Long v. Mohegan Tribal Gaming Authority

1 Am. Tribal Law 385, 1 G.D.R. 5
CourtMohegan Gaming Disputes Trial Court
DecidedDecember 5, 1997
DocketNos. GDTC-D-97-105, GDTC-CV-97-106
StatusPublished
Cited by30 cases

This text of 1 Am. Tribal Law 385 (Long v. Mohegan Tribal Gaming Authority) is published on Counsel Stack Legal Research, covering Mohegan Gaming Disputes Trial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long v. Mohegan Tribal Gaming Authority, 1 Am. Tribal Law 385, 1 G.D.R. 5 (Mo. 1997).

Opinion

GUERNSEY, J.

The Plaintiff has brought two actions against the Mohegan Tribal Gaming Authority, Docket Nos. GDTC-D-97-105 and GDTC-CV-97-106, arising out of the alleged termination of his employment by the Defendant. The Plaintiff alleges that he was hired as Director of Craps on or about April 15, 1996, and on August 16, 1996 received a “Personnel Action Form” resulting in his termination effective August 30,1996. The complaint in each case consists of an identical eight count complaint, with Docket No. GDTC-D-97-105 including the Discriminatory Employment Practices Claim form (G.D.R.-12 Rev. 4-97), and Docket No. GDTC-CV-97-106 including a civil summons form (G.D.R.-3 Rev. 9-96). On July 17, 1997 the court granted the Defendant’s Motion to Consolidate the two cases.

In each case, Plaintiff has alleged breach of express contract (Count One), breach of implied contract (Count Two), breach of implied covenant of good faith and fail* dealing (Count Three), negligent misrepresentation (Count Four), a violation of the Mohegan Tribal Gaming Authority Ordinance No. 97-5 (Count Five), breach of contract as third party beneficiary (Count Six), statutory discrimination (Count Seven), and promissory estoppel (Count Eight). The Defendants Mohegan Tribal Gaming Authority and Mohegan Tribal Gaming Enterprise have moved to dismiss Plaintiffs claims in their entirety, on grounds that Count Five, alleging employment discrimination, is the only count cog[389]*389nizable by this court, and that as to that count, the Plaintiff lacks standing and that his claim is untimely filed (this argument is advanced in Docket No. GDTC-D-97-105). As to all other counts, the Defendants argue that it enjoys sovereign immunity from unconsented suit (these claims are addressed in Docket No. GDTC-CV-97-106). Defendants’ Motion to Dismiss Plaintiffs claims will first be considered with respect to Count Five (brought pursuant to TGA 97-5) in connection with Docket No. GDTC-D-97-105.

A. Claims Under the Mohegan Tribal Gaming Authority Discriminatory Employment Practices Claims and Appeals Ordinance (TGA 97-5).

(1) Standing.

Article XIII of the Constitution of the Mohegan Tribe, Section I, grants to the [Mohegan] Tribal Gaming Authority “all governmental and proprietary powers of The Mohegan Tribe over the development, construction, operation, promotion, financing, regulation and licensing of gaming, and any associated hotel, associated resort or associated entertainment facilities, on tribal lands.” Mohegan Const., Art. XIII, Sec.l. Such powers must be within the scope of the authority delegated by the Tribal Council to the Tribal Gaming Authority pursuant to Ordinance No. 95-2 (enacted as 95-7-15-1). The Constitution further provides as that “the Tribal Gaming Authority shall have the power to grant a limited waiver of sovereign immunity as to the Gaming matters.” Mohegan Const., Art. XIII, Sec. 1.

Pursuant to this authority, effective March 11, 1997, The Mohegan Tribal Gaming Authority adopted Ordinance No. 97-5. This Ordinance contains a limited waiver of sovereign immunity “for the sole purpose of enabling an applicant for employment with the Gaming Enterprise or an employee or former employee of the Gaming Enterprise ... to file and process a claim or appeal in The Gaming Disputes Court in accordance with and subject to the specific provisions expressed in this Ordinance.” Sovereign immunity is not waived for any other purpose, including the filing of claims or suits for any other adverse employment action, “including, but not limited to, any charge, claim, or suit complaining of wrongful discharge.” TGA 97-5 § 11(a). As regards the portion of this action brought pursuant to TGA 97-5, the Defendant has raised two jurisdictional issues, to wit: that the Plaintiff lacks standing to file a claim or appeal, and that even if he had such standing, the claim was untimely filed.

The Mohegan Tribal Gaming Authority Discriminatory Employment Practices Claims and Appeals Ordinance is far from a general grant of authority for the bringing of actions for adverse employment decisions. Section XI specifically provides that all appeals and claims must be filed within the time limits provided, and any claim or appeal “which is not timely filed or fails to comply with the applicable provisions of this ordinance shall be dismissed.” TGA 97-5 § XI (a, b). The Discriminatory Employment Practices Ordinance further establishes two types of matters which may be brought to The Gaming Disputes Court, Claims and Appeals, and those qualified to file either one are strictly and narrowly defined. A claim may be filed only by two classifications of individuals:

Only individual applicants for employment who were denied or barred from employment ... and individuals employed or formerly employed by the Gaming Enterprise who have been suspended without pay or have had their employment terminated by the Gaming Enterprise prior to completion of their [390]*390respective probationary periods of employment ...

TGA 97-5 § III(a)l. The Ordinance further provides that the following classifications of individuals shall not have standing to file a claim pursuant to the Ordinance:

1. One who occupies or occupied a managerial position with The Gaming Enteiprise;
2. An applicant for a managerial position in The Gaming Enterprise;
3. An individual who has access to the grievance procedures set forth in The Gaming Enterprise Employment Policies or to the Board of Review.

TGA 97-5, Id.

The Defendants have challenged the standing of the Plaintiff to bring this claim, both on grounds that the Plaintiff does not fit into either of the two classifications of individuals eligible to file a claim, and that the Plaintiff occupied a managerial position and had access to appropriate grievance procedures, of which he did not avail himself.

As to the first issue, whether the Plaintiff was suspended or terminated prior to the completion of his probationary period of employment, the allegations of Plaintiffs complaint are silent. Although the Defendants point to the Assembly of Records, prepared in connection with this Claim, as containing evidence of Plaintiffs status at the time of his termination of employment, this does not conclusively establish Plaintiffs status for purposes of this motion. The affidavit in support Of Defendants’ Motion to Dismiss, filed by Kevin Bogle, Vice-President, Human Resources, is silent as to whether or not the Plaintiff was suspended or terminated pri- or to completion of his probationary period of employment, or whether the probationary period was extended. The Defendants further claim that the Plaintiff resigned from his position, pointing to a “Personnel Action Form” indicating that the Plaintiff resigned, which form is apparently signed by the Plaintiff.

In his brief, however, Plaintiff contends that he was fired, although Paragraph 20 of Count Five of his complaints could support either interpretation. As to Plaintiffs probationary status, the complaint is again silent, although the Discriminatory Employment Practices Claim (G.D.R.-12) filed by the Plaintiff claims the employment status of “FORMER EMPLOYEE Probationary Period Not Completed.” This claim form is an indispensable part of any claim pursuant to TGA 97-5. TGA 97-5 § 111(a)(3).

In deciding jurisdictional issues raised by a pretrial Motion to Dismiss, the court must consider “the allegations of the complaint in their most favorable light.”

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Bluebook (online)
1 Am. Tribal Law 385, 1 G.D.R. 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-mohegan-tribal-gaming-authority-mohegangct-1997.