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(Cite as: 2004 WL 1052011 (Conn.Super.))

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

Superior Court of Connecticut,

Judicial District of New London.

Joseph CHAYOON

v.

William SHERLOCK et al.

No. 128101.

April 23, 2004.

Joseph Chayoon, Westerly, pro se.

Brown Jacobson P.C., Norwich, for William Sherlock.

Elizabeth Conway, Norwich, for James A. Rigot, Rich Tesler, Linda Smith, Mike Rich, Joann Frank, Fay E. Carlson and Dottie Killy.

MARTIN, J.

*1 The defendants, eight individuals who are, or formerly were, employed by the Mashantucket Pequot Gaming Enterprise at Foxwoods Resort Casino (gaming enterprise), [FN1] move to dismiss this wrongful termination action on the grounds that the court lacks subject matter jurisdiction and that the court lacks personal jurisdiction. First, the defendants claim that the court lacks subject matter jurisdiction because (1) they are protected by tribal sovereign immunity since they are or were employees, officers and/or officials of the gaming enterprise; and (2) it would infringe on tribal self-governance if a state court were to exercise jurisdiction over a tribal employment matter. Secondly, the defendants claim that the court lacks personal jurisdiction due to insufficient service of process. The defendants' motion to dismiss is granted for the reasons set forth below.

FN1. Affidavits submitted by the defendants indicate that the gaming enterprise was established by the Mashantucket Pequot tribe as an arm of the tribal government.

FACTS

On September 2, 2003, the plaintiff, Joseph Chayoon, filed a one-count complaint alleging that the defendants violated the Family Medical Leave Act [FN2] when they terminated him from his position as a table games supervisor at the gaming enterprise after he requested time off to care for his seriously ill, eighty-two year old mother. The plaintiff alleges that he requested a leave on June 6, 2000, and provided the defendants with sufficient documentation. The plaintiff claims that his request was initially approved, but that he was terminated upon his return to work on August 29, 2000. [FN3]

FN2. The Family Medical Leave Act is set forth at 29 U.S.C. § 2601 et seq.

FN3. This is the third lawsuit that the plaintiff has initiated based upon these facts. The plaintiff first filed two complaints in federal court, one against the Mashantucket Pequot Tribal Nation and the Mashantucket Pequot gaming enterprise, which was dismissed for a lack of subject matter jurisdiction; Chayoon v. Mashantucket Pequot Tribal Nation, United States District Court, Docket No. 3:02CV163 (AVC) (D.Conn. April 15, 2002); and one against eighteen individual defendants, including seven members of the Mashantucket Pequot Tribal Council and employees, officers and/or representatives of the gaming enterprise. Chayoon v. Reels, United States District Court, Docket No. 3:02CV1358 (JCH) (D.Conn. March 12, 2003), aff'd, 355 F.3d 141 (2d Cir.2004). The second action was also dismissed for a lack of subject matter jurisdiction.

On October 31, 2003, the defendants filed a motion to dismiss and a supporting memorandum of law asking the court to dismiss the action on the grounds that the court lacks subject matter jurisdiction and personal jurisdiction. [FN4] The plaintiff filed an objection to the defendants' motion and oral argument was heard on December 1, 2003.

FN4. It should be noted that on February 17, 2004, the plaintiff filed an affidavit in support of his opposition to the defendants' motion to dismiss. Even if the court were to consider the untimely affidavit, it would have no effect on the court's decision because the affidavit does not raise any issues as to whether the defendants acted beyond the scope of their authority when they terminated the plaintiff.

DISCUSSION

"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Blumenthal v.. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 548, 825 A.2d 90 (2003); Martinez v. Dept. of Public Safety, 263 Conn. 74, 80-81, 818 A.2d 758 (2003). "The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ... Where ... the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).

*2 The defendants first claim that this court lacks subject matter jurisdiction because the doctrine of sovereign immunity protects them from suit. They further claim that the Mashantucket Pequot tribe has created an internal review process for employees to challenge terminations and that the tribal court has jurisdiction over internal review decisions. Thus, the defendants argue, it would infringe on the tribe's right to self-governance if a state court were to exercise jurisdiction over an employment matter. In support of their motion, the defendants submitted affidavits attesting to the fact that the named defendants were employees of the gaming enterprise or the tribe when the plaintiff was terminated from employment. Additionally, the affidavits state that the gaming enterprise was established by the Mashantucket Pequot tribe as an arm or subdivision of the tribal government. The plaintiff argues in response that the defendants are not immune from suit because they are non-Indians being sued individually and because in terminating the plaintiff, they acted against company policy and beyond the scope of their authority.

"As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751, 754, 118 S.Ct 1700, 140 L.Ed.2d 981 (1998). "Absent a clear and unequivocal waiver by the tribe or congressional abrogation, the doctrine of sovereign immunity bars suits for damages against a tribe." Romanella v. Hayward, 933 F .Sup. 163, 167 (D.Conn.1996), aff'd, 114 F.3d 15 (2d Cir.1997). "The doctrine of tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority." (Internal quotation marks omitted.) Id.; see also Kizis v. Morse Diesel International, Inc., supra, 260 Conn. at 54. Connecticut courts have held that "tribal immunity extends to all employees acting within their representative capacity and within the scope of their official authority." (Emphasis added.) Basset v. Mashantucket Pequot Museum & Research Center, Inc., 221 F.Sup.2d 271, 278 (D.Conn.2002). "[I]t is insufficient for the [plaintiff] merely to allege that [the defendant tribal employees] violated state and federal law in order to state a claim that [the defendants] acted beyond the scope of their authority; it would be tantamount to eliminating tribal immunity from damages actions because a plaintiff must always allege a wrong in order to state a claim for relief. Rather ... to state a claim for damages against [the defendants], the [plaintiff] would have to allege and prove that [the defendants] acted 'without any colorable claim of authority,' apart from whether they acted in violation of federal or state law." Id., at 281, quoting Doe v. Phillips, 81 F.3d 1204, 1210 (2d Cir.1996).

In the present action, the plaintiff does not allege that the tribe has waived immunity from suit or that Congress has abrogated it. [FN5] Instead, he asserts that the defendants are non-Indians and claims that the defendants acted beyond the scope of their authority by violating company policy. Therefore, the plaintiff argues, they are not protected by the doctrine of sovereign immunity.

FN5. However, in his opposing memorandum, the plaintiff briefly argues that the gaming enterprise expressly waived sovereign immunity in various employment forms that obligated the gaming enterprise to abide by the Family Medical Leave Act and were drafted by the tribe. The court finds that, even if the plaintiff had pleaded that fact, such forms do not provide a clear waiver of sovereign immunity. See C & L Enterprises, Inc. v. Citizen Rand Potawatomi Indian Tribe, 532 U.S. 411, 418-20, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001).

*3 "In the tribal immunity context, a claim for damages against a tribal official lies outside the scope of tribal immunity only where the complaint pleads-- and it is shown --that a tribal official acted beyond the scope of his authority to act on behalf of the tribe." (Emphasis added.) Basset v. Mashantucket Pequot Museum & Research Center, Inc., supra, 221 F.Sup.2d at 280. "Claimants may not simply describe their claims against a tribal official as in his individual capacity in order to eliminate tribal immunity." (Internal quotation marks omitted.) Id. A court should "examine the actions of the individual tribal defendants ... [A] tribal official--even if sued in his individual capacity--is only stripped of tribal immunity when he acts manifestly or palpably beyond his authority ..." (Internal quotation marks omitted.) Id.; see Oneida Indian Nation of New York v. Sherrill, 337 F.3d 139, 169 (2d Cir.2003). Further, "[i]n order to overcome sovereign immunity, the [plaintiff] must do more than allege that the defendants' conduct was in excess of their ... authority; they also must allege or otherwise establish facts that reasonably support those allegations." Hultman v. Blumenthal, 67 Conn.App. 613, 624, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002).

In the present case, it is undisputed that the defendants are employees of the gaming enterprise and that the gaming enterprise was established as an arm or subdivision of the tribal government. These facts are confirmed by the defendants' affidavits and the plaintiff does not contest them. The plaintiff's claim against the defendants is based upon their actions surrounding his request for a family leave and his termination from employment. Specifically, the plaintiff alleges discrimination and violations of the Family Medical Leave Act in that he was denied a promotion and terminated because he requested a family leave that he was eligible for. The plaintiff further alleges that the defendants misled him regarding their reason for denying his request for a family leave, and that one of the defendants, James Rigot, stated that he could resume employment if he gave up his rights under the Family Medical Leave Act. None of the plaintiff's allegations indicate that the defendants acted in their individual capacities. [FN6] Additionally, there is nothing in the plaintiff's allegations which shows that the defendants were acting beyond the scope of their authority when they terminated the plaintiff; nor do any of the documents submitted by the plaintiff show that the defendants acted beyond the scope of their authority. The plaintiff merely alleges that the defendants acted beyond the scope of their authority because they violated the Family Medical Leave Act. Thus, the plaintiff has done nothing more than allege a statutory violation. Because the plaintiff has not provided sufficient support to show that the defendants acted beyond the scope of their authority, the court concludes that the defendant tribal employees are entitled to assert the tribe's immunity from suit against the plaintiff's claim. Accordingly, the defendants' motion to dismiss is granted and the court need not address the defendants' alternate arguments.

FN6. The case of Puyallup Tribe, Inc. v. Dept of Game, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977), provides an example of tribal officials acting in their individual capacities. In Puyallup Tribe, Inc., the Supreme Court determined that while engaged in fishing activities, the defendants were acting as fishermen rather than as tribal members. The court therefore concluded that a state court could regulate the number of trout that the tribal members may catch each year because sovereign immunity does not reach tribal officials in their individual capacities.