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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS/ST. JOHN Plaintiff ) CASE NO, ST-10-CV-151 ARMELLE MARIE GARARDE BRIN ) ) Vs. ACTION For: WRONGFUL DISCHARGE CARDOW JEWELERS Defendant NOTICE OF ENTRY OF MEMORANDUM OPINION TO:LESLIE LEVI PAYTON, Esquire ORDER BOOK, LAW LIBRARIAN BENNETT CHAN, IT DIVISION -~ Esquire SUPERIOR COURT JUDGES AND MAGISTRATES Esquire Please take notice that on SEPTEMBER 9, 2010 a Memorandum Opinion was entered by this Court in the above- entitled matter. Dated: September 16, 2010 Venetia H. Velazquez Esq. Clerk of the Superior Court Yy Cu / Aus 4 By Court Clerk II SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN ARMELLE MARIE GARARDE BRIN, ) ) Plaintiff, ) ) vs. ) ) CARDOW, INC. D/B/A CARDOW, ) CASE NO. ST-10-CV-151 ) Defendant. ) ) MEMORANDUM OPINION Pending before the Court is Defendant’s Motion to Dismiss Plaintiff's Complaint. For the following reasons, Defendant’s motion will be denied. FACTUAL AND PROCEDURAL HISTORY On March 26, 2010, Plaintiff filed a Complaint alleging she was wrongfully discharged from her employment. Defendant filed the instant motion on May 13, 2010, and Plaintiff filed an Opposition on June 4, 2010. ANALYSIS Fed. R. Civ. P. 12(b)(6), adopted by the Virgin Islands Superior Court through SUPER. CT. R. 7, provides that, upon motion by the pleader, a claim, counterclaim, cross-claim, or third party claim shall be dismissed when there is a “failure to state a claim upon which relief can be granted” by the claimant. A motion to dismiss a complaint should be denied if the factual allegations are “‘enough to raise a right to relief above the speculative level.’” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Armelle Marie Gararde Brin v. Cardow Jewelers, Case No. ST-10-CV-15] Memorandum Opinion, September 10, 2010 Defendant relies on Cotto v. Kmart, Case No. WD-029-98-STX, Christopher vy. Government of the Virgin Islands, Civil No. 21/1993 (Terr. Ct. St. X, November 24, 1993), and Williams v. Kmart Corporation, Civil No. 1992/0102 (Dist. Ct. ST. X. March 5, 2001), for the premise that a claim of constructive discharge is not recognizable under the Virgin Islands Wrongful Discharge Act (“WDA”). However, in Harley v. Caneel Bay, 193 F.Supp.2d 833, 841 (D.V.IL. 2002), the court found that Christopher does not foreclose a claim of constructive discharge, that Cotto misinterpreted Christopher and was a decision “based on no legal authority,” and that Williams erroneously deferred to Cotto and Christopher. Looking at the statute itself, the WDA states: “{a]ny employee discharged for reasons other than those stated in subsection (a)' of this section shall be considered to have been wrongfully discharged...” 24 V.LC. § 76(c). In Fraser v. Kmart Corporation, 2009 WL 1124953, at *6 (D.V.I. 2009), the court interpreted the term “discharge” in Section 76(c) to encompass the concept of constructive discharge. This Court finds Fraser persuasive with respect to the idea that a constructive discharge claim is cognizable under the WDA. In her Complaint, Plaintiff alleges she was wrongfully discharged from her employment on or about January 27, 2010. In a letter attached to the Complaint, Defendant’s human resources director acknowledges that Plaintiff had submitted her ''a) Unless modified by union contract, an employer may dismiss any employee: (1) who engages in a business which conflicts with his duties to his employer or renders him a rival of his employer; (2) whose insolent or offensive conduct toward a customer of the employer injures the employer's business; (3) whose use of intoxicants or controlled substances interferes with the proper discharge of his duties; (4) who wilfully and intentionally disobeys reasonable and lawful rules, orders, and instructions of the employer; provided, however, the employer shall not bar an employee from patronizing the employer's business after the employee's working hours are completed; (5) who performs his work assignments in a negligent manner; (6) whose continuous absences from his place of employment affect the interests of his employer; (7) who is incompetent or inefficient, thereby impairing his usefulness to his employer; (8) who is Armelle Marie Gararde Brin v. Cardow Jewelers, Case No. ST-10-CV-151 Memorandum Opinion, September 10, 2010 resignation. As a result, Plaintiff has properly alleged a claim under the WDA. See Harley, supra, at 841 (employee must resign from employment before alleging he or she was constructively discharged). Whether the circumstances surrounding Plaintiffs resignation constitute a constructive discharge is a factual question that should not be determined at the motion to dismiss stage of the proceedings. See Searls vy. City of Meadville, 2009 WL 5111799, at *4 (W.D. Pa. 2009) (citing Brennan vy. Norton, 350 F.3d 399, 419 (3d Cir. 2003)). As a result, Defendant’s motion will be denied. An Order consistent with this Memorandum Opinion will follow. Dated: September SG , 2010 ae Cc HON. MICHAEL C. DUNSTON i. ATTEST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT: Clerk of Court / / OF THE VIRGIN ISLANDS = J ~~ “| oi; ] oy - = —_ ~ — ~~ ~ — —~ a ™ t —<—> Rosalie Griffith —<—= > - Court Clerk Supervisor F / 7 A O CERTIFIED A TRUE COPY Well: Date: (fhe —_— “Vohetia Velazquez, Esq. dishonest; or (9) whose conduct is such that it leads to the refusal, reluctance or inability of other employees to work with him. 24 V.I.C. § 76(a). q = Rl n we _ .. > us a “ a r ly rg ow rey ast ete rng. v, & re Fe me “a as Zs ff ee a4 . ~ 3 teu ek _ rd rx, ” — -e gy. Pie me a) = ARS 3 =: ye “Se ) = » ie oe © Pehee a oa aX fe af ef oh as a