IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

RRKKKKKEKEKK EK
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: 

MEMORANDUM OPINION AND ORDER
1. Pending before the Court are:

(1) Defendant’s Motion to Dismiss, filed on June 6, 2019!;

(2) Plaintiff's Response in Opposition to Defendant’s Motion to Dismiss, filed on June 24,
2019;

(3) Defendant’s Reply to Plaintiff's Opposition to Defendant’s Motion to Dismiss, filed on
July 10,2019;

(4) Plaintiff's Motion for Ruling on Motion to Dismiss, filed November 7, 2019; and

(5) Plaintiffs Second Motion for Ruling on Defendant’s Motion to Dismiss, filed August 27,
2020.

q2. For the reasons stated below, the Court will deny Defendant’s Motion to Dismiss.

I. FACTUAL BACKGROUND

43. Plaintiff Kenny Bryan started working at Defendant Wenhaven, Inc. d/b/a Wendy’s Old
Fashion Hamburgers as a policy and procedures manager.’ He was then asked by the franchise

' The Motion to Dismiss was filed by email twice: on June 6 and June 7". Inasmuch as the first filing was sufficient
and the Motion was docketed on June 6, 2020, the Court will use the June 6" filing date,

2 Pl. Compl. 7.
Bryan v. Wenhaven, Ine. 

Case No. ST-2018-CV-00375

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owner, Peter Kumpitch, to move into the position of general manager.? Bryan oversaw the
operations of Wendy’s at one location on St. Thomas and one location on St. Croix.4

4. On April 3, 2018, a locksmith arrived at the Wendy’s (presumably the St. Thomas location)
“and informed [Bryan] that he had been hired to change the locks.”° Bryan “was unaware [that]
the locks to the Wendy’s were being changed” and “informed the locksmith that there must have
been a mistake.”* Bryan then “attended a telephone conference call with the silent partners of the
franchise [who] informed Bryan] that his position had been terminated.””’

€5. Bryan filed his Complaint on July 30, 2018, alleging that Wenhaven’s proffered reason
for his termination, i. e. “Wendy’s restaurants had failed the last two Q&A inspections”, was not
the real or legitimate basis for the wrongful termination.”* Bryan alleges “[t]he actions of
Defendant constitute wrongful discharge in violation of the Virgin Islands Wrongful Discharge
Act, Title 24 V.LC. §§ 76-79.

Il. LEGAL STANDARD FOR RULE 12(b)(6) MOTION TO DISMISS.

6. Wenhaven has moved to dismiss the Complaint on the grounds that Bryan has failed to
state a claim for which relief can be granted because: (1) Bryan was terminable at will, absent a
written employment agreement to the contrary; and (2) Bryan was a “bona fide executive” and
therefore outside the protections of the Virgin Islands Wrongful Discharge Act. Wenhaven further
argues that even if Bryan was considered a supervisor rather than an executive, the WDA does not
apply to him.

q7. Bryan argues that he never worked in an executive capacity, that he was not a statutory
supervisor, and even if he was a statutory supervisor, he was still protected by the [WDA] and that
he had never been a member of the union that was a party to the union contract.'° In response,
Wenhaven counters that the issue is not whether it can factually prove statutory grounds for
discharging Bryan, but whether it is legally required to do so.

48. Virgin Islands Rule of Civil Procedure 12(b)(6) allows a party to challenge a pleading for
“failure to state a claim upon which relief can be granted.” To survive a 12(b)(6) motion, the
plaintiff must provide “a short and plain statement of the claim showing that the pleader is entitled
to relief,” and “[t]he facts alleged in the pleadings, and any inferences drawn therefrom must be

3 Id.

4 Id anys.

> Id. at 49.

® Id. at J 10.

7 Id. at4 11.

8 fd. at] 14.

9 Id. at 4 17.

'? Plaintiff's Motion for Ruling on Motion to Dismiss, p. 2.
VLR. Civ. P, 12(b)(6).

2 V.LR. Civ, P. 8(a}(2).
Bryan v. Wenhaven, ite. 

Case No. ST-2018-CV-00375

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viewed in the light most favorable to the plaintiff.”? All material allegations in the complaint are
taken as true, and the Court must construe all facts in a light most favorable to the non-moving
party.'* “Even ifa complaint is ‘vague,’ ‘inartfully drafted,’ ‘a bare-bones outline,’ or ‘not a model
of specificity,’ the complaint may still be adequate so long as it can reasonably be read as
supporting a claim for relief...”.'° The purpose of a motion to dismiss at this stage of litigation is
to test the sufficiency of a complaint and not to test the truth of the facts alleged in the complaint.'®

q9. Since Virgin Islands Rule of Civil Procedure 8(a)(2) explicitly states that the Virgin Islands
is a notice pleading jurisdiction, a plaintiff merely needs to provide a basic legal and factual basis
for his claim to put a defendant on fair notice of the claims brought against him." In fact, “[t]he
complaint need not identify the particular legal theories that will be relied upon, but it must
describe the essence of the claim and allege facts sufficient to demonstrate that the complaining
party has been injured in a way that entitles him or her to relief.”'* This standard is reinforced by
the policy that litigants should not be expected to win their cases on the pleadings, but rather, be
given their day in court,'” and the standard is a more liberal and forgiving approach that is different
from the Twombley plausibility standard.” Essentially, Rule 8(a)(2) allows the Court to proceed
with the discovery process and address pleadings based on the merits of each asserted claim,”! and
“[p]leadings . . . must be fatally defective before they may be rejected as insufficient.”?? Further,
“the purpose of the notice pleading standard is to avoid ‘dismissals of cases based on failure to
allege specific facts which, if established, plausibly entitle the pleader to relief.’”??

'3 Adams v. North West Company (International), Inc., 63 V.1. 427, 438 (Super. Ct. 2015) (citing Benjamin v. AIG
ins. Co. of Puerto Rico, 56 V.1. 558, 566 (V.L 2012)),

9 L'Henri, Inc. v. Vulcan Materials Co., Civ. No. 206-170, 

 (D.V.I. Mar. 11, 2010) (citing
Christopher v. Harbury, 

 (2002)).

'S Basic Servs., Inc. v. Gov't of Virgin Islands, 7 V.1. 652, 659 (VL. 2019) (citing ¢.g., Casaday v. Allstate Ins. Co.,

 (Utah App. 2010)).

'S Stanley v. Virgin Islands Bureau of Corrections, No. ST-16-MC-075, 

, at *4 (V.1. Super. Apr.
1, 2020) (citation omitted).

'7 See Bank of Nova Scotia v. Flavius, Super. Civ. No. SX-16-CV-125, 

, at *6 (Super. Ct. Feb. 2,
2018).

'8 Howe v. MMG Ins. Co., 

 (Me. 2014) (internal quotation marks omitted).

'? See Carrillo v. Boise Tire Co., Inc. 

 (Idaho 2012){“The Idaho Rules of Civil Procedure set
forth a system of notice pleading intended to free litigants from what were once rigid pleading requirements.”).

* See Walsh v. U.S. Bank, N.A., 851 N.W.2d $98, 604-05 (Minn. 2014) (“After all, Minnesota is a notice-pleading
state and “does not require absolute specificity in pleading, but rather requires only information sufficient to fairly
notify the opposing party of the claim against it.’”); Webb v. Nashville Area Habitat for Humanity, Inc., 

 (Tenn. 2011) (“Tennessee follows a liberal notice pleading standard, . .. which recognizes that the primary
purpose of pleadings is to provide notice of the issues presented to the opposing party and court.”); McCurry v. Chevy
Chase Bank, FSB, 

 (Wash. 2010) (en banc) (“Under CR 12(b)(6) a plaintiff states a claim upon
which relief can be granted if it is possible that facts could be established to support the allegations in the complaint.”)
(emphasis in original).

71 See Swierkiewicz v. Sorema N.A., 

 (2002) (“The liberal notice pleading of [Federal] Rule [of Civil
Procedure] 8(a). .. was adopted to focus litigation on the merits of a claim.”).

22 Corwin v. British American Tobacco PLC, 

 (N.C. Ct. App. 2016).

Basic Servs., Inc. v. Gov't of Virgin Islands, No. S.CT.CIV. 2017-0084, 

, at *4 (VI. June 13,
2019) (citing V.I. R. CIV. P. 8 Reporter's Note; and Mills-Williams, 

).
Bryan v, Wenhaven, Inc. 

Case No, ST-2018-C V-00375

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"10. Determining whether a complaint states “a plausible claim for relief” is “a context-
specific task that requires the reviewing court to draw on its judicial experience and common
sense.””* In making the plausibility determination:

First, the Court must take note of the elements a plaintiff must plead
to state a claim so that the court is aware of each item the plaintiff
must sufficiently plead. Second, the court should identify
allegations that, because they are no more than conclusions, are not
entitled to the assumption of truth. These conclusions can take the
form of either legal conclusions couched as factual allegations or
naked assertions devoid of further factual enhancement. Finally,
where there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly
give rise to an entitlement of relief.”°

4/11. Ifthe remaining facts are sufficient for the court to draw a reasonable inference that the
defendant is liable based on the elements the plaintiff must plead, then the claim is considered
plausible.*°

12. Wenhaven argues that according to Rule 12(b)(6), Bryan has no cause of action under the
WDA because “[b]oth the explicit terms of the Act and the preemptive provisions of federal labor
law preclude recovery by a managerial employee such as Mr. Bryan.’ Further, the Defendant
argues that “as the ‘general manager’ responsible for the oversight of two local fast food restaurant
franchises, Mr. Bryan was terminable at will, absent a written employment agreement to the
contrary.”28

$13. In opposition, the Plaintiff argues that “ (1) [he] is not excluded by the Virgin Islands
Wrongful Discharge Act since he was never working in an executive capacity; (2) [he] was not a
statutory supervisor; (3) even if Plaintiff was a statutory supervisor, Plaintiff is still protected by
the Act; and (4) Plaintiff has never been a member of a union that was party to a union contract.”

A. There is Insufficient Evidence on the Record to Grant a Defendant’s Motion on the
Basis that Bryan was Employed in an Executive Capacity.

414. The Court finds that there is insufficient evidence on the record to grant a Motion to
Dismiss based on the Defendant’s argument that Bryan is exempt from the WDA given his former

24 Igbal, 559 U.S. at 679.

°> Brady v. Cintron, 55 V1. 802, 822-23 (V.I. 2011) (citing Joseph v. Bureau of Corrections, 54 V.1. 644, 649-50
(V.1. 2011)).
26 Id
27 Defendant's Motion to Dismiss, dated June 5, 2019.
28
Id.
2? Plaintiff's opposition to Defendant's Motion to Dismiss, dated June 24, 2019.
Bryan v. Wenhaven, Ine. 

Case No. ST-2618-CV-00375

Memorandum Opinion and Order

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position of general manager. In ruling on a motion to dismiss for failure to state a claim upon
which relief can be granted, “the issue is not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the claim.’*” The Court “ does not address the
merits of the claim but merely tests whether the claim has been adequately stated in the
complaint.”?' Since a motion to dismiss “tests the sufficiency of the complaint, the court’s inquiry
is limited to the contents of the complaint.”*? The purpose of a motion to dismiss at this stage of
litigation “ts to test the sufficiency of a complaint, not to resolve disputed facts or decide the merits
of the case,”*? Virgin Islands Rule 8(a){2) allows the Court to proceed with the discovery process
and address pleadings based on the merits of each asserted claim,* and “[p]leadings . . . must be
fatally defective before they may be rejected as insufficient.”

4/15. Wenhaven argues that given Bryan’s position as genera! manager with oversight over two
franchise restaurants that he was employed in a bona fide position in executive capacity and,
therefore, exempt from the protection offered by the WDA pursuant to 24 V.LC. § 62. In support
of its position, Wenhaven offers the definition of supervisor contained in the Code of Federal
Regulations and adopted by Sorber v. Glacial Energy VI, LLC*®, However, the Court finds that at
the current stage of the case, the record is insufficiently developed for the Court to determine
whether Bryan was employed in an executive capacity. Bryan’s salary is unknown; his duties are
unknown; and the extent of his authority is unknown. The Court finds Wenhaven’s argument with
respect to Bryan being an executive and, therefore, exempt from the WDA is more appropriate for
a Motion for Summary Judgment after the discovery process has occurred.

B. This Court Declines to Follow Third Circuit’s Holding that the NLRA Preempts the
WDA with regards to Supervisors.

416. Wenhaven argues that according to Rule 12(b)(6), Bryan has no cause of action under the
WDA because “both the explicit terms of the Act and the preemptive provisions of federal labor
law preclude recovery by a managerial employee such as Mr. Bryan.’ Further, Wenhaven argues
that “‘as the ‘general manager’ responsible for the oversight of two local fast food restaurant
franchises, Mr. Bryan was terminable at will, absent a written employment agreement to the
contrary.’°8

30 Espinosa v. Government of the V.1., 20 V.L. 78, 

 (1983).

3! Hans Lollik Corporation v. Government of the Virgin Islands, Terr. Ct. St. T. and St. J. 1981, Hans Lollik Corp.

v. Government of the Virgin Islands, 17 V.1. 220, 1981 V.1. LEXIS 79 (Terr. Ct. St. T. and St. J. 1981).

32 Callender v. Nichtern, 32 V.1. 96, 1995 V.I, LEXIS 24 (1995), See also, Pepper-Reed Co, v. McBro Planning &
Dev. Co., 

, 

, 1983 U.S. Dist. LEXTS 17545 (1983).

ae § 39:32.General standards for a Rule 12(b)(6) dismissal, 6 Annotated Patent Digest § 39:32

4 See Swierkiewicz v. Sorema N.A., 

 (2002) (“The liberal notice pleading of [Federal] Rule [of Civil
Procedure] 8(a) . . . was adopted to focus litigation on the merits of a claim.”).

35 Corwin v. British American Tobacco PLC, 796 S.E,2d 324, 333 (N.C. Ct. App. 2016).

36 Sorber v. Glacial Energy VI, LLC, 2013 V.1. LEXIS 12, at *12 (V.L Super. Ct. March 7, 2013), abrogated in part
by Rennie, 62 V.1. at 544.
37 Defendant's Motion to Dismiss, dated June 5, 2019.
38

Bryan v. Wenhaven, Inc. 

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Memorandum Opinion and Order

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17. Wenhaven’s arguments are premised upon St. Thomas - St. John Hotel & Tourism
Association v, Gov't of U.S. Virgin Islands ex rel. Virgin Islands Depart. of Labor, in which the
Third Circuit Court of Appeals held that Section 14{a) of the National Labor Relations Act
preempts the WDA with respect to wrongful discharge claims filed by individuals who qualify as
former “supervisors” under Section 2(11) of the NLRA, resulting in the preclusion of those
individuals from filing wrongful discharge claims.*?

qi8. Si. Thomas-St. John Hotel & Tourism Ass'n. Inc., was decided in 2004, the same year the
Virgin Islands Supreme Court was created and before the Virgin Islands Supreme Court assumed
its appellate jurisdiction and became the court of last resort in the U. S. Virgin Islands. The creation
of the Virgin Islands Supreme Court “changed the relationship between the local Virgin Islands
judiciary and the Third Circuit.”“° Since 2004, the Virgin Islands Supreme Court has held that it
is not required to follow “...decisions of the District Court or the Third Circuit interpreting local
Virgin Islands law.”*!

qi9. In Pedro v. Ranger Am. of the Virgin Islands, the Supreme Court of the Virgin Islands
criticized the application of a federal framework to the WDA, noting that the Third Circuit had
also strongly criticized this approach:

In holding that Pedro's proposed amendment would be futile, the Superior Court
applied the burden shifting approach adopted by the District Court
in Rajbahadoorsingh v. Chase Manhattan Bank, NA, 

, 503-
04 (D.V.I. 2001). This approach—borrowed from the framework adopted by the
United States Supreme Court for Title VII trials in McDonnell Douglas Corp. v.
Green, 

 (1973}—places the burden on the plaintiff to
allege, and then at trial present prima facie proof that “(1) he was an employee;
(2) of a covered employer; (3) he was discharged; and (4) the discharge was
wrongful.” Rajbahadoorsingh, 168 F.Supp.2d at 504—05 (citing Texas Dep't of
Cty. Affairs v. Burdine, 

 (1981)).

This Court, however, recently explained that “the United States Court of
Appeals for the Third Circuit strongly criticized this approach, finding that there
is no basis in the plain language of [the VIWDA] or its legislative history for
incorporating this federal test into Virgin Islands jurisprudence.” Rennie, 

, at *6 (citing Maynard v. Rivera, 

 (3d Cir.2012)).
And, while the Third Circuit in Maynard “declined to
overturn Rajbahadoorsingh and its progeny,” this Court explicitly rejected the
conclusions in Rajbahadoorsingh in Rennie, holding that a plaintiff only has
“the burden of pleading—and ultimately proving—that he was discharged,
while the permissible grounds for discharge set forth in sections 76(a)(1)-(9) and

39 

, 304-305 (3d Cir. 2004).

*° In re People of the V.1, 51 V1. 374, 389 n. 9 (V.L 2009), cert. denied, No. 09-3492, slip op. at | (3d Cir. Nov. 5,
2009)

4! Defoe v. Phillip, 56 V.1. 109 ( VI. 2012) (citing Judi's of St. Croix Car Rental y. Weston, 49 V1. 396, 403 n. 7
(V.1.2008).
Bryan v. Wenhaven, Inc. 

Case No. ST-2018-CV-00375

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76(c) [are] affirmative defenses that the defendant would be required to plead
and prove.” Rennie, 

, at *6—7 (citing Gumbs—Heyliger v. CMW
& Assocs. Corp., Civ. No.2012-00078, 

, at *4 (D.V.I. Nov.
13, 2014) (unpublished)).

As we made clear in Rennie, utilizing the McDonnell Douglas framework in
VIWDA cases makes little sense given the different goals of the VIWDA and
Title VII. On the one hand, Title VII serves as an exception to employment-at-
will, a well-established common-law doctrine accepted in nearly all American
jurisdictions, subject only to limited public-policy exceptions recognized by
statute and common law. See, e.g., Bruffett v. Warner Commc'ns, Inc., 

 (3d Cir.1982) (“Under the ‘employment at will’ doctrine which
prevailed at common law, the employment relationship was terminable at will
in the **5/9 absence of a contract to the contrary.... [But] Congress has limited
employers’ rights to discharge at will because of certain overriding national
policies.”); Lockhart v. Cedar Rapids Cmty. Sch. Dist., 

(Iowa 1998)(“[T]he modern employment-at-will doctrine is ... one that permits
termination at any time for any ... reason that is not contrary to public
policy.”); McArn v. Allied Bruce-Terminix Co.,

(Miss.1993){recognizing limited “public policy exceptions to the age old
common law rule of employment at will”). Title VII embodies a nationwide
exception to this common-law doctrine, “prohibiting discharge based on race,
color, religion, sex, or national origin.” Bruffett, 

.

In contrast, the VIWDA is a “statutory abrogation of the common law rule of at-
will employment.” Rennie, 

, at *6. Although interpreting a
statute in a manner that abrogates the common law is disfavored, Cascen v.
People, 

 (V.1.2014), the plain language of the VIWDA
unequivocally expresses the Legislature's intent to abolish the common-law
employment-at-will doctrine by creating a presumption that any employment
discharge is wrongful, stating that “[a]ny employee discharged for reasons other
than those stated in subsection (a) of this section shall be considered to have
been wrongfully discharged.” Rennie, 

, at *6 (quoting 24
V.LC. § 76(c)).**

$20. In this case, Wenhaven’s Motion to Dismiss argues that “both the explicit terms of the Act
and the preemptive provisions of federal labor law preclude recovery by a managerial employee
such as Mr. Bryan.’ Wenhaven also argues that “as the ‘general manager’ ... Bryan was
terminable at will, absent a written employment agreement to the contrary.”*

*® Pedra v. Ranger American of the Virgin Islands, Inc., 63 V.1. 511, 518-519 (V.I. 2015).
3 Motion to Dismiss at 1.
44 Id.
Bryan v. Wenhaven, Inc. 

Case No. ST-2018-CV-00375

Memorandum Opinion and Order
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{21. The Supreme Court of the Virgin Islands has not yet ruled on whether the NLRA preempts
the Virgin Islands WDA regarding wrongful discharge claims asserted by supervisory employees.
This Court is aware, through a series of rulings from the Supreme Court of the Virgin Islands, that
it should not rigidly, blindly or mechanistically apply federal policy, doctrines, rules, statutes or
the Restatement of Laws in matters of Virgin Islands law thereby delegating the judicial power of
the Virgin Islands to other jurisdictions.

422. The foundation of the St. Thomas-St. John Hotel opinion was found to be questionable
in Charles v. CBI Acquisitions:

As observed by the Court in Canton v. VI. Humanities Council, the Third Circuit
appears to have based its holding in part on a conflation of employment contracts
and union contracts, as evinced by the statement that “if the WDA is applied to
supervisors, the only way for an employer to alter or expand the WDA's nine
enumerated grounds for terminating a supervisor/employee would be to enter
[into] a ‘union contract’ with the supervisor.’*®

923. This Court cannot unquestioningly adopt the Third Circuit’s analysis regarding the
NLRA’s preemption of the WDA finding it based upon an erroneous premise and for the reasons
provided below, declines to adopt the Third Circuit’s ruling in St. Thomas-St. John Hotel &
Tourism Ass'n. Inc.

924. In St. Thomas-St. John Hotel & Tourism Ass'n. Inc., the Third Circuit Court reasoned, “the
only way for an employer to alter or expand the WDA's nine enumerated grounds for terminating
a supervisor/employee would be to enter [into] a ‘union contract’ with the supervisor.’*’. However,
such contract would not be a “union contract” under the NLRA. A union contract, formally known
as a collective bargaining agreement, is a “contract between an employer and a labor union
regulating employment conditions, wages, benefits, and grievances.”*® A collective bargaining
agreement (CBA) is not the same as an individual employment contract. A CBA is a labor contract
negotiated by a labor union on behalf of the employees it represents. For an employment contract
to be considered a “union contract,” an employer could not “bargain with the supervisor as an
employee” but, instead, it would have to bargain with a labor union representing the supervisor.

425. Inaddition, St. Thomas-St. John Hotel & Tourism Ass'n. Inc., relied upon the U.S. Supreme
Court’s NLRA preemption case law which is inapplicable to the instant case: Beasley v. Food Fair
of North Carolina, Inc. 

 (1974). In Beasley, managers at a grocery chain were
discharged after they joined a labor union. The managers attempted to file a claim under a North
Carolina law prohibiting employers from discriminating against employees for union membership

*> Gov't of the V.L. v. Connor, 60 V.1. 597, 602 (V.1.2014) (citing Banks v. Int'l Rental & Leasing Corp., 55 V.1. 967,
980 (V.1.2011); Vanterpool v. Gov't of Virgin Islands, 63 V.1. 563 (V.1. 2015).

4© Charles v. CBI Acquisitions, LLC, No. $T-15-CV-279, 

, at *3 (V.I. Super. Aug. 21, 2018)
*7 357 F.3d at 303.

*8 Collective Bargaining Agreement, BLACK’S LAW DICTIONARY (11th ed. 2019).
Bryan v. Wenhaven, Inc. 

Case No, ST-2018-CV-00375

Memorandum Opinion and Order

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without an exception for supervisors. The U.S. Supreme Court held that the NLRA preempts the
North Carolina law in regards to supervisors because the NLRA is clear that employers may take
adverse employment actions against supervisors for participating in union activities.*”

(26. The Third Circuit is correct when it states that Beasley “teaches that state (or territorial)
laws that pressure employers to accord supervisors the status of employees for collective
bargaining purposes conflict with Section 14(a) of the NLRA.”°° However, the Third Circuit reads
Beasley too broadly and excludes all supervisors from the WDA’s protections. While in Beasley
the plaintiffs were members of a labor union, in the present case, Bryan is not represented by a
labor union. Therefore, Wenhaven cannot feel pressured to enter collective bargaining negotiations
regarding Bryan’s terms and conditions of employment, in particular the standard under which he
can be discharged, if there is no labor union with whom Wenhaven can bargain.

§27. As expressed by the U.S. Supreme Court in Beasley, a major concern Congress had when
choosing to exempt supervisors from the protections of the NLRA was “to redress a perceived
imbalance in labor-management relationships that was found to arise from putting supervisors in
the position of serving two masters with opposed interests.”°' However, Bryan is neither
represented by a labor union nor was there evidence presented that he tried to join a labor union.
Therefore, there is no other “master” Bryan could serve besides Wenhaven, and there is no reason
to rule that the NLRA preempts his WDA claim.

128. Considering the reasons above, this Court cannot follow the Third Circuit's holding that
the NLRA preempts the WDA in regards to supervisors and considers the just cause provisions
applicable to supervisors and non-supervisors. Moreover, this Court’s decisions are appealed to
the Supreme Court of the Virgin Islands which may disregard the Third Circuit’s post-2007
decisions on territorial law.°*

C. Plaintiff's Complaint Alleges Adequate Facts to State a Plausible Claim for Relief
Under the Wrongful Discharge Act

929. When addressing a Rule 12(b)(6) motion, the Court views the facts alleged in the pleadings
and the inferences to be drawn from those facts in the light most favorable to the non-moving
party.”’ As both parties acknowledged, the Virgin Islands is a notice pleading jurisdiction. A
plaintiff merely needs to provide a basic legal and factual basis for her claim to put a defendant on
fair notice of the claims brought against him.* In fact, “[t]he complaint need not identify the
particular legal theories that will be relied upon, but it must describe the essence of the claim and
allege facts sufficient to demonstrate that the complaining party has been injured in a way that

49 

.

5° St. Thomas - St. John Hotel & Tourism Ass'n, 357 F.3d at 303.
>! Beasley, 

.

>? Defoe v. Phillip, 

 (3d Cir. 2012).

53 See 

34 See Bank of Nova Scotia v. Flavius, Super. Civ. No. SX-16-CV-125, 

, at *6 (Super. Ct. Feb. 2,
2018).
Bryan v. Wenhaven, Inc. 

Case No. ST-2018-CV-00375

Memorandum Opinion and Order

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entitles him or her to relief.”*° Further, matters outside of the pleadings should not be considered
in deciding a Rule 12(b)(6) motion to dismiss,*°

930. Bryan has met his burden of alleging adequate facts to state a plausible claim for relief
under the WDA pleading that he was an employee of Wenhaven and that he was discharged. The
permissible grounds for discharge set forth in sections 76(a)(1)-(9) and 76(c) are affirmative
defenses that Wenhaven would be required to plead and prove.*’ The purpose of a motion to
dismiss at this stage of litigation “is to test the sufficiency of a complaint, not to resolve disputed
facts or decide the merits of the case.”°** The Complaint is sufficient to allow the case to proceed
with the discovery process and address pleadings based on the merits of the asserted claims.

Accordingly, it is hereby

ORDERED that Defendant’s Motion to Dismiss, which was filed on June 6, 2019, is
DENIED; and it is further

ORDERED that Plaintiff's Motion for Ruling on Motion to Dismiss, which was filed on
November 7, 2019, is DENIED as moot; and it is further

ORDERED that Plaintiff's Second Motion for Ruling on Defendant’s Motion to Dismiss,
which was filed on August 27, 2020 is DENIED as moot; and it is further

ORDERED that a copy of this Memorandum Opinion and Order shall be directed to
counsel of record.

DATED: 4 [2 9/2020 Peake A “mM y OALULYO
DENISE M. FRANCOIS
Judge of the Superior Court of the Virgin Islands

iis deel

3 Howe v. MMG Ins. Co., 

 (Me. 2014) (internal quotation marks omitted).
°® Callender v. Nichtern, 32 V.1. 96, 1995 V.1. LEXIS 24 (1995), See also, Pepper-Reed Co. v. McBro Planning &

Dev. Co., 19 V.1. 534, 

, 

 (1983).
§ 39:35.Matters outside the pleadings, 6 Annotated Patent Digest § 39:35

>” Rennie v. Hess Oil Virgin Islands Corporation, 62 V.1. 529, 544 (V.I. 2015)
°8 § 39:32. General standards for a Rule 12(b)(6) dismissal, 6 Annotated Patent Digest § 39:32.