IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX

PATRICIA SCHRADER-COOKE,

Plaintiff, CIVIL CASE NO.: SX-16-CV-655

V.

)

)

) ACTION FOR DAMAGES
THE GOVERNMENT OF THE VIRGIN )
ISLANDS, BOARD OF EDUCATION, MARY )
MOORHEAD, JUDY GOMEZ, WINONA )
HENDRICKS, LA VERNE SLACK and ARAH )
LOCKHART, individually and in their capacity
)

as Board members

Defendants.

MEMORANDUM OPINION

q! At hearing on November 5, 2019, for reasons set out on the record, the Court granted
Defendant Government of the Virgin Islands, Board of Education, Judy Gomez, Winona
Hendricks, La Verne Slack and Arah Lockhart’s (Government Defendants’) fully briefed Motion
for Summary Judgment (Motion), opposed by Plaintiff Patricia Schrader-Cooke. The Court denied
Defendant Mary Moorhead’s fully briefed Motion to Dismiss (Moorhead Motion), opposed by
Plaintiff, treated as a motion for summary judgment pursuant to V.I. R. Civ. P. 56(h), presenting
matters outside the pleadings. The bases for those rulings are set out more fully herein.
BACKGROUND

12 On June 25, 2015, Defendant Board of Education (BOE), through then-Board
Chair/President Nandi Sekou, Esq., notified the Office of Management and Budget (OMB) that
effective June 22, 2015 Schrader-Cooke had been offered and accepted the position of Associate
Executive Director at a salary of $80,000 per annum. In the same letter, BOE advised OMB that
Schrader-Cooke would serve as Acting Executive Director at a salary of $89,250 to replace the
Executive Director who was on extended sick leave. Motion, ex. 1. The duties of Associate
Executive Director included supporting and implementing projects assigned by Board members
and the Executive Director. Motion, ex. 2. On June 22, 2015, Schrader-Cooke executed her
Voluntary Acceptance of Exempt (Unclassified) Position “electing to be placed in EXEMPT
SERVICE of the Government of the Virgin Islands.” Motion, ex. 3. On August 3, 2015, a
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX-16-CV-655
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Notification of Personnel Action (NOPA) was finalized memorializing Schrader-Cooke as a new
hire in the unclassified position of Associate Executive Director. Motion, ex. 4.

q3 Five months later, by letter of February 5, 2016, BOE, through new Chair Defendant
Moorhead, suspended Plaintiff for seven days for her unauthorized approval of a NOPA to
reclassify a fellow BOE employee from exempt service to classified service, failing to inform and
obtain prior BOE approval. BOE considered Plaintiffs actions a breach of the “Board’s
confidence... to execute your tasks with honesty and worthy of the trust required for your office.”
Motion, ex. 5. The letter advised Schrader-Cooke that “[s]ince you are exempt, you require no
notice regarding an appeal of this decision. Out of an abundance of caution, however, you are
hereby notified that you have a right to request a hearing before the Public Employees Relations
Board (PERB) within ten (10) days of your suspension as required by Virgin Islands Code, Title
3, § 530.” The letter quoted in full 3 V.I.C. § 530(a)(1) setting forth those appeal rights. Motion,
ex. 5. The suspension was affirmed by majority vote of the Board at a meeting held February 12,
2016, where Schrader-Cooke was afforded the opportunity to be heard, and to be represented by
counsel who advocated to the Board on her behalf.

{4 On February 12, 2016, Schrader-Cooke appealed her suspension to PERB pursuant to 3
V.LC. § 530(a)(1). On March 21, 2016, after hearing conducted March 9, 2016, PERB entered its
Decision and Order, articulating its findings of fact, concluding that Schrader-Cooke was not a
regular employee of the Government of the Virgin Islands as defined by 3 V.I.C. § 530(a)(2)(C),
and therefore, that PERB lacked jurisdiction over the appeal of her suspension. Motion, ex. 6.
Schrader-Cooke did not seek judicial review of the PERB Decision and Order by appeal to the
Superior Court as authorized by 3 V.I.C § 530a.

45 OnMarch 23, 2016, Moorhead appeared on the local radio talk show Jn Session, hosted by
her nephew, Robert Moorhead, and made statements about BOE and Plaintiff. Schrader-Cooke
alleges that Moorhead stated that Plaintiff: “engaged in a ‘breach of trust and violation of her
authority;’” “approved a request for a change of classification for the Business and Finance
Director from exempt to classified;” “engaged in ‘unethical actions’ and ‘unethical business

432 Gee

actions;’” “improperly cancelling the contract of the regular cleaning company and tried to hire its

39 66.

employee;” “was ‘using the Board as her personal subsidy,’ (such activity would constitute a crime
Schrader-Caoke v. Gov't af Virgin Islands, et al., SX-16-CV-655
Memorandum Opinion 

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under 14 V.I.C. § 895).”! In her Answer, Moorhead neither admitted nor denied the allegations of
defamation, stating that she “is without sufficient information or knowledge to either admit or deny
the allegations in this Paragraph of the First Amended Complaint.” (Moorhead Answer J 88).
Therefore, according to V.I. R. Civ. P 8 (b) (6),” those allegations are deemed admitted.
96 On April 1, 2016, the Board determined at executive session to terminate Plaintiff from the
position of Acting Executive Director/Associate Executive Director effective April 4, 2016. The
Board advised Schrader-Cooke of its action by letter of its Chair, stating in part that dismissal was
necessary because she had taken actions in direct opposition to the decisions made by the Board,
against the interests of the Board, and that her performance had been less than satisfactory. Motion,
ex. 7.
17 Onorabout November 7, 2016, Plaintiff filed her initial Complaint with the Superior Court
alleging breach of contract, breach of good faith and fair dealing, intentional interference with
contractual relations and discrimination, and sought declaratory relief that the Board’s termination
violated her statutory and due process rights. On May 23, 2017, the Court permitted the filing of
Plaintiff's First Amended Complaint (FAC), deemed filed February 28, 2017. By the FAC,
Schrader-Cooke alleged: (1) violation of due process as to all Defendants; (2) breach of contract
as to the Government, BOE and five Board member Defendants in their official capacity; (3)
breach of good faith and fair dealing as to the Board member Defendants; (4) intentional
interference with contractual relations as to Defendant Moorhead; (5) intentional interference with
contractual relations as to Defendant Gomez; (6) defamation and slander as to Defendant
Moorhead; and (7) negligence per se in violation of 24 V.I.C. § 451(a) as to all Defendants.
STANDARD OF REVIEW
q8 In evaluating a motion for summary judgment, the Court must determine whether there

exists a genuine dispute of material fact; one that would impact the outcome of the case under

' The summary judgment record includes no transcript or recording or other proof by Plaintiff of the words
allegedly spoken by Moorhead. Rather, the alleged defamatory statements are as set out in Plaintiff's First
Amended Complaint (J 88), deemed admitted by Moorhead.

? “An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading
is required and the allegation is not denied. If a responsive pleading is not required, an allegation is
considered denied or avoided.” V.I.R. Civ. P. 8 (b)(6).

3 Although titled “negligence per se,” the substance of Plaintiff's Count VII claim that controls this review
does not allege negligence, but rather retaliatory discharge in violation of the statutory provision.
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX-16-CV-655
Memorandum Opinion 

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applicable law. Machado v. Yacht Haven U.S.V.L, LLC, 

 (V.I. 2014) (quoting
Williams v. United Corp., 

 (V.I. 2008)). Such a dispute is genuine if a reasonable
trier of fact could determine that particular factual issue material to the claim presented in favor of
the non-moving party. /d, at 391-92. “Summary judgment is a drastic remedy [and] should be
granted only when the pleadings, the discovery and disclosure materials on file, and any affidavits
show there is no genuine issue as to any material fact,” and that judgment is appropriate as a matter
of law, Jd. at 379-80.

{9 Reviewing a motion for summary judgment, the trial court does not weigh the credibility
of the evidence offered. Instead, all inferences from the evidence are drawn in favor of the
nonmoving party, and any conflicting allegations, if properly supported by the record, are resolved
in favor of the nonmovant. See Perez v. Ritz-Carlton (V.L), Inc., 

 (V.I. 2013)
(citing Williams, 

). The moving party bears the burden of demonstrating the
absence of any genuine issue of material fact. Martin v. Martin, 

 (V.I. 2010). If
the “moving party fails to carry its initial burden of production, the nonmoving party has no
obligation to produce anything, even if the nonmoving party would have the ultimate burden of
persuasion at trial.” /d. at 391 (citation omitted). If the moving party does carry its initial burden
to produce evidence of the absence of material facts in dispute, then “the burden shifts to the non-
moving party to present ‘affirmative evidence’ from which a jury might reasonably return a verdict
in his favor.” Chapman vy. Cornwall, 58 V.1. 431, 436 (V.I. 2013) (citations omitted). In responding
to the movant’s evidence showing the existence of no genuine issue of material fact, “the
nonmoving party may not rest on its allegations alone, but must present actual evidence, amounting
to more than a scintilla, showing a genuine issue for trial,” regarding such disputed fact. Perez, 59
V.L at 527-28.

{10 “A party asserting that a fact... is genuinely disputed must... support the assertion by: (i)
citing to particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials; or (ii) showing that the
materials cited do not establish the absence... of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” V.1. R. Civ. P. 56(c)(1). Although the facts are

to be interpreted in the light most favorable to the nonmoving party, the nonmoving party “may
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX-16-CV-655
Memorandum Opinion 

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not rest upon mere allegations and must present actual evidence showing genuine issue for trial.”
Machado, 61 V.1. at 379.

411 To determine whether summary judgment is appropriate, the Court must determine the
substantive law governing the cause of action. See Perez, 

. The Government
Defendants seek summary judgment on each of Schrader-Cooke’s claims, which are addressed in

turn. The Moorhead Motion is addressed in Count VI.
DISCUSSION
Count I - Violation of Due Process (All Defendants)

4.12 Plaintiff claims that she “had a property right in her job and was deprived of that right when
she was terminated without an opportunity to be heard. Plaintiffs rights to due process, with their
origins in both the Employee Handbook and the Fourteenth Amendment, were violated when the
Board failed to provide her an opportunity to be heard after her notice of termination was
received.” FAC { 56.

413 “For [] a procedural due process claim to succeed a plaintiff must establish that “(1) he was
deprived of an individual interest that is encompassed within the Fourteenth Amendment's
protection of life, liberty, or property, and (2) the procedures available to him did not provide due
process of law.” Fleming v. Cruz, 

 (V.I. 2015) (citing ies v. deJongh, 

 (Gd Cir. 2011). “There is no constitutional guarantee of an established right to
continued employment.” /d. (citing McKinney v. Pate, 

 (11th Cir. 1994) (en
banc) (“Supreme Court precedent demonstrates that an employee with a property right in
employment is protected only by the procedural component of the Due Process Clause, not its
substantive component. Because employment rights are state-created rights and are not
‘fundamental’ rights created by the Constitution, they do not enjoy substantive due process
protection.”). /d. (citing Board of Regent of State Colleges v. Roth, 

 (1972)
(“Property interests, of course, are not created by the Constitution.”)). “Further, there is no
substantive due process interest in continued employment.” Jd. (citing Wrench Transportation
Systems, Inc. v. Bradley, 

 (3d. Cir. 2009)).

4.14 Therefore, to succeed on a claim alleging a violation of procedural due process rights to

continued employment, Schrader-Cooke must prove that she had a property right in continued
Schrader-Cooke v. Gov't of Virgin Islands, et al., SX-16-CV-655

Memorandum Opinion 

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employment in the position from which she was terminated. /d. (citing Wilson v. MVM, Inc., 

 (3d Cir. 2007)). She “cannot rely on her ‘unilateral expectation of continued
employment’ but must show she had a ‘legitimate entitlement to such continued employment.’”
Smith v. VI. Hous. Auth., 

, at *12-13 (D.V.I. 2011) (citing Hill v.
Borough of Kutztown, 

 (3d Cir. 2006) (quoting E/more v. Cleary, 

 (3d Cir. 2005)). “Such entitlement is shown where the employee cannot be removed
except for cause.” /d. (citing Richardson vy. Felix, 

 (3d Cir. 1988) (“The hallmark
of a constitutionally protected property interest is an individual entitlement that cannot be removed
except ‘for cause.’”) (quoting Logan v. Zimmerman Brush Co., 

 (1982)). “To
determine whether there is a valid property interest at stake, the Court looks to ‘sources such as
state law and implied or express contracts.’” /d. (citing Miller v. Township of Readington, 

 (3d Cir. 2002) (citing Roth, 

)); see also Baumann v. Pub.
Emps. Relations Bd., 

, 353 (V_I. Super. 2018) (“property rights in public employment
are provided either by contract or by statute.”).

q 15 In the Virgin Islands, it is well established that a regular government employee has a
property interest in her continued employment. /les v. deJongh, 55 V.L at 1261. “A ‘regular’
employee... is a nonexempt employee who by statute is entitled to procedural protections prior to
termination.” Smith, 2011 U.S. Dist. LEXIS, at *14 (citing Smith v. Virgin Islands Port Authority,

 (D.V.I. 2005) (citing Richardson v. Felix, 

 (3d Cir. 1988)).

4.16 Whether Schrader-Cooke is a “regular” employee is determined with reference to 3 V.1.C.
§530. Public employees are either (1) career service (i.e. a regular employee) or (2) exempt service
employees.‘ “An employee is in the career service unless the employee holds an exempt position
described in 3 V.ILC. § 451a(b)(1)-(8). ... The exempt designation is important because employees
in that category can be terminated without cause. Employees who are not exempt are then
considered career service employees. The career service category is further divided by § 451 into
two subcategories: employees who are regular and those who are not regular, respectively...
[U]jnder the employee termination procedures of § 530, employees who are regular employees may

be terminated only for cause, thus granting them a property interest in continued employment. ...

4 Career service is synonymous with classified service employee. Exempt service is synonymous with
unclassified employee. 3 V.I.C §45 la(d).
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX-16-CV-655

Memorandum Opinion 

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[Not all career service employees have due process protection, but rather, only those who also
meet the definition of regular employees.” Baumann v. Pub. Emps. Relations Bd., 68 V.1. at 319.
“To be a regular employee and thus gain a property interest in employment, an employee must
have been appointed to a position in the career service in accordance with this chapter after
completing his working test period.”> /d.

917 On February 12,2016, Schrader-Cooke appealed her suspension to PERB, arguing that she
was a classified career and regular service employee. PERB’s Decision and Order rejected
Schrader-Cooke’s appeal, concluding that she was not a regular employee as defined by 3 V.I.C.
§ 530 and that it therefore lacked jurisdiction over the appeal. PERB found that Schrader-Cooke
was responsible for day-to-day operations of BOE, managed its staff, and was under the direction
of the BOE Chair; and, therefore that Schrader-Cooke was a “head officer” as defined in V.I.C. §
530(a)(2)(A).® “Appellant, as the Acting Executive Director, is in a position of a policy-
determining nature, and her position is in a confidential relationship with a policy-making official
- the Board. And, as such, based on the record as a whole, it clearly shows that Appellant’s position
is in the exempt services. See 3 V.LC. § 451a(b)(1) & (8).” Motion, ex.6.

718 Iniles v. de Jongh, the Third Circuit cited the 2000 and 2010 amendments to Title 3, adding
the requirement that, for a position to be exempt under 3 V.I.C. § 451a(b)(8), it must not only be
of a policy determining nature, but also be “designated by the Governor and submitted to the
Legislature.” 3 V.I.C. § 451a(b)(8). The appellate court found the plaintiffs’ positions, both public
employees in the Department of Planning and Natural Resources, had not been submitted to the
Legislature, and therefore that neither plaintiff occupied an exempt position. Here, PERB’s
Decision and Order does not address whether Schrader-Cooke’s position had been designated by

the Governor and submitted to the Legislature.

° “This chapter refers to Title 3, Chapter 25 of the Virgin Islands Code, which in addition to §§ 451 and
451a, also includes Sections 521 through 535. These sections set forth the standards and requirements for
tests, appointments, promotions, and dismissals of regular public employees. Under Section 521, to have
been appointed to a position in the career service in accordance with this chapter requires that an employee
have been appointed on the basis of merit and fitness, to be ascertained by competitive examinations.”
Baumann, 68 V.1. at 319 (citing Jes v. de Jongh, 55 V.1. at 1257-59, 1261.

° A “Head Officer” is the commissioner of an executive branch department, the director of an executive
branch agency or instrumentality or the director, executive director, chief executive officer, president or
other titular head of an instrumentality of the Government of the Virgin Islands. 3 V.LC. § 530(a)(2)(A).
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX+16-CV-655
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419 By statute, Schrader~-Cooke had the right to appeal the PERB’s Decision and Order. “Any
party aggrieved by any final order of the PERB issued under section 530 or 531 of this chapter,
may appeal to the Superior Court of the Virgin Islands. An application for review must be filed
within 30 days of the date of the Final Order and name the PERB as a party respondent.” 3 V.I1.C.
§ 530a.’ Schrader-Cooke did not file an appeal of PERB’s Decision and Order to the Superior
Court within 30 days, but rather filed her original Complaint in this action some eight months later.
The Government Defendants argue that the present claim is barred by the doctrine of collateral
estoppel, as the issue of Schrader-Cooke’s exempt employment classification has previously been
litigated to a final determination.

920 The Virgin Islands Supreme Court conducted a Banks analysis to determine that “to bar
relitigation of an issue under the doctrine of collateral estoppel, an asserting party must
demonstrate: (1} the issue to be barred is identical to an issue actually and necessarily decided in
the prior action;® (2) the prior action was adjudicated in a decision that was final, valid, and on the
merits; (3) the party against whom the doctrine is asserted was a party or in privity with a party to
the prior action; and (4) the party against whom the doctrine is asserted had a full and fair
opportunity to litigate the issue in the prior action.” Stewart v. V.L Bd. of Land Use Appeals, 

 (V.I. 2017) (internal quotes and citations omitted).

{21 Here: (1) the issue whether Schrader-Cooke was a regular or exempt employee was actually
and necessarily decided by PERB. PERB’s thorough analysis of Schrader-Cooke’s employment
classification provided the sole basis for the determination that PERB did not have jurisdiction

over Schrader-Cooke’s claims. (2) The adjudication of the prior action was a final and valid

7“[P]rior to section 530a’s enactment in 2002, Virgin Islands courts consistently held that aggrieved parties

could only obtain review of orders entered by PERB and its predecessor, the Government Employees’
Service Commission, through the general writ of review statute, codified as 5 V.I.C. §§ 1421-23.” Gov't of
the V.I. v. Crooke, 54 V.1. 237, 247-48 (V.1. 2010).

® “Both doctrines [res judicata and collateral estoppel} apply not only to judicial determinations, but also
to administrative decisions, where the agency acts in a quasi-judicial capacity.” Baumann v. Pub. Emps.
Relations Bd., 68 V1. at 339 (citing Dep't of Corrections v. Tucker, 

 (R.1.1995)); see also
RESTATEMENT (SECOND) OF JUDGMENTS § 83 (1982) (“[{A] valid and final adjudicative determination by
an administrative tribunal has the same effects under the rules of res judicata ... as a judgment of a court.”)
Id,
Schrader-Cooke v. Gov't of Virgin Isiands, et al.; SX-16-CV-655

Memorandum Opinion 

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decision on the merits as to Schrader-Cooke’s employment status.’ (3) Schrader-Cooke, the party
against whom collateral estoppel is asserted was a party to the prior action; where (4) she was
represented by counsel, an evidentiary hearing was conducted, Schrader-Cooke had a full fair
opportunity to litigate the issue of her employment status before the PERB.

922 As such, because Plaintiff's claim that she was a regular employee of the Government of
the Virgin Islands was fully adjudicated by PERB which determined that Schrader-Cooke was an
exempt employee, such that she had no property interest in her continued employment, her claim
that she was deprived of due process is barred as a matter of law, by collateral estoppel, and the

Motion will be granted as to Count I.
Count II - Breach of Contract (Gov’t, Board, Board Members in Official Capacity)

123 To prevail on a claim of breach of contract under Virgin Islands law, a plaintiff must
establish: (1) the existence of a contract between the parties; (2) that the defendant breached a
material duty imposed by that contract; and (3) that damages resulted from the breach. George v.
VE. Lottery Comm’n, 54 V1. 533, 539 (V.1. 2010). By their Motion, Government Defendants claim
that there is no genuine issue of material fact in dispute and that, as a matter of law, no employment
contract existed between Plaintiff and Defendants. To survive summary judgment, Plaintiff must
present evidence by which a reasonable trier of fact could find in her favor as to the existence of a
contract and each element of her breach of contract claim.

424 To show the existence of a contract between Plaintiff and BOE, Schrader-Cooke offers a
copy of her Voluntary Acceptance of Exempt (Unclassified) Position as Associate Director of
BOE, dated June 22, 2015 (Motion, ex. 3); BOE’s June 25, 2015 letter to OMB (Motion, ex. 1);
and the fully executed NOPA, finalized August 3, 2015 (Motion, ex 4).

425 The PERB Decision and Order established that Plaintiff was an exempt employee of the
Virgin Islands pursuant to 3 V.I.C. §451a(b)(1) and (8). As an exempt employee, Schrader-

Cooke’s employment relationship is deemed to have been at-will. “In the case of an employment-

? PERB’s Decision and Order determined that PERB did not have jurisdiction and therefore it “decline[d]
to reach the full merits of the matter,” that is, the disciplinary action BOE took against Schrader-Cooke.
Motion, ex. 6, at 11. However, the matter in issue here, Schrader-Cooke’s employment status, was
determined on the merits as to that issue.
Schrader-Cooke v. Gov't of Virgin islands, et al., SX-16-CV-655

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at-will contract, it may be said that the parties have agreed, for example, that the employee will do
the work required by the employer and that the employer will provide the necessary working
conditions and pay the employee for work done. What cannot be said is that one of the agreed
benefits to the at-will employee is a guarantee of continued employment or tenure. The very nature
of the at-will agreement precludes any claim for a prospective benefit.” Canton v. V.L Humanities
Council, 

, at *22 (V.I. Super. 2017).

126 The Superior Court has recently analyzed the character of an at-will employment
relationship with regard to permitted expectations of the parties:

At-will employment means an employer or employee can terminate their employment
relationship at any time and for any reason not prohibited by statute or for no reason at
all. Therefore, neither party has the right to the continuation of the employment
relationship. However, like other terms of an employment agreement, parties can agree
to modify an employment relationship’s at-will status, such as by promising only to
terminate the relationship for just cause.

Espersen v. Sugar Bay Club & Resort Corp., 

, at *26 (V.I. Super. 2018).
27 Here, as an exempt employee, unless modified by agreement of the parties, Schrader-
Cooke’s at-will employment status conferred on her no contractual interest in or right to continued
employment.

428 Viewing the summary judgment record and the law in the light most favorable to Schrader-
Cooke as the non-moving party, it is necessary to consider whether the parties agreed to modify
their relationship to incorporate the progressive discipline regime mandated by the Virgin Islands
Government Employee handbook. “Under Virgin Islands law, the existence of an employee
handbook or manual along with evidence that the employer intended to be bound by its terms can
establish an implied contract in the case of an at will employee.” Smith v. V.. Hous. Auth., 2011
US. Dist. LEXIS 19409, at *15 (citations omitted); see also Haase v. Government of the Virgin
Islands, 

, at *5 (D.V.I. 2008) (noting that a public sector at will
employment relationship “can be subject to express and implied contractual restraints”). “An
implied contract, in turn, may be sufficient to create a property interest in employment.” /d. (citing
Bishop v. Wood, 

 (1976)).

429 Therefore, for this claim to survive summary judgment, Schrader-Cooke must present
“evidence that the employer intended to be bound by its terms” in order to establish an implied

contract binding the parties to the progressive disciplinary scheme set out in the handbook. To do
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX-16-CV-655

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so, Plaintiff presents evidence that when BOE suspended Plaintiff by letter of February 5, 2016,
the Board followed the employee protection duties in Section 500:6 of the Government Employees
handbook. Section 500: 6, entitled SUSPENSION, states:

When a supervisor recommends the termination of an employee a letter of termination,
signed by the department head, will be sent to the employee. The letter will state a
description of the problem, the effective date of the termination and the employee’s right
to a hearing.

930 The Board’s February 5, 2016 letter gave Schrader-Cooke notice of her right to appeal the
suspension: “Since you are exempt, you require no notice regarding an appeal of this decision. Out
of an abundance of caution, however, you are hereby notified that you have a right to request a
hearing before the Public Employee Relations Board...” Motion, ex. 5. The letter did not advise
Schrader-Cooke that she had the “right to a hearing” before the Board according to the language
of the Government Employees handbook. Rather, the letter specifically advised Schrader-Cooke
of her right to appeal to PERB, in accordance with 5 V.I.C. §530, which was quoted in the letter.
The letter advised Schrader-Cooke of statutory rights and made no reference to the Government
Employees handbook or its provisions. Plaintiff has pointed to nothing in the record evidencing an
intent of the Board to be bound by the Government Employees handbook regarding employee
discipline or otherwise.

{31 Absent any proof in the record, there is no evidence from which a reasonable juror could
find the existence of an implied contract between Plaintiff and BOE incorporating the terms of
Government Employees handbook. Plaintiff has also presented no evidence to prove a contractual
relationship with any Defendant Board member individually. Accordingly, as a matter of law, BOE

and the individual Board members are entitled to summary judgment on Count II.
Count III - Breach of Good Faith and Fair Dealing (Board Members in Official Capacity)

(32 “The steady trend of case law and statutes has been to apply the duty of good faith and fair
dealing to employment contracts terminable at will. See, e.g., Lucas v. Brown & Root, Inc., 

 (8th Cir. 1984); Bruffett vy. Warner Communications, Inc., 

, 918 Gd
Cir. 1982); See also Petersen vy. First Fed. Sav. & Loan Ass'n, 

, 1042, 21 V.1. 429
(D.V.I. 1985) (confirming employee’s right to recover for breach of good faith and fair dealing

with respect to employment contract and termination). In Government of the Virgin Islands v.
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX-16-CV-655

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Davis, 

, at *12 (D.V.I. 2001), the court held that an implied contract
between an at-will employee and his employer includes an implied obligation of good faith and
fair dealing.” Williams v. V.I. Hous. Auth., 

, at *11 (D.V.I. 2007)
(citing RESTATEMENT (SECOND) OF CONTRACTS § 205).

133 The Court adopts the reasoning and determination of the Superior Court’s recent thorough
Banks analysis concluding that the best rule for the Virgin Islands is to confirm that an implied
duty of good faith and fair dealing exists in at-will employment contracts. However, “that implied
duty only protects an employee’s reasonable expectations stemming from the employment
contract, i.e. payment earned from labor provided. An at-will employee does not have a reasonable
expectation of continued employment or just cause termination.” Canton v. V.£ Humanities
Council, 

, at *24. Accordingly, Plaintiff cannot prevail on any claim that
Defendants failed to act in good faith in terminating her, as “the implied duty does not impose an
obligation upon employers to terminate employees only for just cause.” Jd.

134 = In this action, Plaintiff has not claimed and has presented no evidence that Defendants
deprived her from receiving her “retrospective right to an earned benefit, as opposed to any
possible prospective damages, such as back pay.” Jd. Rather, by her First Amended Complaint
with regard to her allegations of “Defendants bad faith actions,” Schrader-Cooke claims that she
“lost her job and the income that came with it” and that she “is entitled to lost wages and all other
expected benefits of her employment.” FAC J 74-75.

935 As set forth above, the Court has determined that an at-will contract existed between
Plaintiff and BOE, imposing duties of good faith and fair dealing, which do not include a duty on
the employer to terminate its employee only for good cause, and do not give rise to an expectation
by the employee of continued employment and income. Here, Schrader-Cooke claims that she is
entitled to damages because she was terminated “in bad faith.” FAC J 72. She does not claim to
have been deprived of any retrospective right to earned benefits, but rather seeks prospective
damages in the form of lost wages and employment benefits. Because the duty of good faith and
fair dealing in an at-will employment contract does not give rise to an employee’s expectation of
continued employment or to prospective damages, Schrader-Cooke cannot prevail on this count

and summary judgment will enter in favor of Defendants.
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX-16-CV-655
Memorandum Opinion 

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Counts IV and V - Intentional Interference with Contractual Relations (Moorhead and
Gomez, individually)

736 =In 2015, the Superior Court conducted a Banks analysis to determine the soundest rule for
the Virgin Islands and recognized the viability of a claim of intentional interference with existing
contractual relations in a case that has been repeatedly cited and followed since: Donastorg v.
Daily News Publishing Co., Inc., 63 V.1I. 196, 286 (V.I. Super. 2015). The Superior Court
concluded that in order to prevail on a claim for intentional interference with existing contractual
relations, a plaintiff must demonstrate the existence of a specific contract with a third party, that
the defendant knew of that contract, and that the defendant intentionally interfered with that
contract. /d. The analysis and conclusion are adopted and applied here.

137 = Plaintiff alleges that Gomez and Moorhead, in their individual capacities, interfered with
her contract with the Board, the very Board on which Gomez and Moorhead sit as elected
members.!'° Schrader-Cooke claims that Gomez and Moorhead tortiously interfered with her
contractual relationship with BOE. The Superior Court case of Mills-Williams v. Mapp is
instructive with regard to this claim. 

 (V.I. Super. 2016).!!

138 In Mills-Williams, the plaintiff former Virgin Islands Government employee presented
allegations that the Court determined “likely qualify as contract interference,” with regard to her
transfer to another department; being placed on leave with pay; being placed on leave without pay;
and, ultimately, being terminated from employment altogether. “The common thread here is that
in every instance, the facts as alleged involve a Defendant or proposed Defendant taking action in
their capacity as an agent of Mills-Williams’s employer, the Government of the Virgin Islands.
Indeed, it is impossible for anyone except an agent of the government to effect a transfer, put an
employee on leave, deny her pay, and fire her.” 

, at *21-22. Because the
alleged interference related to a contractual relationship between the plaintiff and agents of her
employer, “Mills-Williams has not shown that she had a third-party contract in which Defendants

meddled — Defendants, as government agents, are the third party.” Jd. See also Sorber v. Glacial

"0 Indeed, by her First Amended Complaint, Schrader-Cooke alleges that “the Government, the Board, and
each of the Defendants were the Plaintiff's employers.” FAC 4 109.

'' On appeal to the Supreme Court, Mills-Williams waived the issue of the trial court’s dismissal of her
allegations of the defendants’ tortious interference with her employment contract. See Mills-Williams v.
Mapp, 67 V.1. 574, 586, n.7 (V.1. 2017).
Schrader-Cooke v. Gov't of Virgin Islands, et al.. SX-16-CV-655
Memorandum Opinion 

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Energy VI, LLC, 

, at *14-15 (V.I. Super. 2013) (confirming that a person or
corporation cannot tortiously interfere with its own contract, and that the plaintiff's termination by
the defendant, agent of her employer, could not give rise to a claim for tortious interference).

739 ~All of Plaintiffs allegations against Moorhead (Count IV) and against Gomez (Count V)
relate to activities they engaged in as Board members, exclusively relating to communications with
Board members, allegedly undermining Schrader-Cooke’s authority on the job. FAC 4 78, 83. By
her Opposition, filed June 18, 2019, Schrader-Cooke sought to clarify this claim, stating that she
“has alleged that the Defendants voted to terminate Plaintiff, and that voting action is what
influenced her employer, the Government, to end her employment contract.” Opposition, at 6.
Communications among Board members and engaging in votes relative to BOE personnel are
clearly activities that comprise a part of the duties of Board members. As with Mil/s-Williams, the
actions complained of were taken by Moorhead and Gomez as agents of Schrader-Cooke’s
employer, the BOE of the Government of the Virgin Islands. Indeed, it would be impossible for
anyone except agents of Plaintiff's employer to take action to terminate that employment.

940 Schrader-Cooke characterizes her claims against Moorhead and Gomez as against them
both as Board members and in their individual capacities. As noted, all actions of which Plaintiff
complains relate to these Defendants’ roles as elected BOE members. “Nor will it do for Mills-
Williams to argue that she named Defendants in both official and personal capacities. The facts as
pleaded, and not the labels applied, are what matter, Joseph, 54 V.1. at 650, and the facts as pleaded
do not plausibly show any interference from Defendants acting outside the scope of their
employment.” Mills-Williams v. Mapp, 2016 V.1. LEXIS 238, at *22.

41 Schrader-Cooke has not shown the existence of a contract with a third-party with which
these Defendants interfered. Rather, “Defendants, as government agents, are the third party.” Jd.
As such, as a matter of law, Schrader-Cooke cannot establish liability against Moorhead or Gomez
for intentional interference with a third-party contract, and summary judgment will be granted as

to Count IV and Count V.
Count VI - Defamation (Moorhead)

42 The Supreme Court has adopted the basic elements for a claim of defamation set forth

in RESTATEMENT (SECOND) OF Torts § 558. Joseph v. Daily News Publ'g Co., Inc., 57 V.1. 566,
Schrader-Cooke v. Gov't af Virgin Islands, et al., SX-16-CV-655
Memorandum Opinion 

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585-86 (V.I. 2012), affirming post-Banks, the Court’s earlier decision in Kendall v. Daily News
Pub. Co., 55 V.1. 781, 787 (V.I. 2011).'* Those elements are:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm or the existence
of special harm caused by the publication.

Those elements are each addressed.

(a) A false and defamatory statement concerning another.

{43 As to the first element, the truth or falsity of a statement is generally a question of fact for
the jury, and a statement or communication is only defamatory if “it tends so to harm the reputation
of another as to lower him in the estimation of the community or to deter third persons from
associating or dealing with him.” Joseph, 57 V.I. at 586 (citing RESTATEMENT (SECOND) OF TORTS
§ 559),

744 On March 23, 2016, Mary Moorhead appeared on the local radio talk show Jn Session,
hosted by her nephew Robert Moorhead. Schrader-Cooke alleges that on the broadcast, Moorhead
accused Plaintiff of engaging in a “breach of trust and violation of her authority;” of approving a
request for a change of classification for the Business and Finance Director from exempt to
classified; of engaging in “unethical actions” and “unethical business actions;” of improperly
cancelling the contract of the regular cleaning company to try to hire its employee; and of “using
the Board as her personal subsidy,” (activity Plaintiff alleges would constitute a crime under 14
V.LC. § 895). FAC 7 88. Beyond these allegations of the First Amended Complaint, the summary
judgment record is devoid of any evidence of Moorhead’s allegedly defamatory words. Neither

side has presented a transcript or recording of the radio broadcast or otherwise set forth the

" Kendall applied the Restatement pursuant to | V.L.C. § 4, prior to the Supreme Court’s determination
that the Legislature’s adoption of 4 V.LC. § 21 establishing the Supreme Court as the supreme judicial
authority in the Virgin Islands implicitly repealed 1 V.I.C. § 4 such that courts of the Virgin Islands were
able to determine the common law without automatically and mechanistically following the Restatements.
Joseph analyzed the elements of defamation in light of its ruling in Banks v. Int'l Rental & Leasing Corp.,
55 V.1. 967 (V.I. 2011), and applied the three non-dispositive Banks factors and found “no reason to depart
from our decision in Kendall to follow the approach set forth in the Second Restatement.” Joseph, 57 V.1.
at 585-86, n.10.
Schrader-Cooke v. Gov't of Virgin Islands, et al., SX-16-CV-655
Memorandum Opinion 

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substance of the alleged defamatory language.

{45 Defendant Moorhead has not denied the allegations of the FAC as to her purported
statements, rather stating in her Answer that each allegation is neither admitted nor denied. As
such, each is deemed admitted pursuant to V.I. R. Civ. P. 8(b)(6).'? Moorhead contends that she
acted in her official capacity at all times, that all statements were true to the best of her knowledge,
and that the statements constituted her opinions and legal characterization of facts established by
evidence adduced at the April 12, 2016 BOE meeting and from legal advice from the Board’s
counsel. Joint Final Pretrial Order, at 7-8. Nonetheless, whether or not the statements made on the
radio were true or false is “generally a question of fact for the jury.” Joseph, 57 V.1. at 586.

446 “Under the First Amendment there is no such thing as a false idea.” Kendall, 55 V.1. at
796 (quoting Gertz v. Robert Welch, Inc., 

 (1974)). “Thus, only statements that
are ‘provable as false’ are actionable, and expressions of opinion or hyperbole, not provable as
false, are constitutionally protected.” Jd. (citing Milkovich v. Lorain Journal Co., 

, 19-
20 (1990)).

447 The question “[w]hether an allegedly defamatory statement is one of opinion or fact is [] a
question of law....” Simpson v. Andrew L. Capdeville, P.C., 64 V.1. 477, 486 (V.I. 2016) (citations
omitted). As such, the Court must determine whether the alleged defamatory statements broadcast
on the radio talk show were statements of opinion or fact. In the absence of proof of the words
uttered by Moorhead, this review is limited to and based upon the allegations of the FAC deemed
admitted.

448 Moorhead’s claim that Schrader-Cooke engaged in a “breach of trust and violation of her
authority” is an expression of opinion unless fleshed out by specific allegations of actions
constituting such breach and violation, since such a charge untethered to particular alleged acts
cannot be proven to be false.

149 Moorhead’s claim that Plaintiff approved a request for a change of employment
classification of the Business and Finance Director from exempt to classified is a statement of fact,
although on its face not defamatory as it is not apparent how such a statement could tend to harm

Schrader-Cooke’s reputation as to lower her in the estimation of the community or to deter third

3 See | 5 and n.2, supra.
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX-16-CV-655

Memorandum Opinion 

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persons from associating or dealing with her.

450 Moorhead’s statement that Schrader-Cooke cancelled the contract of the regular cleaning
company and tried to hire its employee are statements of fact, although her characterization of the
cancellation as “improper” may be seen as an expression of opinion, and without a supporting
factual context, it is unclear how such a comment can be deemed to be defamatory.

751 Defendant Moorhead’s statement that Plaintiff engaged in “unethical actions” and
“unethical business actions” are both opinions that cannot be proven as false without the factual
underpinnings of particular unethical actions alleged.

{52 Moorhead’s statement that Schrader-Cooke was “using the Board as her personal subsidy”
is a statement of fact, and its truth or falsity is a question of fact for the jury, as well as to whether
such statement is defamatory. Plaintiffs claim that the statement accused her of committing a
crime under 14 V.LC. § 895 is a legal question to be addressed at trial, together with resulting legal

implications.
(b) An unprivileged publication to a third party.

453  “‘Publication’ means the ‘communication intentionally or by negligent act to one other

a9)

than the person defamed.’” Joseph, 57 V.I. at 586 (citing RESTATEMENT (SECOND) OF TorTS §
557). “The term ‘unprivileged’ refers to the alleged defamer’s inability to demonstrate that he was
in some way ‘privileged’ to make the defamatory communication.” Jd.

154 Moorhead has not disputed that her statements were broadcast on a local radio talk show,
such that Plaintiff has produced evidence that the statements were in fact published. Moorhead
asserts, however, that her communications, as a public official, were privileged. “The types of
privilege defenses available fall into two categories, ‘absolute privileges,’ see RESTATEMENT
(SECOND) OF TorTs §§ 583-592A, and ‘conditional privileges,’ see RESTATEMENT (SECOND) OF
TORTS §§ 593-598. Privilege, however, can be abused in such a way as to subject to privileged
defamer to liability despite his privilege. RESTATEMENT (SECOND) OF TorRTS §§ 599-605A.” Jd.
{55 Moorhead’s communications cannot be protected by any of the absolute privileges listed
in RESTATEMENT (SECOND) OF TorTs §§ 585-592A. Moorhead’s counsel argued at the September
17, 2019 motions hearing that Moorhead had a “duty” to inform the public as to Schrader-Cooke’s

alleged actions in light of her position on the Board. Moorhead’s Motion cites a non-specific
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX-16-CV-655

Memorandum Opinion 

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statute'* which imposes no duty on BOE officers or members to inform the public of its affairs.
Moorhead cites no other statute or basis which grants Moorhead an absolute privilege. However,
Section 598A provides conditional privileges for “inferior administrative officers of a state or any

oS

of its subdivisions,” as follows:

An occasion makes a publication conditionally privileged if an inferior administrative
officer of a state or any of its subdivisions who is not entitled to an absolute privilege

makes a defamatory communication required or permitted in the performance of his
official duties.

456 Moorhead’s claim of privilege includes her assertion that her responsibilities as BOE chair
include keeping the public informed concerning the affairs of the Board. Whether the performance
of her responsibilities requires her to present such information on a broadcast radio talk show is
questionable, but such communication is most surely permitted in the performance of her duties.
See Policeman's Benevolent Association v. Richards, 

, at *6-7 (V.1. Super.
2017). Ifher communication can be seen to be conditionally privileged, it is necessary to determine
whether Moorhead abused her privilege.

4.57 Notwithstanding the potential applicability of a conditional privilege, Moorhead might
nonetheless be liable in the event that she is found to have abused that privilege. See RESTATEMENT
(SECOND) OF ToRTS § 599. A person who publishes false and defamatory matter upon an occasion
giving rise to a conditional privilege abuses the privilege if she:

(a) knows the matter to be false, or

(b) acts in reckless disregard as to its truth or falsity. RESTATEMENT (SECOND) OF
TorTS § 600.

958 While the applicability of a conditional privilege may be a question of law, in addition to
the initial question as to whether the matter published is true or false, questions of whether a

defendant knew the matter to be false, or acted in reckless disregard to its truth or falsity, are

417 V.LC. §21. Power and Duties of the Board. “The Board is responsible for the general policy and
direction of education in the Virgin Islands. This board authority shall be exercised in accordance with the
Federal Constitution, the Revised Organic Act, Virgin Islands laws, and regulations. The board may execute
any powers delegated by law to it and shall discharge any duty imposed by law upon it.”

'S “The conditional privilege stated in this Section is to be contrasted with the absolute privilege stated in §
591, The absolute privilege applies to any executive or administrative officer of the United States, to a
superior executive officer of a State and, in some States, to executive officers of lesser rank. This privilege
applies to all other executive and administrative officers of a State or of any of its subdivisions.”
RESTATEMENT (SECOND) OF TORTS § 598A, cmt. c.
Schrader-Cooke v. Gov't of Virgin islands, et al.; SX-16-CV-655
Memorandum Opinion 

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questions of fact. As such, the question whether Defendant Moorhead abused any conditional

privilege that may apply to her published communication is a question of fact for a trial jury.
(c) Fault amounting at least to negligence on the part of the publisher.

459 “The third element can generally be described as ‘fault.’ The level of fault varies with the
parties to the defamation action, but the Restatement employs the minimum standard in its general
definition of defamation... It is the element of fault that is given a higher threshold when the
defendant is a public official or public figure and the defamatory statements reference matters of
public concern....” Joseph, 57 V.I. at 586-87. Similarly, a higher standard of “fault” is required
where the communication relates to a public official. “Specifically, ‘one who publishes a false and
defamatory communication concerning a public official or public figure in regard to his conduct,
fitness or role in that capacity is subject to liability if, but only if, he (a) knows that the statement
is false and that it defames the other person, or (b) acts with reckless disregard of these matters.’
RESTATEMENT (SECOND) OF TORTS § 580A). This disjunctive standard has been dubbed the ‘actual
malice’ standard by the United States Supreme Court. RESTATEMENT (SECOND) OF TorTs § 580A,
cmt. d.” Jd. at 588.

460 Because both Schrader-Cooke and Moorhead are public officials in this context, liability
may attach only if the publication was made with “actual malice.” A finding of actual malice is
proper if the factfinder determines that the one publishing the defamatory statement was actually
aware that it was false and defamatory. Alternatively, if the publisher may liable if she recklessly
disregarded whether the communication was false and defamatory.

A ‘reckless disregard’ for the truth ... requires more than a departure from reasonably
prudent person conduct. There must be sufficient evidence to permit the conclusion that
the defendant in fact entertained serious doubts as to the truth of his publication. The
standard is a subjective one — there must be sufficient evidence to permit the conclusion
that the defendant actually had a high degree of awareness of probable falsity. As a result,
failure to investigate before publishing, even when a reasonably prudent person would
have done so, is not sufficient to establish reckless disregard.

Id, (quoting Harte-Hanks Communications, Inc. v. Connaughton, 

 (1989)
(internal quotation marks and citations omitted)).

{61 As with the truth or falsity of the published statements, the determination of whether a

defendant acted with actual malice is a question of fact to be determined at trial.
Schrader-Cooke v. Gov't of Virgin Islands, et al., SX-16-CV-655
Memorandum Opinion 

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(d) Actionability of the statement irrespective of special harm or the existence of special
harm caused by the publication.

62 “The Restatement defines ‘special harm’ as ‘the loss of something having economic or
pecuniary value ... [which] must result from the conduct of a person other than the defamer or the
one defamed and must be legally caused by the defamation.’ RESTATEMENT (SECOND) OF TorRTS §
575, cmt. b.” Joseph, 57 V.1. at 587. However, a plaintiff need not prove the existence of special
harm in those categories of defamatory statements that are actionable on their face, or actionable
per se. Among those categories of defamation that are actionable per se is the radio broadcast of a
defamatory communication. “Broadcasting of defamatory matter by means of radio or television
is libel, whether or not it is read from a manuscript.” RESTATEMENT (SECOND) OF TorTS § 568A.
{63 While defamation by slander requires as an element of proof the existence of special
damages resulting from the defamatory statement,'® such proof is not required in the case of
libelous defamation. Because here it is undisputed that Moorhead’s statements in issue were
broadcast on a radio talk show, those statements, if determined to be defamatory, would constitute
libel and be actionable per se, without the need that Schrader-Cooke prove special damages.!”
164 Moorhead has admitted that she made statements as alleged in the First Amended
Complaint broadcast on a radio talk show on March 23, 2016. Whether those statements that allege
facts, as opposed to nonactionable opinions, were false, and whether they were defamatory are
disputed questions of fact to be resolved at trial. Similarly, a jury issue is posed as to whether the

statements were made by Moorhead with actual malice, without the need that Schrader-Cooke

'® “Unlike other torts, this ‘special harm’ assessment is not itself a calculation of damages. It is actua!ly an
element of the tort, the satisfaction of which must be established for there to be liability. Only after that
liability is established does an assessment of actual damages become relevant.” Joseph, 57 V.1. at 587, n.11.

'7 Because a radio broadcast is a libel that is actionable per se, no analysis is conducted as to whether the
alleged defamation here might be deemed actionable per se if slanderous rather than libelous. The classes
of slander that are actionable per se are outlined in Restatement (Second) of Torts §§ 570-574:

One who publishes matter defamatory to another in such a manner as to make the publication a slander is
subject to liability to the other although no special harm results if the publication imputes to the other

(a) acriminal offense, as stated in § 571, or

(b) a loathsome disease, as stated in § 572, or

{c) matter incompatible with his business, trade, profession, or office, as stated in § 573, or

(d) serious sexual misconduct, as stated in § 574.”

RESTATEMENT (SECOND) OF TORTS § 570.
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX-16-CV-655
Memorandum Opinion 

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establish that she suffered special damages resulting from the broadcast communication. As such,
Defendant Moorhead’s Motion seeking summary judgment as to Plaintiff's claim for defamation
against Moorhead in her individual capacity will be denied.

Count VII - Intentional Infliction of Emotional Distress (Gomez, Slack, Hendricks,
Moorhead, and Lockhart, in their Official Capacities and as Individuals)

765 “In order for a plaintiff's intentional infliction of emotional distress claim to survive a
motion for summary judgment, a plaintiff must demonstrate genuine issues of material fact
concerning whether a defendant: (1) intentionally or recklessly; (2) engaged in extreme and
outrageous conduct that exceeds all possible bounds of decency such that it is regarded as atrocious
and utterly intolerable in a civilized society; (3) that caused the plaintiff to suffer severe emotional
distress.” Donastorg v. Daily News Publishing Co., Inc., 63 V.I. at 295.18

166 “To survive a motion for summary judgment on this Count, Plaintiff, as the non-movant,
must demonstrate that the conduct has been so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community, such that the recitation of the facts to an average member of
the community would arouse his resentment against the actor, and lead him to exclaim,
“Outrageous!” Mina v. Hotel on the Cay Timesharing Ass'n, 62 V.1. 220, 235 (V.L Super. 2015),
citing Edwards v. Marriott Hotel Mgmt. Co. (V.1.), Inc., 2015 V.1. LEXIS 13, at *24 (V.I. Super.
2015), quoting RESTATEMENT (SECOND) OF TorTs § 46, cmt. d. Plaintiff has failed to even allege,
much less present any evidence, which meets such a stringent standard.

467 The suspension or termination of an exempt employee is not the type of outrageous conduct
that could be deemed atrocious and utterly intolerable such that no reasonable person in a civilized
society would be expected to endure it. In fact, such activity is legal and typical of an at-will
employment relationship. “It is extremely rare to find conduct in the employment context that will
rise to the level of outrageousness necessary to provide a basis for recovery for the tort of

intentional! infliction of emotional distress.” Smith v. V.. Housing Auth, 2011 U.S. Dist. LEXIS

'® The Donastorg Court adopted the Banks analysis conducted in Joseph v. Sugar Bay Club & Resort, 

 (V.I. Super. 2014), rev'd on other grounds, 

 (V.I. 2015), which
determined that the principles set out in RESTATEMENT (SECOND) OF TORTS § 46 represented the soundest
rule of law for the Virgin Islands.
Schrader-Cooke v. Gov't of Virgin Islands, et al.; SX-16-CV-655

Memorandum Opinion 

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19409, at *24 (citing Matezak v. Frankford Candy and Chocolate Co., 

 (3d
Cir.1997)).

768 Further, Plaintiff has failed to present evidence to show that she has suffered severe
emotional distress.'” For these failures, Plaintiffs claim for intentional infliction of emotional
distress cannot survive and the Motion will be granted and summary judgment entered on this

claim as to the individual Defendants.
Count VHI - Retaliation in Violation of 24 V.I.C. 451(a) (All Defendants)

469 Plaintiff alleges that she verbally reported and warned the Board of violations of rules or
regulations and that, as a result, “the Defendants retaliated against her with suspension and
termination from the Plaintiff's position of employment,” actions which she alleges “constituted
violations of 24 V.LC. § 451(a).” FAC $f 111, 113. Section 451(a) provides recourse for “any
person who has been discriminated against.” Schrader-Cooke does not allege that she has been
discriminated against, but rather that she is the victim of retaliatory action with regard to her
employment. As such, it appears that Plaintiff has cited the incorrect statutory basis for her claim
and actually seeks relief pursuant to the provisions of 24 V.I.C. 45la(a), which provides that “[a]n
employer shall not discharge, threaten, or otherwise discriminate against an employee regarding
the employee’s compensation, terms, conditions, location, or privileges of employment because
the employee... reports or is about to report, verbally or in writing, a violation or a suspected
violation of this chapter, regulation or rule promulgated pursuant to law of this territory or the
United States to a public body....” 24 V.LC. § 45la(a).

470 The statute further provides that “a person who alleges a violation of this section may bring
a civil action for appropriate injunctive relief, or actual damages, or both, within ninety days after
the occurrence of the alleged violation of the provisions of this section.” 24 V.LC. § 451a(b).
Plaintiff's initial Complaint in this matter was filed November 7, 2016. The last alleged retaliatory
action taken by Defendants occurred when Schrader-Cooke was terminated on April 4, 2016. FAC
450. To be timely, her claim of retaliation in violation of the statute had to be filed within 90 days

thereafter, no later than July 4, 2016, and the Complaint as filed was untimely.

'? Despite her claims that she “suffered mental anguish and severe emotional distress,” the summary
judgment record includes no evidence to substantiate these mere allegations. FAC 7 106.
Schrader-Caoke v. Gov't of Virgin Islands, et al.; SX-16-CV-655
Memorandum Opinion 

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{71 The determination whether the statutory filing period is jurisdictional or only a claims-
processing rule is to be discerned from the Legislature’s intent as to whether the statutory language
simply regulates the process of obtaining judicial review or intends to limit the court’s adjudicatory
authority. Brooks v. Gov't of the Virgin Islands, 

 (V.I. 2013).

{72 Here, the statute provides that judicial review may be sought as an alternative to the
administrative remedies available through a complaint filed with the Department of Labor (24
V.LC. § 451a(b)). The statutory limitation period is discerned to be jurisdictional in that the
Legislature intended to provide an opportunity to victims of employment-related retaliation to seek
a judicial rather than administrative remedy but limited the court’s adjudicative authority to those
claims filed within 90 days of the alleged retaliation. Accordingly, because Plaintiff's Complaint
was untimely, her statutory claims are barred.

{73 Yet, even if the statutory limitation period were merely a claims-processing rule subject to
waiver, none of the Defendants has waived the right to challenge the timeliness of Plaintiff's
retaliatory discharge claim. The Answer of the Government Defendants to Plaintiff's FAC states
that they “reserve all other affirmative defenses listed in F.R.C.P. [sic] 8(c),” which includes
“statute of limitations.” VI. R. Civ, P. 8(c){1) (identical to Fed. R. Civ. P. 8(c)(1)). Similarly,
Defendant Moorhead’s Answer to Plaintiff's FAC includes as Affirmative Defense 13: “Defendant
hereby asserts all other affirmative defenses listed in F.R.C.P. [sic] 8(c).”

474 Because Plaintiffs statutory claim of employment retaliation was filed outside the time
limitation set forth in 24 V.LC. § 451a(b), that claim is time-barred, Defendants’ Motion will be

granted, and summary judgment will enter as to Count VIII.
Schrader-Cooke v. Gov't of Virgin Islands, et al. SX-16-CV-655
Memorandum Opinion 

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CONCLUSION

775 For the reasons outlined above, Government Defendants’ Motion for Summary Judgment
will be granted, and an Order is entered together herewith dismissing Count I, Count II, Count III,
Count IV, Count V, Count VII and Count VIII of Plaintiff's First Amended Complaint. Defendant

Moorhead’s Motion to Dismiss will be denied by Order entered herewith.

DATED: December ee , 2019, These

ATTEST:
ESTRELLA-H. GEORGE