Leonard A. FRAITER

v.

 MASHANTUCKET PEQUOT

GAMING ENTERPRISE

 

EMPLOYMENT APPEAL DIVISION

 

MPTC-EA-98-125

 

AUGUST 3, 1998

 

SUMMARY

 

The Mashantucket Pequot Tribal Court sustains the plaintiff's appeal of his termination from employment as poker dealer holding that the President/CEO's decision constituted an abuse of discretion, finding that all prior disciplinary actions occurred more than one year prior to the latest event and thus the President/CEO could not rely upon this incident for consideration in terminating the plaintiff's employment under the Progressive Discipline Policy.

 

FULL TEXT

 

Londregan, J.

 

The plaintiff, Leonard A. Fraiter, commenced this appeal from the decision of the defendant, F.M. Celey, CEO/President of the Mashantucket Pequot Gaming Enterprise (hereinafter "Gaming Enterprise"), terminating his employment.  This appeal was filed pursuant to the provisions of the Employment Appeal Law VIII M.P.T.L. ch 1.

 

I.       Proceedings

 

At the time of the event leading to his termination the plaintiff was employed by the Gaming Enterprise as a poker dealer in the poker department.  (R. at 10).  The charging document alleged as a violation of company policy the following:

 

Misconduct, specifically rude and discourteous behavior to a guest under the guidelines of the Progressive Disciplinary Policy.  Page 3-10 and 3-11 of the Employee Handbook state, "Rude or discourteous behavior to a guest may result in disciplinary action up to and including suspension and/or termination of employment.

 

(R. at 9).

 

The following facts were recited in support of the charge.

 

On December 3, 1997[sic] Leonard [plaintiff] threw a tip back at a patron and stated, "Here, why don't I give you a tip."  After a review of this incident it was Management's decision to separate him from employment under the guidelines of the Progressive Disciplinary Policy.

 

(R. at 9).

 

On December 4, 1997, the plaintiff was given an official notice of unsatisfactory performance and suspended pending further investigation.  (R. at 14).  On December 23, 1997, Management of the defendant decided to terminate the plaintiff and so notified him by telephone on December 23, 1997.

 

On January 13, 1998, a Board of Review (hereinafter "Board") convened to hear the plaintiff's appeal at which time the plaintiff appeared and was heard.  (R. at 7).  The Board heard testimony by the defendant and the plaintiff.  (R. at 4).  The Board found that "[t]ermination for misconduct, specifically rude and discourteous behavior to a guest under the guidelines of the progressive disciplinary policy was not appropriate."  (R. at 5).  The Board's decision was to reduce the termination to a final warning with full back pay.  (R. at 4).

 

On March 11, 1998, F.M. Celey (hereinafter President/CEO"), disagreed with this recommendation of the Board and decided to uphold the plaintiff's termination.  (R. at 2).  Specifically, the reason for the decision was stated as follows:

 

1. On December 3, 1997, the employee was rude and discourteous to a patron.  The employee threw a tip back at a patron and stated, "here, why don't I give you a tip."

 

2. Under the guidelines of the Progressive Disciplinary Policy the employee has received prior disciplinary violations including a suspension and a final warning.

(R. at 2).

 

This appeal followed.

 

II.      Findings of Fact

 

Pursuant to the requirement that the court issue Findings of Fact with reference to the record, the court concludes that the record supports the following relevant facts.

 

On December 3, 1997, Laurie LaPorte, a poker floor supervisor, was standing by a podium checking a set-up next to table number 15.  The plaintiff was the dealer at this table.  She heard him comment about "a big fifty cent raise."  (R. at 15).  When she looked up she concluded that a player had given the plaintiff fifty cents for a tip.  She wrote in her statement that the plaintiff picked up the fifty cents and said, "Here, why don't I give you a tip" and threw it back at the player.  The plaintiff disputes this sequence and alleges that as he went to push a pot to the winning player the fifty cent tip that he was given fell out of his hands into the pot.  He could not reach into the pot and retrieve back his tip.  Due to his embarrassment he said something to the affect that it looks like "the dealer's anted you up."  The next day, December 4, 1997, the plaintiff was suspended pending further investigation for this incident.  On December 23, 1997, the plaintiff was terminated as the result of this incident in violation of the guidelines of the Progressive Disciplinary Policy.

 

Previous to this incident, on February 13, 1997, the plaintiff received a final warning for misconduct.  This incident involved his evaluation as a poker dealer.  The summary comments on his evaluation sheet stated the following:

 

Summary Comments:  

Good Dealer - Could Be Better . . . Attitude Needs Improvement - Customer Courtesy is Good, But Could Also Improve.

 

Pit Manager's Comments:  

Leonard mechanically is a good dealer.  However he projects a very negative attitude which hurts his customer courtesy skill.  With a positive attitude Leonard could be an excellent dealer.

 

(R. at 51).

 

The evaluation form provides for employee comments.  In this space the plaintiff wrote the following:

 

I would like to evaluate the same supervisors that evaluate me.  Get Even!!! Oh Boy!

 

(R. at 51).

 

Based upon this expression by the plaintiff he was issued a final warning.  Management had decided that the comments he wrote were inappropriate.  (R. at 17.)

 

III.     Conclusions of Law

 

In reviewing an appeal of an employee, the court must determine whether Management's decision was arbitrary and capricious.  VIII M.P.T.L. ch. 1, ' 8(d). Fickett v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 43, 52 (1995).  This standard of review applies to both the factual determinations and to the conclusions of law.  The Employee Appeal Law further provides that in determining whether the decision was arbitrary and capricious, the court must uphold the Gaming Enterprise if it finds that:

 

(1)  there was a reasonable basis for concluding that the employee violated work rules, standards of conduct, or other conditions of employment for the position held by the employee;

 

(2)  the Gaming Enterprise substantially complied with the policies regarding progressive discipline in the case of minor infractions;

 

(3)  the employee received notice of the infraction and was provided with an opportunity to contest the allegations and present mitigating circumstances;

 

(4)  the form of the discipline was appropriate and did not constitute an abuse of discretion.

 

VIII M.P.T.L. ch. 1, 8(d).

 

The court must look beyond the language of the CEO/President's decision to decide whether or not there is evidence in the record to support it.  Adams v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 20, 21-22 (1996).  The function of the trial court, then, is to look only to the materials before the CEO/President and to determine from the record whether the materials furnished justify the reasons for the CEO/President's decision.  In so doing, this court must determine whether the CEO/President's "decision was based upon a consideration of the relevant factors and whether there has been a clear error of judgment . . . ." Fickett, supra, at 52.

 

The court finds that there is evidence in the record that substantiates the defendant's account of the incident of December 3, 1997.  The evidence reasonably supports a finding that the plaintiff was rude and discourteous to a patron.  The statement of Laurie LaPorte, the poker floor supervisor, substantiates the allegation that the plaintiff threw a tip back at a patron and stated "[h]ere, why don't I give you a tip."  However, the court's inquiry does not cease upon a finding that there was evidence in the record to support Management's conclusion regarding the incident on December 3, 1997. 

 

The President/CEO stated that this was a progressive disciplinary case. The President/CEO made specific reference to a prior suspension and a final warning.  Under the guidelines promulgated for progressive discipline, the termination must be preceded by a prior "final warning" or a prior "suspension."  Unless Management gave a prior "final warning" or a prior "suspension" this incident alone does not warrant termination.  Pursuant to the Progressive Discipline Policy, the President/CEO may issue a termination as an initial disciplinary step if he concludes that the violation is severe in nature.  See Progressive Discipline Policy '2 Policy 15, p. 4 made part of the record by order of the court.  In the case at bar, the President/CEO did not take such action.  His decision, thus, places this case under the guidelines of the Progressive Disciplinary Policy.

 

The court finds that the defendant did not follow its own policy when it terminated the plaintiff.  The disciplinary policy of the Gaming Enterprise specifically provides that:

 

"all notices of unsatisfactory performance will remain as part of the employee's permanent file.  The notice shall be active for one year from the date of issuance (active disciplinary period) for consideration as part of the progressive disciplinary process." 

 

Disciplinary Policy '2, Policy 15, p. 5, 6. 

 

Under the definition of "suspension pending investigation" the policy provides that:

 

"such action precedes all terminations where an employee's file reflects a suspension or final warning less than one year old and a subsequent violation has occurred, or as an initial disciplinary step when the violation is considered severe in nature." 

 

Id.  at 5.  [emphasis added]

 

As stated above, the President/CEO did not find that this incident warranted a suspension pending investigation as an initial disciplinary step.  He identified this discipline as part of the Progressive Discipline Policy guidelines. 

 

The President/CEO stated in his decision that the plaintiff received prior disciplinary violations including a suspension and a final warning.  (R. at 2).

 

A review of the record indicates that the plaintiff did not have a suspension less than one year old in his record.  Although, the plaintiff had a four (4) day suspension for misconduct, that incident occurred on November 16, 1996 and a Notice of Unsatisfactory Performance was issued on November 18, 1996.  (R. at 18).  This suspension was not "less than one year old."  As such, the President/CEO could not rely upon this incident for consideration as part of the Progressive Disciplinary Policy.  See Disciplinary Policy '2, Policy 15, p. 2, 6.

 

The plaintiff had a final warning less than one year old for comments he made on his evaluation for the year 1997.  These comments which are cited above were made on February 4, 1997 and resulted in an official Notice of Unsatisfactory Performance dated February 13, 1997, for which the plaintiff received a "final warning" as part of the progressive disciplinary process. However, upon close examination, this final warning was improper and therefore can not be the basis for a step in the progressive disciplinary process. 

          The incident of February 4, 1997, which lead to the final warning being placed in the plaintiff's record, did not cite a specific violation of any "standards of conduct."  (R. at 17).  Even though the standards of conduct state that "it is not possible to list all forms of behavior which are considered unacceptable in the workplace" the standards of conduct do list twenty-four (24) examples of prohibited conduct.  (R. at 11).

The court can not find a violation of any behavior that would be unacceptable based upon the incident of February 4, 1997.  The plaintiff was asked for his comments about his evaluation.  When he gave them he was disciplined.  The defendant's management apparently did not like his response to his evaluation.

 

          While the standards of conduct state that it is important to achieve and maintain an atmosphere of respect and harmony, the court can not find as a matter of law that after being invited to comment on the substance of his evaluations his comments violated the standards of conduct.  By expressing his opinion as to his evaluation, management gave the plaintiff a final warning.[1]  This is a significant step in the Progressive Discipline Policy.  Without that final warning, the plaintiff's record would have no disciplinary action less than one year old.  The incident of December 3, 1997, would not have resulted in a suspension pending investigation. There must be a suspension or final warning less than one year old for a suspension pending investigation to have issued.  At best, the plaintiff would have been suspended and given a final warning for the December 3, 1997, incident.  "When there is an absence of proof of improper conduct on the plaintiff's part, as a matter of law, the court must find that the plaintiff's termination constituted an abuse of discretion."  Adams v. Mashantucket Gaming Enterprise, 2 Mash. 20, 23 (1996) citing Mitchell v. Mashantucket Pequot Gaming Enterprise, 1 MPR 7 (1995).

 

For the above stated reasons this case is remanded to the President/CEO to impose the appropriate and suitable disciplinary action under the Progressive Disciplinary Policy consistent with this opinion as if the plaintiff's record had no prior suspensions or final warnings less than one year old.  Thereafter, if the parties can not agree as to the consequences of that decision the parties may file an appropriate motion with the court for review.

 

 

 

Leonard Fraiter, Pro Se Plaintiff

Jeffrey Godley, Esq., for Defendant

Marietta Anderson, Esq., for Defendant



                [1] The plaintiff's comments touch on issues of free speech which are protected under the Indian Civil Rights Act.  See 25 USC '1302 (1).

 

 

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