2025 WL 984492 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
 
Jaime MATOS
v.
MASHANTUCKET PEQUOT GAMING ENTERPRISE
 
DOCKET NO. MPTC-CV-AA-2023-114
|
MARCH 14, 2025

 

MEMORANDUM OF DECISION

Edward B. O’Connell, Judge

This employment appeal has an unusual history which merits an explanation. It was filed by the plaintiff on April 6, 2023, and the defendant’s attorney duly filed her appearance. Thereafter about a year passed with no action taken until the plaintiff asked a private attorney to look into the status of his case. Upon inquiry, it was discovered that the Record had not been returned to the Court. The plaintiff’s attorney filed a motion for a default which was not granted because it was the Moderator’s duty to return the Record rather than the Mashantucket Pequot Gaming Enterprise’s.

The next day, the Moderator filed the Record. Thereafter, the Court issued a scheduling order which, inter alia, required the Mashantucket Pequot Gaming Enterprise (“the Gaming Enterprise”) to “file with the Tribal Court and send to the plaintiff all surveillance video evidence viewed by the Board of Review.” The Court set a deadline for the plaintiff to “file with the Tribal Court his motion as to supplemental evidence which he asserts should have been presented to the Board of Review and any proposed correction to the Record” and set another deadline for the Gaming Enterprise to “file its objection to the plaintiff’s motion, if any.” Thereafter, the Gaming Enterprise filed a motion for a protective order, with a thumb drive of security footage attached, in compliance with the Court’s scheduling order.

Thereafter, the plaintiff filed his “Motion Re Supplemental Evidence and Remand to the Board of Review” and the Gaming Enterprise filed its “Objection/Response” thereto. After several motions for continuances were granted, oral argument was held by the Court. These pleadings, together with the briefs submitted with them and the oral arguments presented by the parties, are the operative items considered by the Court. The following is the Court’s decision thereon.

The plaintiff appeals the termination of his employment as a dealer in the casino operated by the Gaming Enterprise pursuant to the provisions of the Mashantucket Employee Review Code, 8 M.P.T.L. ch.1. He challenges the decision of the Board of Review (“the Board”) to uphold his termination for violating the Gaming Enterprise’s standards of conduct, including alleged dishonesty, insubordination, and sexual harassment.

A review of evidence considered at the Board hearing reveals the following. On April 29, 2022, the Gaming Enterprise “Team Member Relations (TMR)” Department was notified of an incident involving the plaintiff and a female employee of the Gaming Enterprise. In this notice, the plaintiff was alleged to have made this female coworker uncomfortable by stopping the casino game the plaintiff was working as a dealer, following the female co-worker, and placing himself outside a room the female coworker had entered to wait for her to exit. Based on this notice, the Gaming Enterprise investigated and reported that the female coworker claimed she felt “very uncomfortable” as a result of the plaintiff’s actions because “she knew he was thinking she was a patron” and that “knowing he was watching her to know her location made her feel uncomfortable.”

Additionally, on April 22nd, the plaintiff was alleged to have failed to get information requested by the plaintiff’s assistant table games shift manager. The plaintiff’s response was that he felt the way he was asked to do this task by his manager was “embarrassing” so he just walked away without completing the requested task. Also, the plaintiff was alleged to have not followed proper identification procedures of a patron, where the plaintiff was alleged to have confirmed the patron’s identification by looking at the patron’s phone as opposed to a valid ID. The plaintiff’s response was that he had identified this patron several times before, so the plaintiff felt that looking at the patron’s phone to confirm he was the same person was an adequate identification procedure. Lastly, it is alleged that the plaintiff was dishonest during the investigation of the alleged sexual harassment incident by claiming that he was following the female coworker to “get information regarding surveillance” when in fact he was following her to personally interact with her outside of the scope of his employment duties.

The Gaming Enterprise’s TMR investigator, Honey Collins, reviewed surveillance footage of each alleged incident, interviewed all witnesses, and found the factual basis supporting charges of unsatisfactory work performance and violations of Gaming Enterprise workplace policy by the plaintiff were substantiated. Those incidents comprised the factual basis for management’s decision to terminate the plaintiff. Specifically, the Gaming Enterprise’s investigation concluded that the plaintiff violated the following policies: Standards of Conduct Policy, Section II – Policy 14; Sexual Harassment Policy, Section II – Policy 7; and Appendix “A” of the applicable Collective Bargaining Agreement. Thereafter, the Gaming Enterprise terminated the plaintiff’s employment for violating these Gaming Enterprise Standards of Conduct. The plaintiff appealed his termination to the Board.

The Board unanimously upheld the termination and concluded that the plaintiff violated all of the standards of conduct as charged by the Gaming Enterprise. In describing what evidence the Board relied upon in deciding whether the conduct occurred, the Board stated that; “[w]e found the victims [sic] statement and her testimony to be credible,” “[w]e found Mr. Matos’ statements to TMR and his testimony to be not credible,” and “Mr. Matos in his own testimony admitted to being insubordinate.” The Board explained that its “decision was based on statements that were collected, the evidence presented, and the testimony given.”

Thereafter, the plaintiff filed a timely appeal of the Board’s decision with this Court pursuant to 8 M.P.T.L. ch.1 § 3. The plaintiff presents two procedural challenges to the Board’s decision. First, he asserts that the Record presented at the hearing included prior and not exclusively “active” discipline. Second, he contends that he was precluded from submitting relevant evidence to the Board which would have had a bearing on its decision.

 

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).

In this case the anchor of this Court’s review is 8 M.P.T.L. ch.1 § 8(f)(3) which establishes what process a Gaming Enterprise employee is accorded in a Board hearing. Specifically, the plaintiff’s challenges are that the inclusion of prior discipline was a violation of his due process under Title 8 and that he has demonstrated the existence of exceptional circumstances which warrant the consideration of new evidence which was not available to the Board at his hearing pursuant to 8 M.P.T.L. ch.1 § 8(d).

The plaintiff’s first challenge is that his due process rights under Title 8 were violated by the inclusion of prior discipline in the Record presented to the Board. He points to and asserts that the Record presented to the Board “shall include all Active Discipline and any other relevant material in the Employee’s personnel file.” 8 M.P.T.L. ch.1 § 1(e). “Active Discipline” is defined as discipline for the past 12 month period. 8 M.P.T.L. ch.1 § 1(a). Prior discipline1 can be included in the Record considered by the Board “[i]n connection with the determination required pursuant to § 8(f)(3).” 8 M.P.T.L. ch.1 § 1(e). Subsection 8(f)(3) contains two mandates: (1) the parties be allowed to prove or disprove the conduct which is the subject of the hearing; and (2) to show aggravating / mitigating evidence. Luond v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 73, 80 (2016).

In 2012 the Mashantucket Pequot Court of Appeals held that “... the inclusion of prior discipline must demonstrate by clear and convincing evidence an error [that] was so manifest and substantial as to destroy the integrity of the review process.” Sherman v. Mashantucket Pequot Gaming Enterprise, 5 Mash.App. 66 (2012).

The following year the Mashantucket Pequot Trial Court applied the harmless error principle defined in Sherman.

This Court finds under the facts here that inclusion of the prior discipline in the charging document is not sufficient to affect the Board’s or President’s decision. As on appeal the Court must find clear evidence of error, the inclusion of prior discipline must demonstrate by clear and convincing evidence an error was so manifest and substantial as to destroy the integrity of the review process. While it would seem better to not include prior information in the Employee Review Process until the employee raises their good conduct as a mitigating factor, there has not been a sufficient showing of how its inclusion impacted the process. Thus, its inclusion in the charging document is not reversible error.” McDonough v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 50, 56 (2013); see also M.P.R.C.P. 61.

Next, Luond fleshed out the harmless error principle for judicial review of inclusion of prior discipline in the record considered by the Board of Review established in Sherman and then applied in McDonough. The plaintiff must show that the inclusion of the prior discipline was more than harmless error. The general test for harmless error is whether the error in the proceedings below was “more probable than not harmless.” Luond, 6 Mash.App. at 81.

In Luond, the court found that the inclusion of prior discipline in the record was harmless error where the Board had an evidentiary basis independent of the prior discipline to find the charged conduct occurred and referenced this independent basis in the Board’s explanation of finding the charged conduct occurred and that termination was appropriate. Id. Looking at the administrative record, the Luond court found that even assuming all of the prior discipline was removed from the record, the remaining evidence presented to the Board provided a reasonable basis for the Board’s decision. Id. at 82. The Luond appellate court concluded that the inclusion of the prior discipline did not destroy the integrity of the Board’s review because it was harmless error. Id.

A clear example of when inclusion of prior disciplines in the administrative record would constitute more than harmless error would be if the Board based its decision on the prior disciplines only, without independent evidence providing a reasonable basis to find that the charged conduct occurred. This would amount to a propensity argument, which is recognized as such in Luond. “[C]ourts generally are reluctant to allow evidence of what one did in the past as a means of proving a current violation.” Luond, 6 Mash.App. at 80.

Here, the final decision of the Board lists the alleged conduct violations considered as insubordination, dishonesty, and sexual harassment. The Board made three factual findings to support its conclusion that the violations occurred. These are that it: (1) found the victim’s statement and her testimony to be credible; (2) found the plaintiff’s testimony not credible; and that it (3) found the plaintiff, in his own testimony, admitted to being insubordinate. The issue becomes whether these findings provided the Board with a sufficient evidentiary basis to support its decision that the alleged conduct occurred so that the inclusion of the prior discipline was harmless error.

The three factual findings made by the Board to support its conclusion that the alleged violations occurred all cite as their basis only evidence contemporaneously related to the charged violation. There is no mention of “past history” in the Board’s findings. Assuming all of the prior disciplines were removed from the Record, the remaining contemporaneous evidence presented to the Board provides a sufficient basis for the factual findings and the decision reached by the Board.

The victim’s statement, which was found by the Board to be credible, provides a reasonable basis to find the sexual harassment charge occurred. Moreover, the plaintiff admitted in his own testimony that he was insubordinate. The Board did not find the plaintiff credible in regards to his defense to dishonesty, and based on statements provided by people at the scene, found that the plaintiff had been dishonest, which is a reasonable basis for such a finding.

Considering the Board’s explanation of its decision and the Record as a whole, it is more probable than not that in reaching its decision it relied exclusively on evidence directly relating to the charged conduct, which provided a reasonable basis for the Board’s findings. This is demonstrated by the evidence referenced as the Board’s basis for its decision, which is the victim’s statement, testimony of the plaintiff, and statements from people at the scene of the alleged misconduct. There is no reference to prior disciplines.

The inclusion of the prior discipline in the Record in this case constituted harmless error and did not otherwise destroy the fundamental fairness or integrity of the hearing. The plaintiff’s challenge to the Board’s final decision on the grounds of a procedural due process violation by way of the inclusion of prior discipline in the Record is not reversible error and does not warrant remand because the inclusion was harmless error.

The plaintiff’s second challenge is that he has demonstrated exceptional circumstances which warrant the consideration of new evidence which was not available to the members of the Board at the hearing.

Upon a showing of exceptional circumstances, the Court may review new or additional evidence, or may remand the matter to the Board of Review to review new or additional evidence, provided that such new or additional evidence is shown to not have been previously 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 appeal. 8 M.P.T.L. ch.1 § 8(d).

“While exceptional circumstances are not defined in Section 8(d), the Court believes that requirement goes both to why the evidence was not available and to the potential impact of the evidence upon a Board of Review hearing.” Venice v. Mashantucket Pequot Gaming Enterprise, 5 Mash.App 1, 6 (2008). “If this interpretation is correct not only will the proponent have to show the evidence was not available at the hearing and has probative value, but that either it was not available after exceptional efforts were made to acquire (or hide) such information and/or that its value is highly relevant or probative to the proceeding.” Id.

“Asserting that particular evidence is important is not the same as explaining why that evidence will impact the Board of Review. That is, the proponent must explain how and why the evidence is relevant to the proponent’s case.” Id. at 8. Because the employee failed to specifically allege why the offered new evidence would be of relevance to the Board of Review, the Venice court held that the employee failed to show that the introduction of the new evidence was “highly relevant or probative to the proceeding” and was thus prevented from being introduced under 8 M.P.T.L. ch.1 § 8(d).

Under Venice, to warrant the consideration of new evidence the plaintiff must show either that the offered evidence was “not available after exceptional efforts were made to acquire (or hide) the evidence and/or that the evidence is highly relevant or probative to the proceeding.” Venice creates a two-pronged test for when exceptional circumstances warrant supplementing the record with new evidence to be considered by the Board. The first prong is the proponent must demonstrate that “exceptional efforts” were made to acquire or hide the evidence from the Board, but nonetheless it was not considered by the Board. The second prong is that the proponent must explain how and why the evidence is “highly relevant or probative to the proceedings” but was not considered. A satisfaction of either prong would warrant remand to the Board with instructions to consider the previously unconsidered evidence.

The plaintiff alleges that he timely requested the following pieces of evidence be submitted for the Board’s consideration: “various pieces of surveillance coverage which appears to be related records and reports of prior alleged misconduct” and “the names of all employees who were asked to write statements about the incidents that will be discussed.” The plaintiff alleges that his request was denied by the Moderator’s office on the grounds that “the evidence is not related to the disciplinary action that led to the termination from employment.” The plaintiff also alleges that he requested to submit an audio recording of testimony from the Gaming Enterprise’s TMR investigator, Honey Collins, that was made at a State of Connecticut unemployment hearing. The plaintiff alleges that this testimony was inconsistent with Ms. Collins’ “own statements and other statements contained in the Record.” The plaintiff alleges that he attempted to submit this audio recording prior to and at the hearing, but these attempts were refused first by the Moderator’s office prior to the Board hearing for being “after the fact” of the events leading to the plaintiff’s termination, and then by the Moderator at the hearing who explained his decision as, “we’re not going to let that in. They made a prior decision based on the policy that, you know, it has to do with exactly what’s relevant to his termination.”

The Honey Collins investigative report formed the basis for the charges against the plaintiff. It was these allegations that the Board reviewed in making the Board’s credibility determinations, i.e., are the facts as set forth in the investigative report the truth? The plaintiff asserts that the audio recording reveals inconsistencies between Honey Collins’ statements in the investigative report considered by the Board, and her testimony made at the unemployment hearing which was not considered by the Board. If the credibility of the investigative report is itself put into question, then this would bear on all of the rest of the evidence presented in the hearing because it would color the basis of the charges themselves. The plaintiff has explained how and why this evidence is “highly relevant or probative to the proceedings” in that it could reveal inconsistencies between the Honey Collins investigative report and her testimony at the unemployment hearing.

The Court finds: (1) that the plaintiff has made the “exceptional circumstances” showing to warrant the consideration of new evidence by making two explicit requests to the Moderator to admit this evidence prior to and at the hearing; and (2) that the plaintiff has explained how and why the evidence is “highly relevant or probative to the proceedings” by pointing out the possible conflicting statements of Ms. Collins.

The Court is not making a factual finding here regarding the contents of the audio recording. Instead, the Court finds that the plaintiff has demonstrated that the recording could be highly relevant or probative to the proceedings, such that it should have been considered below. While the audio recording may not change the Board’s ultimate factual findings or conclusions, the plaintiff’s procedural due process rights under 8 M.P.T.L. ch.1 § 8(f)(3) require that it should have been considered. Recall that the other mandate in subsection 8(f)(3) is that the parties be allowed to prove or disprove the conduct that is the subject of the hearing. Luond, 6 Mash.App at 80. Alleged inconsistent statements by the person who furnished the investigative report to the Board are clearly relevant in proving or disproving the conduct.

While the inclusion of the prior discipline here was harmless error because the Board had an independent evidentiary basis to make its factual findings and cited that basis as the ground for its final decision, a review of the Record reveals that the plaintiff’s prior disciplines were discussed at the Board hearing. At one point the Gaming Enterprise’s representative at the Board hearing stated, “he’s (referring to the plaintiff) been suspended on several occasions over different issues. I want to make sure that you have the opportunity to read his file completely because it’s very big.” (parenthetical and italics added)

The plaintiff sought to introduce additional reports and surveillance coverage related to these “different issues” which made up the plaintiff’s “very big” file which was considered in full at the Board hearing in order to rebut the prior discipline that was included in the Record.

The plaintiff timely requested the introduction of rebuttal evidence, but his request was refused by the Moderator. As a result, evidence was not available for consideration at the hearing. Considering that prior discipline was included in the Record, the plaintiff’s request for the introduction of rebuttal evidence should have been granted on the grounds of procedural fairness. Where prior discipline is included in an employee’s record at a Board hearing, exceptional circumstances warranting supplementation arise if the employee requests evidence related to the prior discipline for rebuttal purposes. This rebuttal evidence to the prior discipline evidence should have been furnished by the Gaming Enterprise and allowed to be considered if the Record was going to contain prior discipline evidence. Here, the inclusion of prior discipline was ultimately determined to be a harmless error, but the plaintiff could not have known that at the outset. His request for inclusion of the rebuttal evidence should have been granted on the grounds of procedural fairness.

 

CONCLUSION

Where a Board of Review hearing process is flawed by violations of procedural due process, the appropriate remedy is to remand the matter for a new hearing under corrected procedures. Magee v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 40, 55 (2007).2

The inclusion of prior discipline in the Record here was harmless error. However, the plaintiff, with respect to the rebuttal evidence and the Honey Collins’ audio recording, has demonstrated exceptional circumstances pursuant to 8 M.P.T.L. ch.1 § 8(d) and Venice to warrant remand to a new Board of Review to consider this evidence that should have been considered in the first instance, and to not consider this evidence was a violation of the plaintiff’s procedural due process rights in a Board of Review hearing pursuant to 8 M.P.T.L., ch.1, § 8(f)(3).

The plaintiff’s appeal on the ground that instances of prior discipline were included in the Record is DENIED.

The plaintiff’s appeal on the ground that exceptional circumstances warrant the consideration of new evidence which was not available to the Board of Review is GRANTED.

The matter is REMANDED to the Gaming Enterprise to convene a new Board of Review to hold a hearing on a Record which includes the Honey Collins’ audio recording of the unemployment hearing and either: (1) contains a Record which does not include instances of the plaintiff’s prior disciplines, in which case no rebuttal evidence shall be provided to, or considered by the Board of Review; or (2) contains a Record which does include alleged instances of the plaintiff’s prior disciplines, in which case the Moderator’s Office shall provide the plaintiff with prior notice of alleged instances of the plaintiff’s prior disciplines and provide the plaintiff a sufficient opportunity to submit rebuttal evidence into the Record prior to the hearing and to testify regarding rebuttal evidence and submit rebuttal evidence at the hearing.

All Citations
2025 WL 984492

Footnotes
1	The statute reads: “Board of Review Record” or “Record” means the evidence presented to the Board of Review. This Record shall include all Active Discipline and any other relevant material in the Employee’s personnel file. In connection with the determination required pursuant to § 8(f)(3) herein, the Record may include performance reviews, character witness statements, commendations, and other discipline.
2	Citing Thompson v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 29, 33–34 (1996); Johnson v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 22, 28–29 (1996); and Grossi v. Mashantucket Pequot Gaming Enterprise, 2 Mash.App. 19 at 21 (1998).