Tweed’s allegation of gender discrimination in violation of Virgin Islands civil rights
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laws was previously dismissed. 
IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
MARGUERITE A. TWEED,
Plaintiff,
v.
METRO MOTORS, SC, INC.,
Defendant.
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CIVIL NO. 04-0142
MEMORANDUM OPINION
Finch, J.
THIS MATTER comes before the Court on the Motion for Summary Judgment filed by
Defendant Metro Motors, SC, Inc. [hereinafter “Metro Motors”].  Plaintiff Marguerite A. Tweed
opposes such motion.  
Tweed charges Metro Motors with sex discrimination under Title VII of the Civil Rights
Act of 1964, codified as amended at 42 U.S.C. § 2000e et. seq., predicated both on the disparate
treatment theory and under the hostile environment doctrine,  wrongful discharge in violation of
24 V.I.C. § 76, breach of an employment contract, breach of the implied covenant of good faith
and fair dealing, and intentional and negligent infliction of emotional distress.  Tweed seeks
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punitive as well as compensatory damages. 
I.
BACKGROUND
The facts, taken in the light most favorable to Tweed, are as follows: 
Tweed was employed by Metro Motors, SC, Inc. in April 1999 as Office Manager. 
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  “A demo is a new car that is given to an employee to drive for a certain number of
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miles, and then they sell it to the public as a new car.” Tweed Dep. 86:12-14.
  Defendant Metro Motors, SC, Inc. has not raised as a defense that Metro Motors, VI,
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Inc. is a separate employer.  Thus, the Court assumes that Metro Motors, SC, Inc. and Metro
Motors, VI, Inc. are a single employer or substantively consolidated for Title VII purposes.  See 
Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 88 (3d Cir. 2003); see Annis Aff., ¶ 1. 
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Tweed Dep. 89:23-25.  Tweed holds a Bachelor of Science degree in accounting from Seton Hall
University and her Masters’ Degree in Business Administration from the University of the Virgin
Islands. Id., 15:13-18; 16:20-24.  When Tweed was hired, the General Manager at the time, who
was female, told Tweed how much she would be paid, that she would be given a demo vehicle to
drive and that her health insurance would be partially paid by Metro Motors.  Id., 83:19-84:3;
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84:22-85:4.  The then-General Manager also told her that Tweed would perform various sales
manager functions, some accounting tasks, maintenance of the computer system, and some
personnel responsibilities.   Id., 90:5-8.  Tweed supervised four to five employees.  Id., 91:10-23.  
The terms of employment were not written.   Id., 85:10-19; 90:14-16.   
When a new Sales Manager was hired, Tweed’s duties became more devoted to
accounting.  Id., 93:20-94:5.  Tweed was manager of the accounting area.  Id., 103:15-16. 
In 2002, the new, male General Manager assigned Tweed the accounting functions for
Metro Motors VI, Inc., an affiliated dealership located in St. Thomas, in addition to the duties she
had been performing for Metro Motors, SC.  Id., 94:13-14; 95:16-19.  This position had
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previously been performed on a part-time basis by the previous female General Manager of
Metro Motors, SC.  Annis Aff., ¶ 3.  Before asking Tweed to take on the Metro Motors, VI
accounting duties, a full-time female employee was hired to perform that function, but that
employee’s performance was inadequate.  Tweed Dep, 97:1-6.  The General Manager
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“approached Marguerite about taking over the comptroller duties” because he was “aware of
Marguerite’s accounting and business background.”  Annis Aff., ¶ 5.  He explains: “I thought
that I would ‘give her a shot’ at the position.”  Id.  Tweed became responsible for development of
financial statements, including reconciling accounts and doing the books for Metro Motors, VI. 
Tweed Dep. 95:24-96:6.    
With the increase in responsibilities, Tweed received a substantial increase in her monthly
salary and a percentage of the profit.  Id., 96:7-12.   Tweed understood that she would be
performing these new duties on a permanent basis.  Id., 96:16-23.  She was never advised that
this position was temporary.  Id., 117:15-16.  In fact, Tweed states that the General Manager
specifically told her that he was not going to take her duties away from her.  Id., 161:25-162:2.  
In 2003, the General Manager relieved Tweed from her accounting responsibilities for
Metro Motors, VI and gave them to a male employee without any explanation to Tweed.  Id.,
98:17-99:4, 100:1-6.  The male employee had been working for Metro Motors, VI for about a
month before he assumed Tweed’s accounting function.  Id., 99:15-23.  He was not hired to work
in accounting, nor did he have any Ford dealer accounting experience.  Id., 162:12-17, 164:23-
24.   Indeed, upon hiring this new male employee, the General Manager told Tweed, “I don’t
know where I’m going to put him, but I’m going to put him somewhere.”  Id.  The General
Manager explained that he and the new employee were from the same southern state.  Id.,
164:23-24.  Tweed believes that the General Manager hired this new employee not only because
he and the new employee hailed from the same state, but also because the new employee was a
man.  Id., 178:15-179:6.
The General Manager avers that Tweed’s position was never intended to be permanent
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and that even after assigning her St. Thomas comptroller duties, he continued to look for a
permanent comptroller.  Annis Aff., ¶ 5.  He states that he had personality conflicts with Tweed
and that she exhibited erratic and volatile behavior.  Id., ¶ 8.  He indicates that “[a]lthough her
accounting skills were generally adequate, she consistently made errors that required outside
auditors to make year-end adjustments in order to bring the books back into balance.”  Id., ¶ 9. 
According to the General Manager, the man that took over Tweed’s St. Thomas duties had
extensive experience in automotive dealership accounting.  Id., ¶ 13.    
According to Tweed, female employees were regularly treated differently than male
employees at Metro Motors.  Pay scales were different for men and women.  Tweed Dep. 118:6-
7.  A male service manager in St. Thomas earned $1,000 a week plus commission, while a
female service manager in St. Croix was paid only $400 a week plus commission.  Id., 153:9-23,
154:16-21.  The male service manager had not been working for Metro Motors for very long and
was doing a bad job.  Id., 154:24-155:13.  The female service manager, who was paid so much
less, was doing a lot of the male service manager’s work in addition to her own and had been
working for Metro Motors for many years.  Id., 154:24-155:1; 155:20-156:2.
As another related example, a male sales manager would receive big commissions that he
hadn’t earned and the same female service manager, who was paid only $400 weekly plus
commissions, was only given exactly what she produced.  Id., 157:6-10.  The General Manager
told Tweed that he paid the male sales manager so much more because the male sales manager
had to make a living.  Id., 157:10-14.  
From Tweed’s estimation, male-female pay discrepancies were rife.  A male service
writer was paid $600 a week with no service writer experience.  Id., 158:2-18.  His female
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  The General Manager flatly denies making any sexist or otherwise inappropriate
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comment.  Annis Aff. ¶ 15.
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counterpart was paid only $8.00 an hour.  Id., 158:16-25.  Not until the female service writer
confronted the General Manager was she finally given a commission.  Id., 158:1-2; 158:19-25.  
Along the same lines, a male sales person was made into sales manager and received a
much higher salary than a woman sales person who later took the position of sales manager.  Id.,
180:23-181:10.  When the General Manager was reviewing the financial statement to justify
increasing the male sales manager’s income, he said that it was because that employee had to
make a better living.  Id., 181:16-19.  Tweed remarked that “everyone needs to make a decent
salary.”  Id., 191:19-20.  The General Manager did not comment.  Id., 181:20-23.
Other benefits for the men and women working for Metro Motors were not the same. 
Female employees often had to relinquish their demo vehicles, while male employees were not
asked to do so.  Id., 159:17-21.
Metro Motor’s General Manager treated male employees differently than he treated
female employees.  He admitted to Plaintiff that he was a male chauvinist and that he had to
correct that behavior.  Id., 118:3-14.  The General Manager spoke to the men in a friendlier
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manner than to the women.  Id., 165:6-12.  The women were under constant scrutiny and he
offered them no support.  Id., 165:12-15.   When it came to male employees, he would “let
something slide and not really care about the outcome or the behavior of the employee.”  Id.,
168:10-13.  Tweed describes the General Manager’s demeanor toward her as rude and
disrespectful, but never profane.  Id., 109:7-16, 113:9-10, 113:22-24.   
According to Tweed, the General Manager displayed his chauvinistic behavior to her
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when he took her Metro Motors VI job away from her and gave it to a man for no reason other
than that he was a man.  Id., 118:23-24.  In addition, Tweed learned that the General Manager
had derided the female service manager by saying to a Metro Motors’ employee, something to
the effect of “she’s doing a good job for a girl.”  Id. 156:3-21.  
Plaintiff resigned not only because of the decrease in compensation that accompanied the
end of her St. Thomas accounting responsibilities, but also because the General Manager placed
limitations on her demo vehicle use, which ultimately required her to obtain her own vehicle. 
Id., 165:19-21.  Employees would return their demo cars after driving them no more than about
four thousand miles, or sooner when a customer wanted to purchase the vehicles.  Id. 86:15-22.  
When Tweed initially was given a demo car, no restrictions were placed on its use.  Id., 86:23-25. 
 However, Tweed admits that common sense dictates that the demo car would have to be kept in
good shape so that the company could still make a profit by selling it as a new car.  Id.,
87:1–88:11.  
The General Manager had accommodated Tweed by providing her with a truck or SUV
for carrying animal feed for her horse and two dogs until around the time that she was relieved of
her St. Thomas accounting duties.  Id., 57:12-18, 159:23-160:12.  The General Manager told
Tweed that she could no longer use a demo vehicle to carry any kind of animal feed.  Id., 139:7-
9.  After that, Tweed was given only sedans; no kind of vehicle which she could use to transport
animal feed.  Id., 143:19-23.   
The General Manager gave as his reason for this restriction that a customer had
complained that her vehicle was dirty.  Id., 139:21-25.    In general, an employee would be
notified ahead of time when a customer was interested in test driving the assigned demo vehicle. 
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Id., 88:10-89:12.   In this one instance the customer had wanted to test drive her vehicle
immediately and insisted on doing so even after being informed that it had not been readied.  Id.,
140:7-13.  After test driving the vehicle twice, the same customer purchased it.  Id., 142:10-23.  
Every other demo that had been assigned to Tweed was sold without customer complaints.  Id.,
140:4-6.
Tweed testified that she was humiliated, suffered emotional upset and experienced mental
stress and loss of sleep as a result of the way that she was treated while working for Metro
Motors.  Id., 173:9-20, 177:1-25.  She resigned from Metro Motors in February 2004 because she
could not survive on the reduced compensation.  Id., 153:22-25, 166:21-167:5.  
II.
SUMMARY JUDGMENT STANDARD
The Court may only grant summary judgment if it appears that “there is no genuine issue
of any material fact and that [Defendant is] entitled to a judgment as a matter of law.”  Fed. R.
Civ. P. 56(c).  In deciding this summary judgment motion, the Court views the facts presented in
the light most favorable to Tweed and draws all inferences in her favor.  See Marzano v.
Computer Science Corp. Inc., 91 F.3d 497, 501 (3d Cir. 1996).  
III.
TITLE VII CLAIM – DISPARATE TREATMENT CLAIM
A.
Burdens of Production and Persuasion in Discrimination Cases
One of Tweed’s discriminations claim is based upon the disparate treatment theory of
discrimination.  “‘Disparate treatment’ such as is alleged in the present case is the most easily
understood type of discrimination.  The employer simply treats some people less favorably than
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others because of their race, color, religion, sex, or national origin.  Proof of discriminatory
motive is critical, although it can in some situations be inferred from the mere fact of differences
in treatment.”  International Broth. of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977)
(quoted in Hampton v. Borough of Tinton Falls Police Dept, 98 F.3d 107, 112 (3d Cir. 1996)).
Disparate treatment claims are divided into two categories depending on whether there is
sufficient direct evidence to show that discrimination was a motivating factor in the employer’s
adverse employment decision, or whether the only evidence of discrimination is circumstantial. 
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) the Supreme Court established a test that
applies when there is direct evidence of discrimination, which is often referred to as a “mixed-
motives” test.  When the evidence is circumstantial, requiring an inference of discrimination, the
burden-shifting framework developed by the Supreme Court in McDonnell Douglas v. Green,
411 U.S. 792 (1973), Texas Department of Community Affairs v Burdine, 450 U.S. 248 (1981)
and St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1983), often referred to as the “pretext”
test, applies.  
A plaintiff is not required to choose one of these liability theories at the summary
judgment stage.  See Armbruster v. Unisys Corp., 32 F.3d 768, 781 n.17 (3d Cir. 1994).  The
case must go forward if the plaintiff's claim would survive under either theory.  Id.  “[B]efore
granting summary judgment and removing a case from the hands of a jury, the District Court
ought to consider whether a plaintiff's claim would survive under either a pretext or Price
Waterhouse theory.”  Hankins v. City of Philadelphia, 189 F.3d 353, 364 n.6 (3d Cir. 1999).
1.
Direct Evidence of Discriminatory Animus
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When a plaintiff has direct evidence of discriminatory intent, the case is appropriately
analyzed under the "mixed motives" analysis established by the Supreme Court in Price
Waterhouse, 490 U.S. at 258, as modified by section 107 of the Civil Rights Act of 1991, 42
U.S.C. § 2000e-2(m) (the "1991 Act").  Under the modified Price Waterhouse standard, a
defendant is liable for discrimination upon proof that a forbidden criterion (e.g., race) "was a
motivating factor for any employment practice, even though other factors also motivated the
practice." 42 U.S.C. § 2000e-2(m).  Thus, once a plaintiff shows that there is a genuine issue of
material fact as to whether a forbidden criterion was a motivating factor for an employment
practice, the burden of production and persuasion shift to the defendant, and summary judgment
must be denied.  Hankins, 189 F.3d at 368 n.8 (discussing J. Cowen’s view); see Nguyen v. City
of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).  In the words of the Third Circuit Court of
Appeals:
 [I]n cases where the plaintiff offers "direct evidence" of unlawful discrimination
and the evidence as a whole permits a conclusion that both permissible and
impermissible considerations played a role in the employer's decision, the plaintiff
need only show that the unlawful motive was a substantial motivating factor in
that decision. If the finder of fact concludes that the plaintiff has carried this
burden, the burden of persuasion shifts to the defendant to prove that the unlawful
motive was not a but-for cause, i.e., that the same action would have been taken,
because of legitimate considerations, in the absence of the [un]lawful motive. 
Wilson v. Susquehanna Tp. Police Dept., 55 F.3d 126, 129 (3d Cir.1995) (quoting Miller, 47
F.3d at 594).  If the defendant can show that it would have taken the same adverse action absent
discriminatory animus, the plaintiff will be precluded from seeking damages or reinstatement,
but may still be entitled to declaratory relief, certain injunctive relief, as well as attorney's fees. 
Hankins, 189 F.3d at 364, 368 n.8;  42 U.S.C. § 2000e-5(g)(2)(B).  
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To trigger a Price Waterhouse direct evidence analysis, the employee must be able to
point to “conduct or statements by people involved in the decision-making process that may be
viewed as directly reflecting a discriminatory attitude.”  Starceski v. Westinghouse Electric
Corp., 54 F.3d 1089, 1096 (3d Cir. 1995);  Griffiths v. Cigna Corp., 988 F.2d 457, 470 (3d Cir.
1993).  If the evidence can “fairly be said to directly reflect the alleged unlawful basis for the
adverse employment decision,” the Price Waterhouse analysis applies, even if the evidence is 
circumstantial.  Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997) (quotation
omitted).  However,  “[the Third Circuit has] consistently held that a plaintiff who contends that
he or she has direct evidence of discrimination to warrant treatment under Price Waterhouse
faces a heavy burden.”  Hankins, 189 F.3d at 364.  When the Court denies summary judgment
under a Price Waterhouse analysis, the plaintiff may still pursue a pretext theory at trial.  Id. at
369 n.9.
An employer’s admission of male chauvinism is direct evidence of sex discrimination.  In
Krump v. Xyvision, Inc., 733 F. Supp. 554, 560 (E.D.N.Y. 1990) for example, plaintiff was
discouraged from taking a certain account manager position because the regional manager was
said to be “a male chauvinist who needed to get used to the idea of a woman.”  Similarly, in
Smolsky v. Consolidated Rail Corp., 780 F. Supp. 283, 295 (E.D. Pa. 1991), statements made by
defendant’s employee regarding his status as a “male chauvinist pig” contributed to the inference
that the harrassment and discrimination was intentional and based on the fact that the plaintiff
was a woman.  Statement such as “she was making too much money in that position as a woman”
and that the termination was related to an “old boy’s network” constitute direct evidence that an
adverse employment decision was based on gender.  Finan v. Union Central Life Ins. Co., 2000
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WL 262367, *1 (Ohio Ct. App.  Mar. 10, 2000). 
According to Tweed, Metro Motors’ General Manager publicly announced his
chauvinism against women.  He also made derogatory remarks about one woman, implying that,
although the woman’s work was good, if she had been a man, her work would have been better
or that he would have had higher expectations of her.  This reflects a discriminatory intent and
triggers the Price Waterhouse direct evidence analysis.  
The General Manager’s attitude toward women affected Tweed’s conditions of
employment.  He relieved Tweed of a portion of her accounting responsibilities and gave them to
a man whom he led Tweed to understand had less directly applicable accounting background. 
When the General Manager had first decided to hire this man, he remarked to Tweed that he
wanted to hire him, but had not identified a position for him.  The General Manager left Tweed
with the impression that one of the reasons that he wanted to hire the new employee was because
he was a man.  Other statements by the General Manager evidence a lack of concern for the
livelihood of female employees.  Such lack of concern resulted in a substantial decrease in
Tweed’s benefits.  Because of his attitude toward the female employees in general, the General
Manager also failed to give serious consideration to the hardship that the restriction on demo
vehicle use would have on Tweed.  
Thus, Tweed has shown that there is a genuine issue of material fact as to whether a
forbidden criterion was a motivating factor for Metro Motors’ employment practices which
ultimately resulted in her seeking other employment.  Although permissible considerations set
forth by Metro Motors may also have played a role in the General Manager’s decision, a
reasonable jury could find that the unlawful motive – gender discrimination – was a substantial
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motivating factor in the decision.  This shifts the burden of production and persuasion to Metro
Motors, so that summary judgment must be denied.    
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2.
Circumstantial Evidence of Discrimination
In McDonnell Douglas Corp., 411 U.S. at 802, the Supreme Court first delineated the
basic allocation of burdens and order of presentation of proof in a discrimination action premised
on circumstantial evidence.  The McDonnell Douglas system for allocating burdens applies in
Title VII cases.  Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313, 318 (3d Cir. 2000). 
The plaintiff must first prove a prima facie case of discrimination by a preponderance of the
evidence.  McDonnell Douglas, 411 U.S. at 802.  Such a prima facie case is established when a
plaintiff has shown that (1) she is a member of a protected class, and (2) is qualified for the
position but (3) was either not hired or fired from that position; (4) under circumstances that give
rise to an inference of unlawful discrimination such as might occur when the position is
ultimately filled by a person not of the protected class.  Id.;  Sheridan v. E.I. DuPont de Nemours
and Co., 100 F.3d 1061, 1066, n.5 (3d Cir.1996);  Waldron v. SL Industries, Inc., 56 F.3d 491,
494 (3d Cir. 1995). 
If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant
to articulate some legitimate, nondiscriminatory reason for the challenged action.  McDonnell
Douglas, 411 U.S. at 802.  Finally, should the defendant carry this burden, “the plaintiff must
point to some evidence, direct or circumstantial, from which a fact finder could reasonably either
(1) disbelieve the employer's articulated legitimate reasons, permitting the inference of
intentional discrimination; or (2) believe that an invidious discriminatory reason was more likely
than not a motivating or determinative cause of the employer's action.”  Fuentes v. Perskie, 32
F.3d 759, 764 (3d Cir. 1994) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)
and Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992)).  
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In Watson v. Southeastern Penn. Transp. Auth., 207 F.3d 207, 215 (3d Cir. 2000) the
Third Circuit emphasized that to find discrimination under the McDonnnell Douglas test, the
plaintiff must show that the protected trait was “a determining factor” rather than only a
“substantial motivating factor” as when Price Waterhouse applies.   Proof of discriminatory
intent can be inferred from differences in the employer’s treatment of employees within the
protected groups as compared to employees outside the protected groups.  Hampton, 98 F.3d at
112.
The plaintiff bears the ultimate burden to prove that the defendant’s legitimate
nondiscriminatory reason is a pretext and the real reason for an adverse action is unlawful,
intentional discrimination.  Fuentes, 32 F.3d at 763.  When the plaintiff offers evidence that
would allow reasonable minds to conclude that the evidence of pretext is more credible than the
employer’s justifications, the employer’s motion for summary judgment must be denied. 
Iadimarco v. Runyam, 190 F.3d 151, 166 (3d Cir. 1999).  
“[P]roof of a discriminatory atmosphere may be relevant in proving pretext since such
evidence does tend to add color to the employer's decision-making processes and to the
influences behind the actions taken with respect to the individual plaintiff.”  Antol v. Perry, 82
F.3d 1291, 1302 (3d Cir. 1996) (quotation omitted).  Therefore, evidence revealing
inconsistencies in statements or procedures, or revealing a hostile environment, along with the
same evidence used to support the prima facie case, may be relied on to show pretext.  Id.; see
Kerzer v. Kingley Manufacturing, 156 F.3d 396, 402-03 (2d Cir. 1998). 
For the purposes of this motion, Metro Motors does not contest that Tweed has
established a prima facie case of gender discrimination with regard to Tweed’s discharge from
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her St. Thomas position.  Mot. for Summ. J. at 7.  Thus, the burden shifts to Metro Motors. 
Metro Motors has articulated a legitimate, nondiscriminatory reason for relieving Tweed
of her St. Thomas accounting responsibilities.  According to Metro Motors, it replaced Tweed
because it had only intended that Tweed take care of St. Thomas temporarily.  Her services were
no longer needed once someone in St. Thomas was able to perform that function.  Metro Motors
also indicates that it had behavioral and performance issues with Tweed.
According to Tweed, a reasonable juror could conclude, based upon direct and indirect
evidence, that Metro Motors’ stated reason is merely pretext.  First, Tweed was never told that
the job was temporary or that she had any performance deficiencies.  Second, Metro Motors had
a history of paying women less than men and intruding on women’s benefits, such as the
uninterrupted use of a demo vehicle.  Finally, the General Manager indicated to Tweed that he
was a male chauvinist, which tends to show that Tweed was replaced by a man because he was a
man, rather than for the reasons that Metro Motors has articulated.  
Tweed has offered evidence that would allow a reasonable mind to conclude that Metro
Motor’s articulated reasons for a substantial drop in her responsibilities and compensation are
pretextual.  Thus, summary judgment is not warranted under the McDonnell Douglas analysis
either.  
Tweed has established a prima facie case concerning the restrictions placed on her demo
vehicle.   She is female, was originally given a demo vehicle to use without restrictions,
restrictions were later placed on the vehicle and restrictions were not placed on anyone else’s
vehicle – male or female.  Metro Motors claims that such restrictions were placed on Tweed’s
vehicle because customers complained about the animal feed.   Tweed’s evidence that this is
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pretextual is strong.  Every vehicle that Tweed was assigned was sold.  As was customary,
Tweed, except in one instance, had an opportunity to clean her car before it was test driven.  To
Tweed’s knowledge, only one customer ever made a complaint and he bought the vehicle
notwithstanding.  Thus, a reasonable jury could find that the articulated reasons were pretext and
that, therefore, gender discrimination was “a determining factor” in the General Manager’s     
decision to restrict Tweed’s demo car use, knowing that this would force her to purchase her own
vehicle.
IV.
TITLE VII - HOSTILE WORK ENVIRONMENT
Title VII of the Civil Rights Act prohibits a “hostile work environment.”  Harris v.
Forklift System, Inc., 510 U.S. 17, 21 (1993).  A hostile work environment is “both objectively
and subjectively offensive, one that a reasonable person would find hostile or abusive, and one
that the victim in fact did perceive to be so.”  Id. at 22. “[T]o fall within the purview of Title VII,
the conduct in question must be severe and pervasive enough to create an ‘objectively hostile or
abusive work environment – an environment that a reasonable person would find hostile – and an
environment the victim-employee subjectively perceives as abusive or hostile.’”  Weston v.
Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001) (quoting Harris, 510 U.S. at 21-22).  “In
determining whether an environment is hostile or abusive, [the court] must look at numerous
factors, including the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; whether it unreasonably
interferes with an employee’s work performance.”  Id. (quotation omitted).
The statements that Tweed identifies as creating a hostile work environment were
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infrequent and lacking in severity.  They were not physically threatening or humiliating.  Tweed
does not complain that they interfered with her work performance.  Thus, although the comments
were deplorable, the evidence viewed in its totality is insufficient for a reasonable jury to find a
hostile work environment.  
V.
WRONGFUL DISCHARGE ACT
Metro Motors contends that because Tweed’s position had a supervisory component, she
is not protected by the Virgin Islands Wrongful Discharge Act, 24 V.I.C. § 76.  Tweed does not
contest Metro Motors’ characterization of her position, but relies on this Court’s ruling in
Jagroop v. Island Fin. V.I., Inc., 240 F. Supp.2d 370, 372 (D.V.I. 2002).   The Court considers its
holding in Jagroop to have been overruled by the Third Circuit’s decision in St. Thomas-St. John
Hotel & Tourism Ass'n. Inc. v. Government of U.S. Virgin Islands ex rel. Virgin Islands Dept. of
Labor, 357 F.3d 297, 304 (3d Cir. 2004).  The Wrongful Discharge Act does not apply to
supervisors.   Because the parties do not dispute whether Tweed was a supervisor, summary
judgment is granted on Tweed’s claim that she was constructively discharged in violation of the
Wrongful Discharge Act. 
VI.
BREACH OF EMPLOYMENT CONTRACT 
“[T]he hiring of an employee by an employer occurs by contract.” Wilder v. Cody
Country Chamber of Commerce,  868 P.2d 211, 216 (Wyo. 1994).  “The contract of employment
is created by either an express contract or a contract implied in fact.  Express contracts are ones
in which the terms are declared by the parties either in writing or orally at the time the contract is
formed.”  Id.
.
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An express oral contract was formed when Metro Motors offered employment to Tweed
and Tweed accepted.  The terms of the contract, the rate of pay, benefits and duties were
established orally.  Tweed supplied the consideration by performing her duties as an employee. 
See Restatement (Second) of Contracts § 71. The oral contract was modified when Tweed
assumed additional duties in St. Thomas for additional compensation.    
The contract of employment was for an indefinite duration, meaning that either party
could terminate the contract at any time, for any reason, good or bad, or for no reason at all.  See
Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 350 n.2 (3d Cir. 1999).  Because the
employment contract was at-will, Metro Motors further unilateral modifications of the
employment contract in relieving Tweed of her St. Thomas responsibilities and restricting her
vehicle use did not violate the employment contract. 
VII.
BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
In the Virgin Islands every employment contract, even an at-will employment contract,
“carries the obligations of good faith and fair dealing.”  Bostic v. AT&T of Virgin Islands, 2003
WL 25322909, *7 (D.V.I. Apr. 16, 2003); see Restatement (Second) of Contracts § 205. 
However, “to set forth a claim for breach of the implied covenants of good faith and fair dealing,
[Tweed] must allege acts amounting to fraud or deceit on the part of the employer.”  Id.
(quotation omitted).  
Here, Tweed does not allege any fraud of deceit against the General Manager related to
the decision to remove her St. Thomas duties.  As a matter of fact, she indicates that the General
Manager gave her no reason whatsoever for discontinuing her St. Thomas position.  Thus, Metro
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Motors did not breach the implied covenant of good faith and fair dealing in ending her St.
Thomas accounting function.
The General Manager, however, did tell her that he was restricting her use of the demo
vehicle because a customer complained that it was dirty.  Tweed evidently believes that the
General Manager did not restrict her use as a result of a customer complaint.  She claims that the
same customer who the General Manager stated was unsatisfied actually purchased her demo
vehicle and that all of her demo vehicles were sold as new after she used them.  According to
Tweed, the General Manager misrepresented his real reason for restricting her use of the vehicle
to such an extent that she would be forced to buy her own vehicle.  A reasonable juror could find
that the General Manager breached the implied covenant of good faith and fair dealing, by
deceiving Tweed as to the true reason for his restricting her usage of a demo vehicle. 
VIII.
NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL HARM
For the Court to find that the Metro Motors negligently caused Tweed to suffer emotional
distress, Tweed must show, among other elements, that the negligent conduct resulted in physical
harm.  See Restatement (Second) of Torts §§ 313, 436A.  Tweed felt humiliated, suffered
emotional upset and experienced mental stress and loss of sleep as a result of the way that she
was treated while working for Metro Motors.  Such reaction is not serious or severe enough to
constitute physical symptoms of emotional distress.  Accord Nicholas v. Wyndham Intern., Inc., 
2007 WL 4201032, *7 (D.V.I. Nov. 13, 2007) (“Claims of mental anguish and loss of enjoyment
of life do not suffice in the Virgin Islands to show physical injury for purposes of negligent
infliction of emotional distress.”).  Therefore, Metro Motors cannot be held liable for negligent
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infliction of emotional distress. 
The tort of intentional infliction of emotional distress arises when the defendant “by
extreme and outrageous conduct causes severe emotional distress.”  Restatement (Second) of
Torts § 46(1).  “Liability has been found only when the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.”  Id., cmt. d.  The General
Manager’s gender-biased comments, rude attitude, and disparate treatment of women, without
more, do not rise to the level of outrage for a reasonable jury to find intentional infliction of
emotional distress.
IX.
PUNITIVE DAMAGES
To recover punitive damages for her Title VII claim, Tweed must demonstrate that Metro
Motors “engaged in a discriminatory practice or discriminatory practices with malice or with
reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C.A. §
1981a(b)(1).  “An employer may be vicariously liable for the discrimination of its employee if
the employee was serving in a ‘managerial capacity’ and committed the wrong while ‘acting in
the scope of his employment.’”  Ridley v. Costco Wholesale Corp., 217 Fed. Appx. 130, 137 (3d
Cir. 2007) (citing Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 542 (1999)).  Thus, Metro Motors
may be held liable for punitive damages since the alleged discriminating actor was Metro
Motors’ General Manager.  Moreover, Metro Motors has not suggested that it has made any
“good-faith efforts to comply with Title VII” which could protect it from punitive damages.  See
Kolstad, 527 U.S. at 545.  The Court will withhold consideration of whether a reasonable jury
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could find that Metro Motors exhibited malice or reckless indifference to Tweeds’ civil rights
until the conclusion of the presentation of evidence at trial.
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X.
CONCLUSION
For the foregoing reasons, the Court denies summary judgment on Tweed’s Title VII
claim based on disparate treatment and will allow it to go forward under either the Price
Waterhouse direct evidence theory or the McDonnell Douglas circumstantial evidence theory. 
However, summary judgment is granted as to Tweed’s Title VII hostile environment claim. 
Because the parties do not dispute that Tweed was employed as a supervisor, summary judgment
is granted on her wrongful discharge claim because she is not protected by the Virgin Islands
Wrongful Discharge Act.  In that Tweed was an at-will employee, summary judgment is granted
on her breach of contract claim.  However, her breach of the implied covenant of good faith and
fair dealing survives concerning any deception on Metro Motors’ part in its reasons for restricting
her use of the demo vehicle.  Tweed has not shown physical symptoms of emotional distress
caused by her employment at Metro Motors, so that summary judgment is granted on her claim
for negligent infliction of emotional distress.  Summary judgment is also warranted on Tweed’s
claim for intentional infliction of emotional distress because the evidence is not sufficient for a
reasonable juror to find Metro Motors’ conduct outrageous.  Finally, punitive damages are
available to Tweed for Metro Motors’ Title VII violation, but the Court will await the conclusion
of the evidence to decide whether to let Tweed’s claim for punitive damages go to the jury.
ENTER:
DATE:
February 26, 2008
_________/s/__________________
RAYMOND L. FINCH
DISTRICT JUDGE
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