MASHANTUCKET PEQUOT COURT OF APPEALS
MATTHEW LOUCHART MPCA-99-1056
Plaintiff - Appellee
vs.
MASHANTUCKET PEQUOT
GAMING
May 2, 2000
ENTERPRISE
Defendant - Appellant
M. John Strafaci, Esquire, New London, Connecticut
for Plaintiff - Appellee
Jo-Ann Shyloski, Esquire, Jeffrey R. Godley, Esquire, Norwich, Connecticut
For Defendant - Appellant
MEMORANDUM OF DECISION
LATIMER, Appellate Court Judge
The issue on appeal is whether the Tribal Court erred in reversing the President/CEO’s decision to suspend the appellee on the ground that it was arbitrary and capricious.
BACKGROUND
The Tribal Court’s extensive review of the administrative record may be summarized as follows. The appellee, Matthew Louchart, became the subject of an investigation by the Compliance Department of Foxwoods Resort Casino and was interviewed by a Special Investigator on August 25, 1998, regarding his association with Tracey Macri, who had been terminated from employment at the Foxwoods Resort Casino for drug-related activities. A composite videotape taken on March 1, 1998, showed Macri, who was then under investigation for illegal drug activities, and the appellee walking together down a hallway when the appellee reached into an inside breast pocket, withdrew a small package and gave it to Macri. Macri walked out of view of the camera and the appellee walked in the opposite direction. The contents of the package were not identified by the Mashantucket Pequot Gaming Enterprise, (“the Gaming Enterprise”). Initially, the appellee stated he could not recall what he gave Macri, but shortly thereafter said that it must have been either candy or a cigarette.
The appellee was informed that he would be given a drug test on August 26, 1998. He responded that he would fail the test because he had smoked marijuana on August 9, 1998 in Aruba, where such activity is legal.
The test was conducted, and the appellee tested positive for marijuana. On September 16, 1998, he was terminated from his employment as a Blackjack Floor Supervisor for violation of the Drug Free Workplace Policy.
On November 12, 1998, a Board of Review was convened to review the appellee’s termination. The majority of the Board recommended that the termination be reduced to a suspension without back pay; that the appellee pass a drug test before reinstatement; and that the termination be upheld if he failed the drug test.
On January 6, 1999, the President/CEO agreed with the Board of Review’s recommendation and issued written findings of fact and conclusions of law, dated January 6, 1999, in which he found that:
I agree with the Board and believe that the employee did fail the drug test in violation of the Standards of Conduct for the following reasons:
- The Standards of Conduct state that the following may lead to termination: “Possession, sale, distribution or being under the influence or … any controlled dangerous substance during working hours; … If the employee tests positive for alcohol or drugs.”
- It is clear that the employee is aware of the policy as this is the second time he has failed a drug test. He had previously been offered EAP and was compliant.
- The employee claims that he was in Aruba when he smoked marijuana and that said usage is legal in Aruba. I do not believe that his defense mitigates his actions because although the drug may be legal in Aruba, it is not legal in the United States. He tested positive for use of the drug while in the U.S. In addition, he did not report a “legal drug” in his system at the time of the drug test.
He further stated that, “[c]ompliance with EAP and continued drug testing should be a condition of continued employment”. Id.
On January 26, 1999, the appellee sought relief from the suspension in the Tribal Court which reversed the decision of the President/CEO as arbitrary and capricious based on its finding that the Record was “devoid of rational evidence to support the ordering of the drug test”. Memorandum of Decision, MPTC-EA-99-105 (June 17, 1999) (Shibles, C.J.), at 18-19. This appeal by the Gaming Enterprise followed.
II. DISCUSSION
In its Memorandum of Decision, the Tribal Court succinctly sets forth the basis for its reversal of the President/CEO’s decision as follows: The Court agrees with the plaintiff that the Gaming Enterprise did not have a reasonable suspicion that he was under the influence of drugs or alcohol which adversely affected or could have adversely affected his job performance and, thus, the requirement that he undergo a drug test was in violation of its own drug testing policy. Without the drug test, there is no reasonable basis for the President/CEO’s decision to suspend the employee. Id. at 8.
In reaching that decision, the Tribal Court recognized that its role is limited to determining whether the President/CEO acted arbitrarily, capriciously or in abuse of his discretion and that in so doing it may not retry the case or substitute its own judgment for that of management. Thompson v. Mashantucket Pequot Gaming Enterprise, 1 MPR 22, 24 (1996). Moreover, this Court cannot reverse the decision of the lower court unless it was “clearly erroneous”. Johnson v. Mashantucket Pequot Gaming Enterprise, 1 MPR 15, 19 (1996).
On appeal, the Gaming Enterprise argues, first, that by disallowing consideration of the drug test by the President/CEO, the lower court effectively reversed an administrative evidentiary ruling, which exceeds the scope of its review. (Appellant’s Brief, at 8). This argument, however, is contrary to the general rule. Although a trial court’s authority to review the evidence considered by an administrative agency is normally circumscribed, it nevertheless may reverse or modify an agency order “if substantial rights of the appellant have been prejudiced because the administrative findings, conclusions or decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” Lawrence v. Kozlowski, 372 A.2d 110, 171 Conn. 705 (1976) (quoting General Statutes 4-183 (g)(5).) See also Tomlin v. Personnel Appeal Board, 416 A.2d 1205, 177 Conn. 344, 348 (1979).
Adopting that standard of review and applying it here requires this Court to determine whether the Tribal Court erred in disallowing administrative consideration of the drug test results; and, if so, whether absent the drug test, there is reliable, probative and substantial, evidence remaining in the record to sustain the President/CEO’s decision.
The Substance and Alcohol Abuse and Drug Testing Policy (1997), (“Drug Testing Policy”) adopted by the Mashantucket Pequot Tribal Nation provides in relevant part that: “If Foxwoods Resort Casino has a reasonable suspicion that an employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee’s job performance, Foxwoods Resort Casino may require such employee to submit to a drug test”. (Emphasis added). After a thorough review of the factual record before the Board of Review, the Tribal Court found that “the only basis for subjecting the plaintiff to the drug test was his association with a suspected drug user, Macri, and the passing of an unidentified item to her in a hallway”. Memorandum of Decision, at 16. Moreover, as the Tribal Court pointed out: “There is no evidence that the item was drugs. There is no allegation that the plaintiff exhibited any physical or behavioral symptoms indicative of drug or alcohol consumption. There is no evidence that his job performance or judgment was affected in any way”. Id. at 17. Therefore, the Tribal Court concluded that “the record does not support a finding of “reasonable suspicion” that the appellee was under the influence of drugs or alcohol at the time he was required to take the drug test. Id.
With respect to the Tribal Court’s findings on the crucial issue of “reasonable suspicion”, the Gaming Enterprise argues the lower court erroneously failed to give evidentiary weight to the testimony of Robert Hargraves, Sr., Special Investigator for the Compliance Department of the Foxwoods Casino. The Gaming Enterprise’s reliance on the Hargraves’ testimony is misplaced. While Hargraves did state that the contact between the appellee and Macri as revealed on the video tape could be “considered” suspicious in nature and “related to drugs”, R. at 76, he also expressed an opinion that the transaction also could have involved “money” and not drugs, R. at 93. Thus, Hargraves’ equivocal testimony failed to provide the requisite proof of “reasonable suspicion” for the drug test.
Accordingly, the Tribal Court’s conclusion that the record is devoid of rational evidence to support the ordering of the drug test was reached after a comprehensive and reasoned review of all the facts and circumstances involved in the appellee’s disciplinary procedures.
Second, even absent the drug test results, the Gaming Enterprise contends that the President/CEO had a reasonable basis to conclude that the appellee violated a work standard of conduct and that the Tribal Court erred in substituting its judgment for that of the President/CEO on the weight of the evidence. This Court disagrees.
The Drug Testing Policy “prohibits any employee from having, selling, making or using any illegal drugs on Foxwoods Resort Casino premises or while conducting business off the premises. As the Tribal Court correctly found, there was no evidence that appellee engaged in any of the enumerated prohibited acts. Memorandum of Decision, p. 10. Accordingly, absent the drug test, the record is devoid of evidence to support the appellee’s suspension.
It is well established that the Tribal Court’s duty in reviewing an employee’s appeal under Title VIII is to determine whether the President/CEO acted arbitrarily, capriciously or in abuse of discretion. Id. §8(d); Chickering v. Mashantucket Pequot Gaming Enterprise, 1 MPR 41, 42 (1998). Under this standard of review the Tribal Court’s role is “extremely limited”; it may not retry the case or “second guess” the decision of management. Johnson v. Mashantucket Pequot Gaming Enterprise, 1 MPR 15, 19 (1996); see also Flint v. Mashantucket Pequot Gaming Enterprise, 1 MPR 43, 44 (1998).
Despite this strict standard of review, however, it is also the law that the Tribal Court must determine whether there is sufficient evidence in the record to support management’s decision. Flint, 1 MPR at 44. Here, without the drug test, the record is devoid of any rational evidence to affirm the decision to discipline the appellee. Id.; see also Andrade v. Mashantucket Pequot Gaming Enterprise, 1 MPR 26, 27 (1996); Thompson, 1 MPR at 24; Mitchell v. Mashantucket Pequot Gaming Enterprise, 1 MPR 7, 8-9 (1995).
Accordingly, the Tribal Court’s decision is affirmed.