Schuster v. Thraen

• Decision Date: 10 February 1982
• Docket Number: Civ. No. 79/243.
• Citation: 532 F. Supp. 673
• Parties: Allan SCHUSTER, Almeric E. Bascombe, Roy Beckles, Plaintiffs, v. Eleanor L. THRAEN, Individually and in her capacity as Director of the Youth Services Administration, Government of the V. I., Leslie A. Millin, Individually and in his capacity as Director of Personnel and Secretary, Government Employees' Service Commission, Government of the Virgin Islands, Defendants.
• Court: U.S. District Court — Virgin Islands

532 F. Supp. 673

Allan SCHUSTER, Almeric E. Bascombe, Roy Beckles, Plaintiffs, v. Eleanor L. THRAEN, Individually and in her capacity as Director of the Youth Services Administration, Government of the V. I., Leslie A. Millin, Individually and in his capacity as Director of Personnel and Secretary, Government Employees' Service Commission, Government of the Virgin Islands, Defendants.

Civ. No. 79/243.

District Court, Virgin Islands, D. St. Croix.

February 10, 1982.

Bertram Charles, St. Croix, V. I., for plaintiffs.

Alexander A. Farrelly, St. Thomas, V. I., for defendant, Eleanor L. Thraen.

Robert L. King, St. Thomas, V. I., for defendant, Leslie A. Millin.

James M. Scott, Asst. Atty. Gen., St. Croix, V. I., for Government.

MEMORANDUM OPINION

O'BRIEN, District Judge.

Defendant, Leslie A. Millin, has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Mr. Millin's motion is supported by his codefendants, the Government of the Virgin Islands and Eleanor L. Thraen. After reviewing all the papers submitted by the parties in this case and having been well briefed by counsel during oral argument on January 4, 1982, it is this Court's decision to grant summary judgment in favor of defendants.

This action stems from the dismissal of the three plaintiffs from their jobs as Juvenile Corrections Officers. It is undisputed that the plaintiffs were employed on October 23, 1978 by the Youth Services Administration ("YSA") under a C.E.T.A. grant. They remained in continuous employment until their termination on July 27, 1979, which was based on alleged deficiencies in the discharge of their duties during a riot at the Youth Rehabilitation Center at Anna's Hope on the night of July 23, 1979.

Plaintiffs' amended complaint was based on a variety of disparate legal theories and sought a declaratory judgment, writ of review, determination of a civil rights violation and damages. In response to defendants' motions to dismiss the amended complaint, Judge Raymond L. Finch, Sitting by Special Designation in this Court, dismissed the tort claim asserted by plaintiffs in a lengthy decision dated January 26, 1981 and artfully framed the statutory and constitutional claims which remained for decision. As narrowed by this January 26, 1981 order, the issues presented by defendants' instant motion for summary judgment turn largely upon whether plaintiffs were temporary or regular employees within the meaning of Title 3 of the V.I.Code, Section 451 et seq. A determination of this question will in turn dictate what rights, if any, to a hearing are statutorily afforded to plaintiffs and whether plaintiffs had a constitutionally protected interest in their jobs.

For the reasons stated below, this Court finds that plaintiffs were only temporary, and not regular, employees and thus were not entitled to notice and a hearing regarding their dismissals. In addition, plaintiffs, as temporary employees, did not possess a vested property interest in their continued employment and therefore cannot assert a violation of their constitutional rights.

I. STATUS OF PLAINTIFFS' EMPLOYMENT

The facts are undisputed that plaintiffs commenced work as Youth Correction Officers on October 27, 1978 under a CETA grant, at which time they were probationary employees. The crucial question before this Court is what status did the plaintiffs enjoy on July 27, 1979, the date of their discharge?

Plaintiffs have consistently maintained that they were regular employees entitled to a hearing and all other rights provided by 3 V.I.C. §§ 527 and 530. Alternatively, plaintiffs contend that even if they were found to be probationary employees, they should have been given a hearing since their dismissals were based on non-merit factors. We will address each of the plaintiffs' arguments separately.

Plaintiffs assert that they were entitled to a hearing prior to dismissal pursuant to Section 530 which provides in pertinent part:

(a) Notwithstanding any other provision of law, in any case after January 1, 1977, where a department head, including the Executive Director of the Virgin Islands Water and Power Authority, decides to dismiss, demote, or suspend a regular employee, or employee of the Virgin Islands Water and Power Authority, for cause, he shall furnish the employee with a written statement of the charges against him. The employee shall have ten days following the date of receipt of said statement of the charges to appeal the proposed action to the Government Employees Service Commission. Such appeal shall be in writing and a copy shall be furnished to the department head.

(b) The Government Employees Service Commission shall meet within 30 days after the filing of the appeal and afford the department head and the employee an opportunity to be heard. The department head and the employee shall be entitled to call witnesses and to be represented by counsel. The hearing, including continuances thereof, shall in no event extend beyond 60 days. The Commission shall render its decision within 14 days after termination of the hearing. The Commission's decision shall be final. In the event the Commission fails to meet or render its decision within the time or in the manner prescribed herein, the employee shall be reinstated, with full pay, to the date of his original dismissal or suspension. 3 V.I.C. § 530(a) and (b) (Supp.1979)

To decide who qualifies as a "regular employee", we must look to the definition contained in Section 451:

"regular employee" means an employee who has been appointed to a position in the classified service in accordance with this chapter after completing his working test period. 3 V.I.C. § 451 (1967).

From the foregoing two statutes, it is clear that to qualify as a regular employee, an employee must hold a position in the classified service and must also have completed his working test period.

Section 522(d) of Title 3 provides that although a person may be in classified service, that person still cannot acquire permanent status unless he has fulfilled his one year probationary period. Thus, although plaintiffs had their temporary positions in the unclassified service for the YSA covered into the classified service and thereby received permanent appointments,¹ the designation of "classified", by itself, did not serve to make plaintiffs regular employees. This Court holds that the only way in which plaintiffs could achieve regular employee status was to satisfy the one year working probationary period required by Section 522(d). This conclusion is further supported by the administrative practice of the YSA, which according to the affidavit of Leslie A. Millin, dated January 23, 1981, ("Millin affidavit"), Director of Personnel, Secretary of the Government Employees Service Commission, requires that all government employees serve a probationary period of 12 months.² Since plaintiff concededly worked for less than one year, it is clear they could not and did not qualify as regular employees. Consequently, they were not entitled to the notice and hearing rights granted by 3 V.I.C. § 530.

Plaintiff's second argument is that, assuming arguendo, they were not regular, but temporary, employees, they were entitled to a hearing pursuant to 3 V.I.C. § 527 because they were dismissed for "non-merit factors." Section 527 provides, in pertinent part, that:

The Director of Personnel may recommend the removal of an employee during his probational period if he finds, after giving the employee notice and an opportunity to be heard, that such employee was appointed as a result of fraud or

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