NO. EA-99-110

PAUL TRANCHIDA                                                                          MASHANTUCKET PEQUOT

V.                                                                                                      TRIBAL COURT

MASHANTUCKET PEQUOT

GAMING ENTERPRISE                                                                    APRIL 11, 2000

 

MEMORANDUM OF DECISION

The plaintiff, a "focus representative " at the Foxwoods High Stakes Bingo and Casino, appeals the termination of his employment by the Mashantucket Pequot Gaming Enterprise (the "Gaming Enterprise") pursuant to the provisions of the Employee Review Code, VIII M.P.T.L. ch. 1.

In early February of 1999, the plaintiff was working on reservations for upcoming visits to Foxwoods by patrons of the hotel and casino. He noticed a mix-up in the paperwork for a visit by members of a family scheduled to celebrate a 50th wedding anniversary. The reservations had been listed under the account number of a son, rather than the account number of his father. After a good deal of time on the telephone with other scheduling personnel, the plaintiff untangled the confusion. By the time he finished, approximately 20 minutes of the plaintiff’s scheduled 40 minute dinner break had elapsed.

The plaintiff reported to his supervisor on his way to dinner, and was told to return in 20 minutes or he would be written up for being late. The plaintiff was "shocked, appalled and dismayed," and after voicing his displeasure walked back to his desk while making comments in a raised voice. He "yelled" from the back of the office that he was entitled to a 40 minute break and that he was going to take it. He walked back to the supervisor’s desk again, "ranting the whole time," told the supervisor "you’re nuts and are just on a vendetta against me," and returned to his desk, "still ranting." He then sat at his desk with his hands behind his head and his feet up on the desk, with his phone in "aux" status, for about 30 minutes.

Thereafter, the plaintiff’s employment was terminated under the guidelines of the Progressive Disciplinary Policy, for rude and discourteous behavior toward his supervisor. Upon his appeal to a Board of Review, the Board found that the plaintiff was rude and discourteous to his supervisor, and voted unanimously to uphold the termination of his employment under the Progressive Disciplinary Policy. The Board took into account the plaintiff’s previous disciplinary violations, stating that "Paul’s record speaks for itself. Paul tried to talk around the things he did wrong. "

The President/CEO agreed with the recommendation of the Board of Review, and found that the plaintiff’s actions constituted rude and discourteous behavior. He also found that the plaintiff’s employment record "clearly reflects his consistent lack of cooperation for company and department policies and procedures." Noting that the plaintiff previously had been issued a suspension and two final warnings, and that termination is the appropriate next step in the progressive disciplinary process, the President/CEO upheld the termination of the plaintiff’s employment.

On appeal to this court the plaintiff cites Flint v. Mashantucket Pequot Gaming Enterprise, 1 MPR 43 (1998) as support for his contention that this court must be satisfied "in its mind" that the record is sufficient to support the President/CEO’s decision. Flint, supra at 44. 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). On appeal, this court’s inquiry is limited to determining whether "in its mind" the record is devoid of rational evidence to support the decision to terminate the plaintiff’s employment.

Here, the plaintiff admits that he had a confrontation with his superior regarding the manner in which his dinner break was calculated. Although he disputes the characterization of the tone of his voice, he admits that "words were passed" to his supervisor. He admits that he felt "broadsided," and "shocked," and chose to voice his displeasure in strenuous terms. After arguing with his supervisor in such a manner that "the whole office was aware of the situation", he returned to his desk and "yelled from the back of the office. " He walked to the supervisor’s desk a second time, called her "nuts," and accused her of having a "vendetta " against him. He again returned to his seat and put his hands behind his head and his feet up on the desk for almost one-half hour. The plaintiff believed his actions were justified by the supervisor’s refusal to adjust his dinner break time. There were and are, however, more acceptable methods of responding to a perceived problem than walking around the office and questioning the sanity and motives of the plaintiff’s supervisor in loud tones and harsh language in the presence of other employees. The record is not devoid of rational evidence to support a finding that the plaintiff engaged in rude and discourteous behavior.

The plaintiff contends that his offense was relatively minor, and should not have resulted in a termination of his employment. Similar arguments have been advanced by other employees who were terminated for rude and discourteous behavior to either co-workers or patrons, and have been consistently rejected. See Johnson v. Mashantucket Pequot Gaming Enterprise, 3 Mash. 74 (1998) (abusive language towards a co-worker constitutes a terminable offense); Schaen v. Mashantucket Pequot Gaming Enterprise, 3 Mash 25 (1998) (abusive language towards patrons and employees is punishable by termination); Smith v. Mashantucket Pequot Gaming Enterprise, 3 Mash. 22 (1998) (rude behavior towards patrons is an appropriate ground for termination); Alvarez v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 209 (1997) (abusive language and fighting with a co-worker were appropriate grounds for termination and not an abuse of discretion); Casey v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 193 (1997) (use of profanity towards a co-worker is a terminable offense); Mullins v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 185 (1997) (a pattern of rudeness towards patrons constitutes a reasonable basis for termination); Whitford v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 35 (1996) (rude and discourteous conduct towards a co-worker is a terminable offense and is unacceptable in a work environment); Seldon v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 31 (1996) (insulting and abusive language towards a co-worker is a terminable offense); Addis v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 5 (1996) (rude and threatening conduct to a co-worker is a serious violation of policy and warrants termination on its own); Mell v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 256 (1996) (use of loud, obscene and abusive language towards a co-worker constitutes proper grounds for termination); and Grossi v. Mashantucket Pequot Gaming Enterprise. (March 31, 2000) (ethnic slurs and swearing at a co-worker is offensive conduct justifying termination).

The Gaming Enterprise’s standards of conduct includes the following as among examples of prohibited conduct that may result in disciplinary action up to and including termination of employment: "Rude or discourteous behavior to a guest or co-worker. . .which is abusive, degrading, humiliating, demoralizing or which subjects the guest or co-worker to hate, contempt, ridicule or scorn." Gaming Enterprise Standards of Conduct, Section II, Policy 14(a). The common thread in all of the foregoing cases is the employee’s violation of this standard. It is "clear that the President/CEO has broad discretion in selecting the discipline to be administered in cases involving the type of conduct [described in this standard of conduct]. Thus, the mere imposition of the penalty of termination is not, in and of itself, error. " Johnson v. Mashantucket Pequot Gaming Enterprise, 1 MPR 68,70 (1999).

The plaintiff also asserts that the President/CEO was arbitrary and capricious in finding that the termination of his employment was appropriate under the guidelines of the Gaming Enterprise’s Progressive Discipline Policy. That policy FACE="Times New Roman">"sets up an ascending scale of responses to relatively minor infractions, progressing from the least onerous (a ‘Verbal Warning’) to the most drastic (‘Suspension Pending Termination’)." Barrett v. Mashantucket Pequot Gaming Enterprise, 3 Mash. 18,19 (1998), affirmed 1 MPR 75 (1999), quoting Tetreault v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 12,13-14 (1996).

Each infraction by an employee, and the Gaming Enterprise’s action, is documented in an "Official Notice of Unsatisfactory Performance, " often called a "write up." The plaintiff’s work history at the Gaming Enterprise includes the following Official Notices of Unsatisfactory Performance:

On July 14, 1998, the plaintiff was issued a second final warning for making an unusually long personal phone call during a busy time in his department. On January 25, 1998, the plaintiff was issued a final warning for eating food at his desk and for failure to comply with a directive from his supervisor. On December 21, 1997, the plaintiff was issued a suspension for one day for making a personal phone call for a long period of time and for failure to follow department procedures regarding personal phone calls. On November 24, 1997, the plaintiff was issued a written warning for receiving personal phone calls and for failure to follow department procedure. On November 10, 1997, the plaintiff was given a verbal warning for parking in an unauthorized lot.

The plaintiff also received nineteen other Notices of Unsatisfactory Performance, ranging from verbal warnings to suspensions, during the period of time from January 15, 1994 to July 19, 1996.

It is evident that the termination of the plaintiff’s employment was grounded not only on the February, 1999 confrontation with his superior, but also on "a pattern of work rule violations and not based on an isolated, trivial deviation as the plaintiff argues." Barrett v. Mashantucket Pequot Gaming Enterprise, 1 MPR 75 (1999) (emphasis in original). As in Barrett, "the ongoing and cumulative nature of those violations . . . is evidence of the plaintiff’s unwillingness or inability to adhere to the standards expected of him and every other employee of the Gaming Enterprise." Id.

Moreover, "[t]he repeated use of the word ‘usually’ in the Progressive Discipline Policy makes it clear that an employee can be discharged for a single offense without having progressed up the disciplinary ladder." Johnson v. Mashantucket Pequot Gaming Enterprise, 1 MPR 68,70 (1999).

Finally, the plaintiff contends that the sanction of termination was arbitrary and capricious, and too severe.

This court cannot "substitute its judgment for that of the [Gaming Enterprise] concerning the disciplinary measure of termination in the circumstances of this case." LeCara v. Mashantucket Pequot Gaming Enterprise, 1 MPR 14 (1996). "Except in circumstances where a review of the record establishes that it is devoid of rational evidence to support a suspension or termination from the employment, deference to the expertise and experience of management mandates that in employment matters the judiciary refrains from substituting its judgment for that of the President/CEO. " Thompson v. Mashantucket Pequot Gaming Enterprise, 1 MPR 22,24-25 (1996) (citation omitted). "In reviewing claims of this nature the court cannot decide the case on the basis that it may have imposed a different sanction. . . . The question before this court is not whether it would have reached the same conclusion as the President/CEO of the Gaming Enterprise, but whether the record supports the action taken. The reviewing court may set aside only those conclusions which have no basis in fact. So long as there is a reasonable and rational basis for an agency’s decision, the reviewing court may not overturn an agency action as arbitrary or capricious." Loesche v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 93,96

(1995) (citations omitted). In evaluating the nature and extent of the sanction, the court must also be mindful of the requirement that it "recognize the necessity for the Employer’s management to exercise judgment and discretion in electing the form and level of discipline appropriate to the particular offense or conduct in light of all facts and circumstances pertinent to the matter." Employee Review Code, VIII M.P.T.L. ch. 1, 8.f.(4).

Here, the plaintiff’s February, 1999 confrontation with his supervisor was the last in a lengthy series of violations resulting in disciplinary action taken against the plaintiff in the course of his employment at the Gaming Enterprise. The Progressive Disciplinary Policy is a graduated and measured system for addressing and resolving repeated violations of work rules and standards of conduct. The Gaming Enterprise’s application of this policy to the plaintiff’s circumstances was not arbitrary or capricious.

There is a rational basis for the President/CEO’s finding that the plaintiff violated the Gaming Enterprise’s standards of conduct and that his employment should be terminated. The plaintiff’s appeal is denied.

__________________________

Edward B. O’Connell, Judge

 

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