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! NOT FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX KENNETH M. GUYE AND PAMELA H. GUYE, SX-10-CV-119 Plaintiffs, v. LUTHERAN SOCIAL SERVICES OF THE VIRGIN JURY TRIAL DEMANDED ISLANDS, INC., Defendant. MEMORANDUM OPINION THIS MATTER came before the Court on Defendant’s Motion to Dismiss for Failure to State Claims Upon Which Relief may be Granted, filed on April 22, 2010. On May 21, 2010, Defendant filed a Motion to Deem that Plaintiffs Conceded Motion to Dismiss. As of this date, Plaintiffs have not filed an Opposition to Defendant’s Motion to Dismiss. FACTS Plaintiff Kenneth Guye was employed by Defendant as the Director of Fiscal Affairs from April 2, 2007 until his termination on April 14, 2008. On March 15, 2010, Plaintiff Kenneth Guye and his wife, Plaintiff Pamela Guye, filed a Verified Complaint against Defendant. Plaintiff Kenneth Guye claims that Defendant never wamed him of his performance and Defendant never gave him any reasons for his termination. Plaintiff Kenneth Guye further claims that, following his termination, Defendant’s employees reported false and derogatory information about him to the Virgin Islands Department of Labor and thereby tarnished and destroyed Plaintiff Kenneth Guye’s reputation as an accountant. Plaintiffs assert seven causes of actions against Defendant: Count One: Wrongful Discharge; Count Two: Breach of Contract; | Count Three: Intentional Infliction of Emotional Distress; | Count Four: Negligent Infliction of Emotional Distress; Count Five: Defamation; Count Six: Retaliation; and Count Seven: Loss of Consortium. KENNETH M. GUYE AND PAMELA H. GUYE V, LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion DISCUSSION Defendant argues that all seven claims asserted in Plaintiffs’ Verified Complaint consists “exclusively of conclusory statements that neither incorporate nor reference any supporting facts... [T]he resulting vagueness renders it virtually impossible to discern even the nature and/or intent of the alleged claim.” See Defendant’s Motion to Dismiss, 3. Defendant points out that, for five of the claims, Plaintiffs did not even contain a threadbare recital of the elements of the claims. Defendant further argues that, even if Plaintiffs had asserted additional facts and elements in support of their claims, there are material insufficiencies in Plaintiffs’ Verified Complaint. Therefore, Defendant argues that the Court should grant Defendant’s Motion to Dismiss.! Motion to Dismiss For Failure to State a Claim A court cannot dismiss an action for failure to state a claim upon which relief can be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of claims as pled which would entitle plaintiff to relief. Bell v. Chase Manhattan Bank, 40 V.1. 377 (1999). A motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, tests the sufficiency of the allegations contained in the complaint. Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d 869, 871 (3d Cir. 1992). In considering whether a complaint should be dismissed for failure to state a claim upon which relief can be granted, court must accept all well-pleaded allegations in complaint as true and view them in light most favorable to plaintiff. Jn re Tutu Water Wells Contamination Litig., 40 V.1. 279 (1998); see also Shubert v. Metrophone, Inc., 898 F.2d 401, 403 (3d Cir.1990) (‘‘...we must construe all factual | allegations in the complaints most favorably to the appellants and affirm the dismissals only if it | ' As of this date, Plaintiffs have not filed an Opposition to Defendant's Motion to Dismiss. KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion appears certain that no relief could be granted to them under any set of facts which could be proven.”). The issue is not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. Matheson v. Virgin Islands Community Bank, Corp., 297 F.Supp.2d 819, 825 (D.V.I. 2003). However, if the plaintiff does not nudge his/her claims across the line from conceivable to plausible, the plaintiff's complaint must be dismissed. Bell Atlantic Corp. v. Twombly, 540 U.S. 544, 570 (2007) (‘...[w]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.”) In 2009, the United States Supreme Court confirmed the standard set in 7 wombly, and further emphasized that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Igbal, 129 S.Ct. 1937, 1949 (2009). Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief’ and detailed factual allegations are not required “but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Jd. Count One: Wrongful Discharge Defendant points out that there are no facts alleged and no reference to the purported legal or statutory basis for Count One. Count One of Plaintiffs’ Verified Complaint states: “Defendant wrongfully discharged Plaintiff Kenneth M. Guye from employment on April 14, 2008, and as a direct and proximate cause of this wrongful discharge, Plaintiff suffered the damages and losses as stated below.” Defendant presumes that Count One is alleged pursuant to the Virgin Islands Wrongful : Discharge Act (hereinafter, the “WDA”). See Title 24 V.I.C. § 76. Defendant claims that the WDA is preempted by the National Labor Relations Act (hereinafter, “NLRA”) as applied to | supervisors and managerial employees -- which Plaintiff Kenneth Guye claims to be. See St. KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion Thomas-St. John Hotel & Tourism Assoc. v. Virgin Islands, 357 F.3d 297 (3d Cir. 2004). The NLRA defines a “supervisor” as: [A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Title 29 U.S.C. § 152(11). Defendant points out that the NLRA definition does not require the employee to have “independent authority” to perform each of the statutory supervisory functions to qualify as a supervisor; in fact, “effective recommendation” of the supervisory functions is sufficient for one to qualify as a supervisor. 29 U.S.C. § 152(11). Defendant further cites to National Labor Relations Board v. Kentucky River Community Care, Inc., where the United States Supreme Court found that an employee needs to perform only one of the statutory supervisory functions to be qualified as a supervisor. 532 U.S. 706, 713 (2001) (“Employees are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment, and (3) their authority is held “in the interest of the employer.”) (citation omitted). Defendant argues that Plaintiff Kenneth Guye was a supervisor in the exercise of his duties as the Director of Fiscal Affairs and therefore, the NLRA preempts the application of the WDA here. Defendant further argues that Plaintiffs never set forth any facts or allegations to substantiate its status as an “employer” for the purposes of the WDA. Accordingly, Defendant : | requests the Court to dismiss Plaintiff Kenneth Guye’s wrongful discharge claim as a matter of | law. Defendant also adds that, assuming arguendo that Plaintiffs’ wrongful discharge claim was premised upon a violation of some public policy, the claim still fails. Defendant cited Lima-| i Brito Dias v. WVC St. John, Inc., where the District Court of the Virgin Islands dismissed the plaintiff's public policy claim and stated that the WDA is “sufficiently broad to provide a KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion remedy for an alleged violation of public policy based on disability discrimination, or, for that matter, any other sort of discrimination. 2008 WL 789890, *3 (D.V.L, 2008). According to National Labor Relations Board v. Kentucky River Community Care, Inc., the burden of proving the applicability of the supervisory exception falls on the party asserting it -- the United States Supreme Court noted that it is easier to prove an employee’s authority to exercise 1 of the 12 listed supervisory functions than to disprove an employee’s authority to exercise any of those functions. 532 U.S. at 711-12. In its Motion to Dismiss, Defendant never articulated Plaintiff Kenneth Guye’s authority as the Director of Fiscal Affairs; Defendant merely stated that the supervisory exception should apply here. However, in the Verified Complaint, Plaintiff Kenneth Guye contends that he “held a top-level management position at [Defendant LLS]” and that he was employed by Defendant as the Director of Fiscal Affairs. Additionally, to this date, Plaintiff Kenneth Guye has not disputed Defendant’s assertion that he was employed in a supervisory and/or managerial position. Accordingly, given the way the wrongful discharge claim is currently pleaded in the Verified Complaint—Plaintiff Kenneth Guye admits that he “held a top-level management position at [Defendant LLS].”—the Court finds the supervisory exception applicable here. Assuming arguendo that the supervisory exception is not applicable here, the Court finds that Plaintiff Kenneth Guye’s wrongful discharge claim has not been adequately pleaded. In| order to establish prima facie case for a wrongful discharge under the WDA, Plaintiffs must allege that: (1) she was an employee; (2) of a covered employer; (3) she was discharged; and (4) : the discharge was wrongful. 24 V.I.C. § 76; see Rajbahadoorsingh v. Chase Manhattan Bank, : NA., 168 F. Supp. 2d 496, 504-05 (D.V.I. 2001). Plaintiffs did not successfully set forth a prima j facie claim in this case. Furthermore, if this claim was premised upon a violation of public: policy, Plaintiffs did not specify the public policy of the United States or the Virgin Islands upon | KENNETH M. GUYE AND PAMELA H, GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion which she relies on in Count One. Following the Lima-Brito Dias Court’s reasoning, to the extent Plaintiffs’ public policy claim is premised on an alleged wrongful discharge, the WDA is sufficiently broad to provide a remedy for Plaintiffs here. See Title 24 V.I.C. § 76(c) (The WDA provides that any employee who is discharged for reasons other than those enumerated shall be considered to have been wrongfully discharged.) The Court also finds that Plaintiff Kenneth Guye’s public policy violation claim has not been adequately pleaded. While the pleading does not require detailed factual allegations, an unadorned, the-defendant-unlawfully-harmed-me accusation is not enough. Jgbal, 129 S.Ct. at 1949. Count Two: Breach of Contract Defendant argues that Plaintiffs’ Verified Complaint never mentions or provides any facts to suggest the existence of an employment contract between Defendant and Plaintiff Kenneth Guye. Count Two of Plaintiffs’ Verified Complaint states: “Defendant breached the employment contract that Plaintiff Kenneth M. Guye had with Defendant and as a direct and proximate cause of this breach of contract, Plaintiff suffered the damages and losses as set forth below.” In order to have a viable breach of contract claim, Defendant states that Plaintiffs must allege sufficient facts to demonstrate the following elements: (1) the existence of a valid agreement; (2) a duty created by that agreement; (3) a breach of that duty; and (4) damages. See Arlington Funding Services, Inc. v. Geigel, 2009 W1] 357944, at *8 (V.I., 2009) citing Galt Capital, LLP v. Seykota, 2007 WL 2126287, at *6 (D.V.I., 2007); RESTATEMENT (SECOND) OF | CONTRACTS § 2357 (stating that non-performance of a contractual duty constitutes a breach of : contract). Defendant points out that, other than simply concluding that there was a breach of. contract resulting in damages, Plaintiffs did not provide any additional information relating to. ? “The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases in which they apply, in the absence of local laws to the contrary.” Title 1 V.1LC. § 4. KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., Memorandusn Opinion this breach of contract claim against Defendant. Accordingly, Defendant requests the Court to dismiss Plaintiff Kenneth Guye’s breach of contract claim. Defendant also adds that, assuming arguendo that Plaintiffs are relying on an alleged oral employment contract for the basis of this claim, such an agreement is prohibited by the Statute of Frauds for employment of more than a year. Therefore, the claim still fails because Plaintiff Kenneth Guye was employed by Defendant for more than a year, from April 2, 2007 until April 14, 2008. See Title 28 V.LC. § 244? (Under the Statute of Frauds, a contract is void if it is not be performed within one year from the date of its making, unless it has been evidenced by some note or memorandum in writing and subscribed by the party to be charged.) The Court finds that Plaintiff Kenneth Guye’s breach of contract claim has not been adequately pleaded. Plaintiffs never established whether this claim is based on an express or verbal employment contract between Defendant and Plaintiff Kenneth Guye. As noted by Defendant, Plaintiffs simply concluded that there was a breach of contract that resulted in damages. Plaintiffs did not assert the existence of a valid agreement between Defendant and Plaintiff Kenneth Guye, a duty created by that agreement or a breach of that duty. As mentioned | previously, while the pleading does not require detailed factual allegations, an unadorned, the- defendant-unlawfully-harmed-me accusation is not enough. Jgbal, 129 S.Ct. at 1949. Assuming arguendo that Plaintiffs relied on a verbal contract between Defendant and Kenneth Guye, the Court finds the verbal contract void because it does not satisfy the Statute of | Frauds. It is well established in the Virgin Islands that employment contracts are subject to Title * Defendants cite to 28 V.I.C. § 244, which provides in pertinent part: In the following cases every agreement shall be void unless such agreement or some note or memorandum thereof is in writing, and subscribed by the party to be charged therewith, or by his ,; lawful agent under written authority: (1) An agreement that by its terms is not to be performed within one year from the making thereof. KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion 28 V.I.C. § 244 and must comport with the requirements set forth therein to be deemed valid and enforceable. See Cooper v. Vitraco, Inc., 320 F. Supp. 239, 240 (D.V.I. 1970). An agreement not to be performed within one year is void unless there is a memorandum of the agreement in writing. See Title 28 V.LC. § 244(1). This applies to employment contracts for a duration of one year or more. However, an exception to this rule has long been recognized for lifetime employment contracts which could be terminated within a year in the event of death of the employee. See RESTATEMENT (SECOND) OF CONTRACTS § 198, illustration 2. According to the Verified Complaint, Plaintiff Kenneth Guye was employed with Defendant for more than a year, from April 2, 2007 to April 14, 2008. Plaintiffs have neither offered nor asserted that Plaintiff Kenneth Guye had a lifetime employment contract with Defendant. Therefore, their claim does not fall within the exception to the Statute of Frauds. Count Three: Intentional Infliction of Emotional Distress To recover damages for this tort, Defendant argues that Plaintiffs must show that Defendant’s conduct was “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 society.” RESTATEMENT (SECOND) OF TorTs § 46, emt. d; see also Manns v. The Leather Shop Inc., 960 F. Supp. 925, 930 (D.V.I. 1997). Restatement (Second) of Torts § 46 | provides that, “[O]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Defendant also cites Alvarez v. ! Pueblo International, Inc., where the Court stated that an employer’s exercise of discretion to | dismiss an employee, even if there might be disagreement, “does not rise to the level of conduct 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 society.” 24 V.I. KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion 141, 147 (1989), citing Cox v. Keystone Carbon Co. et al, 861 F.2d 390 (3d Cir. 1988), citing RESTATEMENT (SECOND) OF TorTs § 46, cmt. d. Count Three of Plaintiffs’ Verified Complaint States: “Defendant engaged in extreme and outrageous conduct that caused severe emotional distress to Plaintiff Kenneth M. Guye in the employment decisions undertaken by Defendant.” Defendant points out that there are no factual allegations that identify and/or describe the alleged conduct of Defendant that serves the basis for this claim. Defendant further points out that the Verified Complaint does not assert that Plaintiff Kenneth Guye suffered any injury as a result of Defendant’s alleged extreme and outrageous conduct. Accordingly, Defendant requests the Court to dismiss Plaintiff Kenneth Guye’s intentional infliction of emotional distress claim. The Court finds that Plaintiff Kenneth Guye’s intentional infliction of emotional distress claim has not been adequately pleaded. Upon reviewing the Verified Complaint, the Court finds that Plaintiffs merely regurgitated the elements for an intentional infliction of emotional distress | claim with a conclusory statement. This is not enough. As the United States Supreme Court state in Iqbal, “(t}hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 129 S.Ct. at 1949, Count Four: Negligent Infliction of Emotional Distress Defendant argues that Plaintiffs have proffered no evidence that Plaintiff Kenneth Guye, as a result of his termination, experienced emotional distress that caused him actual physical , injuries, as required by Restatement § 313(1).* See also Anderson v. Government of the Virgin Islands, 180 F.R.D. 284, 287 (D.V.I. 1998) (the plaintiff must show actual physical injury as a: { | * Restatement § 313(1) provides, “If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting ' illness or bodily harm if the actor (a) should have realized that his conduct involved an unreasonable risk of causing , the distress, otherwise than by knowledge of the harm or peril of a third person, and (b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm.” Emphasis added. KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion result of the defendant’s actions and that such injury was reasonably foreseeable as a result of defendant’s actions to prevail on a claim for negligent infliction of emotional distress). Count Four of Plaintiffs’ Verified Complaint states: “Defendant engaged in extreme and outrageous conduct that caused severe emotional distress to Plaintiff Kenneth M. Guye in the employment decisions undertaken by Defendant.” Defendant points out that the Verified Complaint does not include the elements or facts to support a negligent infliction of emotional distress claim. Accordingly, Defendant requests the Court to dismiss Plaintiff Kenneth Guye’s negligent infliction of emotional distress claim. The Court finds that Plaintiff Kenneth Guye’s negligent infliction of emotional distress claim has not been adequately pleaded. Upon reviewing the Verified Complaint, the Court finds that Plaintiffs failed to list any elements or facts to support a negligent infliction of emotional distress claim. While the pleading does not require detailed factual allegations, an unadorned, the-defendant-unlawfully-harmed-me accusation is not enough. Jgbal, 129 S.Ct. at 1949, Count Five: Defamation To state a claim for defamation under Virgin Islands law: [A] plaintiff must plead facts which establish four basic elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault amounting to at least negligence on the part of the publisher; and (4) either the action ability of the statement irrespective of “special harm” of the existence of “special harm” caused by the publication. See RESTATEMENT (SECOND) OF TorTS § 558; VECC, Inc. v. Bank of Nova Scotia, 296 F. Supp. 2d 617, 622 (D.V.I. 2003). | Defendant argues that Plaintiff failed to meet the burden of pleading the necessary elements of a defamation claim. Count Five of Plaintiffs’ Verified Complaint states: “Defendant defamed the character and reputation of Plaintiff Kenneth M. Guye by stating false information regarding Plaintiff Kenneth M. Guye and by causing such false information to be disseminated regarding Plaintiff Kenneth M. Guye. KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion Page l1 Defendant knew that the allegations that Defendant made regarding Plaintiff Kenneth M. Guye were false and it was done with malice to harm and injure the reputation of Plaintiff Kenneth M. Guye. Plaintiff Kenneth M. Guye sustained damages and losses as a result of the defamation of character and he will suffer damages and losses in the future,” Defendant contends that Plaintiffs did not identify the nature of the alleged information or state whether the dissemintation was an unprivileged publication to a third party. Accordingly, Defendant requests the Court to dismiss Plaintiff Kenneth Guye’s defamation claim. The Court finds that Plaintiff Kenneth Guye’s defamation claim has not been adequately pleaded. Upon reviewing the Verified Complaint, the Court finds that Plaintiffs failed to adequately set forth allegations or any facts to support a defamation claim. In VECC, Inc., the plaintiffs provided the names, dates, proponents of the alleged defamatory statements, the person to whom the statements were published, as well as the content of alleged defamatory comments. 296 F. Supp. 2d, at 619. In this case, Plaintiffs failed to give even some factual basis for his defamation claim — i.e., only generalized allegations without any Supporting factual basis, no mention of when the statements were allegedly made and no mention of the content of the alleged defamatory statements. Count Six: Retaliation | Defendant points out that there are no facts alleged and no reference to the purported : legal or statutory basis for Count Six. Count Six of Plaintiffs’ Verified Complaint states: “Defendant retaliated against Plaintiff Kenneth M. Guye in the employment | decisions undertaken by Defendant and as a direct and proximate cause of this retaliation, Plaintiff Kenneth M. Guye suffered the damages and losses as set forth.” : | Defendant argues that, to the extent Plaintiffs predicated this claim on the notion that ; | { Defendant violated Title VII for firing Plaintiff Kenneth Guye in retaliation for engaging in a KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion protected activity, this claim fails as a matter of law.’ To establish a prima facie case of retaliation under Title VII, Defendant points out that Plaintiffs must tender evidence to prove that: (1) Plaintiff Kenneth Guye engaged in activity protected by Title VII: (2) Defendant took an adverse employment against him; and (3) there was a causal connection between Plaintiff Kenneth Guye’s participation in a protected activity and the adverse employment action. Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir., 2006). Defendant argues that Plaintiff failed to meet the burden of pleading the necessary elements of a retaliation claim under Title VII. Assuming arguendo that Plaintiffs intended this claim to arise under Title 24 V.LC. § 451,° * Title VII provides, in relevant parts: It shall be an unlawful employment practice for an employer to discriminate against any of his employees... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. Civil Rights Act of 1964, § 704(a), Title 42 U.S.C.A. § 2000e-3. * Title 24 V.LC. § 451 provides: Unlawful practices (a) Notwithstanding the provisions of any other law, it shall be unlawful employment practice or unlawful discrimination: (1) For an employer to refuse to hire or employ or to bar or discharge from employment, any individual because of his race, sex, age, religion, color or ancestry, provided that an employer may refuse to hire an individual for good cause relating to the ability of the individual to perform the work in question; (2) For an employer to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment because of race, sex, age, religion, color or ancestry; (3) For any employer or employment agency to print, circulate or cause to be printed or circulated any statement, advertisement or publication or to use any form of application for employment or to make inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitations, specification or discrimination as to Tace, Sex, age, religion, color or ancestry, unless based on a bona fide occupational qualification as determined by this chapter. (b) For the purposes of this section, the terms because of sex or as to sex include, but are not limited to: (1) because of sexual harassment and; (2) because of or as to pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under disability benefit, sick leave, and medical benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 460 of this chapter pertaining to bona fide occupational classifications shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion Defendant argues that Plaintiffs still failed to allege any facts or elements to support such retaliation claim. A claim based on Title 24 V.I.C. § 451 requires the claim to be brought in the Department of Labor within one hundred and eighty (180) days of the alleged act of unlawful employment practice or discrimination. Title 24 V.I.C. § 453(a) and (b).’ To date, Plaintiffs have not filed their claims with the Department of Labor. Accordingly, Defendant requests the Court to dismiss Plaintiff Kenneth Guye’s retaliation claim. The Court finds that Plaintiff Kenneth Guye’s retaliation claim has not been adequately pleaded. Upon reviewing the Verified Complaint, the Court finds that Plaintiffs failed to list any elements or facts to support a retaliation claim under Title VII or Title 24 V.LC. § 451. Plaintiffs also failed to sufficiently plead a claim under Title 24 V.I.C. § 451a,° if that was the intended would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion; provided that nothing herein shall preclude an employer from providing abortion benefits. 7 Title 24 V.1.C. § 453 provides: (a) Any person claiming to be aggrieved by an alleged unlawful employment practice or discrimination may file with the department a verified complaint in writing which shall state the name and address of the person, employer, or employment agency alleged to have committed the unlawful practice or discrimination complained of and which shall set forth the particulars thereof and contain such other information as may be required by the department. The Attorney General may, in like manner, make, sign and file such complaint. (b) No complaint shall be filed after the expiration of one hundred and eighty days after the alleged act of unlawful employment practice or discrimination. * Title 24 V.LC. § 451a provides: Retaliation against employees prohibited (a) An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of this chapter, regulation or rule promulgated pursuant to law of this territory or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public-body, or a court action. (b) In addition to the remedies provided in sections 453 through 455 of this chapter, a person who alleges a violation of this section may bring a civil action for appropriate injunctive relief, or actual damages, or both, within ninety days after the occurrence of the alleged violation of the provisions of this section. (c) An action commenced pursuant to subsection (b) of this section may be brought in the Superior Court division where the alleged violation occurred, the Superior Court division where the complainant resides, or the division where the person against whom the civil complaint is filed resides or has his principal place of business. KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion basis for Count Six. Additionally, Plaintiff Kenneth Guye’s time to file such claim under Title 24 V.LC. § 451a has lapsed. Title 24 V.LC. § 451a(b) requires a person claiming a violation of this section to bring a civil action “within ninety (90) days after the occurrence of the alleged violation of the provisions of this section.” Plaintiff Kenneth Guye was discharged on April 14, 2008 and Plaintiffs filed the Verified Complaint almost two (2) years later, on March 15, 2010. Count Seven: Loss of Consortium Defendant points out that a loss of consortium claim is a derivative right that is dependent upon and accrues only if the injured spouse has a claim against the defendant. Benjamin v. Cleburne Truck & Body Sales, Inc., 424 F.Supp. 1294, 1299 (D.V.I. 1976). Defendant argues that since Plaintiff Kenneth Guye’s underlying claims against Defendant are flawed, Plaintiff Pamela Guye’s loss of consortium claim cannot survive. Accordingly, Defendant requests the Court to dismiss Plaintiff Pamela Guye’s loss of consortium claim. A loss of consortium claim cannot be a stand alone claim. Such an action is a derivative right and accrues only if the injured spouse, Plaintiff Kenneth Guye, has a cause of action against Defendant. Therefore, if the Court dismisses Plaintiff Kenneth Guye’s claims against Defendant, then Plaintiff Pamela Guye’s loss of consortium claim will also be dismissed. At this juncture, the Court will not dismiss Plaintiff Pamela Guye’s loss of consortium claim since Plaintiff Kenneth Guye’s claims against Defendant have not been dismissed. (a) As used in subsection (b) of this section, damages means damages for injury or loss caused by each individual violation of the provisions of this section, including reasonable attorney fees. (e) An employee shall show by a preponderance of the evidence that he or a person acting on his behalf was about to report or did report, verbally or in writing, a violation or a suspected violation of this chapter, or the law of the United States, to a public body. KENNETH M. GUYE AND PAMELA H. GUYE V. LUTHERAN SOCIAL SERVICES OF THE VIRGIN ISLANDS, INC., SX-10-CV-119 Memorandum Opinion CONCLUSION The Court finds that Plaintiffs have failed to sufficiently state a claim upon which relief can be granted for all seven Counts in the Verified Complaint. However, Fed. R. Civ. P. 15(a) provides that the plaintiffs may amend its pleading once as a matter of course subject to certain restrictions. Fed. R. Civ. P. 15(a)(2) specifically provides that, “...a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” See Foman v. Davis, 371 U.S. 178, 182 (1962) ([T]he grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.) In Foman, the United States Supreme Court stated that, “[I]n the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be ‘freely given.’ Jd. The Court does not find any reasons to deny Plaintiffs leave to amend their Verified Complaint in this case. Accordingly, the Court will deny Defendant’s Motion to Dismiss and grant Plaintiffs leave to amend. DONE and so ORDERED this On vay of Februgry, 201 To, HAROLD’W. L. WILLOCKS Judge of the Superior Court CERTIFIED TO BE A TRUE COPY This day of be 20 £4 VENETIA H. VELAZQUEZ, ESQ. CLERK OF T OURT Le aS By Court Clerk ATTEST: Venetia Harvey-Velazquez