Mashantucket Pequot Tribal Nation v. Davis, (2021)

• Docket Number: MPTC-CV-AA-2019-126
• Decision Date: 07 October 2021
• Parties: MASHANTUCKET PEQUOT TRIBAL NATION v. CARRIE-ANN DAVIS
• Court: Mashantucket Pequot Tribal Court

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MASHANTUCKET PEQUOT TRIBAL NATION v. CARRIE-ANN DAVIS

No. MPTC-CV-AA-2019-126

Mashantucket Pequot Tribal Court

October 7, 2021

Tawnii Cooper-Smith, Esq., for the Appellant.

M John Strafaci, Esq., for theAppellee.

MEMORANDUM OF DECISION

Edward B. O'Connell, Judge.

In this appeal brought pursuant to the Employee Review Code, 8 M.P.T.L. ch. 1, the appellant, the Mashantucket Pequot Tribal Nation (hereinafter "Tribe"), appeals the final decision of the Board of Review(hereinafter "Board") to overturn the Tribe's termination of the appellee, Carrie-Ann Davis(hereinafter "Ms Davis"), and award her threemonths' back pay.

The extraordinary time period of this matter should be addressed.This administrative appeal was brought before the Court in the spring of 2019, now over two years ago.This Court, like many if not all courts in the nation, has been afflicted with the unprecedented Covid-19 pandemic, the ensuing closures and shutdowns associated with the pandemic, and the necessity of the attorneys, staff and judiciary to navigate the vagaries of the pandemic.This has resulted in uncommonly long deferrals of decisions.This case is among those deferred decisions^[1].

Ms Davis was employed as a surveillance officer in the Surveillance Department of the Tribe(hereinafter "Surveillance Department" or "management").Her primary job duties consisted of monitoring security cameras.Def.'s Br. 2;R. at 291.She began having health problems prior to May 26, 2018.On August 27, 2017, monitor room supervision observed Ms. Davis asleep at her workstation in the surveillance monitor room for eight minutes.The next day, August 28, 2017, monitor room supervision again observed Ms. Davis asleep at her workstation in the surveillance monitor room for nine minutes.R.at 88.On both occasions, monitor room supervision took control of Ms. Davis'workstation cameras three to four times and moved them as a way to confirm that Ms. Davis was in fact asleep.R. at 88, 90.Ms. Davis did not wake up or respond in any way to the movement of her workstation cameras and remained asleep.Id.

These two episodes resulted in a Performance Improvement Notice dated September 5, 2017 that constituted a Final Warning.Ms Davis provided a written statement regarding these two incidentsexplaining that her "condition is not falling asleep," but instead "due to some medical issue" where she would slur her speech, go out for a few seconds and then become coherent again as if nothing had occurred.She was aware of the moving cameras.Ms. Davis noted that she had informed management about her medical issue and the fact that she was seeing two doctors to address her medical issue.She further explained that these episodes tended to occur when the room was warm, quiet, and she concentrated or focused too hard on something.Ms. Davis opined that her issue, although happening more frequently, was getting better because she would try "to break that feeling" by getting up, eating, speaking to someone, getting water, going to the restroom, or doing a different assignment.R. at 89.

Ms. Davis' medical issue continued.On May 26, 2018, the surveillance shift manager observed her asleep at her workstation in the surveillance monitor room for eight minutes.R. at 66-67.The surveillance shift manager approached Ms. Davis' workstation and leaned in closer to her, but she did not respond and her eyes remained closed.The surveillance shift manager then tapped on Ms. Davis' workstation and told her to "wake up," at which time, she did awaken.As a result of this episode, Ms. Davis was suspended pending further investigation on June 12, 2018.R. at 66.She provided a written statement regarding the incident.Ms. Davis explained that the room was warm and quiet, and she was watching her camera when she closed her eyes.She did not believe that this episode was similar to previous ones and she noted that "this was not a case of sleeping."R. at 67.

On July 2, 2018, Ms. Davis was advised that the Tribe was terminating her employment.R. at 16, 54.According to the Charging Document, the "evidence reflects that [Ms. Davis] was observed sleeping by her co-worker," as review of the camera coverage shows that Ms. Davis "has her head tilted down, when management walks over and awakens her."The Charging Document further states that the Tribe terminated Ms. Davis' employment because she violated the Tribe's Standards of Conduct Section IV Subsection 4, specifically loafing or sleeping on the job.R. at 15.

On March 13, 2019, the Board convened for a hearing on Ms. Davis' appeal of her termination.R. at III-VI;R. at 250-312.The Board was informed that Ms. Davis had been terminated for "misconduct"(R. at 255) and violating the Standards of Conduct Section IV Subsection 4, specifically loafing, or sleeping on the job (R. at III).Upon considering the evidence, the Board issued a final decision returning Ms. Davis to work on a final warning with three months' back pay.R. at VI.Explaining its decision, the Board wrote "[w]e felt that [her] medical condition warrents [sic] return."R. at III.The Board found that Ms. Davis "was caught with her eyes 'closed' which is [a] policy violation of sleeping/loafing on the job," in which termination is appropriate, but Ms. Davis "had mitigating medical conditions identified in [her] file."R. at IV.The Board further found that "undiagnose[d] medical condition at [the] time of [Ms. Davis'] termination" was a mitigating circumstance that influenced the Board's decision because "she's activley [sic] seeking treatment and under doctors['] care."R. at V.

The Tribe now appeals the Board's final decision to this Court, claiming that the Board erred in finding and applying a mitigating circumstance to Ms. Davis' conduct.The Tribe argues that there was not a reasonable basis for the Board to have reduced Ms. Davis' termination and ordered back pay.

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 Board's authority under tribal law.

Id.§ 8(f).A "reasonable basis" exists when there is "substantial evidence" in the record

to support the Board's factual findings and when the Board's conclusions derived from those factual findings are rational and reasonable.George v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 322, 329(2010).As a result, the record must contain "substantial evidence" for the Board's final decision to have a "reasonable basis."

Substantial evidence is more than a scintilla.It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.The evidence must afford a substantial basis of fact from which the fact in issue can be reasonably inferred and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.It is not necessary that such evidence be unequivocal, but rather that it support the [Board's] findings.

Mashantucket Pequot Gaming Enterprise v. Scheller,6 Mash.Rep. 126, 129(2014)(quotingMagee v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 40, 53(2007)(citations and quotation marks omitted)).

If substantial evidence exists, and if the [Board's] conclusions are rational and reasonable, the reviewing court would find that the [Board] had a reasonable basis for concluding that the employee violated the policies or procedures established for the position held by the employee.If substantial evidence does not exist, or if the [Board's] conclusions are not reasonable or rational, the decision would constitute a clear error of judgment and the [Board] would not have a reasonable basis for concluding that the employee violated the policies or procedures of the Gaming Enterprise.

Id.(quotingGeorge v. Mashantucket Pequot Gaming Enterprise,5 Mash.Rep. 322, 329(2010)(citations and quotation marks omitted)).

Judicial review of the administrative decision to suspend or terminate an employee at the Gaming Enterprise is extremely limited.In considering employment appeals, this court's role is solely to determine whether the [Board] acted arbitrarily, capriciously, or in abuse of [its] discretion.In making this determination, the court does not retry the facts.The trial court

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