The plaintiff, a limousine driver for the Foxwoods High Stakes Bingo and Casino operated by the Mashantucket Pequot Gaming Enterprise (the “Gaming Enterprise”) appeals the termination of his employment by the Gaming Enterprise, pursuant to the provisions of the Employee Review Code, VIII M.P.T.C. ch. 1. The relevant facts are set forth in the court’s discussion of the issues.

On September 21, 1999 the plaintiff’s employment was terminated for violating the Gaming Enterprise’s Drug Free Workplace Policy (sometimes called the “Policy”). The plaintiff appealed his termination to a Board of Review. By a unanimous vote, the Board of Review found that there were repeated positive test results of drug use by Mr. Burns and that he admitted using marijuana during the relevant time period, concluded that the plaintiff failed to comply with the Gaming Enterprise’s Employee Assistance Program as a condition of continued employment, and recommended that the termination of the plaintiff’s employment be upheld.

The President/CEO agreed with the Board’s recommendation, finding that the plaintiff “tested positive for drugs. Pursuant to the Drug Free Workplace Policy, he agreed to a treatment plan and signed a return to work agreement. During treatment, the employee failed a second drug test and then failed a third drug test. The Policy states: ‘If an employee or participant has a third MRO-verified positive test, immediate discharge with no further chance for rehire shall take place.’” Noting that the plaintiff was a limousine driver and thus occupied a “safety sensitive position” posing a “serious risk to the safety of others”, the President/CEO upheld the termination of the plaintiff’s employment for violating the Gaming Enterprise’s Drug Free Workplace Policy (R., p. 2, 3). Thereafter, the plaintiff filed a timely appeal of the President/CEO’s decision with this court.

On appeal, the plaintiff argues that the Gaming Enterprise violated its Policy by not notifying him that he failed his second drug test. He argues that if he had known that he failed the second test, he could have opted for a more rigorous plan of treatment through the Employee Assistance Program. He claims that the failure of the Gaming Enterprise to notify him that he failed the second test nullified the termination of his employment.

The plaintiff failed a total of three drug tests over the course of his employment. The first test, on May 13, 1999, revealed a high level of marijuana in the plaintiff’s system. This constituted a “positive test” and resulted in a suspension of the plaintiff’s employment, as required by §6.a. of the Drug Free Workplace Policy. On July 15, 1999, he failed a second test. On September 1, 1999, he failed a third test, resulting in the termination of his employment.

On June 3, 1999 the plaintiff signed an Employee Assistance Program (“EAP”) random testing and treatment plan calling for participation in the Program’s substance abuse group. The plaintiff also signed a “Return to Work Agreement” which provides, inter alia, that the plaintiff will abstain from the use of illegal drugs. The agreement also provides that any further noncompliance with the Drug Free Workplace Policy or the EAP treatment plan “will result in immediate discharge”. Upon signing the Return to Work Agreement and the EAP treatment plan, the plaintiff’s suspension resulting from his failure of the first drug test was lifted, and his employment was reinstated.

About seven weeks after he was reinstated the plaintiff was tested a second time, on July 15, 1999. Marijuana was present in the plaintiff’s system at more than the allowable level, but the amount of marijuana was greatly reduced from the first test. Despite the presence of marijuana in the plaintiff’s system, the employee relations officer who reviewed the test results gave a break to the plaintiff, and did not institute disciplinary action against him. Instead, he noted the reduced level of marijuana and wrote in the “comments” section of the test results form that “we will look for continued reduction”. The plaintiff was not notified of the results of this test.

The plaintiff claims that the Gaming Enterprise’s failure to notify him of the results of the second test is a violation of its policy and nullifies the disciplinary action taken against him. “In construing a regulation such as the Gaming Enterprise’s [drug free workplace] policy, the court’s fundamental objective is to ascertain and give effect to the intent of drafters of the regulation.... If the provision is a matter of substance, it is usually regarded as mandatory. If, however, it is a matter of convenience, and is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.... If there is no language that expressly invalidates any action taken after noncompliance with a provision, it should be construed as directory.” Remillard-Cochran vs. Mashantucket Pequot Gaming Enterprise, 3 Mash. 34, 36 (1998) (citations and quotation marks omitted).

Applying these principles to the policy at issue, it is evident that the intent of the Drug Free Workplace Policy is to maintain a healthy and safe working environment for employees of the Gaming Enterprise “by providing a workplace free from the influence of illegal drugs and abuse of controlled substances, as well as alcohol.” Preamble, Policy, p. 1 of 11. The Policy contains no language invalidating actions of the Gaming Enterprise that are not in compliance with its terms. The Policy contains a clause, unambiguously entitled “No Guarantee of Employment”, providing that the Policy is not to be construed as a guarantee of employment for any period of time, including but not limited to the time during which an employee participates in any treatment program. Policy, p. 11 of 11. The Policy establishes “an orderly system of responding to employee misconduct, but not in a manner which would create new or additional substantive rights.” Remillard-Cochran, supra, at 36. As applied to the Gaming Enterprise, the Policy is directory and not mandatory. The Gaming Enterprise’s failure to notify the plaintiff that he failed the second drug test does not invalidate its decision to terminate his employment after he failed the third drug test.

About six weeks after he failed the second test, the plaintiff was tested again on September 1, 1999. The level of marijuana in his system was five times higher than his second test, and was equal to the marijuana in his system when he was first tested. The hoped-for “continued reduction” in the plaintiff’s use of marijuana did not occur. The plaintiff’s employment was terminated for violation of the Drug Free Workplace Policy and the Return to Work Agreement.

At his Board of Review hearing, the plaintiff admitted that he continued to use marijuana after he signed the Return to Work Agreement and agreed to the EAP treatment plan (R. p. 79-80). “I never denied it and I never, you know, I never, never tried to sugarcoat it.” (R., p. 80). He continued to insist, however, that the fault was not his, claiming that the Gaming Enterprise “just failed in helping me to understand my problem.” (R., p. 74). “I didn’t get the phone calls of concern. I didn’t get the phone calls of support.” (R., p. 76). The Tribe and this building really failed me in helping me to understand what I was doing wrong.” (R., p. 84). The plaintiff now claims that he should not be discharged because he was not told that he failed the second drug test. He admits, however, that he was continuing to use marijuana during the time period that the second test was administered. He could not have been surprised by the result. The plaintiff already knew what the second test revealed: he continued to use marijuana after he signed the Return to Work Agreement and the EAP treatment plan.

Even if, as suggested by the plaintiff, the second test was a nullity because he was not notified of the result, the third test, which revealed the plaintiff’s continued and undiminished use of marijuana, cannot be ignored. The Drug Free Workplace Policy provides that if an employee has a second positive test, disciplinary action ranging from suspension to discharge may be imposed. Policy, § 6.b., p. 8 of 11. Assuming arguendo that the second test should not be considered, and that the third test should be re-designated as the second test, it is undisputed that the plaintiff failed the latter test and that he was notified of the adverse result. The Policy provides that sanctions up to and including discharge may be imposed for failing that test. The termination of the plaintiff’s employment was not in violation of the Gaming Enterprise’s Drug Free Workplace Policy.

In addition, the Return to Work Agreement signed by the plaintiff provides that subsequent noncompliance with the EAP treatment plan or the Drug Free Workplace Policy is a ground for immediate discharge. It is undisputed that the plaintiff failed to comply with the Policy and the EAP treatment plan. The Gaming Enterprise’s termination of the plaintiff’s employment is recognized and acknowledged as an appropriate sanction in the Return to Work Agreement signed by the plaintiff.

In considering employment appeals, this court’s “role is solely to determine whether the President/CEO acted arbitrarily, capriciously or in abuse of his discretion.” Chickering v. Mashantucket Pequot Gaming Enterprise, 1 MPR 41 (1998). In making this determination, the court does not retry the facts. “[I]t is settled law that, except where the record is devoid of rational evidence to support a termination from employment, factual findings cannot be retried on appeal.” Janecewitz v. Mashantucket Pequot Gaming Enterprise, 1 MPR 30, 31 (1996), citing Thompson v. Mashantucket Pequot Gaming Enterprise, 1 MPR 22, 24-25 (1996).

Here, the record is not devoid of rational evidence to support a termination of the plaintiff’s employment. He failed three drug tests. The plaintiff, who was in the “safety sensitive” position of transporting patrons in expensive automobiles, admitted that he continued to use marijuana after he signed his Return to Work Agreement and EAP treatment plan. There is a rational basis for the President/CEO’s finding that the plaintiff violated the Gaming Enterprise’s Drug Free Workplace Policy and Return to Work Agreement, and that his employment should be terminated. The plaintiff’s appeal is dismissed.

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Edward B. O’Connell, Judge