Wilding, v. Mashantucket Pequot Gaming Enterprise, (2019)

• Decision Date: 11 March 2019
• Docket Number: CV-AA-2018-130
• Citation: Wilding, v. Mashantucket Pequot Gaming Enterprise (Mashantucket Pequot Tribal Ct. 2019)
• Parties: Lori Ann Wilding, Plaintiff v. Mashantucket Pequot Gaming Enterprise, Defendant.
• Court: Mashantucket Pequot Tribal Court

Lori Ann Wilding, Plaintiff v. Mashantucket Pequot Gaming Enterprise, Defendant.

No. CV-AA-2018-130

Mashantucket Pequot Tribal Court

March 11, 2019

Lori Ann Wilding, Pro SePlaintiff

Tawnii Cooper-Smith, Esq., for the Defendant

MEMORANDUM OF DECISION

Jean M. Lucasey, Judge.

This is an employee appeal hearing for Lori Ann Wilding(hereinafter “Ms. Wilding” or “Plaintiff”), who was formerly employed by the Mashantucket Pequot Gaming Enterprise as Assistant Housekeeping Manager.Ms. Wilding was terminated from employment on December 7, 2017, for violations of the Standards of Conduct, Section II Policies 14 (Falsification, misuse, removal, or unauthorized disclosure of confidential information or records), 15 (Disregard or violation of safety rules or common safety practice), and 21 (Being out of authorized work areas during working hours).She was also terminated for violation of the Disciplinary and Performance Improvement Policy, Section II Policy 15 (Disciplinary process for salaried/supervisory positions^[1]).

According to the Charging Document, on October 28, 2017, Ms. Wilding failed to suspend one of her team members who had received a non-negative result on a reasonable-suspicion drug test and allowed him both to continue working and to drive himself home despite the test result.R. at 38.^[2]On November 9, 2017 security observed Ms. Wilding and a subordinate employee on an unauthorized break, shopping at the Tanger Outlets.The Statement of Fact charges that, during the investigation, it was discovered that Ms. Wilding had personnel files of her fellow employees in her possession without the permission of her Director.Ms. Wilding admitted to the above behaviors.

Ms Wilding appealed her termination, and a Board of Review was held on February 20, 2018, at which Ms. Wilding was found to have committed the violations charged by the Defendant.The Board consequently upheld the termination.

I.DECISION OF THE BOARD OF REVIEW

Ms. Wilding was terminated on December 7, 2017, for violating the following policies and/or procedures:

1.Standards of Conduct (Section II-Policy 14) specifically disregard or violations of safety rules or common safety practices.SeeR. at 15-18 for policy.

2.Standards of Conduct (Section II-Policy 14) specifically being out of authorized working areas during working hours.Id.

3.Standards of Conduct (Section II-Policy 14) specifically falsification, misuse, removal or unauthorized disclosure of confidential Gaming enterprise information or records, including but not limited to Team Member or guest records.Id.

4.Standards of Conduct (Section II-Policy 15).R. at III;R. at 18-21.

On February 20, 2018, the Board found that Ms. Wilding was given a description of the offense or conduct that formed the basis of the Disciplinary Action, (R. at III), that both parties had a reasonable opportunity to present their cases and related evidence during the Board of Review hearing, (id.), and that both parties had a reasonable opportunity to present evidence of any mitigating circumstances, (R. at IV).^[3]

The Board's Final Decision evinces a clear understanding of the alleged conduct by Ms. Wilding that resulted in the present termination.To wit, “unauthorized break with her subordinate in uniform displaying her badge; neglected to adhere to [supervisor's] recommendation to suspend; failure to turn over confidential files of her peers and her management[personnel] files.”R. at IV.

After hearing testimony from multiple witnesses, including Ms. Wilding, and examining the documentary evidence in the Record, the Board found that Ms. Wildingcommitted the above conduct alleged by management and that her conduct violated all four of the policies and procedures as set forth in the Charging Document.Id.;see alsoR. at 13.

The Board was charged with explaining what factors, evidence, and/or testimony it relied on in deciding whether the conduct occurred and indicating which evidence and testimony it found credible and which not.The Board found the written statements and the testimony from Ms. Wilding and her manager to be credible.As the Board panel found no mitigating circumstances were presented at the Board of Review, it concluded that termination was appropriate and that it complied with the relevant disciplinary policy and procedures including the Disciplinary and Performance Improvement Policy.The Board of Review stated that as a manager, Ms. Wilding should have been aware of the policies and procedures that she violated, and the Board accordingly upheld management's decision to terminate her employment.

II.ARGUMENT

1.Standard of Review

Title 8 provides that this court must determine whether the Board of Review's Final Decision was appropriate by considering 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 law or exceeds the Board's authority under tribal law[.]

8 M.P.T.L. ch. 1 § 8(f).

Pursuant to 8 M.P.T.L. ch. 1, §§ 8(b), (c), the hearing on this matter is limited to the Record before the tribal court, and the court will not substitute its judgment for that of the Board as to the weight of the evidence or credibility of the witnesses.In Yarlott v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App.55(2014), the Mashantucket Pequot Court of Appeal semphasized the importance of not retrying the factual findings on appeal.In reviewing the Board's decision in that case regarding whether the form of discipline imposed by management was appropriate, the Tribal Court's role was solely to determine whether the Board's conclusion had a reasonable basis.Id. at 63.Reasonable basis means “a determination of whether there is substantial evidence in the record to support the findings of fact and conclusions drawn therefrom.”Id.(quotingOsfield v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 1, 5(2013)).“Substantial evidence is more than a scintilla, ... It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”Mashantucket Pequot Gaming Enterprise v. Christison, 6 Mash.Rep. 41, 44, (2013)(quotingMagee v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 40, 53(2007)).

If substantial evidence exists, and if the [Board's] conclusion are rational and reasonable, the review 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.

Mashantucket Pequot Gaming Enterprise v. Scheller, 6 Mash.Rep. 126, 129(2014)(citation omitted).

Disagreeing with the Board of Review's decision to uphold her termination, Ms. Wilding filed her appeal with the tribal court on March 16, 2018.

Ms. Wilding filed her brief on September 28, 2018, and in it, she points to inconsistencies in the record and disputes certain allegations made against her as non-factual.She also discusses what she calls disparate treatment between her and her fellow employees, who she claims engaged in the same or similar behavior that she did but were not disciplined in the same manner, if at all.Specifically, Ms. Wilding alleges that she had made an “honest mistake” on a document, was never assigned break times or to a break area, and secured the personnel files in question because she believed that “no one was taking charge.”She claims that she was treated unfairly, especially because she was not afforded progressive discipline.

The Mashantucket Pequot Gaming Enterprise(hereinafter the “Gaming Enterprise” or “Defendant”) filed a reply brief on October 31, 2018, stating that managers are expected to take breaks at times best for the Department, that they are required to provide notice (which Ms. Wilding did not), and that Ms. Wilding had already taken her authorized one-hour of break time on the day in question before she was seen shopping during her shift.Defendant emphasized that Ms. Wilding admitted that she failed to follow the instructions on the Drug Free Workplace Drug/Alcohol Testing form, which is considered a serious breach of policy because the program is meant to prevent intoxicated or otherwise compromised employees from hurting themselves or others.Defendant further argues that, while Ms. Wilding may have thought she was “doing the right thing” by holding the personnel files to keep them safe, it was unethical, inappropriate and a violation of policy.The Defendant also argued that the Board ultimately found termination to be appropriate because, as a manager, Ms. Wilding is expected to be aware of the policies and the procedures she violated.

At hearing on her appeal to the tribal court on...