James V. FARRELL,

 v.

 MASHANTUCKET PEQUOT

GAMING ENTERPRISE

 

EMPLOYMENT APPEAL DIVISION

 

MPTC-EA-98-109

 

NOVEMBER 19, 1998

 

SUMMARY

 

Finding that the defendant’s denial of the plaintiff’s right to present evidence and cross-examine witnesses before the Board of Review was not harmless error, the Mashantucket Pequot Tribal Court remands the plaintiff’s appeal for a de novo hearing by the Board on the charge of misconduct, specifically failure to cooperate in a company investigation.

 

FULL TEXT

 

Shibles, C.J.

The plaintiff, a blackjack floor supervisor at Foxwoods Resort Casino, appeals the termination of his employment by the Mashantucket Pequot Gaming Enterprise (hereinafter, "Gaming Enterprise") pursuant to the provisions of the Employee Appeal Law, VIII M.P.T.L. ch. 1 (hereinafter "Law).

 

PROCEEDINGS

 

Initially hired as a blackjack dealer as an hourly employee in on April 1, 1992, the plaintiff was later promoted to the position of blackjack supervisor, a salaried position. (Record (hereinafter AR.) at 10, Affidavit of James V. Farrell, dated September 28, 1998, p. 1, && 3-4). Several months after his promotion, pursuant to complaints by the blackjack supervisors about “not being paid overtime for working extra shifts and for time spent in management meetings," the plaintiff's wages were changed to an hourly rate so he, as a supervisor, could be paid overtime.  Id.  The plaintiff's duties did not change, however. Id.

 

Misconduct, specifically "failure to cooperate in a company investigation," was the ground for the plaintiff's suspension pending further investigation on June 5, 1997.  (R. at 13). Charles Petchark, (hereinafter "Petchark") Director of Employee Relations, conducted an investigation into the plaintiff's alleged misconduct.  (R. at 65, Tr. at 14).  Effective June 17, 1997, the plaintiff was terminated from his position as blackjack floor supervisor.  (R. at 10, 52). The plaintiff received a Board of Review hearing on his appeal of his termination on August 6, 1997.  (R. at 5, Transcript of Board hearing (hereinafter "Tr.") at 1-26).  The Board of Review panel consisted of five persons, including two supervisors. (R. at 54-55, Tr. 3-4).  During the hearing, the plaintiff was offered the opportunity to make closing remarks to the Board panel, but was not offered the opportunity to call or cross-examine any witnesses appearing before the Board, namely Petchark.  (R. at 56, Tr. at 5).  Although the plaintiff was represented by an attorney, the attorney's role was limited to answering questions asked by the Board and making a closing statement on behalf of the plaintiff.  (R. at 57, 66,  Tr. at 6, 15).

 

The Board of Review found that "termination for misconduct, specifically failure to cooperate during the course of a company investigation was justified."  (R. at 75, Tr. at 24).  The Board found as mitigating factors the following: that the "previous disciplines were reviewed and had a positive effect . . . as he had no disciplines from 1993 to the present," good evaluations, good work record, employee's statement "that he has learned not to interfere with others' problems and not get involved, and that "the employee stated that he could not divulge the names on the investigation as he was bound to confidentiality by the ".A. group."  (R. at 75-76, Tr. at 24-25).  Reduction of the plaintiff's termination to a suspension with back pay was the Board's recommended discipline. (R. at 5, 75, Tr. at 24).

 

By memorandum dated November 6, 1997, F.M. Celey, President/CEO of the Gaming Enterprise, agreed with the Board's finding that termination was appropriate, however he did not agree with the recommendation to reduce it to a suspension.  (R. at 3).  Rather the President/CEO found that "[i]t is clear that the employee did interfere with a company investigation." Id.  He further found the plaintiff's behavior "to be inexcusable." Id.  The President/CEO decided to uphold the plaintiff's termination.  Id.  This appeal followed.

 

ISSUES OF LAW

 

The plaintiff raises six separate arguments in support of his appeal:

  1. There was no reasonable basis to support the finding of "misconduct, specifically failure to cooperate during the course of a company investigation . . .;"

  2. Management failed to follow its policy regarding the disciplinary process to be followed for supervisory positions in that the Director of Employee Relations failed to conduct an appropriate "independent inquiry" of the incident leading to plaintiff's termination consistent with Gaming Enterprise policy and to bring the results of the investigation to a Senior Vice President for a determination of appropriate discipline;

  3. There was no reasonable basis on which to conclude that the plaintiff violated any conditions of employment held by the employee, including work rules, Standards of Conduct, or other conditions of employment;

  4. Termination was not an appropriate discipline and constituted an abuse of discretion;

  5. Plaintiff was denied a fair hearing and his due process rights under the Indian Civil Rights Act, because he was not allowed to testify in his own defense, call witnesses in his defense, or cross examine management's witnesses at the Board of Review;

  6. Plaintiff was denied his due process rights because the President/CEO has excessive power to overturn the Board of Review.

     

The parties agreed to a delay in the rendering of a decision in this matter until a case with similar issues concerning the ability to conduct cross examination was decided by the Mashantucket Pequot Court of Appeals.  That decision has recently been rendered in Grossi v. Mashantucket Pequot Gaming Enterprise (Memorandum of Decision dated November 5, 1998, MPCA-98-1040) (Zampano, J.).  This Court finds, after a thorough review of the record, that the rationale of Grossi controls the disposition of this matter. 

 

Just as in Grossi, the plaintiff in the instant appeal was denied the opportunity to present witnesses and cross-examine witnesses before the Board of Review.  The Court of Appeals found that the denial of the opportunity to cross examine witnesses was an error by the Gaming Enterprise that implicated "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error."  Grossi at 5, quoting Chapman v.California, 386 U.S. 18, 23 (1967).  Adhering to the holding of Grossi, that the Board of Review policy denying the plaintiff the opportunity for cross-examination "is a fundamental constitutional infirmity which per se mandates judicial relief," this Court sustains the plaintiff's appeal.  Grossi at 6.

 

REMEDY

 

The plaintiff argues that he was entitled to an independent inquiry of the alleged incident of misconduct and a review of the investigation by a Senior Vice President for a determination of appropriate discipline. Such an inquiry and review is required for "all supervisory positions" by the Mashantucket Pequot Disciplinary Policy. The Board of Review Policy, however, defines a "supervisor" as "salaried employees who are not members of the Operations and Management Committee."  (R. at 47).  The plaintiff admits in his sworn affidavit that "I went from being paid a salary to being paid an hourly wage."  (Affidavit of James V. Farrell, p. 2, & 8.)  The Court finds based on the record presented that the plaintiff was an hourly employee and thus does not meet the definition of a "supervisor" for purposes of the Disciplinary Policy.  Consequently, the Gaming Enterprise was not required to have the plaintiff's discipline reviewed by a Senior Vice President other than the plaintiff's Senior Vice President, nor was he entitled to a three member Board of Review comprised only of salaried supervisory employees.

The plaintiff, for the reasons stated above, is entitled to a new hearing before a Board of Review wherein he shall be allowed to call and cross-examine witnesses.   The Court has not reached the remaining issues of the plaintiff's appeal as argued in his brief dated April 14, 1998 in light of its decision to remand.  Plaintiff is afforded the opportunity to fully explore these issues in his de novo hearing by the Board of Review and any further proceedings held by the President/CEO.

 

IT IS HEREBY ORDERED that this matter is hereby remanded to the Gaming Enterprise for the purpose of convening a Board of Review to conduct a de novo hearing on the allegations set forth in the charging document.  Such hearing shall be conducted on or before January 29, 1999.  If the Board of Review hearing is not conducted as ordered herein, the Gaming Enterprise shall file a written statement with the Court with an explanation of reason(s) why the hearing was not held.

 

Barbara Masters, Esq., for Plaintiff

Jeffrey R. Godley, Esq., for Defendant

Michael Carey, Esq., for Defendant

Marietta Anderson, Esq., for Defendant

 

 

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