JULY 21, 1998




          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




Londregan, J.


By 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.


The 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 attorney's fees.


I.       Reinstatement


The 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. 


The 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.


Considering 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.


II.      Damages


The 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.


The 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. 


The 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. 


The plaintiff represents that she earned $10,452.58 during the period of termination.  Such wages must be deducted from the plaintiff's award.


In summary the court finds as follows:


Lost wages through June 26, 1998                   $33,876.94

Medical insurance premium payment                $1,600.00

401(k) contribution                                             $677.54

Subtotal                                                        $36,154.48

Less mitigation for wages earned                     $10,452.58

Net award to the plaintiff                                 $25,701.90


The 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.


III.     Attorney Fees


The 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.


The 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.


Based 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.


Lastly, 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.


The 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 of discretion.


Jacques Parenteau, Esq., for Plaintiff

Jeffrey R. Godley, Esq., for Defendant

Michael P. Carey, Esq., for Defendant

Marietta S. Anderson, Esq., for Defendant



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