Gumbs-Heyliger v. CMW & Assocs. Corp.

• Decision Date: 13 November 2014
• Docket Number: Civil Action No. 2012–00078
• Citation: 73 F.Supp.3d 617
• Court: U.S. District Court — Virgin Islands
• Parties: Shirmel GUMBS–HEYLIGER, Plaintiff, v. CMW AND ASSOCIATES CORPORATION, Defendant.

73 F.Supp.3d 617

Shirmel GUMBS–HEYLIGER, Plaintiff

v.CMW AND ASSOCIATES CORPORATION, Defendant.

Civil Action No. 2012–00078

District Court of the Virgin Islands, Division of St. Croix.

Signed November 13, 2014

Andrew C. Simpson, Esq., Emily A. Shoup, Esq., St. Croix, U.S.V.I., For the Plaintiff

Michael J. Sanford, Esq., St. Croix, U.S.V.I., For the Defendant

MEMORANDUM OPINION

Lewis, Chief Judge

THIS MATTER came before the Court for a Pretrial Conference held on October 1, 2014. At the Pretrial Conference, the Court inquired, inter alia, into the legal issues presented by the parties in their “Joint Final Pretrial Order” (Dkt. No. 80), “Plaintiff's Pretrial Memorandum” (Dkt. No. 87), and the “Trial Brief of Defendant CMW and Associates Corporation” (Dkt. No. 90). One of the issues was the applicable burden of proof in a case brought under the Virgin Islands Wrongful Discharge Act—specifically, whether the burden of production or burden of persuasion shifts to the employer once a prima facie case has been made by the employee. (Dkt. No. 80 at 10–11). The Court held a hearing on October 8, 2014, and the parties provided supplemental briefing on the issue. (Dkt Nos. 117, 122, 123, 125, 128).

By Order entered on October 13, 2014, the Court ruled that Plaintiff has the initial burden of production to establish a prima facie case of wrongful discharge, and Defendant then has the burden of persuasion to show by a preponderance of the evidence that Plaintiff was discharged for one of the nine reasons enumerated in Section 76(a) of the Virgin Islands Wrongful Discharge Act, 24 V.I.C. § 76. (Dkt. No. 133). The trial in this diversity action commenced on October 14, 2014, in accordance with this Court's ruling on the burden of proof. Per the Court's October 13, 2014 Order, this Memorandum Opinion embodies the Court's reasons for its ruling. (Id. ).

I. BACKGROUND: LEGAL CONTEXT

The Virgin Islands Wrongful Discharge Act (“WDA”) was enacted on December 29, 1986. Prior to its enactment, this Court recognized a common law cause of action for wrongful discharge. In Robinson v. Hess Oil V.I. Corp., the Court adopted a public policy exception to the at-will employment doctrine, holding that a “claim for tortious discharge, regardless of the absence of an applicable statute[,] states a claim upon which relief may be granted.” 19 V.I. 106, 111 (D.V.I.1982). The decision in Robinson was later acknowledged and relied upon in Moore v. A.H. Riise Gift Shops, 23 V.I. 227, 232, 659 F.Supp. 1417 (D.V.I.1987), which noted that “many jurisdictions have modified the common law by recognizing a cause of action for wrongful discharge of an at-will employee.” Id. at 232–33, 659 F.Supp. 1417 (collecting cases).¹

With the enactment of the WDA, the Virgin Islands Legislature codified and circumscribed the grounds upon which an employer may lawfully discharge an employee. Under Section 76(a) of the WDA, an employer may discharge an employee for any one of nine enumerated reasons. See 24 V.I.C. § 76(a).² Section 76(c) provides that “[a]ny employee discharged for reasons other than those stated in subsection (a) ... shall be considered to have been wrongfully discharged,” except if discharged as a result of cessation of business operations or general cutbacks of the work force. Id. at § 76(c). Courts have long recognized that Section 76(c) of the WDA establishes a “presumption” that an employee has been “wrongfully discharged” if discharged for any reason other than the nine listed in Section 76(a). See, e.g., Gonzalez v. AMR, 549 F.3d 219, 221–22 (3d Cir.2008) ; Harrilal v. Blackwood, 44 V.I. 144, 149–50 (V.I.Terr.Ct.2001) ; The Village, V.I. Partners in Recovery v. The Gov't of the V.I., 39 V.I. 109, 114 (V.I.Terr.Ct.1998) ; Hess Oil V.I. Corp. v. Richardson, 32 V.I. 336, 344, 894 F.Supp. 211 (D.V.I.1995).

An employee claiming wrongful discharge may seek reinstatement with back pay through an administrative process, see 24 V.I.C. § 77, and/or compensatory and punitive damages through the judicial process, together with attorney's fees and costs, see id. at § 79. The state of the law on the burden of proof in the administrative and judicial contexts has developed in different directions.

The burden of proof in the administrative process is governed by a Department of Labor regulation, which provides that the employer bears the ultimate “burden of persuading” the presiding officer, “by a preponderance of the evidence, that the discharge was lawful.” 24 V.I. R. & REGS. § 77 –59. In The Village, V.I. Partners in Recovery v. The Gov't of the V.I., an employer challenged this regulation on the grounds that it “offends existing legal principles by incorrectly shifting the burden of proof from the employee to the employer” and is “contrary to common law precedent in that the burden of proof in the Virgin Islands is always placed upon the plaintiff in civil cases.” 39 V.I. at 113. The then Territorial Court—now Superior Court—rejected these arguments and upheld the regulation. Id. at 120.

In upholding the regulation, the court concluded that after the employee has established a prima facie case, and thus triggered the statutory presumption of wrongful discharge, the burden of proof shifts to the employer to prove a lawful reason for the discharge. Id. at 117–18. The court found that this conclusion was consistent with Rule 302 of the Federal Rules of Evidence ; a now-repealed Virgin Islands statute, 5 V.I.C. § 812(a), that shifted the burden of proof to the party against whom the presumption operates; existing case law; and “the Virgin Islands Wrongful Discharge Act itself.” Id. at 122. The court reasoned that “it appears that all Virgin Islands Rules and Regulations Title 24, Section 77 –59 requires is that the employer bear the burden of his affirmative defenses.” Id. at 118.

With regard to the burden of proof in WDA judicial proceedings, the District Court in Rajbahadoorsingh adopted the McDonnell Douglas burden-shifting framework, developed by the United States Supreme Court in the Title VII employment discrimination context. See Rajbahadoorsingh v. Chase Manhattan Bank, NA, 168 F.Supp.2d 496, 504–05 (D.V.I.2001) ; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, once a WDA plaintiff establishes the presumption of wrongful discharge through her prima facie case, “the burden of production shifts to the employer to articulate some legitimate, statutorily-approved reason for the plaintiff's discharge.” Rajbahadoorsingh, 168 F.Supp.2d at 505 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 ). According to the Court in Rajbahadoorsingh, this second prong “does not require the employer [to] prove that it was motivated by” one of the nine Section 76(a) reasons; it is simply a burden of production and the burden of persuasion remains with the plaintiff. Id. After the employer's showing, the burden of production shifts back to the discharged employee, to demonstrate “weakness[es], implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its action,” such that a factfinder could reasonably “(1) disbelieve the employer's articulated legitimate reasons or (2) believe that a non-WDA approved reason was more likely than not a motivating or determinating cause of the employer's action.” See id. (internal quotation marks omitted). Thus, under this analysis, the burden of persuasion remains with the plaintiff, notwithstanding the shifting burden of production.

The Rajbahadoorsingh Court concluded that WDA claims should proceed in a manner similar to Title VII discrimination claims because the WDA “shares many of the same characteristics” as Title VII, including congressional intent to assure equality of employment opportunities. Id. at 503–04 (“The Supreme Court's observations on the Congressional interest behind the anti-discrimination in employment laws are equally applicable to the purposes of the Legislature in creating the Virgin Islands Wrongful Discharge Act.”) (citing McDonnell Douglas, 411 U.S. at 800–01, 93 S.Ct. 1817 ). However, the Court cited no legislative history of the WDA. See id.

The Superior Court of the Virgin Islands subsequently adopted the Rajbahadoorsingh Court's burden of proof allocation for WDA claims brought in court, reasoning that the shifting burdens—in which the plaintiff, not the employer, carries the ultimate burden of persuasion—“prevent the Court and/or the jury from being required to undertake plenary reviews of individual employment decisions.” Fenton v. C & C Constr. & Maint., Inc., 48 V.I. 263, 272 (V.I.Super.Ct.2007). The Superior Court further noted that “it would be economically catastrophic to require an employer to devote resources to each employment decision equal to the resources devoted to full-blown litigation.” Id.

This Court also applied the Rajbahadoorsingh analysis to WDA causes of action. See, e.g., Galloway v. Islands Mech. Contractor, Inc., 2012 WL 3984891, *17, 2012 U.S. Dist. LEXIS 129014, *56 (D.V.I.2012)(stating, in denying defendant's motion for summary judgment, that “a claim under the WDA operates substantially the same as a claim alleging discrimination in termination under Title VII”) (citing Rajbahadoorsingh, 168 F.Supp.2d at 505–06 ); James–Frederick v. Frenchman's Reef & Morning Star Marriott Beach Resort, 2013 WL 3992938, *5, 2013 U.S. Dist. LEXIS 108488, *16 (D.V.I.2013) (applying the Rajbahadoorsingh analysis to a constructive discharge claim brought under the WDA); Paul v. Hovensa, L.L.C., 2013 WL 1408861, *26–27, 2013 U.S. Dist. LEXIS 49851, *87–92 (D.V.I.2013) (granting defendant's motion for summary judgment after analyzing the facts in accordance with the Rajbahadoorsingh burden-shifting framework).

Recently, however, the Rajbahadoorsingh Court's application of the McDonnell Douglas framework to WDA claims filed in court has been brought into question. In Maynard...