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

• Decision Date: 02 July 2021
• Docket Number: MPTC-CV-AA-2020-121
• Citation: Shakir v. Mashantucket Pequot Gaming Enter., MPTC-CV-AA-2020-121 (Mashantucket Pequot Tribal Ct. Jul 02, 2021)
• Parties: DAVID N. SHAKIR v. MASHANTUCKET PEQUOT GAMING ENTERPRISE
• Court: Mashantucket Pequot Tribal Court

DAVID N. SHAKIR v. MASHANTUCKET PEQUOT GAMING ENTERPRISE

No. MPTC-CV-AA-2020-121

Mashantucket Pequot Tribal Court

July 2, 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

The Plaintiff, David Shakir, a bartender in the Food and Beverage Department of Foxwoods Resort and Casino operated by the Mashantucket Pequot Gaming Enterprise(hereinafter the "Gaming Enterprise"), was terminated from his employment on August 16, 2018 for violating the Standards of Conduct for rude or discourteous behavior and failing to meet the standards of guest service in Foxwoods Five Star Service Standards.R. at 13.Specifically, he was terminated for an altercation with two fellow team members in which the Plaintiff used foul language in the presence of patrons.Id.He filed a timely notice of appeal to the Board of Review.Sometime after the Plaintiff's termination on August 16, 2018, he relocated to Florida.A Board of Review hearing was first scheduled for February 5, 2019 at 9:30 a.m.The Board of Review hearing was rescheduled three more times first, to June 4, 2019, then to July 25, 2019, and finally to August 27, 2019.

Both parties admit to requesting at least one continuance each prior to the fourth Board of Review hearing, which was rescheduled for August 27, 2019.According to the Plaintiff his union representative informed him of the August 27, 2019Board of Review hearing thirteen days before it was scheduled to convene.Upon learning of the date of that hearing, he asked his union representative to request a postponement to provide him with adequate time for travel from Florida to Connecticut.The Plaintiff asserts that his union representative then made the request, presumably on August 27, 2019, the day of the fourth scheduled Board of Review hearing, and reported back to the Plaintiff that the Moderator for the Board of Review would not grant another postponement because he had already been granted at least one continuance.Additionally, the Plaintiff's union representative indicated to the Plaintiff that the Moderator did not allow the union representative to proceed on behalf of the Plaintiff at the Board of Review hearing or present the Plaintiff's request to the Board of Review itself.^[1]

The Gaming Enterprise posits to a slightly different version of events.According to the Gaming Enterprise, on July 1, 2019the Plaintiff's union representative and the Moderator confirmed by way of an e-mail exchange that the fourth Board of Review hearing was scheduled for August 27, 2019.Contrary to the Plaintiff's assertion that he became aware of his fourth scheduled Board of Review hearing only thirteen days before it was scheduled to convene, the Gaming Enterprise insists that by virtue of the e-mail exchange the Plaintiff was aware of the Board of Review hearing for almost sixty days during which time the Plaintiff could have made the proper travel arrangements.

The Gaming Enterprise contends that the policy and procedures of the Board of Review authorized the Moderator to make decisions concerning the Plaintiff's request for a continuance.And when the Plaintiff failed to timely appear at his fourth scheduled Board of Review hearing on August 27, 2019, the policy and procedures of the Board of Review provided that the Plaintiff was deemed to have abandoned his request for and forfeited his right to a Board of Review hearing.

By way of a letter dated August 27, 2019, the Moderator informed the Plaintiff's union representative that the Plaintiff"requested a Board of Review and signed an agreement, which stated that failure to appear for his Board of Review Hearing would be considered abandonment, therefore forfeiting his right to a Board of Review."R. at I.The Moderator statedin the letter that "[t]he date and time of your client's Board of Review Hearing was confirmed via email on July 1, 2019, which email you confirmed receiving that same day."R. at I.The Moderator summarized the proceeding to the union representative: "your client is deemed to have abandoned his board request and given up his right to a Board of Review for neglecting to appear on the scheduled hearing date."R. at I.On February 26, 2020, the Plaintiff filed a notice of appeal from this proceeding to this Court, pro se.

Almost a year later in the midst of the COVID-19 pandemic, on February 3, 2021, the Gaming Enterprise then filed the instant Motion to Dismiss on three grounds: that the Court did not have subject matter jurisdiction because the Plaintiff did not timely appeal the Board's decision; the Plaintiff did not receive a Final Decision from the Board of Review; and the Plaintiff did not timely allege a violation of his procedural due process rights.The Plaintiff then retained an attorney and filed an Amended Notice of Appeal.In his Amended Notice of Appeal, the Plaintiff alleges that his procedural due process rights were violated when the Gaming Enterprise denied him of his Board of Review hearing(1) by refusing to grant a continuance to allow the out-of-state Plaintiff to attend the scheduled Board of Review; (2) by refusing to allow his union representative to appear on his behalf at the scheduled Board of Review hearing; and (3) by refusing to allow the Board of Review to convene to issue a Final Decision or to decide whether to grant the Plaintiff's continuance or to allow his union representative to proceed on the Plaintiff's behalf.

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 Pequot Gaming 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 despite not being granted a continuance, had the Gaming Enterprise allowed the Board of Review to convene with his union representative appearing on his behalf, it would not have found the Plaintiff to have abandoned his request for a hearing.The Gaming Enterprise responds that the Board of Review did convene on August 27, 2019 but because the Plaintiff failed to timely appear, there were no "substantive proceedings" before the Board of Review as no hearing occurred and the Board did not issue a Final Decision, as defined by the Mashantucket Employee Review Code.

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 jurisdiction to review a Final Decision of the Board of Review.8 M.P.T.L. ch. 1 § 2(a).It states that the Mashantucket Pequot Tribe has "expressly waive[d] its sovereign immunity" and the sovereign immunity of any arm ... or entity of the Tribe from suit in the tribal court for actions founded upon a review of a Final Decision," so long as the Employee has exhausted all of their available administrative remedies under the Employer's policies and/or procedures and the Employee has timely filed for a review of the Final Decision.Id.§ 2(b)-(c).

A "jurisdictional prerequisite" under the Employee Review Code is an administrative record for the Court to review.SeeJeffs v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 40, 42(1997).An administrative record consists of "a transcript of all recorded proceedings before the Board of Review;"8 M.P.T. L. ch. 1 § 4(a), "a copy of all evidence, whether testimonial or documentary, presented to the Board of Review;"Id.§ 4(b), "a copy of the Final Decision rendered by the Board of Review;"Id.§ 4(c), and "notice of the Final Decision by the Moderator,"Id.§ 4(d)."[T]he proceedings before a Board of Review are an essential part of the [administrative] record on appeal."Kendall v. Brown, 1 Mash.Rep. 77, 78(1995).And "[a] necessary precondition to an appeal to this [C]ourt under the [Employee Review Code] is a [Final][D]ecision by a Board of Review convened in accordance with the policies and procedures of the Gaming Enterprise and ... as defined by the [Employee Review Code]...."Oxford v. Mashantucket Pequot Gaming Enterprise, 3 Mash.Rep. 56, 58(1999)(citingKendall v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 77(1995)).

Here the administrative record is minimal.It consists of a copy of the evidence presented to the Board of Review.The record lacks a Final...