IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
****
GOVERNMENT OF THE VIRGIN ISLANDS )
OFFICE OF MANAGEMENT AND BUDGET ) CASE NO ST 2021 CV 00116
)
)
Petitioner ) PETITION FOR WRIT
v ) OF REVIEW
)
PUBLIC EMPLOYEES RELATIONS BOARD )
and KAREN BOWRY )
)
A
Cite as 2021 VI Super 83U
MEMORANDUM OPINION & ORDER
11 THIS MATTER is before the Court 0n
1 Petitioner 5 Brief filed June 4 2021‘
2 Respondent Karen Bowry 5 Response To Bnef filed June 24 2021; and
3 Respondent Public Employees Relations Board Responsive Brief In
Opposition To Petitioner 3 Brief In Support Of Petition For Writ Of
Review (“PERB s Responsive Brief ), filed June 25, 2021
112 The Court finds that the Public Employees Relations Board (“PERB ) did not exceed its
authority by consolidating the suspensions and termination, as it was rational, supported by
evidence, and within the scope of its authority Even though the suspensions and termination could
have been separately appealed, each action stemmed from the other and related back to a common
incident and called for a common remedy Bowry s reinstatement and backpay
113 However, PERB s representations as to the scope of the hearing denied the Petitioner a
chance to litigate her termination Given the unique circumstances of this case, and the Court 5
concern with notice and the opportunity to be heard, the prudent course is to remand this case back
to PERB to conduct a hearing on the issue of the termination only
I INTRODUCTION
114 On March 19, 2021 Petitioner Government of the Virgin Islands, Office of Management
and Budget ( OMB ’) filed its Petition For Writ of Review seeking judicial review of the Decision
and Order entered on February 18 2021 by PERB The Court granted the petition on April 21
2021
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115 Respondent Karen Bowry ( Bowry’) is a classified, nonunion employee of the
Government of the Virgin Islands, employed as a Management Program Analyst with OMB ' On
January 29, 2020, Bowry had attended Lean Six Sigma training, along with co workers and her
immediate supervisor 2 Bowry testified that she was there from 8 30 a m to 5 p m , leaving only
for lunch, and that she participated and spoke during the training, interacted twice with the
supervisor, and stayed after the training instructor left to complete an assignment with a colleague 3
On February 7, 2020, OMB Director Jenifer 0 Neal (‘ 0 Neal ) summoned Bowry to her office
and served her a two week suspension letter and mandated she participate in an Employee
Assistance Program ( EAP )4 The basis of Bowry 3 initial suspension was that the training
instructor reported that she had been inebriated at the training 5 Bowry refused to sign the EAP
paperwork and denied being inebriated; Bowry was not informed of the allegation prior to being
summoned and was not advised of her right to a hearing 6
116 On February 18, 2020, Bowry filed an appeal of her suspension with PERB 7 After
returning from her two week suspension without pay, on February 24, 2020, Bowry was
questioned by 0 Neal as to why she was at work because she had not participated in the EAP or
signed the paperwork 8 Later that day Bowry was summoned to 0 Neal 5 office and was again
handed a letter with a notice of a two week suspension pending her termination 9 Bowry did not
have a chance to challenge this decision '0 On February 25, 2020, Bowry submitted to PERB
another formal request to appeal the extension of her suspension ” On February 28, 2020, PERB
issued a Pre Hearing Order and Notice of Hearing, and PERB conducted an initial hearing on
March 12, 2020 12 The hearing covered only the issue of PERB s jurisdiction '3
117 On March 16 2020 PERB received Bowry 5 Appellant 3 Notice of Receipt of Final Action
and Other Information which contained her termination letter '4 Hearings continued on August 7,
September 3, and October 2, 2020 '5 Each party was represented by counsel, evidence was
introduced, and seven (7) witnesses testified, including Bowry ‘6 PERB concluded that ‘OMB
suspended Appellant without giving her due process, and OMB did not utilize progressive
‘ Pet r 5 Pet For Writ Of Review 2
Feb 18 2021 PERB Decision and Order K Bowryv GP] 0MB PERB GSA 20 19T at8
3 Feb 18 2021 PERB Decision and Order K Bow} v G” 0MB PERB GSA 20 19T at 8
4 Pet r 5 Pet For Writ Of Review 5 6
3 Feb 18 2021 PERB Decision and Order K BOW!) v GVI 0MB PERB GSA 20 19T at 8 9
6Feb 18 2021 PERB Decision and Order K Bow) v GVI 0MB PERB GSA 20 191“ at9 Def Bowry s Resp To
Biief l
7 Feb 18 2021 PERB Decision and Order K Bowryv G11 0MB PERB GSA 20 19T at l
8 Feb 18 2021 PERB Decision and Ordei K Bowry v GP] 0MB PERB GSA 20 19T at 10
9 Feb 18 2021 PERB Decision and Order K Bowry v GP] 0MB PERB GSA 20 19T at 10
'0 Feb 18 2021 PERB Decision and Order K Bowryv G11 0MB PERB GSA 20 19T at 10
” Feb 18 2021 PERB Decision and Order K Bowryv GVI 0MB PERB GSA 20 19T at7
' Feb 18 2021PERB Decision and Order K Bowryv 0H 0MB PERB GSA 20 19T at]
'3 Feb 18 2021 PERB Decision and Order K Bowry v GVI 0MB PERB GSA 20 191‘ at2
'4 Feb 18 2021 PERB Decision and Order K Bowry v G V] 0MB PERB GSA 20 191‘ at2
'5 Feb 18 2021 PERB Decision and Order K Bowtjyv GVI 0MB PERB GSA 20 19T at3
‘6 Feb 18 2021 PERB Decision and Order K Bowryv GVI 0MB PERB GSA 20 19T at3
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Memorandum Opinion and Order
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discipline in this instance and that Appellant was not informed that she had a right to appeal the
decision and to have a hearing ‘7 On February l8 2021, PERB ordered Bowry to be reinstated
and issued backpay ‘8
{[8 OMB states that at the October 2, 2020 hearing on the merits of the case, OMB s attorney
specifically inquired as a part of preliminary matters into the scope of the hearing ‘9 OMB’s
attorney asked today we re only talking about suspension or we re going beyond the bounds of
that?” to which the hearing officer replied [t]oday, we are dealing with the merits of this case,
which is suspension, yes and Bowry s attorney stated ‘[i]f I may clarify Suspension pending
termination was the later docketed appeal, the correct, which is PERB 4 ”20 OMB argues that the
only issue raised by Bowry before PERB was the suspensions, not the termination 2‘ In summation,
OMB’s argument is that [n]o portion of the hearing concerned the merits of Bowry’s termination,
and therefore the Government was deprived of a fair opportunity to be heard on that issue 22
119 Bowry argues that despite 0 Neal 3 contention that the EAP was mandatory, that is not
supported by the Government of the Virgin Islands Employee Handbook; 0 Neal initiated the
suspension without a hearing or any mention of the alleged incident and the foundation of her
suspensions and termination are all connected and continuous as 0 Neal 5 verbiage in her letters
clearly state 73
1110 PERB states that in response to Bowry 5 February 25 2020 notification to PERB about her
continued suspension and pending termination PERB sent a letter to both Bowry and OMB s
counsel that there was no need to initiate another appeal of suspension with the PERB and the
letter would be placed in her existing file and that it will be added to her pending appeal of
suspension ’14 PERB also states on account of the Governor of the Virgin Islands Third
Supplemental Executive Order and Proclamation, which extended the State of Health Emergency
caused by the COVID l9 pandemic, PERB hearings were temporarily suspended 25 During this
suspension, PERB received Bowry’s Appellant Exhibit List First Supplement on April 27, 2020,
which included her termination letter 26
'7 Feb 18 2021 PERB Decision and Older K Bow) v G” 0MB PERB GSA 20 l9T at 20
‘3 Feb 18 2021 PERB Decision and Order K Bowry v GP! 0MB PERB GSA 20 l9T at21
‘9 Pet r 5 Br 4
70 Pet r 5 Br 4 5
1' Pet’r 5 Br 5
7° Pet r 5 Br 5
’3 Resp tBowry s Resp To Br 1 2
’4 PERB s Responsive Br 3
’5 PERB s Responsive Br 4
’6 PERB s Responsive Br 4
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{[11 PERB argues that pursuant to title 3 §§ 530(c)27and 530(c)28 of the Virgin Islands Code it
has the ability to reverse a decision of a department head, restore an employee to duty, and award
compensation 29 PERB contends that that is what it did in the instant case Bowry was suspended
without pay, appealed, and it reinstated her 30 Further, PERB also contends that OMB was aware
of the pending appeal when it further suspended and then terminated her, and “at no time did the
Petitioner press the issue that Bowry did not file an appeal of the termination 3' PERB contends
that its jurisdiction over the case was not improper as ‘ [w]hether the appeal is one of a suspension,
dismissal or demotion, Respondent PERB’s authority remains the same 32
1112 In addition, PERB argues that pursuant to Martin v Occupational Safety and Health
Revzew Commzsszon33 and Chevron U S A Inc v NRDC Inc 34 the Court should defer to PERB 5
construction of its own regulations and considerable weight should be accorded to an executive
department’s construction of a statutory scheme it is entrusted to administer, and the principle of
deference to administrative interpretations 35 PERB submits that it is an administrative agency, it
fairly and impartially administered the provisions of Section 530, ’ properly weighed the
information it received, and ‘ determined that the Petitioner failed to provide a classified regular
employee with due process, and there was no just cause for the suspension 36 Further, PERB avers
that its decision was supported by a rational basis there was substantial evidence in the record to
support its decision and it did not exceed its authority 37
II LEGAL STANDARD
A Jurisdiction & Appellate Review
1113 Title 3 § 530a 0f the Virgin Islands Code vests the Superior Court of the Virgin Islands
with appellate authority over PERB decisions which are final orders so long as an application for
’7 V I CODE ANN tit 3, § 530(c) ( The Board may sustain or reverse the decision of the department head or may
reduce the penalty recommended by the department head from dismissal or demotion to suspension for a period not
to exceed 90 days or from suspension to a lesser period of suspension if the Board finds Such action to be warranted
and in the public interest )
’8 3 V I C § 530(c) ( If the Board ordeis restoration to duty and pay, and if it does not order suspension, the employee
shall receive full compensation for any period for which he did not receive compensation pending hearing of the
appeal In addition, if the Board finds that such dismissal, demotion or suspension was ordered by the department head
arbitrarily, unjustly and without reasonable cause and the employee was represented by counsel, it shall enter an
order awarding a reasonable attorney fee to the employee Such award shall be satisfied by legislative appropriation
therefor Any award of attorney's fees to an employee of an independent instrumentality shall be satisfied by the
respective instrumentality )
7" PERB s Responsive Br 8
3“ PERB s Responsive Br 8 9
3' PERB s Responsive Br 8 9
3’ PERB s Responsive Br 9
33 499 U S 144 (1991)
34 467 U S 837 (1984)
3’ 1d at 844 PERB s Responsive Br 9 10
3" PERB s Responsive Br 10
37 PERB s Responsive Br 10
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review is filed within thirty (30) days 38 A final order ends litigation 0n the merits 39 Questions of
fact determined by PERB are conclusive ‘ if supported by substantial evidence in the record
considered as a whole 40 ‘ In reviewing a final order of the PERB, the court may enforce the order,
modify the order and enforce it set the order aside, or return the matter to the PERB with
instructions for further proceeding not inconsistent with this chapter ”4]
B Chevron Deference and Agency Decismns
1114 Courts confronted with an agency 5 construction of a statute it administers must first ask
whether the legislature has directly spoken to the precise question, and if not, whether the agency 5
interpretation is based on a permissible construction of the statute 42 Further, the United States
Supreme Court has ‘ long recognized that considerable weight should be accorded to an executive
department 5 construction of a statutory scheme it is entrusted to administer ”43
1115 The Court may set aside an agency decision if it is arbitrary and capricious, but ‘ [t]his does
not mean that the Court may substitute its judgment for that of the agency, but that the agency
action may be set aside only where it is not supported by any rational basis ’ 44 Additionally, the
Court determines whether the agency acted within the scope of its statutory powers and whether
its findings are supported by substantial evidence on the record 45
38 3 V I C 530a(a) provides
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 after the date of the Final Order and name the PERB as a party
respondent The rules of procedure of the Superior Court regarding a writ of Review shall govern
the appeal proceeding
3" Plosser v Public Servs Comm n ofthe US V I 56 V I 391, 401 (V I 2012) (citing Estate ofGeorge v George,
50 V I 268, 274 (V I 2008)) ( ‘The September 14, 2010 order from the Superior Court was a final order, because it
end[ed] the litigation on the merits )
4" 3 V I C 530a(b)
4' 3 V I C 530a(c)
4’ Chewon 467 U S at 842 43 ( When a court reviews an agency 5 construction of the statute which it administers
it is confronted with two questions First always is the question whether Congress has directly spoken to the precise
question at issue If the intent of Congress is clear that is the end of the mattel for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress If however the court determines Congress has
not directly addressed the precise question at issue the court does not simply impose its own construction on the
statute as would be necessary in the absence of an administrative interpretation Rather, if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether the agency 5 answer is based on a
permissible constmction of the statute )
43 [d at 844
4“ Branch v Bryan 18 V I 54 59 (D VI 1980) (citing NL R B v Jas H Matthews & C0 Industual Mark Prod
Dzv 342 F 2d 129 131 (3d Cir 1980)
4 Angellv Pub Emp Relations Bd
73 VI 89 91 92 (VI Super Ct 2010)(citing Branchv Bryan 18VI 54 56
57 (D V I 1980)) ( ‘In reviewing PERB s actions, this Court must determine (1) whether the agency 8 findings are
supported by substantial evidence on the record (2) whether the agency has acted within the limits of its statutory
powers and (3) whether the agency has abused its discretion by acting in an arbitrary or capricious manner )
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III ANALYSIS
1116 As a preliminary matter, PERB 5 February 18, 2021 Decision and Order is a final order
and OMB 5 Petition For A Writ Of Review was filed within thirty (30) days, therefore this Court
has jurisdiction to review the Decision and Order
A PERB did not exceed the scope of its authority in ruling on Bowry’s
termination and its judgment is appropriate
1117 The Virgin Islands Legislature has not spoken directly to the issue of whether PERB, once
an appeal has been filed, may consolidate subsequent appeals and agency actions by the same
appellant involving the same or similar matter into one case
1118 OMB argues that ‘Bowry was notified of the termination but never filed an appeal and
that PERB chose to consolidate the cases and hear them simultaneously rather docket a separate
action 46 OMB also argues that each adverse employment decision constitutes a separate incident,
and the employee must file separate notices of appeal to preserve those rights 47
$119 PERB has shown that Bowry notified PERB of her second suspension as well as her
termination PERB also indicated to Bowry that there was no need to separately file her second
suspension when she did so The Court notes the unusual circumstances of this case as Bowry s
appeal was pending, the Governor issued an executive order suspending PERB 5 operation on
account of the Covid l9 pandemic During this cessation of operations Bowry notified PERB of
her termination
1RD In the instant case the facts supporting Bowry 5 second suspension and termination flow
from her initial suspension and her refusal to sign the EAP paperwork and commit to a program
mandated by O’Neal O’Neal 5 mandate to attend the EAP in Bowry 5 initial suspension directly
stems from the basis of her initial suspension her alleged intoxication at a work training PERB
considered these suspensions and the resultant termination to be rooted in the same set of instances,
bound up with each other, and thus constituting a single appeal Additionally, OMB was aware of
the pending appeal when it issued its second suspension and subsequent termination 48
{[21 While OMB argues that Bowry needs to file a separate appeal at each stage of the transit
from suspension to termination, PERB states it is within its power to consolidate the actions With
appropriate deference to PERB the Court finds that PERB s construction of the statute is
permissible and logical While the statute does not explicitly provide for consolidation of appeals,
it does not forbid it Additionally, the statute states that if PERB fails to make a decision an
46 Pet r 5 Br 4
47 Pet r 5 Br 6
48 Additionally, OMB was or should have been aware of Appellant Exhibit List First Supplement which contained
her termination letter At no point before PERB s decision did OMB make an argument that PERB should exclude
consideration of the second suspension or termination and that consideration of them was not properly before PERB
While a party may at any time argue that a court, or in this case PERB, lacks subject matter Jurisdiction, all parties
PERB, and the Court would benefit from the issue being raised prior to appeal
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employee should be reinstated ‘ to the date of his original dismissal or suspension 49 The use of
original implies that there may be secondary or derivative suspension or dismissals, and the first
one that is appealed should be the one considered in the event of reinstatement by default This
strengthens PERB 5 construction of the statute
1122 Furthermore, PERB 5 construction of the statute is particularly appropriate in a situation
such as this one, where the suspensions and termination are related, based on the same set of facts,
and are not separate and unique instances involving a range of unrelated events and parties
Consolidation in such a case is wholly sensible The alternative procedural obstacle course of
repeated filings, separate hearings, duplicative evidence, and repetitive testimony would be
inefficient, byzantine, and burdensome for Bowry, OMB, PERB, and the witnesses The Court
does not see what benefit this may provide
123 PERB s power to grant relief in the case of Bowry 5 initial suspension is the same as it
would be in the second suspension and termination to reinstate Bowry and order compensation
Thus, in reinstating Bowry after her termination, PERB would not be exceeding its authority under
the statute, as PERB could reinstate Bowry in the event of suspension or termination Either way,
Bowry ends up back in her position as Management Program Analyst with backpay Additionally,
if Bowry 5 initial suspension was erroneous or violative of her rights, the second suspension and
termination, predicated as they are on the initial suspension and refusal to participate in a program
mandated by 0 Neal, would also be tainted by the Violation of Bowry 3 rights PERB’s authority
over the initial suspension could subsequently invalidate Bowry 3 second suspension and
termination As a result PERB did not exceed its authority in consolidating into one case the
second suspension and termination
1124 In its hearings, PERB received an abundance of evidence and witness testimony before
making its decision In consideration of this substantial amount of evidence, PERB made findings
of fact that show that O’Neal chose to try and force Bowry to participate in the EAP or face
suspension, and then O’Neal immediately suspended her, without prior notification, a hearing, or
use of gradual discipline, on the basis of a single allegation Therefore, PERB’s judgment in
finding Bowry 5 due process rights violated and reinstating her is rational, is not arbitrary or
capricious, is substantially supported by the evidence, and is within PERB 3 power
B OMB was not afforded an opportunity to litigate the termination
1125 OMB argues that the Government was never provided notice that the termination of
Bowry was at issue PERB explicitly told the Government that the hearing was only being
conducted with respect to the merits of the suspensions, and Bowry s Counsel concurred ’50 As
stated above, the Court defers to PERB s decision to consolidate the suspensions and termination
and finds it within its jurisdictional authority But OMB also makes a due process argument, that
4"3 VIC 530(b)
5" Pet r 3 Br 5
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[n10 portion of the hearing concerned the merits of Bowry s termination, and therefore the
Government was deprived of a fair opportunity to be heard on that issue 5 l
1126 OMB further argues that it did not terminate Bowry based solely on the same reasons for
which she was suspended and while the parties litigated issues of intoxication and
insubordination’ there were other reasons and issues ’ which were never discussed 52 OMB
states that even though the Government failed to meet their burden of proof on Bowry 3
suspension, that ‘does not per se mean the Government could not have met their burden of proof
related to the termination ’ 53 OMB insists that the the Government is entitled to the same
fundamental fairness accorded to other parties, including notice and the opportunity to be heard 54
In short, OMB is arguing that PERB’s consideration of Bowry s termination was a due process
Violation because OMB and Bowry only debated the merits of Bowry s suspensions
1127 A review of the record indicates that at the October 2, 2020 hearing the Government did
specifically inquire as to the scope of the hearing and was told by the PERB hearing officer it was
related to the suspension, which opposing counsel clarified as the suspension pending
termination 55 As outlined above, the Court defers to PERB’s discretion in consolidating the
suspensions and the termination As Bowry was suspended pending termmatzon and that
suspension was litigated, it is not clear what facts or circumstances OMB could assert that would
result in PERB finding the suspensions to be violations but not the termination However, PERB
did not provide notice that it would also be considering the termination Indeed, PERB represented
the opposite to OMB In so representing, PERB functionally pulled a bait and switch, denying
OMB the chance to argue the termination was justified while ruling afterwards it was not
1128 Further, PERB in its letter to the parties announcing the hearing also represented that the
issue was suspension , and that the hearing would be on the merits of the appeal of
suspension ’ 56 While it appears to the Court from the record that the termination and suspensions
are intertwined, and OMB has not indicated what facts or circumstances make the eventual
termination wholly distinct from the suspension pending termination—other than to say there were
‘ other reasons” the Court is amenable to OMB’s concerns of having an opportunity to be heard
on the issue
1129 Given the unique facts of this case suspensions and a termination with a common basis;
the temporary suspension of PERB 3 operation by executive order occurring around the initiation
of the case; and PERB s representations to OMB as to the scope of the hearing, fairness and
prudence would dictate that OMB be given a chance to litigate the termination Given that PERB
found a Violation of Bowry 5 due process rights and a failure of OMB to use gradual discipline, it
is not clear how Bowry’s termination does not also suffer from these defects However, if OMB
9‘ Pet’r 5 Br 5
5’ Pet r s Br 7
53 Pet’r 3 Br 7
’4 Pet r 3 Br 7
55 October 2, 2020 PERB Hearing Transcript 22
36 PERB s Responsive Br Ex 3
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has a good faith argument and there exists actual57 facts or circumstances which mark the
termination as different from the already litigated suspensions, then OMB should have an
opportunity to present its case The Court will therefore vacate the February 18, 2021 Decision
and Order pending the outcome of said hearing While the issues surrounding the suspension have
already been litigated, those findings can be included in PERB s new Decision and Order
IV CONCLUSION
1130 On February 7, 2020, Respondent Bowry was summoned to the office of the Director of
the Office of Management and Budget She was mandated to attend an employee assistance
program and was given a two week suspension The basis of Bowry s suspension was alleged
intoxication at a training event Bowry was not given notice or a hearing, nor was she subj ected to
progressive discipline Bowry refused to sign the paperwork for the program Upon returning to
the office, Bowry was again suspended for two weeks pending termination and was eventually
terminated
1131 Bowry appealed her initial suspension to PERB PERB informed her there was no need to
file an appeal for the second suspension and the issues would be consolidated A short time after,
the Governor of the Virgin Islands issued an executive order which, Inter aha, suspended the
operation of PERB Bowry also provided PERB during this time with notice of her termination
After several hearings, PERB eventually issued a ruling reversing Bowry s suspensions and
termination and reinstating her with backpay Petitioner OMB subsequently filed this appeal
arguing that (a) PERB exceeded its authority in consolidating the cases and (b) OMB did not
have a chance to litigate Bowry s termination as PERB had represented the scope of the hearings
was limited to the suspensions
1132 With due deference to PERB’s interpretation of the statute the agency operates under, the
Court finds that PERB did not exceed its authority in informing Bowry she would not need to file
separate appeals and instead consolidating the actions, particularly since each of OMB’s actions
vis a vis Bowry are predicated on each other and based on the same set of underlying facts
However, OMB was not given a chance to litigate the issue of termination due to PERB s
representations While OMB has not indicated what facts or arguments differentiate the
termination from the suspensions that proceeded it, OMB still deserves a chance to litigate the
issue before being subjected to a Decision and Order that binds it on the matter The Court will
therefore remand the case back to PERB with instructions to hold a hearing solely on the issue of
termination The Court will also vacate the February 18, 2021 Decision and Order from PERB
1133 Accordingly, it is hereby
ORDERED that the PERB February 18 2021 Decision and Order PERB GSA 20 19T is
hereby VACATED‘ and it is further
’7 As in, not contrived or fashioned post hoc
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ORDERED that this case is REMANDED to PERB for further proceedings consistent
with this Memorandum Opinion and Order and it is further
ORDERED that a copy of this Order shall be directed to counsel of record
DATED 441:; i 2021 f! Cum um
DENISE M FRA COIS
Judge of the Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk the Court
By W
D NA D DONOVAlb
Court Clerk Supervisor / 5L / m