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Updated through the 2005 Supplementary Pamphlet
CHAPTER 1. EMPLOYEE REVIEW CODE
Section 1. Definitions
Unless otherwise required by the context, the following words and phrases shall be defined as follows:
a. "Benefits" means vacation, sick leave, medical coverage or other employment enhancements provided to employees.
b. "Board of Review" or "Panel" means a randomly selected impartial panel of employees who are assembled to review the Disciplinary Action and then provide an advisory recommendation to the President/CEO of the Gaming Enterprise ("President/CEO") or Chief Operating Officer of the Tribal Government ("COO").
c. "Board of Review Record" or "Record" means the evidence presented or to be presented to the Board of Review.
d. "Day" means calendar day. Whenever a deadline falls on a weekend or holiday observed by the Mashantucket Pequot Tribe, the deadline shall be extended to the next business day.
e. "Disciplinary Action" means any violation of the Employer's policies or procedures resulting in termination or a suspension of five or more days.
f. "Employee" means an employee who has been the subject of Disciplinary Action and who properly requested a Board of Review. References to the Employee will pertain, if necessary, to the Employee's attorney. The term "Employee" will not include the following categories: probationary employees; political appointees; casual and part time employees; any employee who is voluntarily or involuntarily separated from employment as a direct result of the implementation of the Staffing Reorganization Reassignment Policy; any employee who is terminated due to a violation of a condition of employment, e.g., licensing requirement or is excluded by the Tribal Gaming Commission.
g. "Employer" means the Mashantucket Pequot Tribal Nation, the Mashantucket Pequot Gaming Enterprise, or any other enterprise of the Tribe.
h. "File" means to physically place into the possession of the Mashantucket Pequot Tribal Court Clerk. Filing is not effective upon mailing.
i. "Final Decision" means the determination by either the President/CEO of the Gaming Enterprise for Gaming Enterprise employees or the COO, or their designees, for all other employees, upon review of the advisory recommendation of the Board of Review, as defined by the Employer's policies and procedures.
Section 2. Jurisdiction
a. The tribal court is hereby granted jurisdiction to review a Final Decision of the President/CEO or COO of an employee Disciplinary Action that has progressed through the Board of Review process.
b. The Tribe hereby expressly waives its sovereign immunity and the sovereign immunity of the Gaming Enterprise from suit in the tribal court for actions founded upon a review of a Final Decision of an employee Disciplinary Action, provided that the Employee has exhausted all remedies available under the Employer's policies and procedures.
c. An action pursuant to this Law shall be the Employee's exclusive cause of action against the Employer provided that the Employee has first exhausted all administrative remedies.
Section 3. Filing an Action
a. An Employee who has progressed through the Board of Review process to a Final Decision by the President/CEO or COO may seek review thereof with the Mashantucket Pequot Tribal Court by filing an appeal as provided herein.
b. Within 30 days of mailing the Final Decision to the Employee's last known address (by certified mail, return receipt requested) or within 30 days after personal delivery of the Final Decision upon the Employee, an Employee may file a notice of appeal in the office of the tribal court clerk on a form provided by the tribal court clerk. Service of the appeal on the President/CEO or COO shall be made by the tribal court clerk by registered or certified mail.
No filing fee is required by the tribal court for such claims.
c. The filing of an appeal should not stay implementation of a Final Decision of the President/CEO or COO.
d. An Employee may seek review of a violation(s) of procedural due process rights, as that term is defined herein, in an appeal under this Title only, provided the Employee alleges such a claim(s) in the notice of appeal by stating the following information: (1) date of Disciplinary Action; (2) date of the Board of Review; (3) date of Decision of Board of Review; (4) each and every specific procedural error which the Employee claims constitutes a violation of the Employee's procedural due process rights, specifying the date on which such act occurred and who committed such act; and (5) the injury suffered by the Employee due to the alleged violations of procedural due process rights.
e. In an appeal under this Title, the tribal court may consider only whether an Employee's procedural due process rights, as that term is defined herein, were violated and shall not review, any other violations of rights enumerated in XX M.P.T.L. Civil Rights Code, or in any other tribal or federal statute. Claims based upon rights, other than procedural due process rights, shall be pursued under XX M.P.T.L. Civil Rights Code and shall be brought against the Tribe.
f. Under this title, "procedural due process rights" means the right to: (1) adequate notice of the Disciplinary Action, including the basis for such action; (2) a meaningful opportunity to be heard including an opportunity for the Employee or the Employee's representative to present witnesses and to question witnesses at the Board of Review; and (3) representation by counsel in the Board of Review, if desired by the Employee at the Employee's expense.
Section 4. Record before the Court
The record shall consist of:
a. a transcript of all recorded proceedings before the Board of Review regarding the Disciplinary Action;
b. a copy of all evidence and documentation presented to the Board of Review, the President/CEO, or COO;
c. a copy of the advisory recommendation issued by the Board of Review;
d. a copy of any recorded proceedings before the President/CEO or COO;
e. a copy of any documentary or other evidence considered by the President/CEO or COO which was not considered by the Board of Review; and
f. a copy of the Final Decision rendered by the President/CEO or COO.
Section 5. Assembly of the Record
a. Within 30 days of filing of the appeal, the Employer shall accumulate the record on appeal and shall certify to the tribal court that it is a true and correct copy of the original documents on file with the Employer, and shall file the record with the tribal court. The Employer shall bind and consecutively number pages of the record and shall provide an index indicating the identity and page location of each significant document relied upon to support a suspension or termination.
b. A copy of the certified record shall be provided to the Employee at no charge.
c. An Employee may, within five days of receiving a copy of the record, file a request to the court to include additional documents that were not part of the records, be included in the record before the court. The Employee shall serve a copy of the request identifying the specific documents upon the Employer, who, within five days of receipt of the request, may file an objection. If it is shown, to the satisfaction of the court, that the additional documents are relevant and probative, and that there were good and sufficient reasons for failure to present it in the Board of Review proceedings, the court may order that some or all of the additional documents be included as a part of the record before the court.
d. The parties may stipulate to the record.
Section 6. Pre-Hearing Conference
a. Within 30 days of the filing of the record, the court shall schedule and conduct a pre-hearing conference to deal with the following matters:
(1) augmentation or reduction of the record;
(2) clarification of issues;
(3) preparation of stipulations;
(4) scheduling of briefs or other written argument;
(5) setting of the trial date and such other deadlines as the court deems appropriate;
(6) setting a date for an additional pre-hearing conference; or
(7) other matters that may facilitate the resolution of the matter.
b. At the conclusion of the pre-hearing conference, the court may issue any necessary orders.
c. The court may extend or shorten deadlines in the interest of fairness or expediting the proceedings.
Section 7. Briefs
a. No later than 60 days from the filing of the record, the Employee shall file 2 copies of a typed or clearly legible copies of a brief which shall clearly and concisely set forth the specific reasons for requesting a review of the Final Decision. The brief shall not exceed 25 double spaced pages in length and shall include proper citations for any legal authorities relied upon, and specific references to the record.
b. The Employer's brief shall be filed within 30 days of the filing of the Employee's brief and shall conform to the rules as described above.
c. The Employee shall have the right to submit a reply brief within 10 days of the filing of the Employer's brief. The reply brief shall not exceed 10 double spaced pages in length and limited to the issues raised in the Employer's brief.
d. At the conclusion of the hearing, the court may order additional briefs, as the court deems necessary.
Section 8. Hearing
a. The hearing shall be held within 10 days of the filing due date of the Employee's reply brief.
b. The hearing shall be limited to the record before the court, any briefs, written documents or any additional evidence admitted by the court and oral argument presented by the parties.
c. The court shall not substitute its judgment for that of the Employer as to the weight of the evidence.
d. Notwithstanding the provisions of Section 5(c) of this Law, and in the interest of a fair review of the Employee's appeal, upon a showing of exceptional circumstances, the court may remand the matter to the President/CEO or COO to review new or additional evidence, provided that such new or additional evidence has been shown not to have been available for consideration at the Board of Review hearing through no fault of either party and that such new evidence is relevant and probative of the Employee's appeal.
e. The court may compel the attendance of necessary witnesses.
f. In reviewing the Employee's claim, the court shall determine whether the President/CEO or COO's Final Decision was arbitrary and capricious by considering whether:
(1) the President/CEO or COO had a reasonable basis for concluding that the
Employee violated the policies or procedures established by the Employer for the position held by the Employee, provided that in evaluating such basis the court shall recognize the discretion of the Employer's management to evaluate the weight of the evidence and credibility of the Employee and/or witnesses;
(2) the Employer substantially complied with the Policies 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 a reasonable opportunity to refute the offense or conduct and present any mitigating circumstances relating thereto;
(4) the form of discipline was appropriate for the offense or conduct and did not constitute an abuse of discretion, provided, that the court shall recognize the necessity for the Employer's management to exercise judgment and discretion in electing the form and level of discipline appropriate to the particular offense or conduct in the light of all facts and circumstances pertinent to the matter.
Section 9. Miscellaneous
a. All actions brought pursuant to this Title shall be heard by the court and not a jury. No costs shall be taxed against the Tribe or its enterprises.
b. In all actions where it is alleged that the liability of the Employer is based upon or related to the action of an agent, servant, or employee of the Employer acting within the scope of his or her employment, there shall be no separate cause of action existing against said agent, servant, or employee, and nothing in this Law shall be construed to waive the sovereign immunity of the Tribe to the extent that sovereign immunity would be applicable to such individual.
c. With respect to any action brought hereunder, damages awarded by the tribal court shall be limited to actual damages consisting of ascertainable loss of salary or wages, and/or benefits sustained as a result of a Disciplinary Action.
d. The following shall not apply to appeals against the Tribe or its enterprise: (i) any rule of law imposing absolute or strict liability; (ii) any award or other judgment imposing consequential, punitive or exemplary damages; (iii) any award for loss of consortium; (iv) any award for pain and suffering or mental anguish; and (v) any order for injunctive relief.
e. Attorney's fees may be awarded in the discretion of the court upon a showing of substantial abuse of discretion by the Employer. Attorney's fees shall be supported by contemporaneous records of hours billed and shall be consistent with prevailing billing rates of attorneys practicing before the Mashantucket Pequot Tribal Court.
Section 10. Rulings
a. Upon the consideration of the factors listed in Section 8(f), if the court finds that the President/CEO or COO's decision was arbitrary and capricious, it shall render a decision in favor of the Employee pursuant to subsection (b) of this Section.
b. The court may order reinstatement of the Employee and/or award lost wages and benefits as provided by this Law. Where appropriate, the court may hold a closed hearing with the parties so that the terms of an appropriate employment arrangement may be made part of any final order of the court.
c. The court shall issue a written reasoned decision supported by references to the record.
Section 11. Appeal
The decision of the court may be appealed to the Mashantucket Pequot Court of Appeals. The decision of the Court of Appeals shall be final.
Section 12. Application of Law
Any matter brought pursuant to this law shall be determined in accordance with tribal law. The court may be guided, but shall not be bound by the common law of other jurisdictions.
Section 13. Effective Date
This Law shall apply to any Disciplinary Action which occurs on or after its enactment.
Legislative History
TCR072998-05 of 11 repealed former Title VIII "Employment" (also
known as the "Mashantucket Pequot Temporary Emergency Employment Appeal
Law") and replaced it with Title VIII, "Employment," "Employee
Review Code."
rev.082898