IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
MARSHA JAGRUP )
PCtiti0n€rg CIVIL NO SX 2016 CV 00068
V ; PFTITION FOR WRIT OF REVIEW
JUAN F LUIS HOSPITAL & MEDICAL ;
CENTER and THE COMMISSIONER OF THE )
VIRGIN ISLANDS DEPARTMENT OF LABOR ) 2024 VI SUPER 8U
Respondents 3
MEMORANDUM OPINION AND ORDER
ll 1 By Order Granting Petition for Judicial Review entered May 26 2016 ( Order
Granting Writ ) the Court granted Petitioner Marsha Jagrup 5 Petition for Judicial Review timely
filed on February 12 2016 I The Petition sought relief from the January 125 2016 Decision ofChief
Administrative Law Judge June Austin ( ALJ ) affirming the initial determination of the
Adjudicator within the Division of Unemployment Insurance of Respondent Commissioner of the
Virgin Islands Department of Lab01 ( DOL or Department ) Therein in deciding Petitioner
Jagrup’s internal appeal of the Adjudicator s determination to deny J agrup’s application for
unemployment benefits, the ALJ found that Jagrup was disqualified from receiving unemployment
insurance benefits due to misconduct For the reasons noted below, the Decision will be affirmed
ll 2 Respondent Juan F Luis Hospital and Medical Center, ( ‘JFL’ ) filed an Opposition
to the Petition for Writ of Review on May 23 2016 denied by Orde1 of May 26 2016 The same
date, the Court’s Order Granting W1it established a briefing schedule by which Petitioner was
ordered to file and se1 ve Petitioner 5 Brief within thirty (30) days after DOL s filing and service
of the certified copy of the record of the proceedings, following which JPL and DOL would then
have thirty (30) days to file and SCIVC Respondents Brief
1 The 01de1 Granting Wxit required the Depaltment of Label to produce on 01 before July 1 2016, a record
of the proceedings in the matter concerning the claim fen unemployment insulance benefits By lettel of
June 20 2016 the Department of Label transmitted its 01 iginal file and 01 iginal t1 anSCI ipt 0f the
Unemployment Insurance benefit Appeal Hearing
Marsha Jagnq) v Juan F Luzs Hospital & Medical Centel and Dept ofLabor SX 2016 CV 00068
Memmandum Opinion and Order
Page 2 0f 10 2024 V1 SUPER 8U
113 When Petitioner failed to timely file her blief on May 2, 2017, DOL filed its
Motion to Dismiss for failure to prosecute By Memorandum Opinion and Order entered June 21 ,
2017 the Court denied DOL 5 Motion to Dismiss but required Jagrup to show cause why it should
permit an extension to file her brief notwithstanding her noncompliance with the Court’s
scheduling order In her July 10, 2017 Response to the Court 5 Order to Show Cause Jagrup
explained that the delay was partly due to a change in counsel and requested additional time to file
her inef By Order enteled May 9, 2018, the Court excused the delay and granted in part the
request for additional time and Oldered that the parties adhele to the briefing deadlines prescribed
by Virgin Islands Rule of Civil Procedure 91(f) (h) (twenty days for petitioner s brief and
respondents briefs; reply brief allowed only by court order)
11 4 On May 30 2018 Petitionel Jag1 up filed her brief followed on June 18 2018 by
DOL S Memorandum of Points and Authorities in Support of Affirming DOL s Denial of
Employment Benefits Respondent JFL did not file a brief The Court finds that the AL] 3 Decision
is supp01ted in the record by substantial evidence and will affilm the Decision
FACTUAL AND PROCEDURAL BACKGROUND
11 5 On Febluary 12 2016, Petitioner filed her Petition asking the Court to review and
vacate the ALJ 5 January 12 2016 Decision in MARVHA IAGRUP v JFLH (V 1 App No 003
02 2016) The record2 shows that JFL hired Jagrup in July 2014 as a full time Registered Nulse
assigned to the Surgical/Medical Unit, working on a Flex time schedule At the time of her
termination, Jagrup earned $63,000 annually
11 6 The Gov JFL Hospital & Medlcal Cenlel Employee Code of Conduct and
Compliance Guidelines ( Fmployee Manual’) was the manual that sets out regulations and
expectations of conduct, binding upon Jaglup and other J FL employees The Employee Manual
7 The tecord hetein includes the Gov JFL Hospital & Medical Centen Employee Code of Conduct and
Compliance Guidelines the Gov JFL Hospital & Medical Cente1 Employee Handbook the Employee
Acknowledgment Statement signed by Jaglup, Austin Thomas 5 My Living Will’ the Counseling and
Corrective Action Form regarding the June 12 2015 incident involving Jaglup the June 16 2015 1ette1
placing Jagrup on administtative leave, Jagrup s tel mination letter dated August 17, 2015, the thin Islands
Unemployment Sepatation Fact Finding Statement signed by Jaglupa the initial determination by the
Department Of Labor 3 Adjudicatm the Iedetelmination by the Department of 1 abet s Adjudicator the
Hansel ipt 0f the ptoceedings before the AU, and the ALJ’s January 12? 2016 Decision
Marsha Jag; up v Juan F Luis Hospital & Medical (elite: and Dept ofLabOI SX 2016 CV 00068
Memorandum Opinion and Ordei
Page 3 of10 2024 VI SUPER 8U
listed on pages 9 and 10 a non exclusive list of potential violations under the headings Conflzct of
[mere 91‘ and Busmess Laurie 8'18? ems and Customer S'uppllel Relations
1i 7 The Employee Manual under the Conflicts oflmerest heading defined a conflict
of interest as an activity, influence, or relationship that ‘ impairs, or even gives the appearance of
impairing one’s ability to make objective and fair decisions in the performance of his/her job
The Guidelines further admonished employees not to place themselves in any situation that might
lead them to place their personal or financial interests ahead of those of JFL The Employee
Manual conceded that conflicts of interest may arise despite an employee 3 best efforts to avoid
such situations, but that the correct course of action for an employee to take in that instance is to
disclose the matter to his or her supervisor
ii 8 Furthermore, under the Busmess Courtesles Gifts and Customer Supplzel Relations
heading, the Employee Manual permitted JFL employees to accept gifts with a total value of
$25 00 01 less in any one year from any individual or organization with a business relationship
with JFL The Employee Manual identified Physicians practicing in the hospital or facilities as
being in a business ielationship with JFL but did not so lefeience Nurses LPNs or RNs as
suppliers, customers or individuals who have a business relationship with JFL for the purposes of
gifts or business courtesies
1i 9 In pertinent part a section entitled Policy Headings stated that as agreed by signing
the Employee Manual, the employee should ask do I contact my supervisor or the Compliance
Department when I am not sure that I can keep a particular gift that I have been offered ” On
July 22 2014, Jagrup signed an Employee Acknowledgement Statement agreeing to comply with
the standards contained in the policies and procedures of the Employee Manual
1E 10 Jagrup was assigned to provide care for Austin Thomas, a JFL patient recovering
after surgery in the Surgical/Medical Unit On May 13 2015 at the iequest and direction of
Thomas from his hospital bed, Jagrup wrote out the words contained in Thomas s My Living
Will ( Living Will ) As set out therein all the real and personal piopeity in Thomas s possession
at his death was to be conveyed to Jagrup His last dictated w01ds stated that his wish was to be
cremated The document was witnessed by two individuals Thomas was subsequently released
from JFL but shmtly thereafter returned to JFL 5 Intensive Cale Unit wheie he soon passed away
Marsha JagrLIp v Juan F Luis Hospztal & Medical Centei and Dept ofLabOI SX 2016 CV 00068
Memorandum Opinion and Order
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11 11 Jagrup had called JFL 5 Risk Management official at some point during the writing
of the Living Will but only to inquire about how to have the will properly executed Jagrup never
informed Risk Management of the context surrounding the Living Will who wrote it and the fact
that she benefited from it and Jagiup never informed her superiors that she assisted Thomas in
drafting his Living Will
11 12 Jagrup carried out Thomas’s wishes as set forth in his Living Will that a local
funeral home would cremate his body on death, a directive cairied out when Thomas’s remains
were cremated
11 13 On June 12, 2015, a membei of JFL 3 management received a verbal complaint
fiom a neighbor 0t Thomas stating that Jagrup impioperly had her patient Thomas sign over all
his assets to her Thereafter, JFL’s management commenced an investigation
11 14 On June 15, 2015 JFL prepared a JFL Employee Counseling and Corrective Action
Form outlining Jagrup s inappropriate behavior and triggering further investigation by JFL and the
initiation of disciplinary action against Jagrup On June 15 2015 Jagrup was placed on
Administrative Leave with pay, pending the outcome of JFL’s investigation
11 15 By correspondence dated August 17 2015 JFL advised Jagrup that she was
telminated from her employment as a Registered Nu1 se in the Medical/Surgical Unit at JFL The
correspondence cited Jagrup’s violation of JFL’s policies and plocedures contained in the “Code
of Conduct’ as the reason for her termination
11 16 Jagrup did not challenge her termination but on October 8 2015, filed for
unemployment insurance benefits On November 9 2015 an Adjudicator determined that Jagrup
was not entitled to receive such benefits because her actions as reported by JFL and pursuant to
V 1 Code Ann tit 24 § 304(b)(3) demonstrated a disregard of the standaids of behavior that the
employel had a right to expect Disagreeing with the Adjudicator's decision Jagrup filed a notice
of appeal under § 306(b) on December 2 2015
11 17 On December 14, 2015 AI J Austin presided over the appeal healing and heard
testimony from Marsha Jagiup Patrick Piper a patient who testified on behalf of Jagrup, as well
as Frank Abednego, Chief Human Resources Officer Justa Encarnacion, Chief Nursing Officer
and Dyma Williams Corporate Compliance Officer who all appeared as witnesses for employer
Malsha Jagrup v Juan F Luis Hospital & Medical Camel and Dept ofLabor SX 2016 CV 00068
Memoxandum Opinion and Order
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JFL After hearing the testimony and considering the evidence, on January 12 2016 the ALJ issued
her Decision finding that Jagrup was correctly terminated for misconduct under § 304(b)(3), Citing
Jackman v Heylzger 20 V I 536 (D V I 1984) 3 Jagrup filed her Petition in this Court on February
12 2016
11 18 By her Petition, Petitioner asks the Court to reverse the ALJ’S January 12, 2016
Decision denying Petitioner unemployment benefits On May 26, 2016, the Court entered its Order
Granting Writ ordering the parties to submit briefs Following procedural delays, on May 30,
2018 Petitioner filed her Petitioner 3 Brief, arguing that the Court should leverse the ALJ s
January 12 2016 Decision for the following reasons (1) the ALJ’s finding that Jagrup engaged in
misconduct under § 304(b)(3) is not based on substantial evidence and (2) the Decision by the
AL] is contrary to the public policy set forth in the enabling statute
LEGAL STANDARD
11 19 V 1 Code Ann tit 24, § 306(e)(l) allows a party aggrieved by a hearing examiner's
decision to initiate[ ] judicial review by filing in the [Superior] Court of the Virgin Islands a
petition for review within 30 days after the hearing examinei s decision has been mailed to each
party’s last known address or otherwise delivered to him Id § 306(e)(1) J agrup timely filed the
Petition on February 12, 2016 Therefore, the Superior Court has jurisdiction over the Department
of Label ALJ’s January 12, 2016 Decision
11 20 In granting a petition f01 review under § 306(c)(1), the reviewing court’s
jurisdiction “shall be confined to questions of law and in the absence of fraud, the findings of fact
by the hearing examiner if supported by substantial evidence regardless of statutory or common
law rules, shall be conclusive § 306(e)(3)
11 21 Where the Legislature has not explicitly required courts to apply a more deferential
standard of review the Superior Court exercises plenary ICV1€W 01‘ an agency 3 conclusions of law
1 In Jackman the District Court held It is true that not every violation of employment proceduie which
constitutes a proper basis for an employee 3 dismissal constitutes misconduct wairanting denial of
unemployment benefits As used in the unemployment compensation statute misconduct means an act of
wanton 0r wilful disregard of an employei s inteiests a delibeiate violation of the employer 5 1u1es, a
dis1egaid for the standards of behavior which an employer has the right to expect from an employee, or
negligence indicating an intentional disxegard 0f the employer s inteiest or of employee 3 duties and
obligations to the employer ’ 20 VI at 538 39 (citations omitted)
Mai ska Iag1up v Juan F Luz? Hospital & Medlcal Lenten and Dept ofLabOI SX 2016 CV 00068
Memorandum Opinion and Older
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Bryan v Fawkes 61 VI 201 226 27 (V1 2014) In the instant case because the Legislature did
not tequire a specific standard of review under § 306(c)(3) for the ALJ s conclusions of law, the
Court reviews those determinations de novo Section 306(c)(3) does require that the Superior Court
teview all factual findings under the substantial evidence standard
DISCUSSION
A The ALJ’s finding that Jagrup’s actions constituted misconduct under section
304(b)(3) is based on substantial evidence
$122 Jagrup contends that the ALJ 3 Decision that her employment with JFL was
terminated due to misconduct under the meaning of section 304(b)(3) was not based on substantial
evidence The Court finds t0 the contraiy that the ALJ s deteimination was based on substantial
evidence V1 Code Ann tit 24, § 304(b)(3) disqualifies an insured worker from receiving
waiting week credit or benefits for any week ofemployment it she was discharged for misconduct
connected with [her] most recent work An employee will not be denied unemployment
compensation benefits unless the employee was discharged due to misconduct defined as
an act of wanton 0r willful disregard of an employer 5 interest a deliberate Violation
of the employer 5 rules a disregard for the standards of behavior which an employer
has the right to expect from an employee or negligence indicating an intentional
disregard of the employer's interest of the employee 8 duties and obligations to the
employer
Jackman v Heyllgei 20 V I at 537
11 23 ‘Misconduct” is a question of law reviewable by this Court Where an employee
appeals an agency decision denying compensation benefits, the Court must decide whether the
agency’s decision that Petitionei engaged in disqualifying misconduct” is supported by
substantial evidence Id In determining whether there is substantial evidence to support the
agency 5 findings, the Court must examine the testimony in the light most favorable to the
prevailing party [JFL] giving that party the benefit of any inference, which can be drawn logically
and reasonably from the evidence See HH Tne & Battery v Croake, 2005 V I LEXIS 44, at *5
(VI Super Ct Aug 10 2005)
11 24 Substantial evidence is ‘such relevant evidence as a leasonabie mind might accept
as adequate to support a conclusion ’ Virgin Islands Coalltzon 0f CIIIZQI’LS wzth Dzsabllztzes Inc /St
Thamas v Gov I 0fthe Vligll’l Islands 47 VI 315 320 21 (VI Super Ct 2005) (quoting Black s
Marsha Jag? up v Juan F L109 Hospital & Medical (@1116) and Dept 0fLab0r SX 2016 CV 00068
Memorandum Opinion and OrdeI
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Law Dictionary (8th ed 1999)) If ‘ no reasonable fact finder could make [a particular] finding on
the administrative record, then an administrative record is not based on substantial evidence D20
v Ashmoft 353 F 3d 228 249 (3d Cir 2003) Furthermore simply because the Court could reach
a different conclusion based on the factual record before it does not mean that the record is
unsupported by substantial evidence Consolo v Federal Marzlzme Cammzsszon, 383 U S 607, 619
(1966) That is, substantial evidence allows for the possibility of drawing two inconsistent
conclusions ” V1 6001111017 0f Citizens wzth Dlsabzlltles
47 VI at 320 Accordingly, if an
administrative decision is supported by substantial evidence it is not subject to reversal simply
because it might also support a contradictory finding P011N01m Exp Co Inc v I C C
697 F 2d
497 (3d Cir 1982) (citing 60115010 v FMC 383 U S at 620)
ll 25 When the Court applies the substantial evidence test, it is required to conside1 the
whole record La Vallee Northszde CIVIC Ass n v Vngm Islands 80’ 0fLand Use Appeals, 30 V1
9 16 (V1 Terr Ct 1994) (citing Unnersal Carmela Corp v NLRB 340 U S 474 (1951)) In other
words the Court must do more than simply find a justification for the agency”s decision, it must
also determine whether the agency’s ruling was reasonable in light of all the evidence presented
Id “The substantiality of the evidence must take into account whatever in the record fairly detracts
from its weight ” Govt of the Virgin Islands v Public Employee Relafzom Board, 22 V1 12, 23
(VI Terr Ct 1986) Finally, when the Court reviews an agency record for lack of substantial
evidence, it must be conscious of the AL] 5 opportunity to appraise the credibility and consider the
weight of the evidence in the fist instance S'ee Marte De Velez v V. 1 Dept ofLabor, 2018 VI
LEXIS 166 at *5 (VI Super Ct July 25 2018)
11 26 Here the AL] heard and considered the testimony of five individuals Petitioner
Jagrup, JFL patient Patxick Pipe1 who testified on behalf of Jagrup as well as Abednego,
Encarnacion, and Williams who testified on behalf of JFL The transc1ipt of the hearing clearly
demonstrates that the AL] kept the proceeding focused on the issues at hand For example; she
stopped counsel for Petitioner from going down the line of questioning concerning the cremation
of Thomas challenging its relevance and stating in relevant part the issue is whether or not
Miss Jagrup engaged in misconduct I respectfully unde1 stand that you re attempting to lay a
foundation a connection a nexus between Miss Jagrup 3 relationship with Mr Thomas ’ but
Marsha Jag? up v Juan F Lu” Hospltal & Medical Lento) and Dept of Labm SX 2016 CV 00068
Memorandum Opinion and Older
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the ALJ cerrectly noted the hearing 3 focus we have to keep the scope of the facts relevant to
my findings as to whether or not she [Jagrup] engaged in misconduct ” Tr at 42 43
fit 27 In addition the AL] considered the relevant sections of the Employee Manual that
JFL accused Jagrup of Violating, including the prohibition against accepting gifts above a certain
value or placing one’s personal or financial interests ahead of those of JFL The ALJ further
considered the Employee Acknowledgment Statement signed by Jagrup indicating that she
agreed to comply with the standards contained in the policies and procedures of the Employee
Manual
H 28 Furthermore, the ALJ considered patient Piper s testimony rightly noting the high
quality and ‘praiseworthy ’ nursing care Jagrup had provided to Thomas However, the ALJ also
took notice of Jagrup s testimony and her contradictory actions after the death of Thomas Jagrup
claimed that she had no intention to carry out the teims of the Living Will and that she had merely
written it to calm the patient and to put him at ease Yet she failed to disclose to her employer her
involvement in writing Thomas 5 Living Will and she traveled to Thomas’s home to look for his
house keys The ALJ found such conduct demonstrative 0f Jagrup’s intent to implement the terms
of the Living Will conduct that was contrary to the inteiests and expectations of her employer
The ALJ found that these actions constituted misconduct under § 304(b)(3) The testimony and
documentary evidence considered by the ALJ, coupled with the ALJ’s conoboration 0f the facts
during direct examination of the parties at the hearing, supports the ALJ’s conclusion, and a
reasonable person could reach the same conclusion if presented with the same evidence
1T 29 In her brief Jagrup quotes swaths of dialogue from the hearing transcript without
analysis supporting her claim that the AL] 3 finding was not based on substantial evidence
Ultimately Jagrup asserts that (1) she provided her patients with good care, (2) sought advice from
her supervisors when confronted with the issue of Thomas s intent to bequeath to her his property
and that (3) she only accepted the Living Will to appease Thomas but never took any action to
gain ownership of his property after his death
fl 30 Jagrup was not accused of misconduct concelning the quality of professional care
she provided as a nurse to her patients JFL never laised the issue of Jagrup’s work performance
Maisha Jag} up v Juan F Luzs Hospital & Medical Cenlei and Dept ()fLabm SX 2016 CV 00068
Memorandum Opinion and Order
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In fact the ALJ made a finding, based on the evidence in the record that Jagrup provided her
patients, including Thomas, with excellent care
1t 31 The Court finds there is substantial evidentiary support for the ALJ s conclusion
that Jagrup’s assertions that she sought advice from her supeivisors regaiding the Living Will and
that she only wrote and accepted it in order to appease patient Thomas were disingenuous Perhaps
the most appropriate response to these assertions is summarized by the following query Why
would Jagrup seek advice from her supervisors regarding the execution of the will it Jagrup had
no intention of executing the will in the first instance? The ALJ found no reasonable explanation
to this question in Jagrup s testimony nor anywhere else in the record before her and neither does
this Court on review
1] 32 Thus when Jagrup accepted Thomas s invitation to assist him in writing out his
Living Will and then tried to execute its terms she was putting her interests in direct conflict with
those of her employer JFL and its duty of care to decedent Thomas Such a conflict of interest
even if initiated by Thomas out of a well meaning but misinformed desire to help a caring nurse,
was the inevitable result of Jagrup s actions in clear violation of JFL 5 policies to which Jagrup
had previously agreed to adhere and abide by TherefOIe the Court finds Jagrup s assertions to be
baseless and unpei suasive and finds the ALJ’s conclusion that Jagrup engaged in misconduct under
section 304(b)(3) to be supported by substantial evidence in the record
B Jagrup's contention that the ALJ’s Decision is contrary to the public policy set
forth in 24 V I C § 301 is meritless
1] 33 Finally, Jagrup contends that the ALJ 3 Decision is contrary to the public policy set
forth in 24 VI C § 301 Specifically Jagrup argues that since 24 VI C § 301 sets forth a public
policy of protecting citizens from the economic insecurity attending unemployment, and because
Jagrup was an unemployed parent of three children when she came before the ALJ at her
unemployment benefits hearing the ALJ s decision to deny Jagiup benefits violated the law The
Court finds Jagrup s contention meritless
1] 34 The stated purpose of the Virgin Islands Unemployment Insurance Act ( UTA”)
which includes Section 304(b)(3) is to establish a general unemployment fund to help “sustain the
Marsha Jag? up v Juan F Luis Hospital & Medical Centu and Dept of Labor SX 2016 CV 00068
Memorandum Opinion and Order
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morale and conserve the skills and standards of living of those who became unemployed, by
enabling them to meet their essential expenses ’ 24 V I C § 301
fl 35 Title 24 section 306 of the Virgin Islands Code which authorizes administrative
appeals of initial determinations of unemployment insurance eligibility provides that after a
hearing, ‘a hearing examinei shall make findings and conclusions promptly and on the basis
thereof affirm modify, or reveise the Commissioner's determination or redetermination ’ 24 VI C
§ 306(6) The statutory conditions for receipt of benefits are set forth in Section 304, and these
conditions along with the case law which has interpreted them are what the ALJ uses to guide her
determinations regarding a worker s unemployment benefits eligibility
11 36 In the instant case, if the Court were to follow Petitioner Jagrup s logic then any
insured worker who finds themself unemployed irrespective of how they came to be unemployed
would be eligible for unemployment insurance benefits Unemployment insurance benefits
eligibility would thus be a foregone conclusion for anyone and everyone who finds themselves
newly unemployed and any ruling denying benefits would be Violative of the statutory scheme
However, it is this very same statutory scheme of the UIA, which Jagrup contends was violated by
the AL] s Decision, that contains the relevant conditions under Section 304 for receiving
unemployment insurance benefits Jagrup failed to meet the conditions under Section 304 of the
UIA and was therefore disqualified from receiving unemployment benefits Accordingly, this
claim of error also fails In light of the foregoing, it is hereby
ORDERED that the decision in the matter MARSHA JAGRUP v JFLH (V I App No
003 02 2016) is AFFIRMED It is further
ORDERED that Petitioner 5 Petition is DISMISSED WITH PREJUIDCE It is further
ORDERED that this case is CLOSED
DATED Februaryié 2024
DOUGLAS A BRADY JUiiGE
ATTEST TAMARA CHARLES
Clerk of the C y
By é? / {Zak
Court Cler upervisor
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
MARSHA JAGRUP, Case Number: SX-2016-CV-00068
Petitioner, Action: Writ of Review
v.
JUAN F. LUIS HOSPITAL & MEDICAL
CENTER, et al.,
Respondents.
NOTICE of ENTRY
of
JUDGMENT/ORDER
To: Trudy Fenster, Esq.
Michael R. Francisco, Esq., AAG
Please take notice that on February 22, 2024
a(n) MEMORANDUM OPINION AND ORDER
dated February 21, 2024 was/were entered
by the Clerk in the above-titled matter.
Dated: February 22, 2024 Tamara Charles
Clerk of the Court
By:
Cheryl Parris
Court Clerk III