that it lacks subject matter jurisdiction to hear an employment appeal where
the plaintiff failed to request a Board of Review and exhaust all
administrative remedies available to him, the Mashantucket Pequot Tribal Court
grants the defendantís motion to dismiss.
January 13, 1998 the plaintiff's employment as a master cook at the Foxwoods
Casino operated by the Mashantucket Pequot Gaming Enterprise (the "Gaming
Enterprise") was terminated for excessive absenteeism.
The plaintiff attributed this to his incarceration as a result of
domestic difficulties. His wife
called his supervisor and said that the plaintiff was in
"rehabilitation" rather than revealing that he was then in jail, and
told the supervisor that the plaintiff would explain in person what happened
when he was able. When the
plaintiff finally did report to his supervisor, his employment was terminated
for violating the Gaming Enterprise's "no call/no show" attendance
policy. The plaintiff did not
request a Board of Review. Rather,
he filed a Notice of Administrative Appeal with this court on March 9, 1998,
invoking the provisions of the Employee Appeal Ordinance, VIII M.P.T.L. ch. 1.
Gaming Enterprise moves to dismiss the appeal for the reason that this court
lacks subject matter jurisdiction over appeals by employees who have not
appeared before or obtained a decision by a Board of Review.
Although the plaintiff admitted at oral argument that he was aware of
the Gaming Enterprise's employment policies and that he did not request a
Board of Review or ask for forms on which to request a Board of Review, he
nevertheless requests this court to consider the merits of his appeal.
motion to dismiss is the proper procedural vehicle for contesting the subject
matter jurisdiction of the court. "Rule
12(b) of the Mashantucket Pequot Rules of Civil Procedure sets forth several
defenses which may be made initially by motion, including lack of subject
matter jurisdiction. M.R.C.P.
12(b)(1). Mashantucket Rule 12(b) is identical to Rule 12(b) of the Federal
Rules of Civil Procedure. 'For
this reason, decisions of the federal courts are a useful source of guidance.'
Mamiye v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 141,
142 (1997); DeLorge v. Mashantucket Pequot Gaming Enterprise, et al,
(July 23, 1997)." Chamberlin
v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 227 (1997).
deciding a motion to dismiss under Rule 12(b)(1), the court construes the
complaint broadly and liberally, Romanella v. Hayward, 993 F. Supp.
163, 164-165 (D. Conn.1996), aff'd, 114 F.3d 15 (2nd Cir. 1997).
When a court's subject matter jurisdiction is challenged, the burden of
establishing subject matter jurisdiction rests on the party asserting
jurisdiction. Id. at 165.
The court accepts all uncontroverted well-pleaded factual allegations
as true, and views all reasonable inferences in plaintiff's favor.
Scheuer v. Rhodes, 416 U.S. 232 (1974); Aversa v. United
States, 99 F.3d 1200 (1st Cir. 1996); Hirsch v. Arthur Anderson &
Co., 72 F.3d 1085, 1088 (2nd Cir. 1995). DeLorge v. Mashantucket Pequot
Gaming Enterprise, et al, supra, at 3."
Chamberlin, supra at 227-228 (quotation marks omitted).
court lacks "the power to consider [the plaintiff's] case because of the
absence of an administrative record, a jurisdictional prerequisite under the
[Employee Appeal] Ordinance, [VIII M.P.T.L. ch. 1, '3(a).]."
Jeffs v. Mashantucket Pequot Gaming Enterprise, 1 MPR 32, 33
(1997). "A necessary
precondition to [an appeal under the Employee Appeal Ordinance] is a decision
by a Board of Review convened in accordance with the policies and procedures
of the Gaming Enterprise". Kendall
v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 57 (1995).
This court has no jurisdiction over such an appeal unless it is taken
from a "final decision," which is defined in the Employee Appeal
Ordinance as "a determination by the President/CEO of the Gaming
Enterprise that the decision of the Board of Review, as defined by the
Policies and Procedures of the Gaming Enterprise, is upheld in whole or in
part." VIII M.P.T.L. ch. 1, '1(d). "[T]he
proceedings before a Board of Review are an essential part of the record on
appeal." Kendall, supra
is well settled that a jurisdictional prerequisite to seeking relief in a
court of law is that all available administrative remedies must have been
exhausted. The plaintiff failed
to exhaust his administrative remedies of a hearing before a Board of Review
and a review of that Board's decision by the President/CEO of the Gaming
supra at 58, (citations omitted).
This court has no jurisdiction over the plaintiff's appeal.
Healey v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 240,
241 (1997); Sheeley v. Mashantucket Pequot Gaming Enterprise, 2 Mash.
150, 151 (1997).
motion to dismiss is granted.
J. Eiden, Pro Se Plaintiff
R. Godley, Esq., for Defendant
P. Carey, Esq., for Defendant
S. Anderson, Esq., for Defendant
the plaintiff in this action made no request that a Board of Review be
convened, and simply chose to appeal directly to this court without
attempting to make an administrative record, this court need not and does
not address any claim that the Gaming Enterprise deprived this plaintiff of
rights under the Indian Civil Rights Act. 25 U.S.C. 1302.