Pirolli v. Mohegan Tribal Gaming Authority

1 Am. Tribal Law 411, 1 G.D.R. 25
CourtMohegan Gaming Disputes Trial Court
DecidedNovember 20, 1998
DocketNo. GDTC-T-98-102
StatusPublished
Cited by9 cases

This text of 1 Am. Tribal Law 411 (Pirolli 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
Pirolli v. Mohegan Tribal Gaming Authority, 1 Am. Tribal Law 411, 1 G.D.R. 25 (Mo. 1998).

Opinion

WILSON, Judge.

This is an action brought in three counts seeking to recover monetary damages for alleged (1) negligent infliction of emotional distress; (2) discrimination because of physical disability; and (3) violation of the Indian Civil Rights Act, 25 U.S.C. Sec. 1302(8). The defendant has moved to dismiss all three counts. For the reasons which follow, the defendant’s motion to dismiss must be granted.

I.

In his first count the plaintiff alleges that he was a full time employee of the defendant who was terminated for violation of the defendant’s attendance policy. He claims that the attendance policy was negligently misapplied by his supervisor with the knowledge of the defendant. He also claims that the defendant knew that the plaintiff had been diagnosed with cancer and that the termination created an [414]*414unreasonable risk of causing emotional distress which might result in illness or bodily harm. Plaintiff seeks monetary damages for lost wages, insurance premiums, medical bills and expenses of relocation. The plaintiff did not cite any particular Mohegan ordinance or other law as a basis for this count.

The defendant moved to dismiss this count on the ground that the defendant’s Discriminatory Employment Practices Ordinance (M.T.O. 98-2) is the plaintiffs exclusive remedy; that under that ordinance the plaintiffs claim is time barred; and that tribal sovereign immunity bars all other employment-based claims.

The plaintiff counters with the argument that this count was grounded not on the Discriminatory Employment Practices Ordinance but, rather, for personal injury under the Mohegan Torts Code (M.T.O. 98-1) and that under that code this claim is not time barred.

The defendant Mohegan Tribal Gaming Authority (MTGA) is an entity created by the Mohegan Tribe of Indians of Connecticut (hereafter Tribe) pursuant to Mohegan Tribal Ordinance (hereinafter M.T.O.) No. 95-2 (enacted as 95-7/15-1) to operate the Mohegan gaming enterprises. The Mohegan tribe is a federally recognized Indian tribe. See Constitution of the Mohegan Tribe of Indians of Connecticut, Preamble. As such it has sovereign immunity. As a matter of federal law the Tribe is subject to suit only where congress has authorized the suit or the Tribe has waived its immunity. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 1702, 140 L.Ed.2d 981 (1998).

No congressional act authorizes the claim alleged in the first or second counts; therefore, the issue is whether the Tribe has waived its immunity from suit in this case. The two possible bases for waiver applicable in this case are the Mohegan Torts Code, M.T.O. 98-1, and the Discriminatory Employment Practices Ordinance. M.T.O. 98-2, each of which establishes limited waivers for cases falling within their terms.

M.T.O. 98-1, Sec. 3, provides a limited waiver of sovereign immunity and allows suit or certain claims for injury. “Claim” and “Injury” are defined as follows:

SECTION 2.
(e) “Claim” means a petition for an award under this ordinance. A claim may be filed with respect to any injury as defined in this ordinance and which is expressly covered by the liability insurance of the Gaming Enterprise Site without regard to any deductible amount contained in the insurance policy.
(i) “Injury” means death, harm to a person, or damage to or toss of property which, if inflicted by a person under Connecticut state law or tribal law, would constitute a tort and which is expressly covered by the liability insurance of the Gaming Enterprise Site without regard to any deductible amount contained in the insurance policy.

M.T.O. 98-2 provides for a limited waiver of sovereign immunity to allow certain “appeals” and “claims” to be brought by employees who claim certain “discriminatory employment practices.” Those terms are defined as follows:

Section I Definitions
(a) “Appeal” shall mean an appeal, set forth in writing on a form provided by the Chief Clerk of the Court and duly filed by the claimant with the Court in accordance with the applicable provisions of this ordinance, (1) from a Final Decision of the General Manager affirming or overturning, in whole or in part, a decision of the Board of Review that the individual filing the Appeal was or was [415]*415not the object of a discriminatory employment practice by the Gaming Enterprise, as herein defined, or (2) from a decision by the Trial Court, rendered pursuant to this ordinance, by which the claimant or General Manager is aggrieved.
(e) “Claim” shall mean a written complaint, set forth on a form provided by the Chief Clerk of the Court and filed by the Claimant directly with the Court pursuant to the applicable provisions of this ordinance, alleging that the Claimant has been the object of a discriminatory employment practice.
(i) “Discriminatory Employment Practice” means: a refusal by the Gaming Enterprise to hire or employ any individual, or a decision to bar, suspend or discharge from employment any individual because of such individual’s race, color, religious creed, age, sex, physical handicap, national origin or ancestry, or because the individual, after becoming employed by the Gaming Enterprise, filed a claim for workers’ compensation benefits or otherwise exercised such rights afforded to him pursuant to the provisions of the Connecticut Workers’ Compensation Act, C.G.S. § 31-275, et. seq.; provided that, it shall not be a discriminatory employment practice when the practice: (a) constitutes a legitimate implementation by the Gaming Enterprise of a bona fide occupational qualification or need; (b) was the result of a legitimate, nondiscriminatory business decision; (c) implements the provisions of the Management Agreement requiring preference in recruiting, training and employment to members of the Mohegan Nation, their spouses and children and to enrolled members of other federally recognized Indian Tribes; or (d) would have occurred notwithstanding any discriminatory employment practice.

The limited waiver was granted in the following terms:

Section II—-Waiver of Sovereign Immunity (a) The Mohegan Tribal Gaming Authority hereby grants a limited waiver of its 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, who believes that he or she is or has been the object of a Discriminatory Employment Practice by the Gaming Enterprise, as defined in Section 1, part (i) of this ordinance, to file and process a Claim or an Appeal in the Gaming Disputes Court in accordance with and subject to the specific provisions expressed in this ordinance. The Mohegan Tribal Gaming Authority does not waive its sovereign immunity from claims, appeals, suits, complaints, or charges by any person based on any theory of liability for damages resulting from breach of express or implied, contract, or quas i-contract or from, negligent or intentional tortious conduct, arising in, from, or out of the person’s employment, or the application of or termination of employment.

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Cite This Page — Counsel Stack

Bluebook (online)
1 Am. Tribal Law 411, 1 G.D.R. 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pirolli-v-mohegan-tribal-gaming-authority-mohegangct-1998.