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IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
SHIRLEY L. SMITH, 
:
: 
Plaintiff,
:
CIVIL NO. 2002-227 (STT)
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v.
:
:
VIRGIN ISLANDS PORT
:
AUTHORITY, et al.,
:
:
Defendants.
:
MEMORANDUM
Giles, J.
      August 29, 2008
Defendants Virgin Islands Port Authority and Virgin Islands Port Authority Governing
Board (collectively “VIPA”) have filed a Motion to Strike and/or Dismiss Plaintiff Shirley
Smith’s Claim of Sexual Harassment (Doc. No. 230).  Defendants filed their Motion pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), claiming that this court lacks subject
matter jurisdiction and/or Plaintiff has failed to state a claim upon which relief can be granted.
In pro se Plaintiff’s Second Amended Complaint, she brings two claims under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”).  In Count
II, she claims hostile work environment and violation of Title VII, and in Count IV she claims
retaliation and intentional discrimination in violation of Title VII.   Defendants’ Motion centers
upon whether Plaintiff exhausted her territorial and local remedies before filing suit pursuant to
Title VII.
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A.
Prerequisites to the Filing of a Title VII Claim in Federal Court
Title VII provides an administrative and judicial scheme to remedy employment
discrimination. Mohasco Corp. v. Silver, 447 U.S. 807, 821 (1980).  According to Title VII
requirements, before an aggrieved person may bring a federal lawsuit for sexual harassment that
person must first file a complaint with the local agency that deals with employment
discrimination, if one exists.
In the case of an alleged unlawful employment practice occurring
in a State, or political subdivision of a State, which has a State or
local law prohibiting the unlawful employment practice alleged
and establishing or authorizing a State or local authority to grant or
seek relief from such practice or to institute criminal proceedings
with respect thereto upon receiving notice thereof, no charge may
be filed under subsection (a) of this section by the person aggrieved
before the expiration of sixty days after proceedings have been
commenced under the State or local law, unless such proceedings
have been earlier terminated.
42 U.S.C. 2000e-5(c) (emphasis added).  This sixty-day deferral period gives States and localities
“an opportunity to combat discrimination free from premature federal intervention.”  EEOC v.
Commercial Office Products Co., 486 U.S. 107, 110 (1988).
Before bringing a federal lawsuit, an aggrieved person must also file a timely charge with
the EEOC.  42 U.S.C. § 2000e-5(b).  The EEOC may hold a charge in suspense during the state
or local agency’s 60-day period of exclusive jurisdiction.  EEOC v. Commercial Office Products
Co., 486 U.S. at 111 (citing Love v. Pullman Co., 404 U.S. 522, 525- 526 (1972)); Howze v.
Jones & Laughlin Steel Corp., 750 F.2d 1208, 1210 (3d Cir. 1984).  Furthermore, compliance
with the EEOC filing period “is not a jurisdictional prerequisite to filing a Title VII suit, but a
requirement subject to waiver as well as tolling when equity so requires.”  Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 398 (1982); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
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 Title 3, Section 530, of the Virgin Islands Code (“Section 530”) provides procedures
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applicable to executive agencies of the Virgin Islands, including VIPA.  According to Section
530, if a VIPA department head "decides to dismiss, demote, or suspend a regular employee of,
or an employee, who is not on contract, is not temporary, and is not on probation, . . . he shall
furnish the employee with a written statement of the charges against him.  The employee shall
have ten days following the receipt of the statement of charges to appeal the proposed action to
the Public Employees Relations Board."  3 V.I.C. § 530.
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121 (2002);  Francis v. Mineta, 505 F.3d 266, 268 (3d Cir. 2007) (“questions of whether a
plaintiff has timely exhausted the administrative remedies in Title VII actions are in the nature of
statutes of limitation. They do not affect the district court's subject matter jurisdiction.”) (internal
quotation and citations omitted). 
The Virgin Islands has a territorial process to remedy employment discrimination.  Title
3, Section 531, of the Virgin Islands Code (“Section 531”) prohibits employment discrimination
by any person in the government service because of any nonmerit factor, including race, age, and
sex.  3 V.I.C. § 531.  Section 531 also affords any applicant or employee who believes she has
been discriminated against to appeal the relevant personnel action to the Virgin Islands Public
Employees Relations Board (“PERB”), which is empowered to take appropriate corrective
action.  Id. 
B.
Factual Background
On November 30, 2001, Plaintiff, through her attorney, Ronald E. Russell, Esquire, filed
a PERB appeal of her suspension of employment and a charge of unfair labor practice pursuant to
Sections 530 and 531 of the Virgin Islands Code.  (Pl.’s Opp’n to Defs.’ Mot. to Strike and/or
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Dismiss Pl’s Claim of Sexual Harassment (Doc. No. 232) (hereinafter “Pl.’s Opp’n”), Ex. A,
PERB Appeal Letter, Nov. 30, 2001.)  That filing did not include any allegation of sexual
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harassment.  (Id.)  On December 3, 2001, Plaintiff wrote a letter to the PERB Chairman
indicating that she wished to act pro se and attaching an amended charge, including an allegation
of sexual harassment by VIPA employees.  (Pl.’s Opp’n, Ex. B, Smith Appeal Amendment
Letter, Dec. 3, 2001.)  On that date, Plaintiff also wrote a second letter to the PERB Chairman
requesting an extension of filing time for her charges against VIPA.  (Pl.’s Opp’n, Ex. B, Smith
Extension Request Letter, Dec. 3, 2001.)  
On December 3, 2001, PERB Chairman, Aubrey A. Lee, wrote to Attorney Russell and
stated that the charge he attempted to file could not be docketed for failure to comply with PERB
regulations.  (Pl.’s Opp’n, Ex. A, Lee Letter to Russell, Dec. 3, 2001.)  On that same date,
Chairman Lee wrote another letter to Attorney Russell Don V. Mills, Legal Counsel to VIPA,
assigning case numbers to Plaintiff’s appeal of her suspension of employment.  (Pl.’s Opp’n, Ex.
A, Lee Letter to Russell and Mills, Dec. 3, 2001.)  On December 4, 2001, the PERB Chairman
wrote to Plaintiff and Attorney Russell and stated that Plaintiff’s letter and attached documents
“may be considered an amendment to the appeals filed in the referenced matters provided PERB
Regulations are Complied with.”  (Pl.’s Opp’n, Ex. C, Lee Letter to Smith and Russell, Dec. 4,
2001.)
A PERB Decision and Order dated January 18, 2002, dismissed as untimely Plaintiff’s
Section 530 complaint regarding her suspension.  (Pl.’s Opp’n, Ex. D, Decision and Order, Jan.
18, 2002.)  The Decision noted that Plaintiff’s Section 531 appeal, including her sexual
harassment allegations, was pending.  (Id.)
On February 20, 2002, Plaintiff wrote to the PERB and withdrew her Section 531 charge. 
(Pl.’s Opp’n, Ex. E, Smith Letter to Lee, Feb. 20, 2002.)   PERB issued a dismissal order on
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February 28, 2002.  (Pl.’s Opp’n, Ex. E, Decision and Order, Feb. 28, 2002.)   
On January 15, 2002 – forty-three (43) days after her initial attempt to file her sexual
harassment complaint with the PERB – Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”).  (Pl.’s Opp’n, Ex. F, EEOC Charge, Jan. 15,
2002.)  The EEOC issued a Right to Sue letter on September 26, 2002.  (Pl.’s Opp’n, Ex. G,
EEOC Dismissal and Notice of Rights, Sep. 26, 2002.)  Plaintiff commenced this action on
December 19, 2002.
C.
Legal Standard for a Motion to Dismiss under Rule 12(b)(1)
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court must dismiss
the matter if it lacks subject matter jurisdiction over the complaint.  Fed. R. Civ. P. 12(b)(1).  The
standard for surviving a Rule 12(b)(1) motion is lower than that for a Rule 12(b)(6) motion.  Id.
at 178.   Gould Elec. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).  Dismissal is
warranted under Rule 12(b)(1) only if the claim “clearly appears to be immaterial and made
solely for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous.”  Id.
(quoting Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (quotations
omitted)).  Challenges to subject matter jurisdiction under Rule 12(b)(1) may be facial or factual
in form.  Gould, 220 F.3d at 176; Mortensen v. First. Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891
(3d Cir. 1977).  A facial challenge attacks the complaint on its face and, for such a challenge, the
court must consider only the complaint’s allegations and to do so in the light most favorable to
the plaintiff.   Gould, 220 F.3d at 176.  A factual challenge contests the existence of subject
matter jurisdiction apart from any pleadings, and the court may consider and weigh evidence
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outside the pleadings to determine if it has jurisdiction.  Id. at 176, 178.
Defendants do not state whether their Rule 12(b)(1) challenge is facial or factual. 
However, they have not attached exhibits in support of their motion, and they have pointed to no
evidence outside of the Second Amended Complaint.  Therefore, the court presumes that
Defendants bring a facial challenge pursuant to Rule 12(b)(1) and are not contesting issues of
fact.
D.
Legal Standard for a Motion to Dismiss under Rule 12(b)(6)
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief”  Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal quotation
omitted).  To withstand a motion to dismiss under Rule 12(b)(6), “factual allegations must be
enough to raise a right to relief above the speculative level.”  Id. at 232 (quoting Bell Atlantic
Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007)).  Thus, “‘stating . . . a claim requires a
complaint with enough factual matter (taken as true) to suggest’ the required element.”  Phillips,
515 F.3d at 231 (internal quotation and citation omitted).  This standard “simply calls for enough
facts to raise a reasonable expectation that discovery will reveal evidence of the necessary
element.”  Phillips, 515 F.3d at 234 (quoting Twombly, 127 S. Ct. at 1965).
E.
This Court has Jurisdiction to Review Plaintiff’s Title VII Claims
The record is unclear as to how long Plaintiff allowed her Title VII claims to proceed
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with the PERB before withdrawing the claims.  Sometime between December 4, 2001, and
January 18, 2002, Plaintiff perfected her Title VII claims.  Because Plaintiff withdrew her claim
on February 20, 2002, it is unclear whether the requisite 60 days elapsed before her withdrawal. 
However, construing the complaint in the light most favorable to Plaintiff, the court cannot
conclude that Plaintiff prematurely withdrew her PERB claims.  Furthermore, Plaintiff’s
premature filing with the EEOC is harmless because the EEOC was required to stay its
processing of the charges during Title VII’s sixty day deferral period.
The law is clear that administrative filing deadlines are not jurisdictional prerequisites to
the filing of Title VII claims in federal court.  Therefore, the court denies Defendant’s motion to
dismiss for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
Defendants have presented no valid argument in this motion to dismiss to support their
contention that Plaintiff filed to state a claim upon which relief can be granted.  Therefore, the
court denies Defendants’ Rule 12(b)(6) motion.
An Order follows.
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