and reversed the decision of the CEO/President that
terminated the plaintiff's employment. On
April 22, 1998, and on May 20, 1998, this court held hearings on what remedies
should be awarded in light of the court's decision.
The parties appeared and testimony was received by the court.
Briefs were filed by the parties.
plaintiff seeks reinstatement of her employment with the defendant, back
wages, employment benefits, and attorney's fees.
The defendant contests the remedy of reinstatement and the award of
plaintiff seeks the return to her employment with the defendant. The
plaintiff argues that an employee should be entitled to reinstatement unless
it can be shown that the employer would be seriously prejudiced by doing so.
Flint v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 266
(1998). Courts have held that
only when the employment relationship is "raucous, fraught with
animosity, marked by compromise of defendant's interest, reflective of
long-standing or lasting friction or marred by deficiencies in the plaintiff's
performance" should reinstatement be disallowed.
Bakkala v. Connecticut College, 18 Conn. L. Rptr No. 5, 179
(Jan. 13, 1997) citing Truskoski v. ESPN, Inc., 823 F. Supp. 1007, 1015
(D. Conn. 1993). The defendant
contests the remedy of reinstatement. The
defendant claims reinstatement is not feasible because the relationship
between the parties has been irreparably damaged.
The burden of proof on this issue rests with the defendant.
The defendant claims that there is hostility between the plaintiff and
its employees. According to the
defendant reinstatement would be disruptive to the work force.
court heard testimony from a number of employees.
Sandra Ebdon testified on behalf of the plaintiff that she was very
good at her job, a good asset for Foxwoods and that she got along well with
patrons. She also vouched for her
good character. The defendant called Amy McNeil, a supervisor, and Kevin
Sterling, a beverage manager, to testify on behalf of the defendant. Amy
McNeil testified that when the plaintiff worked with bartenders and barporters
there were customer complaints. Amy McNeil also remembered a couple of
write-ups in that the plaintiff's attendance was a problem. Amy McNeil felt
"uncomfortable" with the plaintiff returning to work.
Kevin Sterling also testified that he would be
"uncomfortable" with the plaintiff returning to work.
the totality of the evidence, including the three employee performance
appraisals for the years 1994, 1995, and 1996, wherein the plaintiff
substantially scored with a rating of "meets standards" and
"above standards" the defendant has not shown that it would be
prejudiced by the plaintiff's reinstatement.
The defendant has failed to establish that the reinstatement of the
plaintiff would be disruptive to the work place.
The court cannot find based in the evidence presented that the
employment relationship is fraught with animosity or is hostile.
Merely feeling "uncomfortable" that the plaintiff would
return to work does not meet the defendant's burden of proof.
plaintiff was terminated on January 20, 1997.
At the time of her termination the evidence showed that her weekly wage
was $441.04 per week. This was
computed by the court as follows. Calendar
1996 wages were $22,933.87. This
figures divided by 52 weeks produces a weekly pay of $441.04.
The plaintiff would have received a 3% increase as of June 27, 1997.
Therefore, from June 27, 1997 and thereafter the plaintiff's pay would
have been $454.27. The court's
calculation is as follows. From
January 20, 1997 to June 27, 1997 (22 weeks, 4 days) the plaintiff is entitled
to $10,254.90. From June 27, 1997
to June 26, 1998, the plaintiff is entitled to $23,622.04.
This totals $33,876.94. This
amount includes vacation time.
plaintiff is also entitled to have reinstated the amount of sick time that was
available to her at the time of her termination.
All of the plaintiff's medical bills incurred during the period of
termination shall be submitted to the defendant's insurance company for
reimbursement, or in the alternative the defendant is ordered to pay all of
the plaintiff's unreimbursed medical benefits incurred by the plaintiff during
the period of termination that would have been covered by the defendant's
medical insurance had the plaintiff not been terminated.
The plaintiff is entitled to the sum of $1,600 for medical insurance
premiums paid by her during said period of termination.
plaintiff is also entitled to a 401(k) contribution that she lost in the
amount of $677.54. The court
computed this amount as 2% of $33,876.94, i.e. $677.54.
plaintiff represents that she earned $10,452.58 during the period of
termination. Such wages must be
deducted from the plaintiff's award.
summary the court finds as follows:
wages through June 26, 1998
insurance premium payment
mitigation for wages earned
award to the plaintiff
evidence of mitigation was not
presented during the court's hearing. The
amount adopted by the court was presented by the plaintiff in her brief.
The court orders the plaintiff to state said amount by affidavit and
submit same to the court. If the
defendant wishes to question or contest the plaintiff's mitigation of damages
then the defendant must file an appropriate motion to the court.
plaintiff seeks reimbursement for attorney's fees incurred in prosecuting her
appeal. The employment law
provides "some or all attorneys' fees may be awarded, in the discretion
of the court. Attorneys' fees may
only be awarded upon a showing of substantial abuse of discretion by the
Gaming Enterprise." VIII
M.P.T.L. ch.1 '2e. The plaintiff
argues that without an award of attorneys' fees the plaintiff will not be made
whole since the limited waiver of sovereign immunity does not allow for such
damages as emotional distress, but rather limits damages to loss of back wages
and benefits. The plaintiff
suggests that the provision for attorneys' fees must be liberally construed in
the plaintiff's favor. The
plaintiff points out that this court found no rational basis for the
plaintiff's termination and that said termination was arbitrary and
capricious. The plaintiff also
claims that the failure to provide the plaintiff with basic due process
information about the specifics of the charges against her should constitute a
per se substantial abuse of discretion. Also
the failure of the defendant to produce Mary Jo Harshbarger the initial
decision maker on the plaintiff's termination should result in an adverse
inference against the defendant.
court did find that the defendant acted arbitrary and capriciously and that
the record did not contain a rational basis for the CEO/President's decision
to terminate the plaintiff. This
finding alone, however, is not sufficient to award attorneys' fees.
If so, attorneys' fees would be automatic upon the sustaining of an
employee appeal. The employee law
does not provide for such a remedy. There
must be a showing of "substantial abuse of discretion by the Gaming
Enterprise." VIII M.P.T.L.
ch.1 '2e. Therefore, abuse of
discretion alone is not sufficient for an award of attorneys' fees.
The abuse of discretion must be "substantial."
This is a case of first impression.
No tribal court decision to date has defined or discussed what would
constitute a showing of "substantial abuse of discretion."
In the case of Clark v. Gibbs, 184 Conn. 410 (1981), the word
"substantial" was discussed. The
court noted that the definition of "substantial" is "
'consisting of, relating to, sharing the nature of, or constituting substance;
being of moment, important, essential.' "
Id. at 417 n. 10 quoting Webster 3rd International Dictionary.
A "substantial" abuse of discretion is when a decision
disregards all of the evidence presented and is not based on any relevant
facts that were presented. Such a
decision would show a complete disregard for the facts.
If however, a decision was made based upon some of the relevant facts,
even though a court would subsequently rule that those relevant facts could
not justify a termination, such a decision can not be said to constitute a
"substantial" abuse of discretion.
The record before this court does not indicate a
"substantial" abuse of discretion.
According to the record the defendant and its employees had knowledge
of the following facts:
1. The plaintiff left her work station for an extended period of time (over two hours). Statement of Joseph Apicelli. R. at 18.
2. The contradictory statements in the record over Mr. Baker's conversation with Mr. Sterline whether the plaintiff had permission to be out of her work area. R. at 78.
3. The plaintiff did in fact receive a tip from the patron outside of her normal work station.
4. The plaintiff's actions and interaction with a patron outside of her work area caused other workers to inquire who the plaintiff was and where she worked. R. at 27.
5. The plaintiff served the patron from whom she received the tip drinks outside of her work area.
6. Statements from others that the plaintiff "hovered about" and followed the patron.
7. The board of review, after hearing the witnesses, recommended the plaintiff's termination was appropriate.
on these facts the court cannot find that there was a substantial abuse of
discretion in the termination of the plaintiff.
There were relevant facts in the record upon which the defendant acted.
The fact that a court subsequently ruled that those facts did not
warrant the plaintiff's termination does not constitute a substantial abuse of
discretion. The plaintiff's claim
that the failure to provide specifics about the charge of being
"untruthful" constitutes a substantial abuse of discretion as a
matter of law is unpersuasive. Each
case must be reviewed in light of all of the circumstances presented.
This court can not adopt of rule of law that not being specific about a
charge would constitute a substantial abuse of discretion as a matter of law.
the failure to produce the initial decision maker (plaintiff's supervisor,
Mary Jo Harshbarger) should not result in an adverse inference against the
defendant. The decision appealed
from is that of the CEO/President and not the initial decision maker.
In any event, any adverse inference can not supply proof of a
particular fact, nor can it establish a prima facie case.
Tait and LaPlante's Handbook of Connecticut Evidence ' 2nd ed. 1988
'8.2.3. Even if considered by the
court such an inference would not help the plaintiff in her burden under the
facts of this case.
court therefore must decline to award attorneys' fees.
The court is mindful of the equities involved in this issue, however,
the employment law as written does not allow the award of attorneys' fees
unless there has been a substantial abuse of discretion. It is the opinion of
this court that the facts of this case do not constitute a substantial abuse
Parenteau, Esq., for Plaintiff
R. Godley, Esq., for Defendant
P. Carey, Esq., for Defendant
S. Anderson, Esq., for Defendant