Mashantucket Pequot Gaming Enter. v. Van Lew, (2021)

• Decision Date: 29 April 2021
• Docket Number: MPTC-CV-AA-2019-182
• Citation: Mashantucket Pequot Gaming Enter. v. Van Lew, MPTC-CV-AA-2019-182 (Mashantucket Pequot Tribal Ct. Apr 29, 2021)
• Parties: MASHANTUCKET PEQUOT GAMING ENTERPRISE v. RYAN VAN LEW
• Court: Mashantucket Pequot Tribal Court

MASHANTUCKET PEQUOT GAMING ENTERPRISE v. RYAN VAN LEW

No. MPTC-CV-AA-2019-182

Mashantucket Pequot Tribal Court

April 29, 2021

Tawnii Cooper-Smith, Esq., for the Appellant

M John Strafaci, Esq., for the Appellee

MEMORANDUM OF DECISION

EDWARD B. O'CONNELL, JUDGE

The appellant, the Mashantucket Pequot Gaming Enterprise(hereinafter "Gaming Enterprise"), appeals the final decision of the Board of Review(hereinafter "Board") pursuant to the Employee Review Code, 8 M.P.T.L. ch. 1.The Board overturned the Gaming Enterprise's termination of the appellee, Ryan Van Lew(hereinafter "Mr. Van Lew"), and awarded him back pay.Thereafter the Gaming Enterprise filed a timely appeal to this Court.

Mr. Van Lew was employed as an executive casino host with the Mashantucket Pequot Gaming Enterprise's Casino Marketing Department(hereinafter "Casino Marketing" or "management.").An executive casino host "is responsible for development and retention of Casino Players through outstanding customer service...." and "[r]esponsible for the development, retention and daily supervision of the Casino Host team...."R. at 274.The "Essential Duties and Responsibilities" of an executive casino hostinclude but are not limited to: (1) greeting established and new customers on the casino floor (2) explaining the casino's guest services to patrons (3) authorizing and issuing complimentaries (hereinafter "comps") to eligible patrons; (4) facilitating reservations for dinner, hotel, show and transportation for patrons; (5) timely responding to requests from casino pit personnel and the Slot Operations Department; (6) acting as the liaison in the casino pit for new and existing patrons (7) coaching, developing, leading, and supervising casino hosts and other fellow employees; (8) developing and training new and existing casino hosts; (9) managing and assisting with special event functions; (10) monitoring ticket inventories; and (11) interacting as necessary with other casino departments and outside personnel.R. at 274-76.Mr. Van Lew describes his position as: (1) covering lounges for up to three hours per shift in accord with the schedule; (2) responding to "pop-up emergencies and issues" that require immediate attention; (3) training new employees; and (4)"covering specific strategic locations" throughout the casino.Def.'s Br.at 3.

Mr. Van Lew was struggling with multiple attendance issues from the fall of 2018 to January 1, 2019.On January 1, 2019, Mr. Van Lew called out of work without any benefit time.R. at 171-73.On January 7, 2019, the Gaming Enterprise asked Mr. Van Lew for a statement on why he called out of work on January 1.R. at 171-72.He explained that in the past few months he had been diagnosed with depression and anxiety and was undergoing treatment, and that "things came to a head" on the night of December 31, 2018 and the morning of January 1, 2019.R. at 171.In his statement, he writes that he"had a major anxiety attack that morning, which made [him] unable to perform [his] duties...."Id.Mr. Van Lew felt that he would not have been a benefit to his co-workers if he came in on January 1.Id.On January 11, 2019, Mr. Van Lew received a written warning for calling out on January 1.R. at 167.

Mr. Van Lew's attendance problems did not stop there.On March 15, 2019, he received coaching for his absences on September 25, 2018, January 1, 2019, February 12, 2019 and March 12, 2019.R. at 165-66.On April 12, 2019, the Gaming Enterprise created and implemented a "development plan" for Mr. Van Lew. R.at 39a-39b.

The development plan was "intended as a tool to help [Mr. Van Lew] with the development and guidance in areas that management sees needs improvement with [his] overall work performance and attendance standards."R. at 39b.The development plan instructed Mr. Van Lew to "demonstrate immediate improvement" in "Job Knowledge and Performance" and "Attendance and Punctuality."R. at 39a.In regards to "Job Knowledge and Performance," Mr. Van Lew was "expected to make 35-40 phone calls per day" in order to improve his performance numbers as an executive casino host.R. at 39a.In addition, Mr. Van Lew was "expected to meet players on the floor to 'code' them correctly" and to "correctly input information into the departmental data base" when he booked events.R. at 39a.The development plan further instructed that in regards to "Attendance and Punctuality," Mr. Van Lew was expected "to adhere to Fox woods Attendance Standards" and "to work on [his] attendance or discuss with [his] department head within two weeks, how management can help [him] adhere to attendance standards."R. at 39a-39b.The development plan provided that Mr. Van Lew"will be held accountable and responsible to ensure that all tasks are completed to set company policies and procedures; and set departmental standards and procedures."R. at 39a.Upon reading the development plan, Mr. Van Lew signed his name to it with the understanding "that if there is not immediate improvement satisfactory to ... management and/or Team Member Relations ... [f]urther disciplinary action leading up to and including termination" may result.R. at 39b.

On April 15, 2019, Mr. Van Lew sent the Director of Casino Marketinga long email outlining a number of concerns he had about the expectations in the development plan.R. at 261-63.He took issue with the development plan's requirement that he make 35-40 calls per day as he felt this was an unreasonable expectation.R. at 262.He also disagreed with the expectation that he meet players on the floor and "code" them correctly, and that he correctly input information in the departmental database when booking events.Id.The issue he had with this expectation was that it implied he previously had not been doing those tasks when he believed that he had been.Id.He also disputed the development plan'sstatement that he missed an excessive amount of time from work.Id.He asserted that except for two occasions, he used earned time off whenever he called out.Id.

On June 7, 2019, Mr. Van Lew received a written warning for failing to swipe in/out of work on May 11, 2019, May 18, 2019 and May 21, 2019.R. at 141.On June 15, 2019, Mr. Van Lew received a written warning for comping a guest without recording it in the "Comp Log" or notifying anyone.R. at 79.On August 7, 2019, Mr. Van Lew received written notice that the Gaming Enterprise was terminating his employment.R. at 15.According to the Charging Document, Mr. Van Lew failed to make the 35-40 phone calls per day as required by the development plan and failed to make the required changes to his schedule to meet management's expectations.R. at 14.

On October 29, 2019, the Board convened for a hearing on Mr. Van Lew's appeal of his termination.R. at III-VI; 308-81.The Board was informed that Mr. Van Lew had been terminated for "unsatisfactory work performance,"(R. at 310-11), and violating the Gaming Enterprise Development Plan and Disciplinary and Performance Improvement Policy, Section II-Policy 15, (R. at III).On the same day, the Board issued a final decision returning Mr. Van Lew to work with back pay.R. at VI.Explaining its final decision, the Board wrote:

Based on witness and open testimony by both partieswe came to a unanimous decision.We felt the team member was being held to a different standard. 35-40 calls was too high of an expectation.We heard witness testimony that other executive hosts did not make that many calls.One testified he made 30-40 a month.We decided witness testimony from Mark mitigated the development plan.We agree that he should receive back pay.

Id.In addition to the existence of mitigating circumstances associated with the development plan, the Board found that there was no specific policy or procedure that he had failed to adhere to.R. at IV-VI.The Gaming Enterprise now appeals the Board's final decision to this Court, claiming that: (1) the Board erred in its application of mitigating circumstances in reversing Mr. Van Lew's termination; and (2) the Board did not have a reasonable basis to conclude that Mr. Van Lew did not violate the policies and/or procedures associated with his termination.

STANDARD OF REVIEW

This Court has been granted jurisdiction to review a Board's final decision.8 M.P.T.L. ch. 1 § 2(a).The Employee Review Code limits the Court's review to the record Id.§ 8(b); the evidence presented to the Board, Id.§ 1(e); and any briefs filed by the parties and oral argument presented by the parties at the court hearing, Id.§ 8(b).The Court cannot substitute its judgment for that of the Board "as to the weight of the evidence or credibility of the witnesses."Id.§ 8(c).

Title 8 of the Employee Review Code requires the Court to determine whether the Board's final decision was appropriate by asking whether:

(1) There was a reasonable basis for the Board [of] Review's consideration that the Employee did or did not violate the policies and/or procedures established by the Employer for the position held by the Employee;

(2) There was a reasonable basis to find that the Employer did or did not substantially comply with the policies and/or procedures regarding discipline;

(3) The Employee was given a description of the offense or conduct that was the basis for the Disciplinary Action and both parties were afforded a reasonable opportunity to present and refute evidence regarding the offense or conduct and/or evidence of aggravating or mitigating circumstances relating thereto;

(4) There was a reasonable basis for the Board of Review's decision as to whether the form of discipline was or was not appropriate for the offense or conduct; and

(5)The Board of Review's decision is in violation of tribal laws or exceeds the

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