Robinson v. Hess Oil Virgin Islands Corp., Civil No. 80-35

• Citation: 19 V.I. 106
• Decision Date: 03 May 1982
• Docket Number: Civil No. 80-35
• Parties: AVANDALE ROBINSON, Plaintiff v. HESS OIL VIRGIN ISLANDS CORP., and STEVEN R. SCHUTT, INC., Defendants
• Court: U.S. District Court — Virgin Islands

19 V.I. 106

AVANDALE ROBINSON, Plaintiff v. HESS OIL VIRGIN ISLANDS CORP.,and STEVEN R. SCHUTT, INC., Defendants

Civil No. 80-35

District Court of the Virgin Islands Div. of St. Croix

May 3, 1982

Motions of defendant employer to dismiss and to strike plaintiff employee's action for wrongful discharge, breach of at-will employment contract and prayer for reinstatement and motion of plaintiff for partial summary judgment. The District Court, Christian, Chief Judge, held that since the complaint stated a cause of action for which reinstatement was an available remedy and a prior determination that defendant's use of polygraph examination results did not meet its burden of proving just cause for discharge under terms of a union contract did not preclude defendant from raising results of a polygraph examination administered to plaintiff, the motions would be denied.

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JOEL H. HOLT, ESQ. (HOLT AND GRONER), Christiansted, St. Croix, V.I., for plaintiff

R. ERIC MOORE, ESQ., RICHARD KEELING, ESQ., Christiansted, St. Croix, V.I., for defendant Steven Schutt, Inc.

GEORGE S. ELTMAN, ESQ. (BRYANT, LENAHAN & ELTMAN), Christiansted, St. Croix, V.I., for defendant Hess Oil Corp.

CHRISTIAN, Chief Judge

MEMORANDUM AND ORDER

This action is before the Court on the motions of defendant Hess Oil Virgin Islands Corporation (HOVIC) to dismiss Fed. R. Civ. P. 12(b)(6) and to strike, Fed. R. Civ. P. 12(f) and on the motion of plaintiff for partial summary judgment. Fed. R. Civ. P. 56(c).

The present action arises out of the termination of plaintiff's at-will employment agreement by defendant HOVIC. Plaintiff alleges that by authorizing a negligently conducted polygraph examination of him and by using the results of that examination as the basis for his discharge the defendant employer committed an intentional tort (wrongful discharge) and also breached its implied contractual obligation of "good faith" and "fair dealing". By the terms of his amended complaint plaintiff sets forth counts against HOVIC alleging libel, slander, reckless infliction of emotional distress, as well as tortious discharge and breach of contract. Plaintiff seeks monetary recovery and reinstatement to his former position.

(A) HOVIC'S Motion To Dismiss

Defendant HOVIC urges that the amended complaint be dismissed on one or more at the following grounds: (1) HOVIC is immune from suit by a discharged employee because of the exclusive remedies afforded by Virgin Islands Workmen's Compensation law; (2) wrongful (or tortious) discharge is not a claim cognizable under Virgin Islands law; and (3) no genuine issue of fact exists inthe record to support plaintiff's breach of contract and duty of fair dealing claim. These three arguments will be discussed seriatim.

(1) Exclusively of Remedy Under the Workmen's Compensation Law

[1] Defendant correctly states the long settled rule that under an applicable statutory workmen's compensation scheme, an injured employee must forego his or her common law remedies in lieu of the exclusive remedies afforded by statute. Etienne v. Island Gas Co., 1978 St. X. Supp. 383 (D.V.I. 1978). However, the exclusive remedies bar may not be interposed where the injuries complained of are the result of an intentional wrong or more generally, are not of the type which are insurable or compensable under the statute.

[2-4] In the instant case, plaintiff's six counts either contain elements of intentional wrongs or seek redress for injuries which would not be compensable injuries under the Virgin Islands Workmen's Compensation Act. The preliminary test of whether the exclusive remedies of workmen's compensation apply is whether the injuries complained of fit within the definition of "injury" set forth in the statute, namely, "harmful change[s] in the human organism." 24 V.I.C. § 251(a) (1981). A defamation claim is clearly among both the intentional and the nonphysical torts which are not insurable under the Workmen's Compensation law. This may be so even when (in contrast to the present case) a physical injury or ailment is alleged in conjunction with the defamatory acts. Braman v. Walthall, 252 S.W.2d 342 (Ark. 1949). Similarly, claims such as reckless infliction of emotional distress or those relating to loss of employment are not in themselves related to the type of injuries covered by the Virgin Islands workmen's compensation scheme. Cf. Sullivan v. United States, 428 F.Supp. 79, 81 (E.D. Wis. 1977) (types of injuries covered by and subject to the exclusive remedy provision of federal employees compensation act, 5 U.S.C. § 8101, do not include claims for injury by discrimination, mental distress or loss of employment).

[5] In short the injuries alleged by plaintiff in this action either fall outside the definition of "injury" set forth in 24 V.I.C. § 251(a) or are otherwise outside the purview of the work-related injuries compensable under the Act. Accordingly the Virgin Islands Workmen's Compensation Act does not preclude plaintiff from pursuing any of the common law counts set forth in the amended complaint.

(2) The Tortious Discharge Claim

Defendant HOVIC argues (as it did in opposition to plaintiff's motion to amend) that under Virgin Islands law there is no cognizable cause of action for wrongful or tortious discharge of an at-will employee, and that therefore Count VII of the amended complaint should be dismissed. Plaintiffs have persistently countered by relying upon Perks v. Firestone Tire and Rubber Co., 611 F.2d 1363 (3rd Cir. 1979) for the proposition that a prima facie action for wrongful employment discharge will lie where the discharge is alleged to have contravened the "clear mandate" of an applicable public policy.

The Court in Perks reversed a grant of summary judgment entered in favor of the defendant-employer and held that the dismissal of an at-will employee which resulted from his refusal to submit to a polygraph examination gave rise to a cause of action under Pennsylvania law for tortious discharge. Prior to Perks, the Pennsylvania Supreme Court had joined the increasing number of state courts which have modified the common law doctrine that an employer may unilaterally terminate an employment relationship for any reason when the employment is at will. In Geary v. United States Steel Corp., 456 Pa. 171, 184, 319 A.2d 174, 180 (1974), the court stated as follows:

It may be granted that there are areas of an employee's life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer's power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened.¹

In Perks the "recognized facet of public policy" found by the Court to have been "threatened" by the plaintiff's discharge was a Pennsylvania criminal statute proscribing the use of polygraph tests by employers. Defendants in the instant action argue that since the Virgin Islands has no statute (criminal or otherwise) regulating the use of employer polygraph examinations the Perks opinion is inapplicable. However while the absence of an applicable statute may be a persuasive factor in determining whether any public policy is implicated,² it by no means forecloses an inquiry into whether acause of action will be recognized in this jurisdiction for wrongful discharge under the circumstances alleged in plaintiff's complaint.³ Indeed, several of the states which have held wrongful discharge to be a cognizable cause of action have done so in the absence of any relevant prohibitory statute or statutory remedy. See Cloutier v. Great Atlantic & Pacific Tea Co., 436 A.2d 1140, 1144 (N.H. 1981) (discharge of managerial employee for refusal to order other employees into a hazardous environment actionable even in absence of "a public policy enunciated in a statute", the court holding that "[p]ublic policy exceptions giving rise to wrongful discharge actions may . . . be based on non-statutory" as well as statutory policies); Reuther v. Fowler & Williams, Inc., 386 A.2d 119, 120 (Pa. Super. 1978) (discharge of employee for reporting for jury service actionable because "jury duty [is] of the highest importance to our legal process"); Ness v. Hocks, 536 P.2d 512 , 514-15 (Or. 1975) (discharge of employee for reporting for jury service actionable because of the "important interest of the community" in jury duty); Monge v. Beebe Rubber Co., 316 A.2d 549, 551 (N.H. 1974) ("termination of a contract of employment motivated by bad faith or malice or based on retaliation [actionable in absence of statutory remedy because it] is not in the best interest of the economic system or the public good and constitutes a breach of the employment contract"); Frampton v. Central Indiana Gas Co., 297 N.E.2d 425 (Ind. 1973) (retaliatory discharge for filing a workers' compensation claim actionable in the absence of statutory remedy).

[6] While plaintiff may not ultimately prevail in the present action, we conclude that his claim for tortious discharge, regardless of the absence of an applicable statute states a claim upon which relief may be granted. Accordingly the motion to dismiss Count VII of the amended complaint will be denied.

(3) Breach of Contractual Duty of Good Faith and Fair Dealing

[7, 8] Defendant argues for summary judgment in its favor on Count VIII of the amended complaint, which is grounded on a contract theory of recovery. It may be the case, that in order to establish a breach of the implied covenant of good faith in accordance with Restatement (Second) of Contracts § 205, the employee plaintiff will have to prove that the conduct of the employer amounted to "fraud, deceit or misrepresentation," A. John Cohen Insurance Co. v. Middlesex Insurance Co., 392 N.E.2d 862, 864 (Mass. App. Ct. 1979). The plaintiff-employee "should however be allowed to develop and have his case tested" at trial, Magnan v. Anaconda Industries, Inc., 429 A.2d 492, 494 (...