2023 WL 11091533 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
 
Mark THORNTON
v.
MASHANTUCKET PEQUOT GAMING ENTERPRISE
 
NO. MPTC-CV-AA-2022-106
|
July 31, 2023

 

MEMORANDUM OF DECISION

Edward B. O’Connell, Judge

The plaintiff-appellant, Mark Thornton (“Mr. Thornton”), appeals the final decision of the Board of Review (“Board”) pursuant to the Employee Review Code, 8 M.P.T.L. ch. 1. The Board sustained the termination of Mr. Thornton’s employment with the defendant-appellee, the Mashantucket Pequot Gaming Enterprise (“MPGE” or “Gaming Enterprise”). Mr. Thornton is seeking back pay, interest on the back pay, and the reinstatement of his position.1

 

BACKGROUND AND RELATED PROCEEDINGS

Mr. Thornton was employed as Service Desk Manager with MPGE’s Management Information System (MIS) Computing Services Department, starting on or about January 3, 2016. This was a salaried team member position. His direct supervisor was David Blodgett, MIS Director of Computing Services. Mr. Thornton’s typical schedule was Monday through Friday, 8:00 a.m. to 4:00 p.m.

Early in the morning on June 10, 2021, at 4:49 a.m., Mr. Thornton sent Mr. Blodgett an email asking to work from home or use a vacation day. Shortly thereafter, at 5:59 a.m., Mr. Thornton texted Mr. Blodgett, asking to have the next three days off from work. At 7:33 a.m. Mr. Blodgett responded, asking Mr. Thornton if he had sufficient time off available according to his employment records. Mr. Thornton did not respond until seven days later, on June 17, 2021 at 2:26 p.m., stating “PeopleSoft says I have plenty of time.” At that point Mr. Thornton failed to appear for work for six shifts – June 10, June 11, June 14, June 15, June 16, and June 17, 2021.

On June 18, 2021, Mr. Thornton was notified of his suspension pending an investigation for violation of the Attendance Standards for Salaried Team Members Section II Policy 17, due to his no call/no shows on the aforementioned six dates.

Team Member Relations Specialist Bevin Ingram was assigned to investigate this matter. Mr. Ingram found that Thornton had indeed failed to call or report to work on five of the six alleged dates: June 11, June 14, June 15, June 16, and June 17, 2021. Mr. Thornton revealed the reason: he had been incarcerated during that period of time due to a domestic relations dispute, and because his phone had been impounded he could not make phone calls during his period of incarceration. He stated that he was under the impression that those dates would have been covered by “benefit time” due to the messages between him and Mr. Blodgett. Mr. Ingram explained to Mr. Thornton that although Mr. Blodgett may have asked him how much benefit time he had available to him, that question did not constitute an official approval of use of benefit time.

During Mr. Ingram’s interview with Mr. Thornton, Mr. Thornton stated that his understanding of the tribal healing time policy was that it did not prevent his use of it for time spent while incarcerated. Mr. Ingram responded that the use of tribal healing time was at the department’s discretion and based on the department’s business needs.

According to a Tribal Council Resolution (“TCR”) memo sent to employees on December 26, 2019, there were updates to the tribal family healing program, including one which provides that “[t]ime off must be coordinated in cooperation with the department director as to not affect daily operations of the department” and “[r]equests for time off are approved according to business demands and are at the discretion of the department head.” The TCR also states that “[a]t the request of the team member, denied healing time requests may be appealed to ONAP [(the Office of Native American Preference)] whose decision will be final.”

Mr. Ingram recommended that termination of employment would be “warranted for violation of the Attendance Standards Policy in and of itself and under the guidelines of the Disciplinary and Performance and Improvement Policy.” He did not consider it necessary to address Mr. Thornton’s arguments pertaining to the tribal healing time policy (i.e., that tribal healing time excused his absences from work) in his report to Gaming Enterprise management.2

Thereafter, Mr. Thornton was notified of his termination of employment for violation of the Attendance Standards for Salaried Team Members and the Disciplinary and Performance Improvement Policy (Policy Section II - Policy 15). Thereafter, Mr. Thornton exercised his right of appeal to several different authorities, leaving this Court with a complex timeline. The following outlines Mr. Thornton’s appeals and their outcomes by each authority.

On June 29, 2021, Mr. Thornton appealed his denial of tribal healing time to ONAP. Thereafter, ONAP denied Mr. Thornton appeal, stating that his right to a cultural opportunity was not unlawfully denied when he was denied the use of healing time to cover a period of incarceration.

Thereafter, Mr. Thornton appealed ONAP’s decision to the Mashantucket Employment Rights Office (“MERO”). Thereafter, MERO issued its Final Claim Determination stating that MERO lacked jurisdiction to review a final decision of ONAP pursuant to the Tribal Council resolution which provided that ONAP’s decision was final, with no further right to appeal.

Thereafter, Mr. Thornton filed an appeal of MERO’s determination to the Tribal Court. Jean M. Lucasey, the presiding judge, issued her decision on October 24, 2022, affirming MERO’s determination and dismissing Mr. Thornton’s appeal.

Meanwhile, on July 20, 2021, Mr. Thornton appealed his termination to the Gaming Enterprise Board of Review. The Board issued its Final Decision on January 5, 2022, upholding Mr. Thornton’s termination for violating the Attendance Standards Policy (Section II - Policy 17) and Disciplinary and Performance Improvement Policy (Section II - Policy 15).

On February 2, 2022, Mr. Thornton appealed the Board of Review’s decision to this Court, bringing us to this captioned case. Mr. Thornton claims the Board “erred in failing to grant [him] his job back” for a variety of reasons. Because the determination of Mr. Thornton’s MERO appeal (Lucasey, J.) was pending at the time he appealed the Board’s decision to this Court, and because an outcome of the MERO matter in Mr. Thornton’s favor would have rendered the instant matter moot, the parties stipulated that the timeliness applicable to the instant matter would be suspended until a final non-appealable outcome of the MERO matter.

Thereafter, Judge Lucasey upheld MERO’s determination that it lacked jurisdiction to consider Mr. Thornton’s claim under the Native American Preference Law and dismissed his appeal of the MERO decision. The MERO proceedings having been dismissed, and the time to appeal that dismissal to the Mashantucket Court of Appeals having run without an appeal to that court, Mr. Thornton’s appeal of the termination of his employment to this Court under the provisions of the Employee Review Code now comes to the fore.

 

STANDARD OF REVIEW

This Court has been granted jurisdiction to review the Board of Review’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). 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) (quoting Magee 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. (quoting George, 5 Mash.Rep. at 329 (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 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.” Id. (quoting Pena v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 297, 300 (2010) (citations and quotation marks omitted)).

In his Notice of Appeal Mr. Thornton simply states that he is appealing from the termination of his employment. At the bottom of the notice the form provides that if the appellant is seeking a review of procedural due process rights as defined in the Employee Review Code, “each and every specific procedural error which the employee claims constitutes a violation of the employee’s due process rights” must be set forth on a second page, specifying the date of such act and who committed the act. Mr. Thornton did not specify any due process or constitutional violations in his appeal papers.

In his brief filed with the Court, however, Mr. Thornton advances several arguments, many based on U.S. Constitution, in support his claim that his employment was wrongfully terminated. Not surprisingly, the Gaming Enterprise contends that the Court should not consider claims such as those because they were not specified in detail as required in the Notice of Appeal and the Employee Review Code.

Mr. Thornton appears in this matter pro se. Most pro se litigants have only a dim understanding of the term “procedural due process rights,” especially as these rights are defined in the Employee Review Code. In the ordinary course, requiring a pro se appellant to spell out in detail the procedural defects of his or appeal constitutes a high bar to overcome.3

In his brief Mr. Thornton contends that the Gaming Enterprise failed to investigate the racial makeup of his “jury” and that he was not provided with fair notice of why healing time could not be used to offset incarceration time, making it an application of “ex post facto law.” The short answer to these assertions is that, even if they could be considered in the absence of specific notice in the initial Notice of Appeal, there is no evidence in the record before the Board, including the exhibits and the transcript, that reveals any challenge by Mr. Thornton to the racial makeup of the Board. Nor did he submit any evidence regarding the racial composition of the members of the Board. Similarly, the record reflects that Mr. Thornton received and reviewed the relevant policies applicable to this case and that no ex post facto law or policy was introduced into the proceedings.

Putting aside whether shortcomings may exist in Mr. Thornton’s Notice of Appeal, there is no evidence in the record to substantiate any of the due process violations alleged in his brief or other appeal papers.

 

EMPLOYEE REVIEW CODE FACTORS

I. Reasonable Basis for the Board’s Consideration that Mr. Thornton Violated MPGE’s Policies and/or Procedures

The Board’s Final Decision states that Mr. Thornton violated the Attendance Standards Policy (Section II - Policy 17) (“Attendance Policy”) and Disciplinary and Performance Improvement Policy (Section II - Policy 15) (“Disciplinary Policy”). The Board specifically noted that Mr. Thornton violated the Disciplinary Policy because of its connection to the Attendance Policy. For the Board to have a “reasonable basis” to make this decision, the record must contain “substantial evidence,” more than a scintilla, supporting that conclusion. George, 5 Mash.Rep. at 329; Scheller, 6 Mash.Rep. at 129.

This Court finds that the record does contain substantial evidence supporting the Board’s conclusion that Mr. Thornton violated the aforementioned policies. The Attendance Policy defines a “no call/no show” as a “[f]ailure to report an absence personally no later than two hours after the scheduled shift starting time.” On June 10, 2021, Mr. Thornton asked for time off by way of a text to Mr. Blodgett, but his request was not approved. He was absent from work for five shifts due to his incarceration. Assuming, arguendo, that his request for “the next 3 work days off” was somehow approved, that would only make three of his six absences excused. This is enough evidence to support the Board’s conclusion that Mr. Thornton violated the Attendance Policy.

Turning to the Disciplinary Policy, “[f]ailure, inability or unwillingness to meet the ... standards of performance and/or conduct may be cause for suspension and/or termination.” Because Mr. Thornton failed to comply with the Attendance Policy, this constitutes sufficient evidence to support the Board’s conclusion that Mr. Thornton violated the Disciplinary Policy.

 

II. Reasonable Basis for the Board to Find that MPGE Substantially Complied with Disciplinary Policies and/or Procedures

The Board’s Final Decision states that MPGE complied with the relevant disciplinary policies and procedures, including the Disciplinary Policy. For the Board to have a “reasonable basis” to make this decision, the record must contain “substantial evidence,” more than a scintilla, supporting that conclusion. George, 5 Mash.Rep. at 329; Scheller, 6 Mash.Rep. at 129.

The Attendance Policy states that when a salaried team member exhausts their approved time off and has no other active disciplinary or performance related counseling on file, the following guidelines apply in the nature of progressive discipline:

• First absence will have the corrective action step of a written notification.

• Third absence will have the corrective action step of a written notification.

• Fifth absence will have the corrective action step of a written notification and meeting with management.

• Sixth absence will have the corrective action step of pending suspension or termination.

However, the Attendance Policy also states that management has the “flexibility” to look at a salaried team member’s overall work and any prior infractions “prior to administering corrective action.” Doing so “may result in a written warning, a final warning or termination of employment at any level.” Id. (emphasis added). When a salaried team member has lost time from work, including “failure to call out or report an absence in a timely manner,” he or she “may be subject to discipline in accordance with the Disciplinary and Performance Improvement Policy.” Id.

Here, although Mr. Thornton was not given any written notification at the first through fourth absences, after the fifth consecutive no call/no show management exercised its flexibility and discretion to notify Mr. Thornton of his suspension pending an investigation. His lost time from work consisted of at least three consecutive failures to call out/report an absence in a timely manner.

The Disciplinary Policy provides that “[a]ll termination decisions should be preceded by an investigation by Employee Relations and a recommendation.” Mr. Thornton was notified of his suspension pending an investigation for violation of the Attendance Policy and that Mr. Ingram was assigned to investigate this matter. Mr. Ingram spoke directly with Mr. Thornton during his investigation and received and addressed Mr. Thornton’s side of the story. Only after his investigation was concluded did Mr. Ingram recommended that termination would be warranted.

The Disciplinary Policy also states, “[m]anagement shall make all final decisions regarding appropriate counseling or termination.” After Mr. Ingram’s recommendation was submitted to management and reviewed by management, management notified Mr. Thornton of its final decision to terminate his employment on July 6, 2021.

The foregoing constitutes sufficient evidence to support the Board’s conclusion that the Gaming Enterprise complied with the relevant Disciplinary Policy procedures.

 

III. Mitigating Circumstances

“In the context of the Employee Review Code, ‘[m]itigating circumstances are those that do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.’ ” Scheller, 6 Mash.Rep. at 130 (quoting Mashantucket Pequot Gaming Enterprise v. Christison, 6 Mash.Rep. 41, 46 (2013)). Mitigating circumstances are factors surrounding an event which shed additional light on that event in such a way as to make the conduct appear less blameworthy or flagrant than was originally perceived. Mitigating circumstances must relate to the conduct in question that formed the basis for the disciplinary action. Mashantucket Pequot Gaming Enterprise v. Ju Lian Zheng, 6 Mash.Rep. 222, 226 (2014); Scheller, 6 Mash.Rep. at 131; Mashantucket Pequot Gaming Enterprise v. Covino, 6 Mash.Rep. 79, 83 (2013). See Scheller, supra, where the court declined to expend mitigating circumstances to factors unrelated to the conduct in question.

Without labeling it as a mitigating circumstance, Mr. Thornton’s incarceration and consequent inability to call his superior is discussed throughout the record, beginning at page 152 of the record and continuing almost to the end of the hearing when Mr. Thornton remarks that “it’s unfair for me to lose my job ... for a reason that’s totally unrelated to my job.” Record, p. 168. It is found that Mr. Thornton brought the issue of mitigating circumstances to the Board’s attention.

At the end of the evidence the moderator directs the Board’s attention to question 8 on the decision form and summarizes the definition of a mitigating circumstance substantially as set forth above. Record, p. 169. In answering question 8 the Board found that both parties had a reasonable opportunity to present evidence on the existence or non-existence of mitigating circumstances. But in answer to the question to “explain what they were,” the Board declined to specify any particular mitigating circumstances observing only that the “Panel’s decision was based on facts.” R. at V.

“Title 8 requires that the employee be given the opportunity to present any mitigating circumstances, but does not require that the Board ... explicitly determine in [its] decision that the presence or absence of a particular condition constitutes a mitigating circumstance.” Birmingham v. Mashantucket Pequot Tribal Nation, 6 Mash.Rep. 174 (2014) (appeal dismissed 6 Mash.App. 37 (2015), citing McDonough v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 50 (2013). Here, Mr. Thornton was given an opportunity to present evidence of his incarceration as a mitigating circumstance, which comports with the requirements of Title 8. The Board was not required to agree with his contention, however, as evidenced by the fact that it did not explicitly find that Mr. Thornton’s incarceration constituted a mitigating circumstance, stating only that the “Panel’s decision was based on the facts.” As set forth below, there is sufficient evidence in the record too substantiate the Board’s decision to decline to determine that Mr. Thornton’s incarceration constituted a mitigating circumstance when considering the particular facts of this case.

Mr. Thornton’s immediate superior testified that “if you had told me that the cops are here, I’m going to jail ... Employee Relations ... would have informed me that we don’t provide benefit time for people incarcerated.” Record, p. 153. Another superior testified “it’s practice ... team members that are incarcerated do not allow benefit time to be used.” Record, p. 160. “The policy is very clear that management has the discretion to approve or deny healing time.” Record, p. 161.

Mr. Thornton spent most of the hearing trying to parse the Gaming Enterprise’s policy regarding the healing time policy rather than positing his incarceration as a mitigating circumstance, waiting to the last moment to assert that he should not be terminated “for a reason that’s totally unrelated to my job.” Record, p. 168. The Board, however, was unmoved and did not find that his incarceration constituted a mitigating circumstance. 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. Pena v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 297, 300 (2010). There is substantial evidence in the record to support the Board’s decision not to find Mr. Thornton’s incarceration as a mitigating circumstance.

 

IV. Reasonable Basis for the Board of Review’s Decision as to the Appropriateness of the Form of Discipline

When a salaried team member has lost time from work, including “failure to call out or report an absence in a timely manner,” he or she “may be subject to discipline in accordance with the Disciplinary and Performance Improvement Policy.” Id. According to the Disciplinary Policy, “[m]anagement shall make all final decisions regarding appropriate counseling or termination.”

Here, management considered that Mr. Thornton’s five consecutive no call/no shows, which were clear violations of the Attendance Policy and Disciplinary Policy, constituted grounds for termination of his employment. On appeal to the Board of Review the Board upheld Mr. Thornton’s termination on those grounds. It has long been the law in Mashantucket that the question before this Court is not whether it would have reached the same conclusion as the Board, but whether the record supports the action taken. Loesche v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 127, 132 (1995). As set forth above in this decision, the record contains substantial evidence to support the Board’s decision to uphold the termination of Mr. Thornton’s employment.

 

CONCLUSION

This Court finds that there is substantial evidence in the record to support the Board’s conclusion that the Gaming Enterprise’s policies and procedures were violated, and that the Board’s decision to find Mr. Thornton’s incarceration did not constitute a mitigating circumstance, when considering the particular facts of this case.

The appellant’s appeal is dismissed.4

All Citations
2023 WL 11091533

Footnotes
1	After the parties had filed their briefs and oral argument had occurred, and Mr. Thornton’s MERO appeal had been resolved, and while the undersigned was in the process of reviewing the file and the arguments of the parties and preparing his decision, he fell ill, requiring his hospitalization and subsequent rehabilitation. The undersigned appreciates the patience of the parties in this matter.
2	See footnote 4.
3	Although he appears pro se, many of Mr. Thornton’s papers appear to have been drafted by someone with a modicum of legal training.
4	A significant portion of Mr. Thornton’s arguments rest upon the denial of healing time as an excuse or an offset to his incarceration time. Although this would not have excused his violations of the Attendance Policy for failing to call out, it merits mention. To the extent the denial of healing time is present in this appeal, it is irrelevant. As mentioned in the text, Mr. Thornton filed a complaint with ONAP under Title 33, appealing the denial of the use of healing time to cover his absences while incarcerated, which was adjudicated to conclusion. If a terminated employee files a claim pursuant to Title 33 “it shall be the sole cause of action against the Employer regarding the ... termination and the Employee may not also file a claim pursuant to [Title 8].” 33 M.P.T.L. ch. 1 § 13(c) (emphasis added). Any discussion of wrongful denial of healing time would be limited to the action brought by Mr. Thornton under title 33 and is not relevant to this action.