2025 WL 1407951 (Mash. Pequot Tribal Ct.)
Only the Westlaw citation is currently available.
Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT TRIBAL NATION, Appellant
v.
James COUILLARD, Appellee.
NO. MPTC-CV-AA-2024-109
|
May 15, 2025
MEMORANDUM OF DECISION
Jean M. Lucasey, Judge
Procedural History
Appellant Mashantucket Pequot Tribal Nation (“MPTN”), commenced this action under the Mashantucket Employee Review Code, 8 M.P.T.L. ch. 1. MPTN appeals from the Final Decision of the Board of Review (“Board”), which overturned the termination of Appellee James Couillard, an employee of the Mashantucket Pequot Fire and Emergency Services, (“MPFD”), and reinstated him with full back pay. The Tribe appeals the Board’s decision on grounds that the Board had no reasonable basis to conclude that the conduct forming the basis of the termination didn’t occur, and that termination was not appropriate as a result. Counsel for the MPTN, attorney Tawnii Cooper-Smith, and counsel for Couillard, attorney M. John Strafaci, appeared for oral argument on September 17, 2024.
Background Facts
Appellee was terminated from his position as Fire Captain with the MPFD on July 20, 2023. The Statement of Fact contained in the Charging Document alleged that on June 22, 2023, Team Member Relations, (“TMR”), was made aware of an incident involving Appellee and opened an investigation. The investigation led TMR to conclude that Appellee had commented to a colleague that another firefighter wanted to “bang his wife,” that Appellee had called firefighters “lazy, stupid fireman ... dumb etc.,” and that he had repeatedly used sexually suggestive comments in the presence of female and male team members.1 TMR’s conclusion formed the factual basis that led to Appellee Couillard’s termination.
TMR’s investigation, set forth in the Record, provides full details in support of the termination. On Thursday, June 22, 2023, TMR received an email from the Chief of the MPFD “regarding alleged conduct by Captain James Couillard.”2 In response to the email, TMR interviewed several Firefighters and “specialists.”
First to be interviewed was firefighter Aaron Gelber, who told TMR that Couillard “made a comment to Greg Desmarais ... that I was buddy-buddy with Greg just to try to bang Greg’s wife.”3 Next interviewed was firefighter Desmarais, who told TMR that on Father’s Day, June 18, 2023, he was waiting for dinner in the firehouse, joking around having a conversation, when Appellee came into the room and said to “co-worker Aaron Gelber” that “[o]h, you[’re] buddy-buddy with him to bang his wife.”4 Desmarais also told TMR that Couillard had “fat shamed numerous members over the years” and has “called many, many of us stupid fireman.”5 Next interviewed was Darin Jones, who echoed Gelber and Desmarais regarding Couillard’s alleged “buddy-buddy” comment.6
Next interviewed was firefighter Tyler Beebe. Firefighter Beebe told TMR that during a call where he was with Appellee Couillard, the Appellee commented to the Ledyard Fire Marshall that “[a]ll the f-----g specialists do is tickle the switches and don’t actually flow water.”7 Beebe said that Couillard “has referred to Firefighters as nothing but stupid fireman” and that he “would make sexual comments” talking about explicit sexual acts.8 Next interviewed was Robert Savarese, who gave the same account of the Ledyard Fire Marshall situation as Beebe had,9 but also said that he had never heard Appellee make sexual comments.10 Next interviewed was Charles Steinhart. Firefighter Steinhart told TMR that he had heard Appellee use the phrase “I’m too fat MPAT,” which Steinhart claimed was a reference to the MPFD physical agility test requirements.11 Steinhart echoed Gelber, Desmarais, and Jones that sexual comments as described above were made by Couillard.12 When TMR interviewed Patrick Chute, he described similar sexual comments made by Couillard.13
Next interviewed was James LePage. Firefighter LePage told TMR that he had heard Appellee “say things about wanting to see our past Captain’s breasts” as well as refer to “us being lazy firemen.”14 Firefighter Joseph Herbert told TMR that he had heard Appellee Couillard making sexual comments and use the terms “lazy firemen” and “stupid.”15 Firefighter Peter Guastini told TMR that he had heard Couillard call team members “stupid and he used to call me dumb Pete.”16 Guastini also said he had heard Couillard talk about sex toys and “make sexual comments or jokes” along with fat-shaming people and using the term “stinky” to describe someone.17 Firefighter Andrew Stino echoed most of the interviewed firefighters when he described similar sexual comments used by the Appellee and his use of the terms “lazy,” “stupid,” and “retarded” to describe department colleagues.18
TMR next interviewed Mr. Couillard, wherein he denied making the alleged comment about Mr. DeMarais’s wife.19 He told TMR that he believed firefighters made up the allegation in order to retaliate against him20 because, as a fire captain, he requires his subordinates to do their jobs and not slack off.21 Appellee told TMR that the firefighters mischaracterized his conversation with the Ledyard Fire Marshall,22 denied ever calling anybody stupid or lazy,23 and denied ever calling Guastini “dumb Pete.”24 Couillard denied ever talking about sex toys25 and denied using colloquial terms to describe sexual acts but acknowledged that others have used such terms in his presence at work.26 See also footnote 1. Appellee Couillard told TMR that, given the culture of the fire house, “[i]f we reported everything to HR we’d all be in HR.”27 Couillard denied fat-shaming or making negative or derogatory comments about firefighters.28 He acknowledged he had used the MPFD’s printer and cleaning tools for personal use, but claimed he had management’s permission to do so.29 Couillard told TMR that he believed his subordinates were retaliating against him because he “make[s] them work,” that “[a]ll these allegations are false,” and that he was only “being accused so the Deputy Chief can get rid of” him because the deputy “doesn’t like when the Chief asks [Couillard] a question” instead of asking the deputy.30
After interviewing Couillard, TMR conducted four more interviews. Firefighter Joe Navin claimed Appellee used the terms “lazy” and “stupid” to describe firefighter colleagues31 and that he heard Couillard refer to a colleague as “missile tits.” Former firefighter Jessica Accetta reported the same fire house culture as Appellee Couillard described, where if every possibly violative remark were reported to HR, that is all anyone would be doing.32 Ms. Accetta stated she had never heard Appellee use the sexually suggestive comments alleged (see Footnote 1) or the terms “I’m too fat MPAT” or “missile tits,” “stupid,” or “retard.”33 When asked if there was anything she would like to add, Accetta said she was concerned that the accusations from other firefighters against Couillard were out of spite. She said the way she “was treated by the other firefighters and the Chief wasn’t worth the stress and the headache,”34 so she left the department. She explained to the interviewer that the other firefighters “made sexual innuendos a lot of the time” and that “[w]hen things got out of hand, [Couillard] would put a stop to things.”35 Former fire captain Heather Mislivets-Ahern acknowledged the firehouse culture described by Appellee Couillard and denied ever hearing him use the sexually suggestive terms36 or the term “missile-tits.”37 Mislivets-Ahern explained that “there were sexual comments made in front of [Chief Floyd Chaney] and not only that, there were sexist comments discriminating against women,” and that “Captains Doug Foster, Andrew Stino and [Couillard]” heard these comments made in front of Chief Floyd Chaney.38 Finally, TMR interviewed Tanisha Minnis, an administrative assistant in the MPFD. Minnis claimed that Couillard never used “a cross word in front of [her].”39
TMR concluded, crediting all allegations made against Appellee Couillard and discrediting all denials made by him, that Couillard violated the following policies: (1) Standards of Conduct Policy Section IV Subsection IV, (2) Sexual Harassment Policy Section IV Subsection I, and (3) Harassment Policy Section IV Subsection II. As Couillard, a Fire Captain, is a salaried supervisory employee, the conclusion section states that the “DISCIPLINARY PROCESS FOR SALARIED/SUPERVISORY POSITIONS” is the applicable disciplinary code for Couillard. Based on the conclusion that Couillard violated the three policies and the applicable disciplinary process for such violations, TMR concluded that the MPFD should terminate Couillard’s employment. Couillard was thus terminated on July 20, 2023, and he appealed his termination to the Board of Review.
The Board of Review Hearing
The Board of Review convened on March 20, 2024. Counsel for the parties delivered their opening statements. Appellee Couillard testified on his own behalf, starting with an explanation of written discipline he received in 2008. He further testified about sexual harassment training undertaken at the MPFD, his style of management, and the “joking atmosphere” within the MPFD firehouse.40 Couillard testified that the Deputy Chief and all of the management officers in the department were aware of the joking atmosphere. Couillard testified that the 2008 discipline was the only time he received any indication from his superior officers that the joking needed to stop.41 He then testified that he had positive work experiences with his former colleagues Mislivets and Accetta. Couillard denied ever making a comment about “banging” a wife42 and further denied calling firefighters fat.43
Appellee Couillard’s second witness was James Mann, Fire Marshall for the town of Ledyard. Mann testified that he never heard Couillard use the phrase, “[a]ll the f-----g specialists do is tickle the switches and don’t actually flow water” and that his memory of the conversation where Couillard allegedly made the comment was that it was “just a casual conversation.”44
Couillard’s next witness was Heather Mislivets-Ahern, who testified that “there were a lot of people that made inappropriate comments” in the MPFD firehouse.45 She testified she could “list half the department” if designating who made inappropriate comments.46 She testified that she had never heard Couillard use a particular sexually suggestive comment,47 and that he had not ever made any sexual comments to her directly.48 Mislivets-Ahern did testify, however, that sexual comments were made in the MPFD firehouse and that Couillard had “participated in the conversation.”49 For example, she said, “[t]here were times where [we] would be talking about ... I mean they would be jok[ing] about somebody else’s wife .... I’m sure it was all joking, but it wasn’t only [Couillard] saying those things to somebody else, it was also somebody else saying those things to [h]im.”50 When asked whether she had seen Couillard speak in a rude or demeaning way to employees in the MPFD, she said, “[y]es. I believe maybe that is the way he comes off. He doesn’t always have the best delivery, and in the Fire Service, there are times when you need to be straightforward.”51 Mislivets-Ahern testified that she heard Couillard use the term “lazy” but not “slow” and explained that she believes Couillard’s use of the term “lazy” was in response to low levels of effort by subordinates, opining that Couillard never intentionally demeaned anyone in a “mean-spirited way.”52 Mislivets-Ahern confirmed the truth and accuracy of her statements in the TMR report and said she never saw Appellee engage in sexual harassment.53
On cross-examination, Mislivets-Ahern testified that “the atmosphere of inappropriateness was always there,” talking about the MPFD.54 In response to a question from Appellant’s Board of Review counsel about whether she thought the allegations being made against Couillard were the product of a conspiracy of disgruntled subordinates, she testified, “I don’t think that it was a scheme to get him terminated. I believe some of the things did happen.”55
Appellee Couillard returned to the witness stand and denied using sexually suggestive comments and terms but said that he had heard Tyler Beebe use one such term.56 See also footnote 1. Couillard admitted calling subordinates “lazy” if their efforts at work did not meet his expectations.57
Upon cross-examination, Couillard testified that he had heard “Desmarais” say inappropriate and sexual things.58 Couillard explained that he never “wrote [Demarais] up” for the inappropriate comments and actions “because it was upstairs, in the community ... and it was kind of a daily thing” and that it would have involved HR in the firehouse.59 Couillard admitted, despite his earlier testimony that no firefighters had ever complained about his treatment of them, that an incident letter was filed against him on 1/30/2017 for “talking down to firefighters and belittling them,”60 along with “several incidents of poor judgment” such as “failure to conduct daily training.” Appellee Couillard testified that the reason he chose not to report incidents of policy violation to HR was because it was the culture of the firehouse to handle such issues internally.61 Couillard acknowledged that he “overheard other team members making sexually inappropriate comments in front of a young female firefighter” and did not write them up or report them to HR.62 Couillard acknowledged he could have written up Tyler Beebe for making the sexually suggestive comment but chose not to.63 Couillard admitted he used the phrase “I’m too fat MPAT” but claimed he never directed the phrase at anyone specifically.64
Thereafter, Appellant MPTN called Gelber, Desmarais, Jones, Steinhart, Herbert, Lepage, Beebe, Savarese, Chute, and Chaney as witnesses. All testimony was consistent with that represented in the TMR report.
The Board of Review’s Conclusion
The Board found that Appellee Couillard’s termination was not appropriate because the Board did not believe that the alleged conduct that formed the basis of the decision to terminate him had occurred. In explanation of what factors the panel relied on to decide whether the conduct occurred, the Board stated, “Ledyard Fire Marshal claimed he made the tickle comment and no profanity was used – we feel Mann is a credible witness. Heather Mislivets-Ahern said at no time was she subjected to sexual harassment by James Couillard – we found her to be credible. We felt Tyler Beebe was not a credible witness in part due to union responsibilities. We felt most of the firefighter witness testimony was canned, identical, and difficult to believe.”
In explanation of whether termination was appropriate, the Board stated, “[n]o termination was not appropriate. James was not given the benefit of the doubt. James’s alleged conduct was not addressed in any manner prior to termination. James was not made aware of these current allegations before a suspension notice was put in front of him.”65 The Board’s Final Decision was that “James Couillard should be reinstated with backpay, recommended training to improve managing people, and to improve leadership skills.”66 In explaining their Final Decision, the Board stated “[w]e do not feel we were provided convincing evidence that James Couillard violated any of the policies and procedures that resulted in his termination.”67
Standard of Review
The provisions of Title 8 as amended apply to this appeal. Title 8 requires that the Court determine whether the Board’s final decision was appropriate by considering whether:
(1) There was a reasonable basis for the Board or 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).
Appellant MPTN appeals the Board’s decision on grounds that the Board had no reasonable basis to conclude that the conduct forming the basis of the termination didn’t occur, and that termination was not appropriate as a result. Accordingly, the Court’s review is focused on 8 M.P.T.L., ch.1, § 8(f)(1) and (4).
Reasonable Basis
“[A] ‘reasonable basis’ means a determination of whether there is substantial evidence in the record to support the findings of fact and conclusions drawn therefrom.” Byron v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 57, 60–61, 2013 WL 2138192, at *2 (Mash. Pequot Tribal Ct., 2013) citing (Walton v. Mashantucket Pequot Gaming Enterprise, MPTC CV–AA–2011–174, 6 Mash.Rep. 20, 2012 WL 4513385 (Mash. Pequot Tribal Ct., Oct. 1, 2012)).
“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.” Byron supra, citing (Magee v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 40, 53 (2007)).
“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 [did or did not violate] 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 rational and reasonable, the decision would constitute a clear error of judgment ... and the [Board] would not have a reasonable basis for concluding that the employee [did or did not violate] the policies or procedures of the Gaming Enterprise.” Byron, supra, citing (George v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 322, 329 (2010)).
“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 may not retry the case or substitute its own judgment for that of the [Board] on the weight of the evidence or on questions of fact.” Byron supra, citing (Pena v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 297, 300 (2010)).
Did Board Have Reasonable Basis for Conclusion that Charged Conduct Did Not Occur?
Having defined reasonable basis, the next step of the analysis is to consider whether the Board of Review in this case had a reasonable basis to conclude that the conduct forming the basis of the termination did not occur. 8 M.P.T.L., ch.1, § 8(f)(1).
It must be recognized that the “trial court may not retry the case or substitute its own judgment for that of the [Board] on the weight of the evidence or on questions of fact.” Byron, supra, citing (Pena, 5 Mash.Rep 297, 300). Accordingly, we must accept the facts as found by the Board in determining whether it had a reasonable basis to reach the conclusion that the conduct forming the basis of the termination did not occur.
In their credibility determinations, the Board stated, “[w]e felt most of the firefighter witness testimony was canned, identical, and difficult to believe.” Since the Record doesn’t provide a way to know what to exclude from “most of the firefighter witness testimony,” for the purposes of this Court’s review, all of the adverse firefighter testimony will not be considered. Accordingly, the analysis will proceed by considering what evidence was thus credited by the Board, and whether that evidence provided a reasonable basis for the Board’s conclusion that none of the charged conduct occurred. Each charge will be considered in turn.
Standards of Conduct Policy Section IV Subsection 4
This policy relates to upholding the integrity and trust of the employee’s position.68 The policy also lists behavior that is prohibited for employees.69 The proper review therefore is to ascertain whether the evidence credited by the Board provided the Board a reasonable basis to conclude that Appellee Couillard did not violate the policy. The evidence credited by the Board was testimony from Couillard, the Ledyard Fire Marshall, and Heather Mislivets-Ahern.
After full review of the evidence and paying particular attention to the testimony from Couillard, the Ledyard Fire Marshal and Ms. Mislivets-Ahern, the Court finds that the Board had a reasonable basis to conclude that most of the charged conduct did not occur, but did not have a reasonable basis to conclude that Couillard’s actions conformed with the following Standards of Conduct in Section IV Subsection 4: 1. Uphold with integrity the trust and confidence given to them in their respective positions. Further, the Court finds, especially given the testimony of Mislivets-Ahern, that the Board had no reasonable basis to conclude that Couillard did not engage in the following Prohibitive Behaviors listed in Section IV Subsection 4: 13. Rude or discourteous behavior in the presence of another Employee, and 14. Discourteous or disrespectful conduct.
The evidence credited by the Board of Review reveals a culture in the firehouse that routinely violated the workplace policies at issue. Couillard himself testified in response to a question about HR reporting, “I mean, if things went that way, and they all ... we would all be in HR. I’m telling you right now, we’d all be, from the Chief down, we’d all be at HR every day for something.”70 As a fire captain, Couillard had a duty to report violations of workplace policy to HR. Couillard himself acknowledged that he failed to do so. Such acknowledgement is “substantial evidence” that Couillard failed to “uphold with integrity the trust and confidence given to” him as a fire captain in the MPFD. Accordingly, the only conclusion that could be drawn from a “reasonable basis” considering the evidence credited by the Board is that Couillard violated Item 1 of the Standards of Conduct Policy Section IV Subsection 4, to “[u]phold with integrity the trust and confidence given to them in their respective positions.” Relying on the testimony of Couillard and Mislivets-Ahern here, no other conclusion could be viewed as “rational and reasonable.” See Byron, supra.
Couillard himself admitted to calling colleagues lazy, and his use of such language was corroborated by the testimony of Mislivets-Ahern, both witnesses whom the Board found credible. Additionally, Couillard testified that he has referred to a colleague as “dumb Pete.” Such admission is “substantial evidence” that Couillard committed “rude or discourteous behavior in the presence of another Employee” and “discourteous behavior,” both listed as Prohibitive Behaviors in the Standards of Conduct Policy Section IV Subsection 4. Accordingly, the only conclusion that could be drawn from a “reasonable basis” considering the evidence credited by the Board is that Couillard violated Items 13 and 14 of the Standards of Conduct Policy Section IV Subsection 4.
Sexual Harassment Policy Section IV Subsection 1
This policy is designed to prevent sexual harassment in the workplace.71 The most salient provision of the sexual harassment policy for the purposes of this review is the provision that “any supervisor who is aware of conduct which may constitute sexual harassment and who fails to report the behavior to Human Resources/Employee Relations will also be subject to discipline, up to and including termination.” The record is replete with evidence that Couillard was aware of conduct that may constitute sexual harassment and that he failed to report it.
For example, Mislivets-Ahern testified that “there were a lot of people that made inappropriate comments” in reference to the MPFD firehouse.72 She testified she could “list half the department” if designating people that have made inappropriate comments.73 She testified that sexual comments had been made in the MPFD firehouse and that Couillard “participated in the conversation.”74 She explained that “[t]here were times where [we] would be talking about ... I mean they would joke about somebody else’s wife. ... I’m sure it was all joking, but it wasn’t only [Couillard] saying those things to somebody else, it was also somebody else saying those things to [h]im.”75
Such conversation is “substantial evidence” that Appellee was “aware of conduct” that may constitute sexual harassment and that he failed to report the conduct to Human Resources/Employee Relations. Accordingly, the only conclusion that could be drawn from a “reasonable basis” considering the evidence credited here by the Board is that Couillard violated the Sexual Harassment Policy.
Harassment Policy Section IV Subsection 2
This policy specifically deals with harassment.76 The most salient provision of the harassment policy for the purposes of this review is the provision that “any supervisor who is aware of conduct which may constitute harassment and who fails to report the behavior to Human Resources/Employee Relations will also be subject to discipline, up to and including termination.” The record is replete with evidence that Appellee was aware of conduct that may constitute harassment and that he failed to report it.
Appellee acknowledged that he “overheard other team members making sexually inappropriate comments in front of a young female firefighter” and did not write them up or report them to HR.77 Appellee acknowledged that he could have written up Tyler Beebe for making the sexually suggestive comment referenced above but that he chose not to.78 Appellee admitted he used the phrase “I’m too fat MPAT” but claimed he never directed the phrase at anyone specifically.79 Appellee testified that the reason he chose not to report issues of policy violation to HR was because it was the culture of the firehouse to handle such issues internally.80
That it may have been the culture of the firehouse to handle issues of harassment internally does not change the fact that the policy Appellee, as fire captain, was bound to uphold made it mandatory that he report any conduct he was aware of that may constitute harassment. Based on Appellee’s own testimony, he failed to report conduct he was aware of that certainly may be, and very likely amounted to, harassment. Such admitted failure to report is “substantial evidence” that Appellee was “aware of conduct which may constitute harassment” and failed to report the conduct to Human Resources/Employee Relations. Accordingly, the only conclusion that could be drawn from a “reasonable basis” considering the evidence credited here by the Board is that Couillard violated the Harassment Policy.
Did Board Have Reasonable Basis for Conclusion that Termination Was Not Appropriate?
The above analysis agrees with Appellant’s first challenge, that based on the evidence credited by the Board, the only conclusion which could have been drawn from a reasonable basis was that the Appellee violated the applicable policies in several ways. 8 M.P.T.L., ch.1, § 8(f)(1).
The clearest example of Appellee’s violations are the instances where Appellee failed to report instances of sexual harassment and harassment to Human Resources as required by the applicable policies, despite Appellee himself testifying in agreement that the instances occurred. The next step of the analysis is to determine whether the Board had a reasonable basis for its conclusion that termination was not appropriate.
As a fire captain, Appellee is subject to the “Disciplinary Process for Salaried/Supervisory Positions.” Employees subject to this disciplinary process are “considered to hold professional/management positions and will be held to higher standards than hourly/non-supervisory Employees. Personal and professional conduct of Employees in these positions is expected to be that of a role model. Failure, inability, or unwillingness to meet the MPTN’s standard of performance and/or conduct may be cause for disciplinary action up to and including Suspension and/or Termination.”
In explanation of whether termination was appropriate, the Board stated, “[n]o termination was not appropriate. James was not given the benefit of the doubt. James’s alleged conduct was not addressed in any manner prior to termination. James was not made aware of these current allegations before a suspension notice was put in front of him.” The Board’s Final Decision was that “James Couillard should be reinstated with backpay, recommended training to improve managing people, and to improve leadership skills.” In explaining the decision, the Board stated, “[w]e do not feel we were provided convincing evidence that James Couillard violated any of the policies and procedures that resulted in his termination.”
The Court has found, above, that the Board was provided with substantial evidence that Couillard committed each policy violation for which he was charged. Accordingly, substantial evidence can no longer serve as the basis for a conclusion that termination was not appropriate. The Board articulated that Appellee was not given “the benefit of the doubt.” Appellee’s conduct is expected to be that of a role model, and nothing in the Record supports the Board’s tacit suggestion that he was thus entitled to receive the “benefit of the doubt.” Based on the applicable discipline policy, failure, inability, or unwillingness to meet the MPTN’s standard of performance and/or conduct may be cause for disciplinary action up to and including Suspension and/or Termination.
Having decided that the Board was provided substantial evidence that Appellee violated each policy as charged and that such conclusion is the only one that could have been drawn from a rational, reasonable basis, the proper inquiry for the Board was to decide whether the form of discipline was or was not appropriate for the offense or conduct. 8 M.P.T.L., ch.1, § 8(f)(4).
Each policy requiring Appellee as a fire captain to report instances of harassment and/or sexual harassment to Human Resources includes the provision that failure to report is a violation subject to discipline up to and including termination. The general discipline policy Appellee is subject to as a fire captain also states that failure to meet MPTN’s standard of performance and/or conduct may be cause for disciplinary action up to and including termination. Accordingly, the only conclusion the Board had a reasonable basis to make regarding termination was that termination is appropriate, since termination as a form of discipline was explicitly allowed by the applicable policies. As described above, crediting the Board of Review’s factual findings by not considering any testimony adverse to Appellee, the Board of Review only had a reasonable basis to draw two conclusions. The first of these is that Appellee violated each charged policy. The second of these is that termination was the appropriate discipline for the offense.
Conclusion
The Board of Review heard much testimony in this case. In making its credibility determinations, the Board inexplicably ignored all testimony of the witnesses it found credible whenever such witness testified adversely to the Appellee. The Court must abide by these credibility determinations. Nonetheless, accepting the Board’s credibility determinations and factual findings, and even excluding all adverse testimony to Appellee from this Court’s review, the Board of Review had a reasonable basis for only two conclusions. The first is that Appellee violated each policy as charged, and the second is that termination was an appropriate discipline for the offenses. Accordingly, the Board of Review’s Final Decision is not drawn from a reasonable basis. 8 M.P.T.L., ch.1, § 8(f). Management’s decision to terminate should have been upheld by the Board.
Having stated the resolution of this case in accord with the Court’s reviewing authority under 8 M.P.T.L., ch.1, § 8(f), the COURT HEREBY overturns the decision by the Board of Review in regard to Appellee and upholds management’s decision to terminate the employment of James Couillard.
IT IS SO ORDERED.
All Citations
2025 WL 1407951
Footnotes |
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Citations to the administrative Record appear as “R.” followed by page number (e.g. R. at 16). See R. at 16 for the undefined colloquial terms used to describe sexual acts discussed in the workplace among the MPFD staff. Such terms occur throughout the Record, and the Court sees no need to spell them out in the instant Decision. |
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R. at 40. |
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Id. |
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R. at 41-42. |
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R. at 42. |
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R. at 43. |
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R. at 44. |
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R. at 45. |
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R. at 45-46. |
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R. at 46. |
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R. at 47. |
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R. at 48. |
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R. at 49. |
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R. at 49-50. |
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R. at 51. |
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R. at 51-52. |
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R. at 53. |
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R. at 54. |
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R. at 56. |
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R. at 56. |
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R. at 56. |
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R. at 56-57. |
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R. at 59. |
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R. at 60. |
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R. at 61. |
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R. at 59. |
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R. at 64. |
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R. at 65. |
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R. at 67. |
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R. at 68. |
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R. at 70. |
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R. at 70-71. |
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R. at 71. |
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See footnote 1. |
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R. at 72. |
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R. at 72. |
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R. at 74. |
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R. at 224-225. |
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R. at 224. |
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R. at 226. |
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R. at 227. |
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R. at 230. |
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R. at 234. |
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R. at 235. |
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See footnote 1. |
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R. at 235. |
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R. at 236. |
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R. at 236. |
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R. at 236-237. |
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R. at 241-243. |
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R. at 267. |
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R. at 269. |
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R. at 270. |
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R. at 271. |
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R. at VIII. |
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R. at IX. |
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R. at VIII. |
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The policy as stated in the charging document: “Commission of or being party to, any of the following acts, or other acts contrary to good order, will be grounds for disciplinary action up to and including termination from employment: Employees of the Tribe shall perform all assigned duties in a manner that will: 1. Uphold with integrity the trust and confidence given to them in their respective positions. 2. Give full, efficient, and industrious service so as to promote the economical and effective accomplishments of the Tribe’s programs and operations. 5. Accomplish all Tribal dealings in a manner above reproach, free from any indiscretions, gratuities, or favors that would cast doubt or suspicion on themselves or on the Tribal administration and refrain from using their official positions unethically to advance personal interests or the interests of their friends.” |
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The prohibited behaviors as stated in the charging document: “13. Rude or discourteous behavior in the presence of another Employee. This behavior includes, but is not limited to, verbal and non-verbal behavior which is impolite, abusive, degrading, disrespectful, humiliating, demoralizing or which subjects a person to hate, contempt, ridicule or scorn. Rude and discourteous behavior also includes the use of indecent language. 14. Discourteous or disrespectful conduct. 18. Dishonesty, including fraud and falsification of MPTN documents. 20. Improper use of authority by using Tribal positions for personal profit or advantage. 28. Fighting, threatening, intimidating, coercing, or interfering with other Employees or others while on the job.” |
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R. at 225. |
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The policy as stated in the charging document: “Sexual Harassment is any unwelcome sexual advance, request for sexual favors, or other verbal or physical contact of a sexual nature, including but not limited to sexual jokes, sexual innuendos, obscenities and display of sexually suggestive photographs and photographs of nude or partially nude men and/or women. Sexual Harassment may be a direct or indirect approach for sexual favors or the creation of a working environment that is hostile due to behaviors of others that could be construed as sexual harassment.” |
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R. at 234. |
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R. at 235. |
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R. at 236. |
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R. at 236. |
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The policy as stated in the charging document: “Harassment includes any pervasive or severe verbal, physical, or visual conduct that tends to belittle or provoke, and may include but not be limited to “jokes”, gestures, and derogatory comments. Harassment may be directed at an individual due to that person’s physical or mental characteristics. |
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R. at 270. |
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R. at 270. |
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R. at 271. |
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R. at 269. |
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