Greene v. Virgin Islands Water & Power Authority

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 13-2499
_____________

CARL GREENE,

Appellant,

v.

VIRGIN ISLANDS WATER & POWER AUTHORITY,
ALBERTO BRUNO-VEGA
_______________

On Appeal from the District Court
of the Virgin Islands
(D.C. Civil No. 1-06-cv-00011)
District Judge: Hon. John E. Jones, III
_______________

Argued December 12, 2013

BEFORE: FISHER, COWEN AND NYGAARD, Circuit Judges

(Filed: February 11, 2014)

Rhea R. Lawrence, Esq. (Argued)
Lee J. Rohn, Esq.
Lee J. Rohn & Associates
1101 King Street
Christiansted, VI 00820

Counsel for Appellant

Simone R.D. Francis, Esq.
Micol L. Morgan, Esq. (Argued)
Ogletree, Deakins, Nash, Smoak & Stewart
1336 Beltjen Road, Suite 201
St. Thomas, VI 00802

Counsel for Appellees
_______________

OPINION
_______________

COWEN, Circuit Judge.

The plaintiff-appellant, Carl Greene, filed suit in the District Court of the Virgin

Islands in 2006, raising claims against his former employer, the Virgin Islands Water and

Power Authority (“WAPA”), and WAPA’s Chief Executive Officer (“CEO”), Alberto

Bruno-Vega. The operative pleading, the Third Amended Complaint, was filed in March

of 2009. Its clarity was undermined by a kitchen-sink approach. Nevertheless, a fair

reading of the Third Amended Complaint shows that Greene alleged:

- in Count I that WAPA violated Title VII by discriminating against

him on the basis of his race and/or national origin;

- in Count II that both WAPA and Bruno-Vega violated his rights

under the Virgin Islands Civil Rights Act;

- in Count III that WAPA violated Title VII by both (a) creating and

maintaining a hostile work environment, and (b) as alleged in Count I,

discriminating against him on the basis of his race and/or national origin;

- in Count IV that both WAPA and Bruno-Vega defamed him;

2
 - in Count V that both WAPA and Bruno-Vega unlawfully retaliated

against him for exercising his First Amendment rights;

- in Count VI that WAPA violated the Virgin Islands Whistleblower

Act;

- in Count VII that WAPA committed breach of contract;1

- in Count IX that both WAPA and Bruno-Vega committed an abuse

of process and/or engaged in malicious prosecution;

- in Count X that both WAPA and Bruno-Vega had either negligently

or intentionally inflicted emotional distress upon him;

- in Count XII that both WAPA and Bruno-Vega denied him the due

process afforded by the Fourteenth Amendment; and

- in Count XIII that both WAPA and Bruno-Vega denied him the

equal protection rights afforded by the Fourteenth Amendment.2

Greene sought “damages as they may appear” (J.A. 172), and, in Count XI, set forth a

specific demand for punitive damages. He did not seek prospective injunctive relief.

The parties engaged in roughly three and a half years of discovery. WAPA and

Bruno-Vega then filed separate motions for summary judgment, and Greene enjoyed

ample time to respond to each of their arguments. Following that motion practice, the

1
The Third Amended Complaint did not contain a Count VIII.
2
Greene also raised Count XIV, alleging that Bruno-Vega “acted under color of
law” when violating his rights under to 42 U.S.C. § 1983 (“Section 1983”). (J.A. 172.) It
appears that Count XIV should be read in conjunction with Counts V, XII, and XIII.
3
District Court entered judgment against Greene and in favor of WAPA on Counts II, III,

IV, V, VI, VII, X, XI, XII, and XIII, and entered judgment against Greene and in favor of

Bruno-Vega on Counts II, IV, V, X, XII, XIII and XIV. Thereafter, the District Court

expressed concern about the viability of Count I. It thus permitted WAPA to move anew

for summary judgment, and, following briefing by both WAPA and Greene, entered

judgment against Greene and in favor of WAPA on that count. Then, having resolved all

of the claims over which it had original jurisdiction, the District Court dismissed the

remaining counts pursuant to 28 U.S.C. § 1367(c)(3).

Greene filed a timely appeal, challenging the District Court’s entry of judgment on

Counts I, IV, V, VII, XII, and XIV. We have considered each of the arguments that he

raises on appeal, but conclude, for the reasons appearing below, that the District Court

appropriately entered judgment against him on each of those counts. Accordingly, we

will affirm.3

I.

As a threshold matter, we note that Greene has argued, both in his briefs and at

oral argument, that the discrimination claims set forth in the Third Amended Complaint

encompass a claim based on Title VII’s anti-retaliation provision.4 WAPA disputes that

Greene raised such a claim, and argues that his failure to assert it in the District Court

precludes him from raising related issues on appeal.

3
The District Court had jurisdiction pursuant to 48 U.S.C. § 1612 and 28 U.S.C.
§§ 1331 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.
4
See 42 U.S.C. § 2000e-3(a).
4
 We agree with WAPA that Greene failed to raise a Title VII retaliation claim in

the Third Amended Complaint, which contains two Counts that explicitly arise under

other provisions of Title VII. As noted in brief, above, Greene alleged in Count I that

WAPA violated Title VII because it had “a pattern and practice of discriminating against

non-Hispanics in their hiring, pay, promotion, benefits, discipline and termination,” and

discriminated against him by, inter alia, terminating his employment because he was “a

non-Hispanic West Indian.” (J.A. 167.) Later, in Count III, he alleged that WAPA took

actions amounting to both “a hostile work environment and discrimination based on race,

national origin and color in violation of Title VII.” (J.A. 168.)

The plain language used in both Count I and Count III belies Greene’s suggestion

that they encompass a Title VII retaliation claim. Such a claim arises out of a different

section of Title VII and is legally distinct from the claims that Greene actually pleaded.

See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61, 63 (2006) (“The

language of the substantive provision differs from that of the antiretaliation provision in

important ways. . . . The substantive provision seeks to prevent injury to individuals

based on who they are, i.e., their status. The antiretaliation provision seeks to prevent

harm to individuals based on what they do, i.e., their conduct.”).

Further, the parties’ actions before the District Court belie the notion that Greene

effectively amended his pleading to include a Title VII retaliation claim. It is well-settled

that “[w]hen an issue not raised by the pleadings is tried by the parties’ express or implied

consent, it must be treated in all respects as if raised in the pleadings.” FED. R. CIV. P.

5
15(b)(2).5 Here, Greene does not argue and we have found no evidence to suggest that

WAPA explicitly consented to trying Greene’s purported Title VII retaliation claim. The

question, then, is whether WAPA gave its implied consent.

Neither the arguments nor the evidence presented in the District Court shows that

WAPA impliedly gave such consent. This conclusion rests on two bases. First, the

arguments that Greene raised in opposition to WAPA’s motions for summary judgment

cannot serve as an independent basis for amendment of the pleadings. See Bell v. City of

Phila., 275 F. App’x 157, 160 (3d Cir. 2008) (“A plaintiff ‘may not amend his complaint

through arguments in his brief in opposition to a motion for summary judgment.’”

(quoting Shanahan v. City of Chi., 82 F.3d 776, 781 (7th Cir. 1996))); see also TekDoc

Servs., LLC v. 3i-Infotech Inc., No. 09-6573, 2013 WL 2182565, at *18 (D.N.J. May 20,

2013) (rejecting plaintiffs’ attempt to amend pleadings through summary judgment

briefing). Second, the evidence produced in opposition to WAPA’s motions for summary

judgment—the evidence that allegedly supports the purported Title VII retaliation

claim—was intertwined with the evidence presented on and otherwise relevant to

Greene’s Title VII discrimination claim. Accordingly, it does not serve as basis for post-

hoc amendment under Rule 15(b)(2). See Addie v. Kjaer, 737 F.3d 854, 867 (3d Cir.

2013) (“[A]n issue has not been tried by implied consent if evidence relevant to the new

5
Greene has not cited to or analyzed either Federal Rule of Civil Procedure
15(b)(2) or the related body of case law. Nevertheless, we recognize that an argument
concerning amendment of a pleading based on the evidence presented must be premised
on that basis.
6
claim is also relevant to the claim originally pled, because the defendant does not have

any notice that the implied claim was being tried.” (citation omitted) (internal quotation

marks omitted)).

Accordingly, we have not considered and will not further address arguments

relating to Greene’s purported Title VII retaliation claim.

II.

With respect to the counts that are actually at issue on appeal—i.e., Counts I, IV,

V, VII, and XII 6—we will review the District Court’s grant of summary judgment de

novo, applying the same well-settled standard as the District Court. See Burton v. Teleflex

Inc., 707 F.3d 417, 424-25 (3d Cir. 2013). A grant of summary judgment is proper if the

moving party establishes that (1) there is no genuine dispute as to any material fact, and

(2) he is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a). Material facts

are those that “could affect the outcome” of the proceeding, and “a dispute about a

material fact is ‘genuine’ if the evidence is sufficient to permit a reasonable jury to return

a verdict for the non-moving party.” Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.

2011) (citation omitted). When determining whether genuinely disputed material facts

are present, we must view the evidence in the light most favorable to the non-moving

party and draw all fair and reasonable inferences in his favor. Scott v. Harris, 550 U.S.

372, 380 (2007); Meditz v. City of Newark, 658 F.3d 364, 369 (3d Cir. 2011).

6
One could argue that Count XIV is also at issue. However, our treatment of
Counts V and XII subsumes any need for separate treatment of Count XIV.

7
 The non-moving party bears the burden of producing at least some evidence to

support each element of the claims at issue. See FED. R. CIV. P. 56(c)(1)(A). He must

“do more than simply show that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Thus, speculation, conjecture, and the inferences drawn therefrom will not defeat a

motion for summary judgment. See, e.g., Lamont, 637 F.3d at 182.

III.

Greene alleged in the Third Amended Complaint that WAPA violated Title VII by

terminating his employment as a WAPA line supervisor based on his race and/or national

origin, despite WAPA’s assertion that he was fired because he improperly diverted (i.e.,

stole) WAPA resources for use at his personal residence. Upon WAPA’s first motion for

summary judgment, the District Court concluded that Greene set forth a prima facie claim

of employment discrimination and held Count I over for trial. However, as noted above,

the District Court later reexamined the issue, and questioned whether Greene could show

that his employment at WAPA was terminated under circumstances that could give rise to

an inference of discrimination.

WAPA thus moved anew for summary judgment and, in opposition, Greene

introduced evidence of WAPA’s employment of Ray Belardo and Hector Mercado. Both

Belardo and Mercado were Hispanic, and both supervised employees suspected of either

diverting or otherwise stealing WAPA resources. The District Court considered that

evidence, but nevertheless reserved course. It entered judgment on Count I against

8
Greene and in favor of WAPA, concluding as a matter of law that Greene could not

establish that the termination of his employment occurred under circumstances that could

give rise to an inference of discrimination. This is the only conclusion related to Count I

that is challenged on appeal.7

Because Greene did not provide direct evidence of discrimination, our inquiry is

governed by the framework established in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-03 (1973). See Burton, 707 F.3d at 425-26; Sarullo v. U.S. Postal Serv., 352

F.3d 789, 797 (3d Cir. 2003). Under that framework, the plaintiff bears the initial burden

of establishing a prima facie claim of employment discrimination by a preponderance of

the evidence. Sarullo, 352 F.3d at 797. That burden may be met by establishing that: (1)

the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the

position that he sought to retain; (3) the plaintiff suffered an adverse employment action,

e.g., the termination of his employment; and (4) the adverse employment action occurred

under circumstances that could give rise to an inference of intentional discrimination. See

7
In his brief, Green asserts without explanation that the District Court’s resolution
of WAPA’s second motion for summary judgment constitutes a “violation of the law of
the case, which is an independent reversible error.” (Br. at 50.) His passing reference to
the law of the case doctrine is insufficient to bring the issue before this Court. See FED.
R. APP. P. 28(a)(8); Kach v. Hose, 589 F.3d 626, 642 (3d Cir. 2009). Nevertheless, we
note that the law of the case doctrine is “an amorphous concept” that “directs a court’s
discretion” but “does not limit [its] power.” Pepper v. United States, 131 S.Ct. 1229,
1250 (2011) (citation omitted) (internal quotation marks omitted). “Accordingly, the
doctrine does not apply if the court is convinced,” as the court appears to have been
convinced here, “that its prior decision is clearly erroneous and would work a manifest
injustice.” Id. (citations omitted) (internal quotation marks and brackets omitted).

9
Burton, 707 F.3d at 426; Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). “The facts

necessary to establish a prima facie case of discrimination under Title VII vary depending

on the particular circumstances of each case.” Sarullo, 352 F.3d at 797 n.7 (citation

omitted). To establish the fourth element, a plaintiff may either: (1) introduce evidence of

comparators (i.e., similarly situated employees who (a) were not members of the same

protected class and (b) were treated more favorably under similar circumstances); or (2)

rely on circumstantial evidence that otherwise shows a causal nexus between his

membership in a protected class and the adverse employment action. See id.

The District Court concluded that Green had not established a prima facie claim of

employment discrimination because he failed to satisfy the fourth element. It concluded

that neither Belardo nor Mercado were comparators. It also concluded that Greene failed

to introduce other competent evidence that his employment was terminated under

circumstances that could give rise to an inference of discrimination. Having reviewed

both the record and the parties’ arguments on appeal, we agree with the District Court.

Greene established that he was a black West Indian and that both Belardo and

Mercado were Hispanic, and were thus members of a different protected class. However,

he failed to show that those individuals were valid comparators because he failed to show

that they were similarly situated. Two findings underlie this conclusion. First, both

Belardo and Mercado worked in a different department and had at least somewhat

different responsibilities than Greene. That alone suggests that neither was similarly

situated to Greene. See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 170 (3d Cir.

10
2013) (concluding that plaintiff failed to raise necessary inference of discrimination, as

“an employee who holds a different job in a different department is not similarly

situated”). Nevertheless, another, weightier distinction lies: the evidence, viewed in the

light most favorable to Greene, shows that Greene was suspected of diverting WAPA

resources, whereas Belardo and Mercado merely supervised employees who were

suspected of diverting or stealing WAPA resources. Because Belardo and Mercado were

not accused or suspected of the same wrongdoing as Greene, they were not similarly

situated to him and were not valid comparators.

Greene otherwise failed to produce evidence that could give rise to an inference of

discrimination because the evidence that he produced could not establish a causal nexus

between the termination of his employment and his membership in a protected class. The

evidence actually produced amounts to a “collection of stray remarks and unconnected,

coincidental circumstances,” Greene v. V.I. Water & Power Auth., No. 06-11, 2013 WL

2279350, at *3 (D.V.I. May 22, 2013), and related speculation and conjecture. Even in

sum, and considered in the light most favorable to him, such evidence “does not a causal

nexus make.” Id.; see also Lamont, 637 F.3d at 182 (“[T]he party opposing summary

judgment . . . must point to evidence . . . that creates a genuine dispute of material fact,

‘and may not rely simply on the assertion that a reasonable jury could discredit the

opponent[’s] account.’” (citation omitted)).8

8
Because we conclude that Green did not establish a prima facie case of
employment discrimination, we need not address his arguments that concern pretext.

11
 IV.

Greene raised several counts against WAPA and Bruno-Vega for alleged

deprivations of his constitutional rights. Only Counts V and XII remain at issue on

appeal.9 In Count V, Greene alleges that WAPA and Bruno-Vega unlawfully retaliated

against him for exercising his First Amendment rights. In Count XII, he alleges that

WAPA and Bruno-Vega deprived him of his Fourteenth Amendment right to due process.

The District Court granted the defendants’ separate summary judgment motions

upon Counts V and XII, concluding in pertinent part that Counts V and XII: (1) could not

be raised against WAPA, which was not a “person” under Section 1983; (2) could not be

raised against Bruno-Vega, insofar as he was sued in his official capacity because he, like

WAPA, was not a “person” under Section 1983; and (3) were not raised against Bruno-

Vega in his individual capacity. For the following reasons, we will affirm each of those

rulings.

A. Greene Waived the Argument that Either WAPA or Bruno-Vega (in
His Official Capacity) was a “Person” Under Section 1983

Section 1983 permits an aggrieved individual to bring an action against “[e]very

person who, under color of any statute, ordinance, regulation, custom, or usage, of any

State or Territory . . . subjects, or causes to be subjected, any citizen of the United States

. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution

9
Greene did not explicitly raise Counts V or XII under Section 1983, but both the
parties and the District Court treated them as though they had been. Thus, pursuant to
Federal Rule of Civil Procedure 15(b)(2), we will treat them as claims brought pursuant
to Section 1983, alleging violations of the First Amendment and Fourteenth Amendments.
12
and laws.” 42 U.S.C. § 1983. It is well-settled that neither a territory nor a territorial

officer, acting in his or her official capacity, is a “person” under Section 1983 when sued

for retrospective damages. See McCauley v. Univ. of the V.I., 618 F.3d 232, 240-41 (3d

Cir. 2010); Brow v. Farrelly, 994 F.2d 1027, 1037 n.12 (3d Cir. 1993).

Before the District Court, both WAPA and Bruno-Vega, as the CEO of WAPA,

argued that they were not persons under Section 1983.10 In his opposition to both

motions, Greene failed to address that argument. Thus, on appeal, WAPA and Bruno-

Vega argue that Greene has waived his opportunity to do so. But Green argues that “the

fact that [he] didn’t waste briefing space arguing a point [that] the District Court

considered settled [should not] deprive [him] of de novo review of the issue now.”

(Reply Br. at 12.)

We disagree with Greene. Allowing him to raise his argument for the first time on

appeal would violate well-settled principles of waiver. See Birdman v. Office of the

Governor, 677 F.3d 167, 173 (3d Cir. 2012) (“It is axiomatic that ‘arguments asserted for

the first time on appeal are deemed to be waived and consequently are not susceptible to

review in this Court absent exceptional circumstances.’” (quoting Tri-M Grp., LLC v.

10
WAPA, Bruno-Vega, and ultimately the District Court cited Eddy v. V.I. Water
& Power Auth., 955 F. Supp. 468, 476 (D.V.I. 1997) for the proposition that neither
WAPA nor a WAPA official is a person under Section 1983. See Greene v. V.I. Water &
Power Auth., No. 06-11, 2011 WL 3032466, at *6 (D.V.I. July 22, 2011). This Court has
not yet had occasion to examine that holding, which is often cited without further analysis
by the District Court of the Virgin Islands. See id.; Wilson v. V.I. Water & Power Auth.,
No. 07-24, 2010 WL 5088138, at *9 (D.V.I. Dec. 7, 2010), aff’d, 470 F. App’x 72 (3d
Cir. 2012); Holder v. V.I. Water & Power Auth., No. 1997-220, 2001 WL 1112190, at *2
(D.V.I. Sept. 17, 2001).
13
Sharp, 638 F.3d 406, 416 (3d Cir. 2011))). “This general rule serves several important

judicial interests, protecting litigants from unfair surprise; promoting the finality of

judgments and conserving judicial resources; and preventing district courts from being

reversed on grounds that were never urged or argued before them.” Tri-M Grp., 638 F.3d

at 416 (citation omitted) (brackets omitted). Greene has not argued or otherwise shown

that any of the exceptional circumstances discussed in Birdman and Tri-M Group exist

here. Indeed, it appears that he cannot. Allowing him to raise his argument for the first

time on appeal would contravene at least two of the interests identified in Tri-M Group.

Greene also appears to argue that because the issue was raised below, his argument

was preserved for appeal. Again, we disagree. The District Court’s consideration of an

issue does not automatically preserve all potentially related arguments for this Court’s

consideration. See United States v. Joseph, 730 F.3d 336, 340-42 (3d Cir. 2013).11

B. Greene Did Not Bring Suit Against Bruno-Vega in Bruno-Vega’s
Individual Capacity

Greene argues that the District Court erred when it concluded that he failed to sue

Bruno-Vega in his individual capacity. But the content of the operative pleading, the

11
We are cognizant that the rule expressed in Joseph arose in the context of a
criminal proceeding; it concerned the defendant’s arguments upon his suppression motion
and related but not identical arguments raised on appeal. Nevertheless, we see no reason
to refrain from applying it in this context. Joseph simply reinforces distinctions between
issues and arguments that have been recognized in civil appeals. Compare Huber v.
Taylor, 469 F.3d 67, 74-75 (3d Cir. 2006) (“This court may consider a pure question of
law even if not raised below where refusal to reach the issue would result in a miscarriage
of justice or where the issue's resolution is of public importance.” (citation omitted)),
with, e.g., Birdman, 677 F.3d at 173.
14
Third Amended Complaint, supports the District Court’s conclusion. Its caption names

“Alberto Bruno-Vega” without specifying whether Bruno-Vega was sued in his official

capacity, his individual capacity, or both. The remainder of the pleading is more

informative. Through the nearly two hundred numbered paragraphs that follow, Greene

identifies Bruno-Vega as the CEO of WAPA, details the actions Bruno-Vega took in that

capacity, and sets forth the factual (and, to a more limited extent, the legal) bases for his

claims.

The District Court, upon review of the Third Amended Complaint and the

evidence produced during summary judgment proceedings, concluded that “neither the

[Third Amended C]omplaint nor the course of the proceedings has provided Bruno-Vega

with adequate notice that he is being sued in his individual capacity.” Greene, 2011 WL

3032466, at *7. We agree. Because Greene failed to allege in the Third Amended

Complaint or, later, to produce evidence tending to show that Bruno-Vega committed any

wrongful acts in his individual capacity, the District Court correctly concluded that he

was sued only in his official capacity. See McCauley, 618 F.3d at 239-40.

V.

In Count IV, Greene alleged that both WAPA and Bruno-Vega defamed him by

telling employees that he had been fired because he had diverted WAPA resources. The

District Court entered judgment on this claim against Greene and in favor of both WAPA

and Bruno-Vega, concluding that the evidence relied on by Greene—a series of affidavits

from and depositions taken of other WAPA employees—was inadmissible hearsay.

15
 On appeal, Greene specifically argues that two documents submitted below were

admissible and support his claim: the transcript of the deposition of Cassandra Dunn, and

the belatedly submitted affidavit of Jose M. Santos. For the reasons that follow, we

conclude that: (1) the District Court properly excluded both documents from evidence;

and (2) without these documents, Greene lacked evidentiary support for Count IV.

A. The Dunn Deposition

Greene cites the Dunn Deposition for Dunn’s description of “rampant” “rumors

and gossip” about the termination of his employment and the cause underlying that

termination. (Br. at 62; Reply Br. at 24.) The Dunn Deposition reveals the following

exchange:

Q Did any of the WAPA employees ever have any discussions with you
about what was or was not found at Mr. Greene’s house?
A No more than the usual rumor chat that was around, you know. I
didn’t know a whole lot outside of, you know, my – what I considered
confidential conversations with Mr. Greene, so I wasn’t able to be a part of
any rumor or conversation.
Q So, you did hear gossip?
A It was gossip.
Q Okay, and can you give me a sense of what kinds of things were
being generated through the gossip mill, or the rumor mill?
A Well, you know, some of the same, he shouldn’t have done it or he
didn’t do it. Both.
Q Can you identify for me any of the individuals that you heard
engaging in that kind of gossip about Mr. Greene?
A I can’t remember. You know, general employees. I can’t remember
who.
Q If you can’t recall the names of the employees, can you recall the
positions that any of the employees held that were engaged in this gossip?

16
 A The gossip was pretty widespread. It could have been rank and file,
it could have been management.

(J.A. 1124-25.)

The District Court concluded that the relevant portions of all properly produced

documents, including this excerpt from the Dunn Deposition, constituted inadmissible

hearsay, noting that while “comments made by unnamed employees could fall under the

‘party agent’ exception of FED. R. EVID. 801(d)(2)(D), as the unnamed declarant cannot

be identified there is not a sufficient evidentiary foundation to establish the existence of

an agency relationship as required under” that Rule. Greene, 2011 WL 3032466, at *10

(citation omitted) (some internal quotation marks omitted).

Greene argues that Dunn’s deposition testimony is circumstantial evidence that

Bruno-Vega made defamatory statements to other employees. But he had not challenged

the District Court’s conclusion that her statements constitute inadmissible hearsay.

Because he had not challenged the District Court’s legal conclusion, because it appears

that the District Court’s conclusion was premised on a permissible view of the law, and,

most importantly, because it appears that the District Court correctly decided the issue,

we will not consider the Dunn Deposition on appeal.12

12
“To the extent the district court’s admission of evidence was based on an
interpretation of the Federal Rules of Evidence, our standard of review is plenary. But we
review the Court’s decision to admit the evidence if premised on a permissible view of
the law for abuse of discretion.” Citizens Fin. Grp., Inc. v. Citizens Nat’l Bank of Evans
City, 383 F.3d 110, 132-33 (3d Cir. 2004) (citation omitted)
17
 B. The Santos Affidavit

The issue concerning the Santos Affidavit is altogether different. The parties

completed their briefing upon WAPA’s and Bruno-Vega’s respective summary judgment

motions on May 25, 2010. Forty-two days later, on July 6, 2010, Greene filed the Santos

Affidavit as additional opposition to those motions. The record suggests that Greene

failed to procure the District Court’s permission to belatedly supplement his opposition,

in violation of local civil rules. See D.V.I. L. CIV. R. 56.1(b) (requiring respondent to

“file a response, brief, affidavits and other supporting documents within twenty (20) days

of the filing of the motion”); D.V.I. L. CIV. R. 7.1(a) (“Only a motion, a response in

opposition, and a reply may be served on counsel and filed with the Court; further

response or reply may be made only by leave of Court obtained before filing (counsel will

be sanctioned for violation of this limitation).”). On July 12, 2010, the defendants jointly

filed a motion to strike the Santos Affidavit or, in the alternative, for leave of court to file

a sur-reply (“the Motion”). The Motion was denied on July 22, 2011, in the same

Memorandum Opinion and Order that resolved the outstanding summary judgment

motions.

The text of the July 22, 2011 Memorandum Opinion and Order suggests that the

District Court did not consider the Santos Affidavit. As noted above, the District Court

concluded that the relevant portions of all properly produced documents constituted

inadmissible hearsay. It specifically noted that “comments made by unnamed employees”

would not save those documents (or excerpts therefrom) from exclusion. Greene, 2011

18
WL 3032466, at *10. These conclusions would not apply to the Santos Affidavit, insofar

as Santos averred that Bruno-Vega directly told him that Greene was under investigation

for theft, that WAPA had evidence of the theft, and that WAPA intended to terminate

Greene’s employment.

Based on the record, we have determined that the District Court treated the Santos

Affidavit as an extraneous filing. Simply put, pursuant to the applicable local rules, the

Santos Affidavit was not properly submitted and did not constitute part of the summary

judgment record. “We have previously recognized that local rules play a vital role in the

district courts’ efforts to manage themselves and their dockets. They facilitate the

implementation of court policy, both by setting norms and putting the local bar on notice

of their existence, and serve to impose uniformity on practice within a district.” Knoll v.

City of Allentown, 707 F.3d 406, 411 (3d Cir. 2013) (citations omitted) (internal quotation

marks omitted). “Given the vital purpose that such rules serve, litigants ignore them at

their peril.” Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007).

Because the Santos Affidavit was never properly introduced as part of the summary

judgment record, the District Court was under no obligation to recognize or analyze it.13

Although we engage in plenary review of the District Court’s grant of summary

judgment, we review its decision to exclude evidence from the record only for an abuse of

13
It follows that the District Court was similarly under no obligation to strike the
Motion; because it was not part of the summary judgment record, there was no need to
formally strike it from that record. However, that is not to say that we condone the
District Court’s failure to detail its rationale for denying the Motion. If that court had set
forth its rationale, then this Court would not be left to reconstruct it.
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discretion. See Hirst v. Inverness Hotel Corp., 544 F.3d 221, 225 (3d Cir. 2008). Where,

as here, the exercise of discretion is premised on application of local rules, the District

Court is entitled to substantial deference. See United States v. Miller, 624 F.2d 1198,

1200 (3d Cir. 1980). Under these circumstances, we find no error in the District Court’s

decision to exclude the Santos affidavit from its consideration, and we, similarly, will not

consider it now.

VI.

On appeal, Greene specifically argues that Count VII encompasses claims that

WAPA breached an employment contract by failing to fairly and impartially follow

termination procedures and by breaching an implied covenant of good faith and fair

dealing. Because the parties treated Count VII as though it encompassed those claims

throughout the course of litigation, we will do likewise. See FED. R. CIV. P. 15(b)(2).

The District Court’s treatment of Count VII rested on its conclusions that Greene

failed to properly raise argument or present evidence to support his claims:

[Greene] does not dispute that he was an at-will employee and has
presented no evidence to suggest that a contract existed between WAPA
and himself. WAPA’s employee manual states that it is not a contract and
gives WAPA the full power to unilaterally suspend or eliminate certain
procedures. . . . Quite simply, no contract existed between [WAPA] and
[Greene].

(J.A. 33.) The District Court also concluded that because “no contract existed, any

discussion of the duty of good faith and fair dealing is a blind alley.” (Id.)

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 Greene now argues that he “was a termination-for-cause-only employee as a matter

of law” who enjoyed certain protections under WAPA’s employment manual. (Br. at 62.)

However, we are constrained to conclude that Greene waived any argument that his

employment could be terminated only for cause. Because Greene failed to argue before

the District Court that he was something other than an at-will employee—i.e., an

individual whose employment could be terminated at any time, without cause—he has

waived the opportunity to so argue on appeal. See Birdman, 677 F.3d at 173.

Further, we conclude that the WAPA employment manual did not create a contract

between WAPA and Greene. Our conclusion rests, in pertinent part, on a recent holding

from the Supreme Court of the Virgin Islands, Chapman v. Cornwall, No. 2012-32, 2013

WL 2145092, at *4 (May 15, 2013). There, the Supreme Court held that an employment

manual did not create a contract between the Virgin Islands Waste Management Authority

(“VIWMA”) and its former employee because, in part, the former employee failed to

produce evidence that the VIWMA intended to be contractually bound by the employment

manual’s provisions. See id. The same is true here. WAPA explicitly disclaimed any

intent to be contractually bound by its employee manual, stating—as noted by the District

Court—both that its employee manual was not a contract and that WAPA could modify or

eliminate its provisions at any time.

We disagree with the District Court’s conclusion that a claim for breach of the

implied covenant of good faith and fair dealing may not lie in the absence of an express

contract. See, e.g., Jang v. Boston Scientific Scimed, Inc., 729 F.3d 357, 365 (3d Cir.

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2013). Indeed, the Supreme Court of the Virgin Islands announced in Chapman that such

a claim may lie in an employment relationship if the plaintiff brings forward proof that

the employer: (1) “act[ed] unreasonably in contravention of [his] expectations”; and

(2) took “act[ions] amounting to fraud or deceit.” Chapman, 2013 WL 2145092, at *5.

Indeed, Greene argues that WAPA acted unreasonably and in contravention of his

expectations, and took actions amounting to fraud and deceit. Specifically, he alleges in

his brief that “Bruno-Vega . . . trumped up the reasons for [his] termination and then

initiated a malicious prosecution based on false charges.” (Br. at 67.) He fails, however,

to either identify the evidence that supports these allegations or direct the Court’s

attention to the relevant portions of the record. We will not expend valuable resources

correcting these defects. See FED. R. APP. P. 28(8)(a) (requiring, inter alia, “citations . . .

to the parts of the record on which appellant relies”); Perkins v. City of Elizabeth, 412 F.

App’x 554, 555 (3d Cir. 2011) (“Courts cannot become advocates for a party by doing for

that party what the party ought to have done for him or herself.”). Therefore, we will

affirm, albeit on different grounds than those set forth by the District Court. See Christ

the King Manor, Inc. v. Sec’y U.S. Dep’t of Health & Human Servs., 730 F.3d 291, 321

(3d Cir. 2013).

VII.

For the foregoing reasons, we will affirm the judgments entered by the District

Court on July 22, 2011, and May 22, 2013.

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