Judge Susan D. Wigenton of the District Court of the Virgin Islands, Division of St. Thomas and St. John recently entertained the motion of the defendant Marriott Hotel Management Company (Virgin Islands) (“MHMC”) and Marriott Hotel Services’ (“MHS”) to dismiss the complaint of Plaintiff Judy-Ann James Frederick concerning numerous employment violations, including wrongful discharge.

Ms. Frederick worked at the Marriott Frenchman’s Reef and Morning Star Beach Resort (“Resort”) as a Training Manager for three years until she resigned on December 6, 2011.  On November 10, 2011, while Ms. Frederick was entering the Resort, she noticed that a box was blocking an emergency exit and office entrance. Ms. Frederick asked Robert Mendoza, a Hispanic male worker in the area, to remove the box. Mendoza refused to move the box and allegedly engaged in a heated verbal exchange with Ms. Frederick. Ms. Frederick claims that he said “me no move nothing, you not my boss, you no tell me what to do.” Ms. Frederick further alleges that he waved his hand in her face and said “that he would ‘meet me’ (sic), which she interpreted as a threat within and outside of the workplace.”

After the exchange with Mendoza, Ms. Frederick reported the incident to security officer Sandra Morton. She also asked Morton to have Mendoza remove the box, and alleged that “Morton refused to take Ms. Frederick’s report about the incident.” Ms. Frederick then reported the incident to Katherine Jimenez, the Director of Human Resources. She told him that she did not feel safe, that Mendoza threatened her, and that she was going to call the police. Ms. Frederick refrained from calling the police because Jimenez asked her to allow him some time to resolve the issue internally. Later that day, Mendoza was escorted off the Resort. According to MHMC, Mendoza was “sent home pending further investigation into the matter.” As part of its investigation, MHMC stated that it conducted interviews of Ms. Frederick, Mendoza, witnesses, and other individuals with knowledge of the incident.

One week later, Morton allegedly told Ms. Frederick that Mendoza was escorted onto the Resort by his boss, Sweeny. According to her complaint, Ms. Frederick informed Jimenez that Mendoza was on the premises. Jimenez replied, “No, that could not be.  We had an agreement that he would not return to property (sic).” Ms. Frederick alleged that she saw Mendoza and Sweeny the next day and “froze remembering the initial threat that was made by him.” She stated that she told Jimenez about seeing Mendoza and feeling scared. She indicated that she also met with Reynaldo Rey, the Director of Operations, and informed him of the situation with Mendoza.

According to MHMC, on November 18, 2011, Ms. Frederick sent an email to various individuals involved in the investigation—including Rey and Jimenez—notifying them about Mendoza’s presence on the premises on two occasions since the incident. Jimenez spoke to her on November 28, 2011 and informed her that the investigation regarding Mendoza was still ongoing.

Ms. Frederick claimed that she saw Mendoza on the premises again on December 6, 2011 and “felt like she was having a panic attack.” She indicated that she called security and Jimenez to identify Mendoza to them. Later in the day, She was informed that “while they [were] concerned for [her] safety, the decision to allow Mendoza to continue to work on the property was because his skill set was needed to get the job done. They also told Ms. Frederick that if she has any more run-ins with Mendoza to inform both of them as soon as possible.” Ms. Frederick resigned from her position at the Resort due to “the personal threats made by Mendoza.”

Ms. Frederick filed her complaint alleging hostile work environment, constructive discharge, vicarious liability, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent retention of an employee , assault, and negligent supervision. The defendants filed a motion to dismiss, which was before Judge Wigenton.

Constructive Discharge
The Virgin Islands Wrongful Discharge Act (“WDA”) provides the reasons for which “an employer may dismiss an employee” and also provides that “[a]ny employee discharged for reasons other than those stated in subsection (a) of [24 V.I.C. § 76] shall be considered to have been wrongfully discharged.” 

Judge Wigenton wrote that, on its face, the WDA did not provide for a cause of action for constructive discharge. Nonetheless, she recognized that there was a split of authority among courts sitting in the United States Virgin Islands with regard to the viability of a claim for constructive discharge under the WDA. The Supreme Court of the Virgin Islands has yet to rule on this issue.
Judge Wigenton held that for the purposes of this motion to dismiss—consistent with the reasoning set forth in the most recent cases—"this Court will recognize Ms. Frederick’s constructive discharge claim as a cognizable cause of action under the WDA."

MHMC and MHS argued that Ms. Frederick’s constructive discharge claim was preempted by the National Labor Relations Act (“NLRA”). However, based on the allegations in the complaint and accompanying briefs, Judge Wigenton found that there were insufficient facts to conclude whether Ms. Frederick performed managerial or supervisory functions. As a result, the judge deferred a decision on the preemption argument.

The judge explained that to establish a prima facie claim for wrongful discharge under the WDA, a plaintiff has the initial burden to show that:

1) she was an employee;
2) of a covered employer;
3) she was discharged; and
4) the discharge was wrongful.

In addition to these elements, a plaintiff who alleges a claim for constructive discharge must demonstrate “that the working conditions were so difficult or unpleasant that a reasonable person in the employee’s shoes would feel compelled to resign.” Judge Wigenton noted that as several courts have expressed, a plaintiff is not constructively discharged if an employer has not been provided reasonable time to resolve a situation.

Judge Wigenton held that in Ms. Frederick’s case, drawing all inferences in her favor, there were insufficiently pled facts to support a claim for constructive discharge. The judge’s opinion quoted the United States Third Circuit Court of Appeals. which held, “a reasonable employee will usually explore such alternative avenues thoroughly before coming to the conclusion that resignation is the only option.” 

In this case, Ms. Frederick resigned “immediately” after she was informed about the decision to allow Mendoza to return to the Resort. She resigned despite being advised to inform her supervisor if she had any further issues with Mendoza.  Ms. Frederick didn’t provide any facts indicating that she explored any alternatives before she resigned. In addition, by resigning the same day that MHMC and MHS made the decision after investigating Ms. Frederick’s complaints, she didn’t provide any facts to show that she gave her employer reasonable time to resolve the problem. Although Ms. Frederick was allegedly scared of Mendoza, the allegations in her complaint did not support her conclusion that a reasonable person would have felt the same way. Accordingly, Ms. Frederick’s constructive discharge claim could not withstand the motion to dismiss. MHMC and MHS’s motion to dismiss was granted. Ms. Frederick was given 30 days leave to amend her complaint consistent with Judge Wigenton’s opinion.  James-Frederick v. Frenchman’s Reef and Morning Star Marriott Beach Resort, Slip Copy, 2013 WL 3992938 (D.Virgin Islands August 1, 2013).

If you have questions relative to the "Wrongful Discharge Act" and your Virgin Islands business, or any other labor or employment law concerns, contact Ravinder S. Nagi, Chair of the BoltNagi PC Labor & Employment Practice Group.   BoltNagi PC is one of the largest firms in the United States Virgin Islands and has experienced legal professionals to assist companies in the U.S. Virgin Islands.