The plaintiff, a slot technician, 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 MPTL ch. 1 ("the code").

The plaintiff was terminated on July 10 for misconduct and dishonesty. In the time between 1995 and the present, the case of Leon Johnson vs. Mashantucket Pequot Gaming Enterprise has had a somewhat celebrated procedural history. Appeals to the Appellate Court and subsequent de novo hearings have been conducted. Finally, on June 29, 1999 a Board of Review conducted a de novo hearing. The Board of Review recommended that the plaintiff’s termination be reduced to a suspension with no back pay (R. 5). Thereafter FM Celey, President/CEO of the Gaming Enterprise issued a detailed memorandum of findings and conclusions and ruled that the plaintiff's termination be upheld. The plaintiff made a timely appeal of the President/CEO's decision to this court.

On January 21, 1995 a slot machine was taken out of service because of constant hopper jams. The plaintiff, as a slot machine technician, was called to repair the machine. It is alleged by the Gaming Enterprise that while repairing the slot machine the plaintiff attempted to conspire with a patron "in order to receive cash from the machine". (R. 20) A statement obtained from the patron by an inspector for the Mashantucket Pequot Gaming Commission revealed that the patron started to play a slot machine next to the one that the defendant was repairing (R. 36). The patron stated that when the machine was fixed the defendant told the patron to play off some of the credits and then cash out and split the money with the defendant (R. 41). The patron cashed out 90 credits from the machine and attempted to hand tokens to the defendant (R. 27). The defendant told the patron to cash out and then give him the paper money as they shook hands (R. 36). After the patron cashed out and before the patron went back to the machine, the patron notified a security officer of what transpired (R. 36). The security officer, Christina McDade, informed James Keane, a slot supervisor, of the situation (R. 28). James Keane went to look for the patron (R. 29). As he did so, he saw the defendant standing next to a slot machine (R. 29). At the time Keane was looking for a "slot attendant" not a "slot technician" so he simply asked the defendant if anyone had a complaint (R. 29). The defendant responded that there was no complaint and that he was just holding a machine for a patron (R. 29). The defendant asked Keane to "tell the guy to forget it" and left the machine. (R. 29). Keane observed that the defendant seemed nervous (R. 29). Thereafter, the security officer, McDade, found the patron. (R. 29) and asked him to return to the machine he was playing (R. 40). Officer McDade observed that the patron seemed nervous and afraid to return to the slot machine (R. 42). The patron asked if he should just go pay the slot technician, i.e. the defendant (R. 42). The patron, McDade and Keane then went to the machine in question. (R. 42) The slot machine in question was the same slot machine referred to in all statements of the witnesses in the record. Security Officer McDade reported that she had seen the defendant standing next to the slot machine in question (R. 42). The "patrons activity inquiry" confirmed that the patron did play the slot machine in question (R. 43). The defendants work record, signed by him, indicates that he repaired and cleaned the slot machine in question. The patron paid $90 to Mr. Keane, the slot supervisor (R. 41).

A. Standard of Review

The courts role under the law in employment appeals is limited. The court can only determine whether the President/CEO's decision was arrived at in an arbitrary or capricious manner or whether he abused his discretion. (See Delucia vs. Mashantucket Pequot Gaming Enterprise, M.P.T.C.-EA-99-103 at 6 October 13, 1999.) As the court noted in Delucia "the 'arbitrary and capricious' test allows only the most limited scope of review." Id (citations omitted). "In the performance of its duty the trial court may not retry the case or substitute its judgment for that of the President/CEO on the weight of the evidence or on questions of fact." Thompson vs. Mashantucket Pequot Gaming Enterprise, 1 MPR 22, 24 (1996).

This appeal can be sustained only if the court finds that the Gaming Enterprise's decision to terminate the plaintiff was in fact "arbitrary and capricious" under Section 8 (d) of the code which provides in pertinent part:

. . .In determining whether the decision was arbitrary and capricious the Tribal Court shall sustain the decision of the Enterprise if it finds that:

(1) The President/CEO had a reasonable basis for concluding that the employee violated the applicable work rules, standards of conduct or the conditions of employment established by Enterprise for the position held by the employee; in evaluating such basis the Court shall recognize the discretion of the supervisor to evaluate the weight of evidence and credibility of information;

(2) The President/CEO substantially complied with the policies of the Enterprise regarding progressive discipline in the case of any minor infraction;

(3) The President/CEO provided the employee with a description of the alleged infraction which was the basis for the decision and a reasonable opportunity to present the supervisor with information indicating that the employee did not commit the infraction and any mitigating circumstances relating to the infraction, provided, however, that no formal rules of evidence or procedure shall be required in any personnel proceeding;

(4) The President/CEO exercised his or her discretion to select the form of discipline deemed appropriate for the infraction in a manner which did not constitute an abuse of discretion; provided, that the Court shall recognize the necessity for supervisors to exercise professional judgment and discretion in electing the form and level of discipline appropriate to the particular infraction in the light of all facts and circumstances pertinent to the individual case.

The plaintiff does not contend that sections (d)(2) or (d)(3) are at issue in this case. This is not a progressive discipline case under (d)(2) and all procedural issues claimed by the plaintiff have been resolved by prior court decisions. Therefore, this case involves whether the President/CEO had a reasonable basis for concluding that the employee violated the standards of conduct in (d)(1) and whether the President/CEO exercised his discretion in selecting the form of discipline deemed appropriate for the violation pursuant to (d)(4).

(i) The President/CEO had a reasonable basis for concluding that the plaintiff violated work rules and standards of conduct.

The plaintiff first argues that there is no basis in the record to conclude that the machine in question had any credits on it and alleges that there is no evidence in the record that the plaintiff put the credits on the machine. The plaintiff claims that there were only two ways to get credits on the machine and in either way the machine must be played. The plaintiff points out that the patron said that the plaintiff never played the machine and the machine made no noise which would indicate that it was played. Therefore, the plaintiff argues that it is doubtful that any credits could have been on the machine. The record contains references to the effect that if the machine is opened all credits will disappear when the door is closed. The record also contains references that if the machine is closed, credits can only be accrued if the machine is played. However, this confusion is resolved by the report of William Rogers. He states that if "jumpers" (a device which connects the door optics together) are used by the repair person, the machine operates as if the door is closed and the credits stay on the machine when the door is eventually closed. Therefore, there is evidence in the record that explains how credits could have appeared on the machine that was opened and being repaired, after the machine was closed.

The plaintiff argues that the patron in question implicated him because of a confrontation the plaintiff had with the patron while cleaning the machine. The plaintiff claimed that the patron made certain racial statements to the plaintiff and the plaintiff reacted by swearing at him. This verbal altercation, the plaintiff asserts, was the motivating factor for the patron to make a false complaint against him. The plaintiff argues that there was not sufficient evidence in the record to conclude that he attempted to conspire with this patron in order to receive cash from the machine. The record, however, discloses the following facts:

(1) The patrons story confirms the allegation and is the basis for the termination;

(2) Security Officer McDade initially heard the story first hand from the patron and observed that the patron was nervous and afraid to return to the machine where he was to give the plaintiff one half of the $90;

(3) Security Officer McDade remembered seeing the plaintiff standing at the slot machine in question;

(4) The Slot Supervisor, James Keane, observed the plaintiff standing at the machine in question approximately 35 minutes after the machine had been fully repaired by the plaintiff; the machine was empty and the plaintiff claimed to be holding the machine for someone; the Slot Supervisor, James Keane, noticed that the plaintiff seemed nervous;

(5) The patron voluntarily paid the Gaming Enterprise $90.

The President/CEO could reasonably find from the above facts that it was not a coincidence that the machine the plaintiff worked on and over which he allegedly had a confrontation with the patron was the same machine the plaintiff was later holding for some unknown person 35 minutes after the machine was repaired. The President/CEO could reasonably find that the statements of Auger, McDade and Keane were more credible than that of the plaintiff.

The President/CEO could have reasonably concluded that it was not believable that this whole incident was motivated by a patron who was getting revenge for a confrontation he had with the plaintiff. The patron would have had to lie to the security officer McDade, slot supervisor Jim Keane on the day in question and then on three separate occasions continue the lie when interviewed by the Gaming Commission (R. 38). Furthermore, the patron would have paid $90 to the Gaming Enterprise that was not due it. All of these actions by the patron would have been motivated by the patrons revenge against the plaintiff for having been sworn at. The record, however, is devoid of any material fact that one could conclude that the patron acted out of revenge or spite. This assertion by the plaintiff is speculative.

The plaintiff could have documented the confrontation that he alleged happened with the patron by reporting it to security or to his manager. The plaintiff took no action regarding that incident.

The plaintiff argues that the "time line" of the patron's story is not believable. The plaintiff worked on the machine at 3:00 until 3:10 when the machine was fixed. The incident allegedly was reported by the patron to the security officer at 3:25, about 15 minutes later. The plaintiff argues that in 15 minutes it is not believable that the patron: (1) played off some credits, (2) that the plaintiff allegedly returned three times to see how the patron was doing, (3) the patron cashed out, attempted to give cash to the plaintiff and then (4) went to the cashier and cashed the tokens into bills, all before going to the security at 3:25. The plaintiff argues that this could not have happened within 15 minutes. This court cannot say that such activity within that period of time is not believable and renders the decision of the President/CEO "arbitrary and capricious."

It is not possible to list all terms of behavior that are considered unacceptable in the workplace, but the following are examples of prohibited conduct in violation of M.P.G.E.'s Standards of Conduct that may result in disciplinary action up to and including suspension and/or termination of employment . . .

2. Theft, attempted theft . . .

3. Dishonesty . . .

Section VIII (d)(4) of the Code directs the Court to "recognize the necessity for supervisors to exercise professional judgment and discretion in electing the form and level of discipline appropriate to the particular infraction in the light of all facts and circumstances pertinent to the individual case." See also, Jancewicz v. Mashantucket Pequot Gaming Enterprise, 1 MPR 30, 31 (1996). In this regard, the Appellate Court has observed:

Except in circumstances where a review of the Record establishes that it is devoid of rational evidence to support a suspension or termination from employment (citation omitted), deference to the expertise and experience of management mandates that in employment matters the judiciary refrain from substituting its judgment for that of the President/CEO.

Andrade v. Mashantucket Pequot Gaming Enterprise, 1 MPR 26, 27 (1996) (citing Thompson v. M.P.G.E., MPCA-96-1009, (1996)). Whether the plaintiff's conduct deserves suspension or termination is not for the court to decide. The question before this court is not whether it would have reached the same conclusion as the President/CEO, but whether the record supports the action taken. Loesche v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 93, 96 (1995). This court is allowed only the most limited scope of review. Fickett v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 43, 52 (1993). This court must find a clear error of judgment. Id. So long as there was a rational basis for the decision of the Gaming Enterprise this court cannot overturn its decision as arbitrary and capricious. Id. at 51-52.

In light of the patron's allegations, together with the facts and observations of Security Officer McDade and slot supervisor Jim Keane and the investigation by the Gaming Enterprise, this court cannot find that the record is devoid of evidence that the plaintiff conspired with a patron to receive cash from credits that were accumulated on a gaming machine. Therefore, this court will not disturb the decision of the President/CEO.

IV. CONCLUSION

The termination of the plaintiff's employment had a rational basis found in the record and was not arbitrary or capricious. The decision of the President/CEO is sustained and the plaintiff's appeal is dismissed.

By the Court

By_____________________

Thomas J. Londregan, Judge