Fleming v. Mashantucket Pequot Gaming Enter., (2021)

• Decision Date: 04 June 2021
• Docket Number: MPTC-CV-AA-2018-194
• Citation: Fleming v. Mashantucket Pequot Gaming Enter., MPTC-CV-AA-2018-194 (Mashantucket Pequot Tribal Ct. Jun 04, 2021)
• Parties: SARAH FLEMING v. MASHANTUCKET PEQUOT GAMING ENTERPRISE
• Court: Mashantucket Pequot Tribal Court

SARAH FLEMING v. MASHANTUCKET PEQUOT GAMING ENTERPRISE

No. MPTC-CV-AA-2018-194

Mashantucket Pequot Tribal Court

June 4, 2021

M John Strafaci, Esq., for the Appellant

Tawnii Cooper-Smith, Esq., for the Appellee

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS

EDWARD B. O'CONNELL, JUDGE

BACKGROUND

This matter has proceeded at a glacial pace with an extraordinary passage of time through no fault of either party.This Court has granted numerous motions for continuance on behalf of both parties due in large part to the health and travel concerns of the parties, witnesses, and attorneys, especially in light of the onset and continuation of the COVID-19 pandemic.

The Plaintiff, Sarah Fleming, a bartender in the Food and Beverage Department of Fox woods Resort and Casino operated by the Mashantucket Pequot Gaming Enterprise(hereinafter the "Gaming Enterprise") was terminated from her employment on November 30, 2017.She filed a timely notice of appeal to the Board of Review.A Board of Review hearing was scheduled for December 3, 2018 at 9:30 a.m.

The parties disagree as to what occurred on the morning of December 3, 2018.By way of a letter dated the same day December 3, 2018, the Moderator of the Board of Review informed the Plaintiff that "[t]he panel deliberated and reached an unaninomous [sic] decision to consider your failure to arrive by 9:45 a.m. an abandonment of your request for a Board of Review.As such, the disciplinary action stands."On December 10, 2018, the Plaintiff filed a timely notice of appeal from the Board's decision to this Court, pro se.

The Gaming Enterprise then filed the instant Motion to Dismiss on March 15, 2019 on two grounds: that the Court did not have subject matter jurisdiction because the Plaintiff did not allege a violation of her procedural due process rights; and that the Plaintiff did not receive a Final Decision from the Board of Review.The Plaintiff then retained an attorney and filed an Amended Notice of Appeal.In her Amended Notice of Appeal, the Plaintiff alleges that her procedural due process rights were violated when the Board of Review would not allow the Plaintiff and her witness to testify, and that the Board issued a Final Decision, which effectively upheld her termination.An oral argument on the Motion to Dismiss followed on May 16, 2019, at which time the Plaintiff testified.

During the Plaintiff's testimony on May 16, 2019, she described the day in question, December 3, 2018.According to the Plaintiff, she timely arrived at the entrance to the Gaming Enterprise premises, but was held up by security because she no longer had an employee identification badge, which was taken from her upon her termination.The Plaintiff mistakenly informed security that she needed to go to the Human Resources Department instead of the Employee Relations Department, where the Board of Review hearing was to occur.She attempted to contact her union representative who was already in the hearing room via text message, but her efforts were unsuccessful.The Plaintiff eventually arrived at the Employee Relations Department's waiting area outside the hearing room.There she met her friend who had given her a ride to the hearing and was to be her witness at the hearing.Once in the waiting area, the Plaintiff recognized Brandon Sweet, who was to be one of the management witnesses.Mr Sweet had a conversation with the Plaintiff's witness before he entered the hearing room.It is unknown whether Mr Sweet informed the Moderator and panelists in the hearing room that the Plaintiff had arrived at the waiting area, or at what stage the proceedings in the hearing room were at when the Plaintiff arrived in the area outside the hearing room.

Following the Plaintiff's testimony during oral argument, the Court determined, sua sponte, that because there are disputed issues of fact central to the motion to dismiss, due process requires an evidentiary hearing on those facts, citing Jeffs v. Brown, 1 Mash.Rep. 148, 150(1995), aff'd, 1 Mash.App. 40(1997)("If there is a disputed issue of fact critical to the determination of the motion to dismiss, due process requires an evidentiary hearing; a court cannot make critical factual findings based upon memoranda and representations of parties.").See Mem. Re Def.'s Mot. to Dismiss, Feb. 6, 2020.

Thereafter, an evidentiary hearing was conducted on January 21, 2021.^[1]The Plaintiff relied on her May 16, 2019 testimony.The Gaming Enterprise presented its witness, Attorney Meredith Diette, the Moderator of the Board of Review hearing on December 3, 2018.Ms. Diette testified on direct and on cross-examination.

According to Ms. Diette, the Plaintiff's union representative was noticed by way of a letter as to the date and time of the Board of Review hearing.The notice letter also informed the Plaintiff(through the union representative) to arrive at least ten minutes before her scheduled hearing.Ms. Diette also asserted that prevailing custom at the Office of the Board of Review Moderator provided employees and their representatives with a fifteen-minute grace period to arrive at their Board of Review hearing before it is considered abandoned.She also asserted that employees or their representative received notice of this grace period in the notice letter.The Gaming Enterprise, through its attorney, also pointed out that the Plaintiff received and initialed the Board of Review Request and Scheduling Form, where she was twice reminded that her failure to appear at the scheduled Board of Review hearing would result in the hearing being deemed abandoned and the Plaintiff being deemed to have given up her right to a hearing.

The instant Board of Review hearing was scheduled to begin at 9:30 a.m. on December 3, 2018.In the eyes of the Gaming Enterprise, the Plaintiff had until 9:45 a.m. to arrive before her hearing would be considered abandoned.Ms. Diette testified that at 9:45 a.m. on December 3, 2018, the Plaintiff was not present at her Board of Review hearing(neither in the actual hearing room nor in the area outside the hearing room).Although initially the Plaintiff's union representative had indicated to the Board of Review that her client was on her way, she did not wish to proceed and did not request a continuance after the fifteen-minute grace period had passed.At that time, the Board of Review deliberated and found the Plaintiff to have abandoned her hearing in accordance with custom, and as a result, upheld the Plaintiff's termination.

Ms. Diette further asserted that no one in the Office of the Board of Review Moderator had received communications from the Plaintiff or the Plaintiff's union representative as to her arrival on the premises of the Gaming Enterprise or her difficulties locating the hearing room on the day of the Board of Review hearing.Ms. Diette also added that typically if a witness or employee arrives in the waiting area and Ms. Diette is already in the hearing room, an employee who sits at the entrance to the Employee Relations Department would notify her of his or her arrival.Ms. Diette claimed that had the Plaintiff arrived while she was in the hearing room, "[she] would have known."

Having received the evidence, albeit over a long period of time, the Court can now consider the merits of the motion to dismiss.

STANDARD OF REVIEW

"A motion to dismiss is the proper procedural vehicle for contesting the subject matter jurisdiction of the Court."Barnes v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 395, 396(2017)(citingMamiye v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 328, 331(1996))."Rule 12(b)(1) of the Mashantucket Pequot Rules of Civil Procedure provides for a challenge to the Court's jurisdiction by way of a motion to dismiss, on the basis of a lack of subject matter jurisdiction."Id.;M.P.R.C.P. 12(b)(1)."Once the jurisdiction of the [C]ourt is called into question, the [C]ourt must fully resolve the issue before proceeding further with the case."Quarti v. Mashantucket PequotGaming Enterprise, 6 Mash.Rep. 15, 18(2012)(quotingLake & Keri Spears Masonry, Inc. v. Mashantucket Pequot Tribal Nation, 4 Mash.Rep. 363, 365(2006))."Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter or lacks jurisdiction based upon sovereign immunity from suit, the court shall dismiss the action."M.P.R.C.P. 12(h)(3).

DISCUSSION

A.Subject Matter Jurisdiction

The first issue is whether the Court has subject matter jurisdiction over this appeal.The Gaming Enterprise asserts that a Board of Review hearing and Final Decision are necessary prerequisites for an appeal under the Employee Review Code, and because the record contains no Final Decision the Plaintiff's appeal must be dismissed.

The Plaintiff contends that had the Board of Review been notified of her arrival in the Employee Relations Department, it would not have found the Plaintiff to have abandoned her request for a hearing.The Plaintiff further argues that the Board of Review's deliberations and subsequent determination that the Plaintiff had abandoned her request for a hearing was a Final Decision.The Gaming Enterprise responds that deliberation and determination by the Board of Review did not constitute a hearing where a Final Decision, as defined by the Mashantucket Employee Review Code, was issued.

A "Final Decision" is defined as "the decision of the Board of Review as to whether to uphold or rescind a Disciplinary Action and shall include articulated findings with respect to the factors set forth in § 8(f)(1-4)."8 M.P.T.L. ch. 1 § 1(1).

The Employee Review Code provides the Court with express jurisdiction to review a Final Decision of the Board of...