IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
***
KENNY P BRYAN )CASE NO ST 2018 CV 00375
)
)
Plaintiff ) ACTION FOR DAMAGES
vs )
)
WENHAVEN INC d/b/a WENDY S OLD )
FASHION HAMBURGERS )
)JURY TRIAL DEMANDED
Defendant )
Cite as 2023 VI Super 77U
MEMORANDUM OPINION
fill THIS MATTER is before the Court on
1 Defendant 3 Motion For Summary Judgment (“Motion ) filed January 27, 2022
2 Plaintiff’s Opposition To Defendant’s Motion For Summary Judgment filed April
29 2022
3 Defendant’s Reply Re Motion For Summary Judgment, filed May 4, 2022, and
112 The Court finds summary judgment in Wendy’s favor is appropriate as Bryan is a bona
fide executive not covered by the Virgin Islands Wrongful Discharge Act
I INTRODUCTION
113 On July 30 2018 Plaintiff Kenny P Bryan ( Bryan ) filed suit against Defendan
t
Wenhaven Inc , which does business as Wendy’s Old Fashion Hamburgers (“Wendy’s”)
Bryan
states in his Complaint that he was hired by Wendy s as a policy and procedures manager,
was
moved into the general manager position for a period of two (2) years and was wrongful
ly
terminated without just cause on or about April 3, 2018 ' Bryan asserts one (I) count
in his
Complaint Count I Violation of the Virgin Islands Wrongful Discharge Act 2 After initially
filing a Motion To Dismiss on June 6, 2019, which was denied by the Court on Septemb
er 29,
2020 Wendy s denied the allegations of Count I in its Answer filed on October 12, 2020
PI sCompl 2
Pl sCompl 3 4
Bryan v Wenlmven, Inc 2023 VI Super 77U
Case No ST 2018 CV 00375
Memorandum Opinion
Page 2 of II
114 Wendy’s moved for summary judgment on January 27, 2022, and attaches to its Motion
three (3) depositions and the Wendy 5 Model Job Description for the District Manager position as
evidence 3 In support of its Motion, Wendy’s cites Rule 56 of the Virgin Islands Rules of Civil
Procedure and argues summary judgment is appropriate as it contends there are no issues of
material fact 4 Wendy’s argues that Bryan was employed in a ‘ bona fide position in an executive
capacity” within the meaning of V I CODE ANN tit 24, § 62, is therefore excluded from the
protections of the Wrongful Discharge Act, and he was therefore terminable at will 5
115 Wendy’s states that the undisputed facts are, Inter aha, Bryan was a district manager of
Wenhaven, Inc , a franchise made up of two (2) Wendy’s restaurants, one (1) located on St Croix
and one (1) located on St Thomas, and his job was to “[m]anage[] the daily operations of the
District to achieve sales, profits, customer satisfaction and human resource management
objectives ”6 Bryan’s subordinates included two (2) to four (4) salaried general managers, shift
supervisors paid hourly, and crew members (e g cooks, cashiers) also paid hourly 7 Each shift had
ten (10) to twelve (12) crew members and there were two (2) to three (3) shifis 3 General or regular
managers set crew member schedules, and district managers set supervisor schedules 9 Bryan
regularly and customarily directed the work of some thirty (30) to thirty five (35) employees '0
116 Wendy 3 further states that other undisputed facts include that Bryan had the highest level
of managerial authority other than shareholders, he was the highest paid employee receiving over
$100,000 a year, he exercised managerial authority in his first position as a procedures manager
including in hiring and disciplining employees, and the ultimate discipline authority resided in the
district manager, with only occasional input from the president/majority shareholder, Dr Peter
Kumpitch (“Kumpitch”), an optometrist on St Thomas “ The only other active shareholder was
Dan Poganski (“Poganski”), a New York resident and vice president of the business who oversaw
the business finances; most other shareholders were passive investors and Bryan oversaw the day
to day management of Wendy’s '2 Bryan was terminated on April 3, 2018, by a majority of the
shareholders due to a perceived decline in his “work ethic ’ and the standards of quality mandated
by Wendy s franchise agreement, as well as perceived noncompliance with government
regulations '3
117 Wendy’s had previously argued in its dismissal motion that Bryan was exempt from the
Wrongful Discharge Act under federal law as he was a supervisor and on account of the bona fide
executive exemption in the Virgin Islands labor law chapter This Court disagreed with Wendy’s
Motion to Dismiss as it relied on outdated Third Circuit precedent which the Virgin Islands
3 The depositions are of Kenny Bryan Dan Poganski, and Peter Kumpitch
4 Def 5 Mot l
5 Def 5 Mot l
6 Def 5 Mot 2
7 Def 5 Mot 2
3 Def 5 Mot 2
9 Def 5 Mot 3
'0 Def 5 Mot 9 10
'1 Def 5 Mot 3
" Def 5 Mot 4
‘3 Def ’5 Mot 4
Bryan v Wenhaven, Inc 2023 VI Super 77U
Case No ST 2018-CV 00375
Memorandum Opinion
Page 3 of II
Supreme Court may or may not set aside now that the Supreme Court has been established,'4 and
this Court found the record to be insufficiently developed to rule on the second point '5 Now that
discovery is completed, Wendy’s argues the facts on the record show that Bryan is, in fact, a bona
fide executive and therefore exempt from the Wrongful Discharge Act '6
118 Wendy’s states that “executive” is a term of art not derived from the statute but is derived
from federal law '7 Wendy’s points out that the Virgin Islands Fair Labor Standards Act
(“VIFLSA”) uses the same verbatim language as the Federal Fair Labor Standards Act (‘ FFLSA ’),
and that, as the Court stated in People v Pratt '8 when a local statute copies a federal statute
verbatim, federal law is useful in assisting courts with making judicial decisions '9 The FFLSA
provides that the Secretary of Labor defines who is a bona fide executive through regulations, and
that the relevant regulation provides a short test which
specifies that an employee who is compensated on a salary basis at a specified
higher rate, and whose primary duty consists of the management of the
enterprise or a customarily recognized department or subdivision thereof, and
includes the customary and regular direction of the work of two or more other
employees therein, shall be deemed to meet all the requirements of an
“executive ”20
{[9 Wendy s cites Sorber v Glaczal Energy VI LLC,2| where this Court found the relevant test
in the federal regulations located in 29 C F R (5 541 100, to be persuasive 22 Wendy’s quotes §
54] 100 (as amended in 2019), which defines a bona fide executive as someone who is
(l) Compensated on a salary of not less than $455 per week if employed
in the U S Virgin Islands
(2) Whose primary duty is management of the enterprise ,
(3) Who customarily and regularly directs the work of two or more other
employees, and
(4) Who has the authority to hire or fire other employees or whose suggestions
and recommendations as to the hiring, firing, advancement, promotion or any
other change of status of other employees are given particular weight 23
1|10 Wendy’s argues that the evidence shows that Bryan made four (4) times the threshold
salary amount, his central duty was to manage the “enterprise” of the two (2) Wendy 5 facilities,
14 2020 v1 Super 85U1I1| I6 23
15M at1l1|l415
‘6 Def ’5 Mot 6
‘7 Def 5 Mot 7
1850 V1318(Vl2008)
‘9 Id at 322 Def s Mot 7
7° Def 5 Mot 7 8 (citing first Thomas v Speaa’way SuperAmertca LLC 506 F 3d 496 502 (6th Cir 2007) then 29
C F R § 541 100)
'No CIVIL ST 10 CV 588 2013 WL 6184064 (V1 Super Ct Nov 22 20l3)
’Id at ‘3 Def sMot 8
329C F R {554] l00(a) (2019) Def sMot 8 9
Bryan v Werthaven, Inc 2023 VI Super 77U
Case No ST 2018 CV 00375
Memorandum Opinion
Page 4 of 11
he customarily and regularly directed two (2) or more employees, including several who had
managerial authority of their own; and finally, even in his first position as a procedures manager,
his opinion on who to hire or fire was given weight, and in his last position as district manager he
had ultimate authority to hire and fire, with only occasional oversight by the majority
shareholder 24 Thus, Wendy’s asserts, Bryan’s “job as district manager was paradigmatic of a
‘bona fide executive’ position There is no room for reasonable debate on the point ”25
{[11 Wendy’s then argues that Bryan was an employee who was terminable at will citing to the
Banks analysis in Canton v Virgin Islands Humanities Council,26 where this Court stated that “the
common law principle that an employment relationship is at will unless it is modified by a statute,
such [sic] the WDA, or an express contract provision ”27 Wendy’s states that Bryan had no contract
provision specifying the term of his employment, he was not covered by the Wrongful Discharge
Act and there is “not the slightest suggestion that the termination transgressed any clearly defined
and established Virgin Islands public policy and therefore he was terminable at will at any time
for any or even no reason and ‘just cause’ is not required 23
1112 Bryan opposes Wendy 5 Motion and argues that the “federal wage and hour law definitions
of a ‘bonafide executive” should be stripped from Wendy’s legal argument and the “plain
dictionary meaning of the word ‘executive’” is all that need be considered 29 Bryan argues he was
not employed in an executive capacity and thus is protected by the Wrongful Discharge Act 30
Bryan argues he never alleged he was a bona tide executive, and that while he “admits in his
Complaint that at some point throughout his employment with Wendy’s, he had worked as a policy
and procedures manager and as a general manager, and that he had overseen operations at two
Wendy’s Old Fashioned Hamburger stores”, he was an employee and is therefore covered by the
Wrongful Discharge Act 3' Bryan argues that ‘bona fide executive’ is a term used in the VIFLSA,
that it is ‘inappropriate to automatically apply [National Labor Relations Act] definitions to the
[Virgin Islands Wrongful Discharge Act] and while the VIFLSA may be parallel to the FLSA
there is no parallel to the Wrongful Discharge Act 32
1113 Bryan cites to a 2014 District Court of the Virgin Islands case, Gumbs Heylzger v C W
Assoczates Corporation,33 and states that the case provides a presumption that an employee was
wrongfully discharged ifdischarged for any reason not stated in 24 V l C § 76(a) 3“ Bryan extends
this presumption to all sections of the Virgin Islands labor code and states that therefore he is
presumed to be an employee not an executive, and that he should not be required to prove that he
was not working in an executive capacity 35 Bryan states that there is not a clear definition of
2‘ Def’s Mot 10
25 Def’s Mot 10
6 No ST 20l2 CV 00279 2017 V1 LEXIS ll6(V 1 Super Ct July 26 20l7) (unpublished)
’7 Id at * l6
’3 Def 5 Mot ll
29 Pl 5 Opp n l 2
3" Pl 5 Opp n 2
3' Pl 5 Opp n 3
3’ Pl’s Opp’n
33 73 F Supp 3d 6l7 (D V l 20l4)
3“ Id at 622 Pl sOpp n 5
35 Pl 5 Opp n S
Bryan v Wenhaven, Inc 2023 V1 Super 77U
Case No ST 2018 CV 00375
Memorandum Opinion
Page 5 of II
“executive capacity” and argues that Wendy’s needs to prove that Bryan was working “in a
genuine position as a corporate officer at the upper levels of management ”3"
1114 Bryan argues, based on an email directing the restaurant be acid washed and steamed that
in fact he was “directed and controlled by the true executives”, that Kumpitch was actually deeply
involved in the day to day management; and that the shareholders such as Poganski and Kumpitch
had direct control over Bryan 37 Bryan contends that if he were truly an executive, he would not
be “micromanaged” by being directed how to clean the store nor would it be conceivable that he
could be “written up ”33 Next, Bryan contends that he is not terminable at will and it is a fact issue
for the jury to determine if he was dismissed for being negligent in his work or incompetent or
inefficient 39 Finally, Bryan requests oral argument on the motions pursuant to Virgin Islands Rule
of Civil Procedure 6 I(g) 40
1115 Wendy 3 replies that 24 V l C § 62 applies to all of chapter 3 of the Virgin Islands labor
code, including the Wrongful Discharge Act that this exemption has existed for decades in Virgin
Islands law, and even longer in Federal law 4' Wendy’s, citing to Gov t of the Virgin Islands v
Servzcemaster Co ,42 argues that the Court must presume that the Virgin Islands Legislature knew
the law when it legislated the bona fide executive exemption 43 Further, Wendy’s argues that even
by the dictionary definition of ‘executive, “Bryan, as the District Manager of two fast food
restaurant franchises earning a six figure salary and overseeing general managers, shift
supervisors, and numerous staff employees, was clearly an ‘executive’ according to the common
meaning of that term ”44
1116 Wendy’s then argues that bona fide executive has acquired a “peculiar and appropriate
meaning in the law” and is a legal tenn of art 4‘ Wendy’s asserts that the “Virgin Islands legislature
must be presumed to have been familiar with the federal definition of ‘bona fide executive’ when
it amended Section 62’ and further cites to Sorber v Glacml Energy V1 LLC,46 where this Court
adopted the same test from the Code of Federal Regulations for bona fide executive’ cited above 47
Wendy’s argues that the Court here should similarly find that test persuasive and use it to guide
the current decision ‘8 In addition Wendy 3 points out that Bryan ‘ fails to posit any plausible
alternative definition of bona fide executive’ for the Court’s consideration, and fails to articulate
’6 P1 5 Opp n 5 6
37 P1 5 Opp n 6
’3 P1 5 Opp n 6
’9 Pl 5 Opp n 7
4° Pl ‘5 Opp’n 8 V 1 R Clv P 6 I(g) states A request for oral argument shall be separately stated by the movant or
respondent The court may set the motion for hearing or decide it based upon the submission(s)
" Def 5 Reply 1
‘ 2019 V1 Super 164
‘3 1d at'113 Def 5 Reply 2
‘4 Def 5 Reply 2 (citing Ereczmve WEBSTER S THIRD NEW INT L DICTIONARY 794 (1993))
‘5 Def 5 Reply 2
‘6 No ST 2010 CV 00588 2013 V1 LEXIS 69 (V I Super Ct Nov 22 2013)
‘7 Id at ’8 9 (“[N]either the Virgin Islands Code nor V l caselaw provides a definition of [bona fide executive]
However the Code of Federal Regulations persuasively defines an employee employed in a bona fide executive
capacity as ) Def 5 Reply 3
‘3 Def 5 Reply 4
Bryan v Wenhaven, Inc 2023 VI Super 77U
Case No ST 20l8-CV 00375
Memorandum Opinion
Page 6 of ll
any coherent policy argument why the federal definition is unsuited to the [Wrongful Discharge
Act] ”"9
1117 Wendy’s responds to Bryan’s “curious suggestion that he was no more than a subservient
corporate functionary that all significant managerial authority was exercised by the franchise
owners on a day to day basis ”50 Wendy’s points to evidence in the form of Bryan’s own
deposition that this was not the case, namely that Bryan stated he was “the person with all the
responsibility for the operation and management of the two Wendy’s stores”, that only anything
“major” would go through Kumpitch, and when asked whether Kumpitch was a “hands on” owner,
Bryan stated Kumpitch rarely appeared on site appearing only four (4) or five (5) times in the
entire four (4) years Bryan worked there 5' Additionally, Wendy 5 presents deposition testimony
that the other owners appeared even less frequently with Bryan responding that it is correct that “it
wasn’t like any of them came twice a week and looked over your shoulder and directed you in
your basic tasks as district manager, correct?”52 Wendy’s also points to deposition evidence where
Bryan stated he was the ‘commander in chief” of day to day operations and that, other than
shareholders, he had the highest level of managerial authority 53
118 Wendy s argues that simply because Bryan ‘ was generally accountable to board members,
or even that they gave him specific instructions on occasion” does not detract from his status as a
bona fide executive 5“ Further, Wendy’s notes that, unless an executive is also the sole shareholder,
all executives are ultimately accountable to a board of directors 55 Wendy’s also refutes Bryan’s
unsubstantiated argument that only those at the very top of the corporate hierarchy qualify as a
‘bona fide executive,’ citing cases from the Third Circuit and elsewhere to show that even assistant
managers have been found to qualify for the exemption 5" Wendy’s concludes by reiterating that
the Court should enter summary judgment in its favor 57
II LEGAL STANDARD
A Summary Judgment
1119 Summary judgment is governed by Rule 56 of the Virgin Islands Rules of Civil Procedure
which states
A party may move for summary judgment, identifying each claim or defense
or the part of each claim or defense—on which summary judgment is sought
The court shall grant summary judgment if the movant shows that there is no
‘9 Def 5 Reply 4
5° Def 5 Reply 5
5‘ Def 5 Reply 5 6
5 Def 5 Reply 6
5’ Def 5 Reply 6
5‘ Def 5 Reply 6
55 Def 5 Reply 6 Wendy s cites to l3 V l C § 61 which states The business of every corporation organized under
this chapter shall be managed by a board of directors except as hereinafier or in its articles of incorporation otherwise
provided ”
5" Def 5 Reply 6 7
57 Def 5 Reply 7
Bryan v Wenhaven, Inc 2023 VI Super 77U
Case No ST 2018-CV 00375
Memorandum Opinion
Page 7 of I]
genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law The court should state on the record the reasons for granting or
denying the motion 58
1120 Or, as the Virgin Islands Supreme Court stated in Antilles School Inc v Lembach,59
summary judgment is appropriate when after “considering all of the evidence, accepting the
nonmoving party’s evidence as true, and drawing all reasonable inferences in favor of the
nonmoving party the court concludes that a reasonable jury could only enter judgment in favor of
the moving party ”60
1121 Summary judgment is a “drastic remedy’ and only proper where “the pleadings, the
discovery and disclosure materials on file show that there is no genuine issue as to material
fact[ ]”6' The nonmoving party must show in its response to a motion for summary judgment that
there are “specific facts showing a genuine issue for trial ”62 In addition, “[t]he non moving party
may not rest upon mere allegations but must present actual evidence showing a genuine issue for
trial Such evidence may be direct or circumstantial, but the mere possibility that something
occurred in a particular way is not enough[ ]”"’3 For a nonmoving party to show some genuine issue
of material fact for trial, “‘the nonmoving party may not rest on its allegations alone, but must
present actual evidence, amounting to more than a scintilla,’ in support of its position ”6“ Further,
“[i]f the non movant offers evidence that is ‘merely colorable’ or not ‘significantly probative,’
summary judgment may be granted ”65 Finally, the “Court may not itself weigh the evidence and
determine the truth; rather, we decide only whether there is a genuine issue for trial such that a
reasonablejury could return a verdict for the non moving party ”66
B Wrongful Discharge Act
1122 The Virgin Islands Code protects employees from being wrongfully discharged from
employment and provides for nine (9) different grounds for discharging an employee in title 24, §
76(a) 67 Section 76(c) states that any employee not discharged for one (1) of those nine (9) reasons
5"V1 CW P 56(a)
5" 64 V I 400 (V i 2016)
60 Id at 409
6‘ Anthony v FirstBan/t Virgin Islands 58 V I 224 228 (V 1 2013) (quoting Williams v I ntted Corp 50 V I 191
194 (V 1 2008))
6 Williams 50 V] at 194(V1 2008) (quoting FED R CIV P 56(e))
‘3 Anthony 58 V I at 229 (quoting Williams 50 V I at 194 95)
6‘ Anderson v American Fed n of Teachers,
67 VI 777 789 (V 1 2017) (quoting Pere v R1! Carlton (Virgin
Islands) Inc 59 v1 522 527 28 (VI 200.»
Pemberton Sales & Serv v Banco Popular de P R
877 F Supp 961 965 (D V 1 I994)
‘ Williams 50 V] at 195 (citing Anderson v Liberty Lobby Inc 477 U S 242 255 (1986))
” 24 V l C § 76(a) This section states
(3) Unless modified by union contract an employer may dismiss any employee
(1) who engages in a business which conflicts with his duties to his employer or renders him a
rival of his employer
Bryan v Wenhaven, Inc 2023 V1 Super 77U
Case No ST 2018 CV 00375
Memorandum Opinion
Page 8 of 11
shall be considered to have been wrongfully discharged, however, nothing in
this section shall be construed as prohibiting an employer from terminating an
employee as a result of the cessation of business operations or as a result of a
general cutback in the work force due to economic hardship, or as a result of the
employee 3 participation in concerted activity that is not protected by this title
{[23 Title 24, § 62 of the Virgin Islands Code provides for the definition of who counts as an
“employee” and states
“employee” includes any employee or any individual whose work has ceased as
a consequence of, or in connection with, any current labor dispute or because of
any unfair labor practice, and who has not obtained any other regular and
substantially equivalent employment, but does not include any individual
employed in a bonafide position in an executive or professional capacity[ ]”68
1124 Federal regulations define who constitutes a bona fide executive for federal labor law
purposes in 29 C F R § 541 100(a) which provides that
(a) The term “employee employed in a bona fide executive capacity” in section
13(a)(1) of the Act shall mean any employee
(1) Compensated on a salary basis pursuant to § 541 600 at a rate of not less than
$684 per week (or $455 per week if employed in the Commonwealth of the
Northern Mariana Islands Guam, Puerto Rico or the U S Virgin Islands by
employers other than the Federal government or $380 per week if employed in
American Samoa by employers other than the Federal government), exclusive
of board, lodging or other facilities
(2) Whose primary duty is management of the enterprise in which the employee
is employed or of a customarily recognized department or subdivision thereof,
(3) Who customarily and regularly directs the work of two or more other
employees and
(2) whose insolent or offensive conduct toward a customer of the employer injures the
employer 5 business
(3) whose use of intoxicants or controlled substances interferes with the proper discharge of his
duties,
(4) who willfully and intentionally disobeys reasonable and lawful rules orders, and instructions
of the employer provided, however the employer shall not bar an employee from patronizing
the employer 5 business after the employee 5 working hours are completed
(5) who performs his work assignments in a negligent manner
(6) whose continuous absences from his place of employment affect the interests of his
employer,
(7) who is incompetent or inefficient thereby impairing his usefulness to his employer
(8) who is dishonest or
(9) whose conduct is such that it leads to the refusal reluctance or inability of other employees
to work with him
63 24 V I C § 62
Baum v Wenlmven, Inc 2023 Vi Super 77U
Case No ST 2018 CV 00375
Memorandum Opinion
Page 9 of II
(4) Who has the authority to hire or fire other employees or whose suggestions
and recommendations as to the hiring, firing, advancement, promotion or any
other change of status of other employees are given particular weight 69
1125 This is not the first time this Court has had to consider whether an employee qualified as a
bona fide executive for purposes of the Wrongful Discharge Act In Sorber, this Court considered
whether an employee hired as a ‘Manager of Application Support’ qualified as a bona
fide
executive under the Wrongful Discharge Act 70 The Court adopted the federal regulation test
outlined above and found that the employee was a bona fide executive as a matter of law because
(1) the employee had a salary of $150,000 per year, in excess of the $455 per week; (2) the
employee managed a team of four (4) people, whose work she assigned and critiqued and whose
work priorities she set, satisfying the second and third elements, and (3) her input was given
particular consideration when it came to hiring, firing, and promoting other employees 7'
III ANALYSIS
1126 While not controlling, federal law may be used to elucidate areas of Virgin Islands law
which may be novel or not fully developed and the Virgin Islands law is modeled after or parallel
to the federal law 72 As in the case of Sorber, this Court finds the test and definition in the federal
regulations to be useful in analyzing when someone may be considered a bona fide executive
73
While in a future case another criterion not enumerated in the federal test or definition may
certainly be considered by the Court, the Court notes Bryan has not suggested any other test or
what other factors the Court should consider here but that the Court merely go by the dictionary
definition of executive ’74 Therefore, the Court will proceed with an analysis following this
Court’s prior decision in Sorber and the test outlined in 29 C F R § 541 100(3)
1127 Bryan argues that Gumbs Heyltger v CMW Assoczates Corporation requires that there is
a presumption that Bryan is an employee and not an executive 75 This is beyond a strained reading
of the case that case simply provides that the [Wrongful Discharge Act] itself supports the
conclusion that the burden ofpersuasion properly lies with the employer to prove that the employee
was discharged for one of the nine permissible reasons under the Act ’ 76 It does not alter in anyway
the definition of who is or is not an employee for purposes of the Wrongful Discharge Act One
either is or is not an employee for the purposes of the Wrongful Discharge Act Assuming
arguendo that Bryan is entitled to a presumption he was an employee, the undisputed facts indicate
6° 29 C F R § 541 l00(a)
7° Sarber 2013 V I LEXIS 69 at *1 2
7' Id at *8 l0
’ See People v Pratt 50 V l 3 IS 322 (V l 2008) (‘ Because section 33(d)(3) is modeled afier
its federal equivalent
|8 U S C § 3731 which contains virtually identical language, judicial decisions interpreting the federal
statute shall
assist this Court in interpreting the same clause found in our local statute )(citing Brown v People ofthe V I
49 V I
378 38! (VI 2008))
‘Sorber 2013 V [ LEXIS 69 at *8
4 Pl 5 Opp n l 2
5 Pl 5 Opp n 5
6 Gumbs Heyllger 73 F Supp 3d 6l7 at 623
Bryan v Wenlwven, Inc 2023 VI Super 77U
Case No ST 2018 CV 00375
Memorandum Opinion
Page 10 of II
he was not an employee but a bona fide executive and that Wendy’s has well met its burden of
proof as the analysis below demonstrates
1|28 Bryan also argues that there exists a material dispute as to whether Bryan exercised
managerial authority premised on emails directing Bryan to maintain a clean restaurant and another
informing Bryan to secure flights and lodging for two (2) people who were coming to acid wash,
ammonia clean, and steam clean the St Thomas restaurant 77 These two (2) emails, one (I)
admonishing Bryan to keep a clean restaurant following a Department of Health visit and one (1)
informing Bryan of cleaners coming to one (I) of the restaurants he manages hardly qualifies as
“micromanaging ” In fact these emails appear to be in line with the standard oversight a board or
majority shareholder exercises over an executive that manages the day to day affairs of a business
and has not performed to the board 3 satisfaction that is one (1) email identifies an area where
the executive needs to improve in the management and directs him to improve and the other email
informs him of temporary outside assistance that will be coming in to provide help Given the
nature of the enterprise, it is unlikely that a cashier or fry cook would be in charge of booking
flights and rooms for cleaners brought in to perform a ‘deep clean,” or that Bryan himself would
conduct the ammonia and steam cleaning One (1) email in four (4) years by the majority
shareholder mandating such a deep clean does not deprive Bryan of his everyday authority and
responsibility for the restaurants cleanliness These emails are not significantly probative to
constitute a material dispute of fact as to Bryan’s management authority
1129 Similarly, Bryan provides no support for his position that it is inconceivable that an
executive could be “written up” or in anyway reprimanded, and the Court is not of the opinion that
a board or shareholder(s) holding an executive accountable in anyway deprives them of their status
as an executive That one could be admonished or reprimanded has little bearing on whether one
manages a business or some aspect of a business and the Court sees no reason to impose such a
factor in determining whether someone is a bona fide executive and many reasons not to (e g
businesses may find it a useful tool to ensure accountability for executives short of firing them)
Finally, while Bryan has requested oral argument, the Court will decline the request as this matter
is determinable on the filings
1f30 Looking now to whether Bryan qualifies as a bona fide executive under the first criterion,
the undisputed evidence is that Bryan’s salary exceeded $100 000 per year (roughly $1 923 per
week), far above the $455 per week stated in the test Other undisputed evidence shows that Bryan
exercised increasing managerial authority eventually reaching the pinnacle of the corporate
hierarchy apart from the shareholders, and he ultimately oversaw two (2) to four (4) general
managers and ten (10) to twelve (12) crew members and ultimately some thirty (30) to thirty five
(35) employees total satisfying criteria 54] 100(a)(2) and 54] 100(a)(3) of the test Lastly the
facts indicate that Bryan had the authority to hire fire promote as district manager and even in
his prior position as a procedures manager his opinion on who to hire, fire, or promote was given
consideration Even if the majority shareholder Kumpitch gave input or had ultimate approval, it
is clear at the very least Bryan had considerable weight in these areas Bryan then clearly qualifies
as a bona fide executive
PlsOppn6 PlsEx 6 PI sEx l5
Bryan v Wenhaven, Inc 2023 VI Super 77U
Case No ST 2018 CV 00375
Memorandum Opinion
Page II of II
1131 As stated in 24 V I C § 62, a bona fide executive is not considered an employee for
purposes of chapter 3 of title 24, and the WrongfiJl Discharge Act is contained within chapter 3 of
title 24 Therefore, as a bona fide executive Bryan is not covered by the Wrongful Discharge Act
Bryan had no express contract provision concerning his dismissal, and it is not argued, nor does
the Court see how his dismissal would be contrary to public policy, thus he was terminable at will
There exist no disputed facts material to this analysis, Wendy’s has presented sufficient evidence
to support its position, and even taking all inferences in a light most favorable to Bryan, there is
not a genuine issue such that a reasonable jury could find in favor of Bryan Therefore, summary
judgment in favor of Wendy s and dismissing the sole count of ‘Violation of the Wrongful
Discharge Act’ is appropriate
IV CONCLUSION
1132 On or about April 3, 20l8, Bryan was discharged from his position as district manager of
a Wendy s franchise which operates two (2) restaurants in the United States Virgin Islands, one
(1) on St Thomas and one (1) on St Croix On July 30, 2018, Bryan sued Wendy s claiming a
violation of the Virgin Islands Wrongful Discharge Act However as Bryan meets the definition
of a bona fide executive he is not considered an employee for purposes of the Wrongful Discharge
Act and is therefore exempt from its protections Consequently, Bryan’s Complaint alleging a
single count of violation of the Virgin Islands Wrongful Discharge Act by Wendy’s will be
dismissed
Ajudgment consistent with this Memorandum Opinion follows
DATED December fi 2023 MW {bum
DENISE M FRA COIS
Judge of the Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of the Cou
33“ M
LATOYA CAMACHO
Court Clerk Supervisor 9 / ,1 /4:13
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
***
KENNY P BRYAN, ) CASE NO ST 2018 CV 00375
)
Plaintiff ) ACTION FOR DAMAGES
vs )
)
WENHAVEN INC d/b/a WENDY 8 OLD )
FASHION HAMBURGERS )
)JURY TRIAL DEMANDED
Defendant )
Cite as 2023 VI Super 77U
JUDGMENT
AND NOW, in accordance with this Court’s Memorandum Opinion of even date it
is
hereby
ORDERED that Defendant s Motion For Summary Judgment filed January 27 2022
is
GRANTED and it is further
ORDERED that Plaintiff’s Complaint and the above captioned action is DISMI
SSED
with prejudice; and it is further
ORDERED that the Joint Motion for Ruling on Defendant s Motion for Summar
y
Judgment, filed on May 3, 2023, is DENIED as moot; and it is further
ORDERED that Plaintiff‘s Request for Status Conference filed August 3 2023 is
DENIED as moot
ORDERED that a copy of this Judgment and the Memorandum Opinion shall be directed
to counsel of record
DATED December4_ 2023 M 7* \ :2 gamma
DENISE M F NCOIS
Judge of the Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of t
a LATOYA CAMACHO
Court Clerk Supervisor Q_’Ji / <93
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Thomas/St. John
Kenny P. Bryan, Case Number: ST-2018-CV-00375
Plaintiff Action: Damages
v.
Wenhaven, Inc. D/B/A Wendy's Old
Fashion Hamburgers,
Defendant.
NOTICE OF ENTRY
OF
MEMORANDUM OPINION AND JUDGMENT
To: John Phillip Fischer Edward L. Barry, Esq.,
Scot F. McChain, Esq.
Please take notice that on December 05, 2023
a(n) Memorandum Opinion and Judgment
dated December 04, 2023 was/were entered
by the Clerk in the above-titled matter.
Dated: December 05, 2023 Tamara Charles
Clerk of the Court
By:
Danica A. Miller
Court Clerk II