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| [1] | MOHEGAN GAMING DISPUTES TRIAL COURT OF
APPEALS |
| [2] | No. GDTC-D-97-105, GDTC-CV-97-106 |
| [3] | 1997.NAMG.0000002 <http://www.tribalresourcecenter.org> |
| [4] | December 5, 1997 |
| [5] | WENDELL M. LONG V. MOHEGAN TRIBAL GAMING AUTHORITY, ET. AL. |
| [6] | Denise Bevza, Esq., for Plaintiff Andrew L. Houlding, Esq. for
Defendant John A. Sabanosh, Esq. for Defendant |
| [7] | The opinion of the court was delivered by: Guernsey,
J. |
| [8] | SUMMARY |
| [9] | Plaintiff brought two actions arising out of the alleged termination
of his employment, based on theories of contract, negligence and
employment discrimination. Defendants moved to dismiss on grounds of
sovereign immunity. In granting Defendants' Motion to Dismiss, the Court held that the time limitations contained in TGA 97-5
and M.T.O. 96-2 were substantive rather than procedural, and that failure
to comply therewith deprived the court of subject matter
jurisdiction. The claims based on theories of contract and state
employment discrimination were held to be barred by the doctrine of
sovereign immunity. |
| [10] | 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. |
| [11] | 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 fair 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 Plaintiff's claims
in their entirety, on grounds that Count Five, alleging employment
discrimination, is the only count cognizable 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 Plaintiff's 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. |
| [12] | A. Claims Under the Mohegan Tribal Gaming Authority Discriminatory
Employment Practices Claims and Appeals Ordinance (TGA
97-5). |
| [13] | (a) Standing. |
| [14] | 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.1. 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. |
| [15] | 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 §II (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. |
| [16] | 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: |
| [17] | 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 respective probationary periods of employment . . . TGA 97-5 § III
(a)1. |
| [18] | The Ordinance further provides that the following classifications of
individuals shall not have standing to file a claim pursuant to the
Ordinance: |
| [19] | 1. One who occupies or occupied a managerial position with The Gaming
Enterprise; |
| [20] | 2. An applicant for a managerial position in The Gaming
Enterprise; |
| [21] | I. 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. |
| [22] | 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. |
| [23] | 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 Plaintiff's complaint are silent. Although
the Defendants point to the Assembly of Records, prepared in connection
with this Claim, as containing evidence of Plaintiff's status at the time
of his termination of employment, this does not conclusively establish
Plaintiff's 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 prior 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. |
| [24] | 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 Plaintiff's 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 §
III(a)(3). |
| [25] | 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." Lemoine v. McCann, 40 Conn. App.
460, 464, quoting Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163
(1981). "A motion to dismiss admits all facts well pleaded and invokes any
record that accompanies the motion, including supporting affidavits that
contain undisputed facts." Carl J. Herzog Foundation, Inc. v. University
of Bridgeport, 41 Conn. App. 790, 793 (1996). It is clear that the
probationary status of the Plaintiff as of the time of his termination is
in dispute. Similarly, whether the Plaintiff in fact occupied a managerial
position cannot be determined from the record. Although the title of
"Director of Craps" connotes supervisory authority, this court is not in a position to say whether the same equates
with a "managerial position". (Cf. Connecticut General Statutes Section
5-270(g), defining "managerial employee", for purposes of collective
bargaining, in terms of responsibility for direction, development,
implementation and evaluation of goals and objectives, formulation of
policy, etc.). |
| [26] | In this case, the court is unable to make the necessary
factual findings on these two issues from the affidavits, which findings
are necessary to determine the existence of standing under TGA 97-5.
Similarly, the issue of whether the Plaintiff had access to the grievance
procedures or the Board of Review are clearly in dispute. See Affidavit of
Wendell Long, dated August 8, 1997. The Connecticut Supreme Court has held it to be error for a trial
court not to allow an evidentiary hearing where questions of
fact relating to standing were raised: |
| [27] | When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like
hearing be held, in which an opportunity is provided to present evidence
and to cross-examine adverse witnesses. The trial court
erred in not holding such a hearing. Unisys Corp. v. Department of Labor,
220 Conn. 689, 695-96 (1991) quoting Standard Tallow Corporation v. Jowdy,
190 Conn. 48, 56, 459 A.2d 503 (1983). |
| [28] | The resolution of Defendants' Motion to Dismiss Count Five of
Plaintiff's Complaint does not require such a hearing, however, in light
of the court's ruling on the issue of Defendants' claim that
the complaint was untimely filed. |
| [29] | (a) Timeliness of Plaintiff's Action. |
| [30] | The Mohegan Tribal Gaming Authority Discriminatory Employment
Practices Claims and Appeals Ordinance establishes strict time limits for
the filing of claims thereunder: |
| [31] | A Claim may be filed directly with the Chief Clerk of the Court within thirty (30) days after the occurrence of the
event of which such Claim arises, or within thirty (30) days after the
Claimant first knew or, through the exercise of reasonable diligence
should have known, of the occurrence of the event out of which such Claim
arises. Any Claim filed more than thirty (30) days after the occurrence of
the event out of which the Claim arises, or more than thirty (30) days
after the Claimant first knew or, though the exercise of reasonable
diligence should have known, of the occurrence of the event out of which
such Claim arises, will be deemed untimely and will be subject to
dismissal by the Court. TGA 95-5, § III
(a)(2). |
| [32] | The ordinance contains no provision allowing the court
to vary the strict time limits set forth therein. |
| [33] | As already noted, the Plaintiff alleges that he was hired as Director
of Craps on or about April 15,1996. Paragraphs 24, 25, 26, 27, 28, 29, 30,
and 31 allege conduct by the Defendants or by Plaintiff's supervisor
indicative of a discriminatory employment practice that took place
"throughout the Plaintiff's employment with Mohegan Sun", and which
"created a hostile working environment for the Plaintiff in that it
intentionally engaged in behavior to disrupt the Plaintiff's work, to make
the Plaintiff feel uncomfortable, and to try to cause him to perform his
job duties badly." Plaintiff's Complaint, Count Five, Paragraph 31. These
allegations, taken as a whole, clearly indicate that the conduct
complained of was known to the Plaintiff, or discoverable in the exercise
of reasonable diligence, at the time it took place. The Plaintiff has made
no claim that he could not have reasonably known of the alleged behavior
until a later date. On August 16, 1996, Plaintiff received a "Personnel
Action Form" resulting in his termination effective August 30, 1996. The
Affidavit of Kevin Bogle indicates that one Jeff Avena was appointed to
the position formerly held by the Plaintiff on September 9, 1996.
Plaintiff's claim was not filed until May 9, 1997, well beyond the thirty
day period allowed for the filing of claims. |
| [34] | However, as Plaintiff points out, the present version of TGA 97-5 was
not adopted until April 10, 1997. If this were the effective date of the
Ordinance, Plaintiff's Complaint would be timely filed. However, in its
original form, TGA 97-5 was adopted on March 11, 1997. Although one of the
changes brought about by the April 10, 1997 amendment was the addition of
a definition of "file" in Section I(j), it is indisputable that
Plaintiff's cause of action existed at the time of the original enactment
of the Ordinance on March 11, 1997. The definition of "file" as added to
Section I(j) closely follows the strict requirements that had already been
set forth in Section III(a)(3). Similarly, the "Savings Clause" contained
in Section XII clearly applies to a claim "pending at the time of the
adoption of this ordinance", and is inapplicable to the instant
case. |
| [35] | In his Supplemental Memorandum, Plaintiff attacks Defendants'
contention that this court lacks jurisdiction because the
action was not brought within the time limits contained in TGA 97-5.
Although Plaintiff is correct in asserting that in most cases the defense
of statute of limitations is properly raised by a special defense,
Connecticut Practice Book Section 164, where "a specific time limitation
is contained within a statute that creates a right of action that did not
exist at common law, then the remedy exists only during the prescribed
period and not thereafter." Ecker v. West Hartford, 205 Conn. 219, 232,
530 A.2d. 1056 (1987). At issue is whether a time limitation contained
within a statute is procedural, and thus subject to waiver, or is "rather
is a limitation on the liability itself, and not of the remedy alone."
Ecker v. West Hartford, supra at 232. |
| [36] | This particular issue has been extensively analyzed by the
Mashantucket Pequot Tribal Court in Jenkins v. Mashantucket
Pequot Gaming Enterprise, 1 Mash. 7 (1993) where the court,
per Freeman, C.J., held that the time limitation contained in the
Sovereign Immunity Waiver Ordinance, M.P.T.O. 100192-01, Sec. 11, is
jurisdictional rather than procedural in nature. The holding in Jenkins
followed the decision of the Connecticut Supreme Court in
Ecker v. West Hartford, supra, that the time limitations contained in
Connecticut General Statutes Section 52-555 (allowing actions for wrongful
death) were a jurisdictional prerequisite that could not be waived, as
well as the holdings of similar cases involving limited waivers of
sovereign immunity as to the United States under the Federal Tort Claims
Act, 28 USC Section 2671 et seq., and as to the State of Connecticut under
Connecticut General Statutes Section 13a-144. These limitations were found
to be jurisdictional and non-waivable. |
| [37] | In the instant case, TGA 97-5 leaves no doubt that the time
limitations contained therein are jurisdictional and
non-waivable: |
| [38] | Section XI - Limitation on Presentation of Claim or
Appeal |
| [39] | (a) All Appeals and Claims shall be filed within the time limits
provided herein and in accordance with the applicable provisions of this
ordinance. |
| [40] | (b) 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. |
| [41] | Neverthless, the Plaintiff has argued that the thirty day statute of
limitations contained in TGA 97-5 is void by operation of Section 702 of
Ordinance 95-4, which establishes a general one year statute of
limitations for actions against the Mohegan Tribe or Tribal Gaming
Authority. M.T.O. 95-4, Art. VII, Sec. 702(1). While the language of
Section 702 provides that the one year statute shall apply "unless
otherwise specifically provided in this ordinance", there is no authority
for holding that such a provision preempts the authority of the Mohegan
Tribe or the Tribal Gaming Authority, as set forth in the Mohegan
Constitution, to grant limited waivers of immunity at any time in the
future under whatever limitations deemed appropriate. No authority has
been cited that even suggests that this court should read
into an ordinance any such limitation on the constitutional power of the
Tribe or the Tribal Gaming Authority. "Later enactments are presumed to
repeal [or be inapplicable to] earlier inconsistent ones to the extent of
the conflict. . ." Plourde v. Liburdi, 207 Conn. 412, 417, 540 A.2d 1054
(1958), quoting Keogh v. Bridgeport, 187 Conn. 53, 65, 444 A.2d 225
(1982). A legislative body, in the enactment of statutes, "is always
presumed to know all the existing statutes and the effect that its action
or non-action will have upon any one of them. And it is always presumed to
have intended that effect which its action or non-action produces."
Plourde v. Liburdi, 207 Conn. At 417, quoting State v. Staub, 61 Conn.
553, 556, 23 A.2d 924 (1892). Clearly, the Mohegan Tribe and the Tribal
Gaming Authority have the power by later enactment to modify the general
statute of limitations contained in M.T.O. 95-4. |
| [42] | The court is aware that holding compliance with the
thirty day statute of limitations to be a jurisdictional prerequisite,
when viewed in the circumstances of this case, may seem unduly harsh,
especially where the period of time by which the Plaintiff's claim did not
comply with the strict time limits of TGA 97-5 is relatively short.
Nevertheless, this court is bound by the strict, limited
waiver of immunity contained in TGA 97-5 and is without authority to
permit a deviation from the strict time limitations which are incorporated
into the waiver of immunity. |
| [43] | 1. Claims Based on Breach of Express Contract, Implied Contract,
Implied Covenant of Good Faith and Fair Dealing, and Promissory
Estoppel. |
| [44] | Count One of Plaintiff's Complaint alleges breach of express contract
in that Mohegan Sun breached the written provisions of its Handbook and
Manual by discharging the Plaintiff "without giving him the required
warnings mandated by its own Manual and Handbook", "by discharging the
Plaintiff in violation of the policies and procedures [relating to hiring
practices/Indian Preferences] mandated by its own Manual and Handbook" and
by failing to treat the Plaintiff fairly. Plaintiff's Complaint, Count
One, Paragraph 23. As a result of the alleged conduct, the Plaintiff
claims severe emotional distress, loss of income, benefits, and other
consequential damages, including but not limited to the loss of a
promotion. It is further alleged that Mohegan Sun's conduct was willful,
wanton, and malicious, for which Plaintiff seeks punitive damages. Count
Two makes the same allegations, adding that Mohegan Sun and the Plaintiff
"impliedly agreed to be bound by the terms of the Handbook and Manual
during the course of their employment relationship." Plaintiff's
Complaint, Count Two, Paragraph 12. Count Three of Plaintiff's Complaint
restates the allegations of Count One, adding thereto an allegation that
the conduct breached the "covenant of good faith and fair dealing implied
in all contracts" and "violated an important public policy of the State of
Connecticut." Plaintiff's Complaint, Count Three, Paragraphs 24-25. Count
Eight alleges that the Defendants promised to treat the Plaintiff fairly,
equitably and justly, that he relied on these promises, and that he has
been injured by their breach. |
| [45] | The Defendants have moved to dismiss on grounds that these counts (as
well as others) are barred by the doctrine of sovereign immunity. As
regards his contractual, quasi-contractual and promissory estoppel claims,
Plaintiff contends that the sovereign immunity of the Tribe may be waived
by contract, and at the time the Plaintiff entered into its contract of
employment with the Defendant, Article XIII, Section I of the Mohegan
Constitution caused him to believe that the Tribe had waived its sovereign
immunity. |
| [46] | Absent "a clear waiver [of immunity] by the tribe or congressional
abrogation", Oklahoma Tax Commission v. Citizen Band Potawatomi Indian
Tribe of Oklahoma, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed. 2d. 1112
(1991), it is clear that Indian tribes possess the "common law immunity
from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed. 2d. 106
(1978). The sovereignty of the Mohegan Tribe of Indians of Connecticut is
further expressly set forth in the Mohegan Constitution, which provides
that the Tribe shall have all the inherent sovereign rights and powers of
an independent, indigenous sovereign nation. Mohegan Const., Art. II.
While Indian Tribes can waive their sovereign immunity, "such waiver may
not be implied, but must be expressed unequivocally." McClendon v. United
States, 885 F.2d. 627, 629 (9th Cir. 1989). "The issue of tribal sovereign
immunity is jurisdictional in nature." McClendon v. United States,
Id. |
| [47] | Section 502 of Mohegan Tribal Ordinance 95-4, which established the
Gaming Disputes Court, specifies that nothing in the
ordinance establishing the Gaming Disputes Court "shall be
construed as a waiver of the sovereign immunity of the Tribe, the
Authority or the Tribe's other enterprises or political sub-divisions, or
its officers, agents, or employees, unless specifically denominated as
such." M.T.O. 95-4, Art. V, Sec. 502. In support of his claim that, as to
his contract of employment, the Defendant waived sovereign immunity,
Plaintiff points to Article XIII, Section 1 of the Mohegan Constitution,
dealing with the Tribal Gaming Authority, which provides in relevant part
as follows: |
| [48] | The Tribal Gaming Authority shall have the power to grant a limited
waiver of sovereign immunity as to Gaming matters, to contracts relating
to Gaming . . . . Nothing contained in this section shall limit the power
of the Tribal Council to waive the sovereign immunity of The Mohegan Tribe
as to Gaming or other matters, or with respect to other tribal revenues or
assets. The Tribal Gaming Authority shall have the power to enter into
contractual relationships which bind The Mohegan Tribe, provided that such
contracts shall be within the scope of authority delegated by the Tribal
Council to the Tribal Gaming Authority. Contracts of the Tribal Gaming
Authority shall be the law of The Mohegan Tribe and shall be specifically
enforceable in accordance with their terms. Mohegan Const., Art. XIII,
Sec. 1. |
| [49] | At issue is whether the language quoted from Article XIII, Section I
of the Constitution providing that contracts of the Tribal Gaming
Authority "shall be specifically enforceable in accordance with their
terms" constitutes the "clear waiver" of sovereign immunity, that "cannot
be implied but must be unequivocally expressed." Cherokee Nation of
Oklahoma v. Babbitt, 117 F.3d 1489, 1498 (D.C. Cir. 1997). |
| [50] | In interpreting the meaning of this constitutional provision, this court must recognize the "well established principle that
statutes in derogation of sovereign immunity should be strictly
construed." White v. Burns, 213 Conn. 307, 312 A.2d (1990). "Where there
is any doubt about [the] meaning or intent [of the statute in derogation
of sovereign immunity, it is] given the effect which makes the least
rather than the most change in sovereign immunity." Federal Deposit
Insurance Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 102, quoting White
v. Burns, 213 Conn. 307, 312 (1990). The Connecticut Supreme Court has held "the state's sovereign right not to be sued
without its consent is not to be diminished by statute, unless a clear
intention to that effect on the part of the legislature is disclosed, by
use of express terms . . .'." White v. Burns, 213 Conn. 307, 312 (1990),
quoting Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596
(1963). |
| [51] | The Plaintiff's construction of Article XIII, Section 1 of the Mohegan
Constitution would interpret the phrase "shall be specifically enforceable
in accordance with their terms" to waive the Tribe's and the Tribal Gaming
Authority's sovereign immunity for every contract, whether dealing with
employment or otherwise. As set forth above, such a broad waiver of
sovereign immunity must be expressly stated, and cannot be implied. If
Plaintiff's contention that Article XIII, Sec. 1 automatically inserts
into every contract a waiver of sovereign immunity is correct, then the
power expressly granted to the Tribal Gaming Authority to "grant a limited
waiver of sovereign immunity . . . to contracts relating to Gaming" is
superfluous. "It is a basic tenet of statutory construction that the
legislature did not intend to enact meaningless provisions." State v.
Szymkiewicz, 237 Conn. 613, 621, 678 A.2d. 473 (1996) quoting Turner v.
Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991). Rather, "statutes must be
construed, if possible, such that no clause, sentence or word shall be
superfluous, void or insignificant." State v. Symkiewicz, at 621 quoting
Hopkins v. Pac, 180 Conn. 474, 476, 429, A.2d 952 (1980). The intent of
the legislature is to be found "not in an isolated phrase or sentence, but
rather, from the statutory scheme as a whole." Figueroa v. C & S Ball
Bearing, 237 Conn. 1, 6, 675 A.2d 845 (1996), quoting State v. Breton, 235
Conn. 206, 226, 663 A.2d. 1026 (1995). |
| [52] | Taking Article XIII, Section 1 as a whole, the most logical
construction, and the one requiring the "least change" in sovereign
immunity, is that the Tribal Gaming Authority may, in its contracts, grant
a limited waiver of sovereign immunity and may enter into contractual
relationships which bind The Mohegan Tribe. These contracts are
enforceable "in accordance with their terms," but any waiver of sovereign
immunity must be an express term of the contract to be
enforced. |
| [53] | The Plaintiff has not alleged, nor is the court aware
of, any waiver of sovereign immunity contained in Plaintiff's contract,
even if the same were interpreted to include the Mohegan Sun Employee
Handbook and/or the Mohegan Sun Resort Policy and Procedure Manual.
Therefore, Counts One, Two, Three, and Eight must be dismissed on grounds
of sovereign immunity. |
| [54] | 2. Claims Based on the Alleged Violation of C.G.S. §
46a-60(a)(1) |
| [55] | Count Seven of Plaintiff's Complaint re-alleges the allegations of
Count Five, but claims the actions of the Defendants constitute a
violation of Conn. Gen. Stat. §46a-60(a)(1) by discriminating against the
Plaintiff, a Native American, on grounds of "race, color, creed, . . .
national origin, ancestry . . .." Plaintiff's Complaint, Count Seven,
Paragraph 33. |
| [56] | In the absence of a clear, unequivocal waiver of immunity by the Tribe
or congressional abrogation, the statutory claims asserted by Plaintiff
are barred by the Defendants' sovereign immunity, as discussed above.
Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of
Oklahoma, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed. 2d. 1112 (1991). The
Plaintiff has failed to show any such waiver or abrogation. Although
Plaintiff's Supplemental Memorandum argues that jurisdiction may exist
pursuant to Title VII 42 U.S.C. Section 2000e, for purposes of that title
the term "employer" specifically excludes "an Indian Tribe". 42 U.S.C.
Section 2000e(b). |
| [57] | D. Claims for Negligent Misrepresentation. |
| [58] | Count Four of Plaintiff's Complaint, while re-alleging most of Count
One, adds that the Defendants represented to the Plaintiff that the terms
and conditions of his employment would be those set forth in the Manual
and Handbook, Plaintiff's Complaint, Count Four, Paragraph 24, and that
the statements concerning the terms and conditions of employment contained
in the Handbook were false. Id. at Paragraph 25. This conduct is alleged
to constitute a negligent misrepresentation as to the terms and conditions
under which the Plaintiff would be employed, upon which he relied.
Connecticut "has long recognized liability for negligent
misrepresentation. [The Connecticut Supreme Court has] held
that even an innocent misrepresentation of fact may be actionable if the
declarant has the means of knowing, ought to know, or has the duty of
knowing the truth." Williams Ford, Inc. v. Hartford Courant Company, 232
Conn. 559, 575 (1995), quoting Richard v. A. Waldman & Sons, Inc., 155
Conn. 343, 346, 232 A.2d 307 (1967). The tort of negligent
misrepresentation has been held applicable to actions involving
termination of employment. D'Ulisse-Cupo v. Board of Directors of Notre
Dame High School, 202 Conn. 206, 218-19 (1987). See Klatte v. C. Michael
Brown, CEO, Mashantucket Pequot Gaming Enterprise, 2 Mash. 16 (Employment
Appeal Division, 1996). |
| [59] | Ordinance No. 96-2, "An Ordinance Establishing the Mohegans Torts
Code", adopted May 1, 1996, contains a limited waiver of sovereign
immunity for "injuries proximately caused by the negligent acts or
omissions of the Mohegan Tribal Gaming Authority." M.T.O. 96-2, Sec.
3(b)(1). An injury is defined as "death, harm to a person, or damage to or
loss of property which, 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." The harm
allegedly suffered by the Plaintiff, at least in terms of "severe
emotional distress", suffered as a result of the alleged negligent
misrepresentation, would qualify as an injury under M.T.O. 96-2, Sec.2(I).
The issue of coverage by the liability insurance of the Gaming Enterprise
Site has not been raised by either party and is not before the court at this time. |
| [60] | The Mohegan Torts Ordinance, M.T.O. No. 96-2, contains a time limit of
180 days after the claim accrues (defined as the date on which the injury
is sustained) within which: (a) to file a notice with the Gaming Disputes Court; and (b) to file a claim, defined as a petition for an
award under the ordinance. M.T.O. 96-2, Sec. 9 and 10. Plaintiff alleges
that he was terminated as of August 30, 1996. The record reflects that the
instant action was filed with the Gaming Disputes Trial Court on May 16, 1997. There is no evidence that the notice
required by M.T.O. 96-2, Sec. 9 was filed at any time. In their Motion to
Dismiss, the Defendants have claimed that the 180 day time limitation is
jurisdictional in nature, and for that reason this action must be
dismissed. The Plaintiff claims that the statute of limitations argument
is not properly before the court at this time. |
| [61] | For the reasons set forth in the discussions concerning the thirty day
statute of limitations contained in TGA 97-5, the conclusion is
inescapable that the time limitation in M.T.O. 96-2 is a limitation on the
liability itself, and not on the remedy alone. Ecker v. West Hartford, 205
Conn. 219, 232, 53 A.2d. 1056 (1987); Jenkins v. Mashantucket Pequot
Gaming Enterprise, 1 Mash. 7 (1993). It is therefore apparent on the
record that, irrespective of whether notice was properly given, this claim
was not presented within 180 days of the date on which the claim accrued,
and for that reason must be dismissed. |
| [62] | (1) Claims for Breach of Contract as Third Party
Beneficiary. |
| [63] | Count Six of Plaintiff's Complaint, in addition to restating
Paragraphs 1 through 22 of Count One, alleges that the Indian Gaming
Regulatory Act, Public Law in 93-638, the Gaming Compact between the State
of Connecticut and the Mohegan Tribe of Indians, and the contract between
the Mohegan Tribe of Indians and Trading Cove Associates all require the
Defendant(s) to adhere to Indian preferences in making employment
decisions. Plaintiff characterizes the two federal statutes, the Gaming
Compact and the Trading Cove Associates Agreement all as agreements of
which the Plaintiff claims to be a third party beneficiary. Plaintiff's
Complaint, Count Six, Paragraphs 23-29. Plaintiff's Complaint is devoid of
reference to the portion of the Indian Gaming Regulatory Act or Public Law
93-638 (Indian Self-Determination) which forms the basis of a contract or
agreement of which the Plaintiff could conceivably be a third party
beneficiary. |
| [64] | The basis of Plaintiff's standing as a third party beneficiary is
unclear. Inasmuch as there is no tribal law on the issue of status as a
third party beneficiary, pursuant to M.T.O. 95-4, Art. III, Sec. 301, this
court will turn to Connecticut law in analyzing Plaintiff's
status. While traditionally the courts of the State of Connecticut have
referred to the intent of the parties "to create a direct obligation
between the promisor and the beneficiary as the test for determining
whether a nonparty to the contract is a third party beneficiary thereof",
in 1997 the Connecticut Appellate Court, reviewing Stowe v.
Smith, 184 Conn. 196 (1981), concluded that a mutual intent on the part of
promisor and promisee "is no longer necessary for a beneficiary to have a
right to enforce the contract." Grigerik v. Sharpe, 45 Conn. App. 775,
783-787, 669, A.2d. 189 (1997) cert. granted. 243 Conn. 918 (1997). The
Appellate Court concluded, in accordance with the views of
certain commentators, that it is the intent of the promisee that should
determine whether a third party has the status of third party beneficiary.
Grigerik v. Sharpe, 45 Conn. App. at 789. As to the two federal statutes
cited by Plaintiff, no argument has been advanced as to how the Plaintiff
would qualify as a third party beneficiary thereunder. |
| [65] | Similarly, with respect to the claim under the Gaming Compact with the
State of Connecticut, the court is unaware of any provision
therein which conceivably could form the basis for the claimed status of
third party beneficiary. As to the agreement between The Mohegan Tribe of
Indians and Trading Cove Associates, Section 7.13 thereof specifically
provides that, with certain exceptions not here relevant, "this agreement
is exclusively for the benefit of the parties hereto and it may not be
enforced by any other party other than the parties to this agreement and
notwithstanding the provisions of Section 7.11, shall not give rise to
liability to any third party other than the authorized successors and
assigns of the parties hereto." |
| [66] | Even if Plaintiff were able to claim the status of third party
beneficiary, or to construe Count Six as asserting a cause of action under
the the Indian Gaming Regulatory Act and Indian Self-Determination Act,
there has been no waiver of the Defendants' sovereign immunity that would
permit the assertion of such claims. The Defendants enjoy the common law
immunity enjoyed by sovereign powers in the absence of a clear waiver of
sovereign immunity by the Tribe or by Congressional abrogation. Oklahoma
Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498
U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed. 2d. 1112 (1991). |
| [67] | (2) Claims Under the Indian Civil Rights Act, 25 U.S.C.
§1302(8) |
| [68] | Both of Plaintiff's complaints are devoid of any reference whatsoever
to the Indian Civil Rights Act (ICRA), 25 U.S.C. §1302 et seq. It is only
in his Memorandum in Opposition to Defendants' Motion to dismiss that
Plaintiff advances, without elaboration, a claim that the various statutes
of limitation deny Plaintiff due process and equal protection of the laws
as required by 25 U.S.C. §1302(8). The Defendants' Consolidated
Supplemental Memorandum approaches this claim in terms of an equal
protection analysis of the time limitations contained in TGA 97-5 and
M.T.O. 96-2, and whether the Defendant had a property interest in his
employment. Neither Plaintiff nor Defendants, however, have briefed the
threshold issue of whether tribal sovereign immunity bars an action under
the Indian Civil Rights Act brought to the Gaming Disputes Court. |
| [69] | The Indian Civil Rights Act has been held to have two distinct and
competing purposes: the strengthening of the position of the individual
tribal member vis-a-vis the tribe, as well as the furthering of Indian
self-government. Santa Clara Pueblo v. Martinez, 436 U.S. at 62. Section
1302 has been held selectively to incorporate, and in some instances
modify, the safeguards of the Bill of Rights to fit the unique needs of
tribal governments. The provision cited by Plaintiff, Section 1302(8)
"differs from the constitutional equal protection clause in that it
guarantees "the equal protection of its [the Tribes] laws" rather than of
`the laws.'" Santa Clara Pueblo v. Martinez, 436 U.S. at 62 fn. 14. The
United States Supreme Court has stated that creation of a
federal cause of action for the enforcement of rights created in Title I
of the Indian Civil Rights Act "plainly would be at odds with the
congressional goal of protecting tribal self-government." Santa Clara
Pueblo v. Martinez, 436 U.S. at 64. In Santa Clara Pueblo, the Supreme Court refused to approve "a judicially sanctioned intrusion
into tribal sovereignty . . . to fulfill the purposes of ICRA." " Santa
Clara Pueblo v. Martinez, 436 U.S. at 61. The court went on
to state: |
| [70] | Tribal forums are available to vindicate rights created by the ICRA,
and Section 1302 has the substantial and intended effect of changing the
law which these forums are obligated to apply. Tribal courts have
repeatedly been recognized as appropriate forums for exclusive
adjudication of disputes affecting important personal and property
interests of both Indians and non-Indians. Santa Clara Pueblo v. Martinez,
436 U.S. at 65. |
| [71] | The Mohegan Constitution specifically provides that nothing contained
therein, nor any other provision of tribal law, shall foreclose or limit
the right that "any person may otherwise have to bring an action in a court of competent jurisdiction to protect a right or seek a
remedy otherwise available pursuant to the Indian Civil Rights Act, 25,
U.S.C. §1301 et seq." Mohegan Constitution, Art. XIII, Sec.
4. |
| [72] | Despite the additional claims made in Plaintiff's Memorandum and
Supplemental Memorandum, it is clear that Plaintiff's complaints were not
brought pursuant to, and do not even purport to state a cause of action
under the Indian Civil Rights Act. In deciding a motion to dismiss, this court is bound by the complaint, and must examine its
allegations in their most favorable light to determine whether sufficient
facts have been alleged to overcome the sovereign immunity of the
Defendants: |
| [73] | "[T]he doctrine of sovereign immunity implicates subject matter
jurisdiction and is therefore a basis for granting a motion to dismiss."
Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994). "When a [trial]
court decides a jurisdictional question raised by a pretrial
motion to dismiss, it must consider the allegations of the complaint in
their most favorable light." Reynolds v. Soffer, 183 Conn. 67, 68, 438
A.2d 1163 (1981). Because this case comes to us on a threshold sovereign
immunity issue, pursuant to a motion to dismiss; Practice Book 143; we do
not pass on whether the complaint was legally sufficient to state a cause
of action. Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). In
the posture of this case, we examine the pleadings to decide if the
plaintiff has alleged sufficient facts: (1) with respect to sovereign
immunity, to support a conclusion that the defendant acted in excess of
his statutory authority; and (2) with respect to personal immunity under
4-165, to support a conclusion that the defendant was acting outside the
scope of his employment or wilfully or maliciously. Id., 542; see Barde v.
Board of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988). Antinerella v.
Rioux, 229 Conn. 479, 489, 642 A.2d 669 (1994). |
| [74] | In the instant case, Plaintiff's claims are brought on theories of
express contract, implied contract, implied covenant of good faith and
fair dealing, tort, discriminatory employment practices, third party
beneficiary, state employment discrimination, and promissory estoppel.
These counts are devoid of factual allegations that would show that the
actions of the Defendants deprived the Plaintiff of the equal protection
of the Tribe's laws or deprived him of property without due process of
law. |
| [75] | Therefore, the allegations of Plaintiff's complaints are insufficient
to give this court jurisdiction pursuant to the Indian Civil
Rights Act. As previously described, the Mohegan Constitution is quite
specific that neither the Constitution nor tribal law shall foreclose or
limit the right to seek a remedy under 25 U.S.C. §1301 et seq. The issue
of whether sovereign immunity is a bar to an action brought to this court
thereunder, and whether this court has
jurisdiction to hear such claims, must be decided in a case brought
pursuant to the Indian Civil Rights Act. |
| [76] | Accordingly, Defendants' motion to dismiss is hereby
granted. |