MASHANTUCKET PEQUOT COURT OF APPEALS

 

SHERRI OLDERMAN:

Plaintiff – Appellant

v.

MASHANTUCKET PEQUOT GAMING ENTERPRISE

 MPTC –EA-98-130

January 11, 2000

 

Defendant – Appellee

 M. John Strafaci, Esquire, New London, Connecticut

for Plaintiff – Appellant

Jeffrey R. Godley, Esquire, Norwich, Connecticut

for Defendant – Appellee

 

 

MEMORANDUM OF DECISION

LATIMER, J.

            The issue on appeal is whether the lower court erred in holding that the Appellant’s Board of Review hearing complied with procedural due process.

I.

            The Appellant, Sherri Olderman, was employed as a bartender by the Appellee, Mashantucket Pequot Gaming Enterprise (the “Gaming Enterprise”), until April 25, 1998, when she was discharged.  Her misconduct consisted mainly of rude, obscene, indecent, threatening words and actions of a sexual nature toward co-workers at the Foxwoods High Stakes Bingo and Casino.

            On July 1, 1998, a Board of Review hearing was conducted.  It was the recommendation of the  Board that the termination be upheld.  On August 4, 1998, the President/CEO of the Gaming Enterprise adopted the Board’s recommendation.  The Appellant then sought redress in the Tribal Court.  Employment Appeal Ordinance, VIII M.P.T.L. chap. 1.

            In a comprehensive opinion, the lower court, O’Connell, J., reviewed each of the Appellant’s claims of deprivations of due process rights and rejected them.  The court found that there were reasonable and rational reasons for the discharge.  This appeal followed.

II.

            At the outset , it should be noted that the Appellant freely admitted most of the crucial allegations against her . She contends, however, that she was merely “joking”; that such conduct was commonplace in the work environment; and that she was being singled out for discipline because “she’s gay”. R.at 264-65. See also R. at 28, 201, 237, 243, 247, 257, 264.  The Board of Review, the President/CEO and the court below carefully considered those factual contentions and found them to be without merit.  Accordingly, those defenses cannot be retried on appeal.  See, e.g., Thompson v. Mashantucket Pequot Gaming Enterprise, 1 MPR 22, 25 (1996); LeCara v. Mashantucket Pequot Gaming Enterprise, 1MPR 14 (1996); Ruffo v. Mashantucket Pequot Gaming Enterprise 1 MPR 3, 6 (1996).

            The Appellant further contends that the admission into evidence at the Board of Review hearing of witnesses’ statements with redacted names was erroneous and prejudicial. Her claim is without merit.  While some of the names on witnesses’ statements were blocked out,[1] these witnesses’ statements constituted merely cumulative and corroborating evidence.  The key witnesses against the Appellant were either revealed or were known to the Appellant.

            The Appellant also argues that her cross-examination of Patricia D’Andria was impermissibly limited at her Board of Review hearing .  The record does not support Appellant’s claim.  Ms. D’Andria was called as a witness at the request of a member of the Board of Review to answer a specific question.  R. at 175.  Counsel for the Appellant cross-examined Ms. D’Andria on her answer to that question.  R. at 177.  When counsel attempted to expand the testimony beyond the scope of the purpose of her direct testimony, the Board curtailed counsel’s cross-examination.  Under those circumstances, there was no abuse of discretion by the Board in refusing to allow counsel for the Appellant to proceed with further questions on cross-examination.  See e.g., Grossi v. Mashantucket Pequot Gaming Enterprise, 1 MPR 55, 57 (1998).  If  Appellant’s counsel deemed Ms. D’Andria’s  additional testimony to be relevant to the defense, he could have called Ms. D’Andria for direct testimony as a witness for the Appellant.  Having failed to do so, he cannot now claim prejudice on this appeal. 

            Finally, Appellant argues that she was not given adequate time to present her case before the Board of Review.  The circumstances surrounding that claim were set forth as follows by the lower court:

Management presented its case on pages 13 through 18 of the transcript.

(R.,p.160-165).  Thereafter, the plaintiff cross-examined management’s

witnesses and presented her own case on pages 18 through 118 of the transcript. (R.,p.165-265). Shortly before the close of the hearing, the plaintiff’s attorney told the Board ‘we still have additional material but certainly I’d prefer if the Board has specific questions, because I understand the hour is getting late.  We would certainly prefer to address specific questions then.’  (R.,p.256).  The Board members, adopting the procedure suggested by the plaintiff’s attorney, asked the plaintiff several specific questions and then declared that they had no more questions and had enough information to reach a decision. (R.,p.256-258).  The plaintiff’s attorney then suggested that the Board reconvene at some other time because ‘it’s now five after five, I know I have an appointment in New London where I’m due back there in about forty-five minutes.  I know I have more than what’s going to be another fifteen or twenty minutes.’ (R.,p.258).  After a recess, the Board stated that it had sufficient information and desired to hear closing arguments.  (R,.p.260).  The Gaming Enterprise and the plaintiff then presented closing arguments.

Memorandum of Decision at 11, 12.

            The Board’s failure to continue the hearing to another day to accommodate counsel’s schedule did not constitute a denial of procedural due process.  The Appellant had a constitutional right to be heard “in a meaningful manner”, Armstrong v. Manzo, 380 U.S. 545, 552 (1965), before the Board of Review. Appellant’s hearing before the Board was consistent with her right to be heard in a meaningful fashion in that:  almost the entire time set for the hearing was consumed by plaintiff’s presentation of her case; the plaintiff testified fully; written statements favorable to plaintiff were admitted into evidence; counsel reviewed thoroughly all aspects of the Appellant’s defenses; and no prejudice was demonstrated by the Board’s action.[2]  See, e.g., Grossi at 56.  Under those circumstances, the Board of Review hearing afforded the Appellant sufficient due process protections to ensure a full and adequate resolution of the issues surrounding her discharge.  See, e.g., Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (due process is a flexible doctrine and “calls for such procedural protections as the particular situation demands”); Johnson v. Mashantucket Pequot Gaming Enterprise, 1 MPR 15, 19 (1996) (due process assures “reasonable procedural protection for a fair resolution of the issue presented in a given case”).

III.

            Accordingly, for the reasons stated, the judgment of the lower court is affirmed.

   

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