Samuel v. Virgin Islands Tel. Corp.

• Decision Date: 08 July 1975
• Docket Number: Civil No. 75-6
• Citation: 12 V.I. 64
• Parties: LUETTA SAMUEL, et al., Plaintiffs v. VIRGIN ISLANDS TELEPHONE CORPORATION, Defendant
• Court: U.S. District Court — Virgin Islands

12 V.I. 64

LUETTA SAMUEL, et al., Plaintiffs v. VIRGIN ISLANDS TELEPHONE CORPORATION, Defendant

Civil No. 75-6

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

July 8, 1975

Complaint charging employer with unlawful discrimination against blacks, persons of Spanish origin and females. The District Court, Christian, C.J., denied motion to dismiss amended complaint, ruling that administrative remedies did not have to be exhausted where attempt to do so would be futile due to unreasonable administrative delay.ROSSKOPF & DEMA, ESQS. (JOHN K. DEMA, of counsel), Christiansted, St. Croix, V.I., for plaintiff

BORNN, MCLAUGHLIN & FINUCAN, ESQS. (EDITH L. BORNN, of counsel), St. Thomas, V.I., for defendant

CHRISTIAN, Chief Judge

MEMORANDUM

Before this Court for consideration is a motion by defendant to dismiss plaintiffs' amended complaint.¹ The amended complaint requests declaratory and injunctive relief and damages based on 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, Chapters 1 and 5 of Title 10 of the Virgin Islands Code, 28 U.S.C. §§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure.

Plaintiffs have alleged that defendant Virgin Islands Telephone Corporation (hereafter, Vitelco) maintains "practices, policies, customs and usages which discriminate against plaintiffs and members of their class because of their race, color and sex with respect to hiring, terms and conditions of employment, job classification, pay, promotions and training." Jurisdiction is based on 42 U.S.C. § 2000e et seq., 28 U.S.C. § 1343(4), of the Revised Organic Act of 1954, 4 V.I.C. § 32(a), and 10 V.I.C. §§ 3 and 7.

The named plaintiffs, all of whom are black, assert their representation of a class "of black persons and persons of Spanish origin and female employees who are employed or might be employed or who have recently been employed by the Virgin Islands Telephone Company at all of its plants, offices and facilities in the Territory of the United States Virgin Islands" and allege: 1) that defendant has established a pattern or practice of sex discrimination with regard to hiring, job classification, salaries, promotion, training programs and facilities in violation of 10 V.I.C. § 64(1) (a) and 10 V.I.C. § 54(2) (a), (b) and (c); 2) that defendant has established a pattern or practice of discrimination against black and Spanish-surnamed employees with regard to job classification, pay, promotions, notification of job vacancies, personnel tests, enforcement of rulesand regulations and training and other discriminatory practices, in violation of 42 U.S.C. § 2000e-2(a), 42 U.S.C. § 1981, 10 V.I.C. § 3(a) and (b) and 10 V.I.C. § 64(1)(a).

In its motion to dismiss, defendant makes two basic arguments: that plaintiffs may not "bring an action in District Court alleging discrimination on the basis of sex under Chapters 1 and 5 of Title 10 of the Virgin Islands Code," and that they may not bring an action "alleging discrimination on the basis of Spanish origin" under 42 U.S.C. § 2000e-2(a), 42 U.S.C. § 1981, 10 V.I.C. § 3(a) and (b) and 10 V.I.C. § 64(1) (a).

Under section "IV." of its memorandum in support of the motion, defendant particularizes the above contentions as follows: First, it states that plaintiffs may not maintain their claim of national origin discrimination under 42 U.S.C. § 2000e et seq., demonstrating that the initial complaint filed with the Virgin Islands Department of Labor and the Equal Employment Opportunity Commission alleged discrimination based only on race (black), that the scope of the EEOC's investigation was directed and limited to an examination of race-based discrimination against blacks, and that the Determination of Discrimination issued by the EEOC found race-based discriminatory acts against blacks only. Therefore, on the strength of Sanchez v. Standard Brands, Inc., 2 EPD ¶01,252, 431 F.2d 455 (5th Cir. 1970), EEOC v. Raymond Metal Products Co., 385 F.Supp. 907 (D. Md. 1974), and EEOC v. New York Times Broadcasting Service, Inc., 6 EPD ¶5747, 364 F.Supp. 651 (W.D. Tenn. 1973), defendant alleges that the scope of any judicial determination is limited to allegations of race-based discrimination.

Second, defendant asserts that plaintiffs may not maintain an action under § 1981. This argument is based on the proposition that since all of the named plaintiffs are black,and since none are Spanish-surnamed, they may not represent those plaintiffs whose claims are based on national origin discrimination. Defendant cites Wells v. Ramsay, Scarlett and Co., Inc., 9 EPD § 9869 (5th Cir. 1975) in this connection.

Third, defendant argues that plaintiffs have no standing under 10 V.I.C. § 3(a) and (b) or § 64(1) (a). Defendant utilizes the same reasoning here as in the preceding paragraph, viz., that only plaintiffs of Hispanic origin would have standing to sue under the Virgin Islands statute for alleged discrimination based on national origin.

Additionally, defendant suggests at this point that plaintiffs' suit under 10 V.I.C. § 3(a), (b) and (c) and § 64(1) (a) may not be considered by this Court because the plaintiffs have failed to exhaust their administrative remedies as provided in 24 V.I.C. § 451-58. Specifically, plaintiffs have not received any final order from the Virgin Islands Department of Labor on a verified complaint filed with that agency on May 30, 1973. Defendant urges that receipt of such an order is a prerequisite to filing suit in this Court.

Along these same lines, defendant argues that "there has been no determination by the Commissioner of Public Safety that, in fact, a violation of Chapter 1 of Title 10 on the basis of national origin has occurred."

Finally, defendant claims that plaintiffs may not bring an action in district court alleging sex discrimination in violation of 10 V.I.C. § 64(1) (a) and (2) (a), (b) and (c). Three reasons are advanced: 1) these statutory provisions are inapplicable because they did not become effective until more than one year after plaintiffs filed their complaint with the Virgin Islands Department of Labor and the EEOC; 2) Chapter 5 of Title 10 vested the right to sue under its provisions in the Virgin Islands Civil RightsCommission only, and since the Commission has never been appointed by the Governor of the Virgin Islands, plaintiffs' "only recourse would be to file a petition for mandamus, demanding that the Governor establish the Commission. . ."; 3) Chapter 5 of Title 10 gave exclusive original jurisdiction to review sex discrimination claims to the Municipal Court of the Virgin Islands, and thus, even if private individuals were allowed to sue on their own behalf, they could not choose the district court as their original forum.

Having now reviewed, in turn, each of defendant's arguments in support of its motion to dismiss the amended complaint, I conclude that the motion must be denied. My reasons are set forth below.

First, whether or not the initial complaint filed by plaintiffs with the EEOC and the Department of Labor, and the "amended-perfected" complaint filed with the EEOC only alleged acts of discrimination against blacks on the basis of race and color, and whether or not the investigation and determination of the EEOC only concerned acts of discrimination against blacks by Vitelco, makes no difference at this stage of the proceedings:²plaintiffs' amended complaint, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, has eliminated the jurisdictional problems which would inevitably have arisen for them had they attempted to allege discrimination based on national origin or sex under 42 U.S.C. § 2000e, since no complaint on these grounds was first filed with the EEOC. By their amended complaint, plaintiffs have limited the discriminatory acts complained of under Title VII to those based on race and color, and now, havingfollowed the proper procedures set forth in Title VII, those members of the class alleging discrimination in training, promotions, wages and the like on the basis of race and color are properly before this Court.

[1] Discrimination on the basis of national origin is presently complained of under 42 U.S.C. § 1981 and Chapters 1 and 5 of Title 10 of the Virgin Islands Code. The definitive case in the Third Circuit dealing with actions brought under § 1981 is Young v. International Telephone Co., 438 F.2d 757 (3rd Cir. 1971). It held, inter alia, that § 1981 is applicable to private discrimination, id. at 760, accord, Waters v. Wisconsin Steel Works of International Harvester Co., 427 F.2d 476 (7th Cir.), cert, denied, International Harvester Co. v. Waters, 400 U.S. 911 (1970); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), that § 1981 applies to the employment situation, id., and that "nothing in Title VII of the Civil Rights Act of 1964 imposes any jurisdictional barrier to suit brought under § 1981 charging discrimination in private employment." Id. at 763. For the plaintiffs in this case, the significance of Young is that exhaustion of administrative procedures involving the EEOC is not required before a suit alleging national origin discrimination under § 1981 can be brought in district court. Therefore, plaintiffs' allegations of national origin discrimination based on § 1981 can be heard by this Court at the present time.

Defendant's second contention, concerning the standing of the named plaintiffs to represent the Hispanic members of the class charging national origin discrimination under § 1981 has, of course, been brought in the context of a Rule 12(b)(6) motion to dismiss for lack of subject matter jurisdiction. I am obliged at this point, therefore, to decide whether, as a matter of law, the named plaintiffs, who areblacks,³ may represent the Spanish-surnamed members of the proposed class.

Defendant asserts that this Court should look to Wells v. Ramsay, Scarlett and Company, Inc., supra, for guidance on this issue. I do not find that case to be apposite. There, the Fifth...