Olivina Charles v. Kelly's Cleaning Services and Commissioner of Department of Labor

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX

OLIVINA CHARLES )
)
Pctltloner) CIVIL NO sx 2009 CV 00320
v )
) PETITION FOR WRIT OF REVIEW
KELLY S CLEANING SERVICES and )
COMMISSIONER OF DEPARTMENT OF )
LABOR ) 2024 VI SUPER 2U
Respondents ;

MEMORANDUM OPINION AND ORDER

1]] By Order entered November 5, 2009 (‘ Order Granting Writ ), the Court granted
Petitioner Olivina Charles’s petition for writ of review (“Petition ’), filed June 30, 2009 ' The
Petition sought relief from Respondent Virgin Islands Department of Labor 3 (“DOL or
“Department”) Final Order dated June 1, 2009 Therein, the Commissioner of Labor
(‘ Commissioner”) denied Charles’s motion for reconsideration and affinned the Decision and
Order dated August 26 2008, that held that Charles was not wrongfully discharged by Respondent
Kelly’s Cleaning Services (“Kelly”) Respondent DOL filed a Response to the Petition for Writ of
Review and a Motion to Dismiss on July 23, 2009 Petitioner filed a Motion on June 26, 2023,
asking the Court to enforce its Order Granting Writ and to compel Respondent Department to
produce the record of all proceedings In fact, the Court had been in possession of the entire DOL
administrative record since November 13, 2009 Respondent Kelly filed no brief For the reasons
that follow, the Court affirms the Department 3 Final Order dated June 1, 2009

' Petitioner’s Petition was entitled “Notice of Appeal ” While a writ of review is akin to an appeal, they are
not the same The right of appeal means the right to require an appellate court to review a lower court 5
decision On the other hand a right of petition is the right to request an appellate court to review a lower
court’s decision a request which the appellate court can deny or grant as it deems appropriate See
Rozkydal v State 938 P2d 109] 1094 (Alaska Ct App 1997) An appeal is taken by filing a notice of
appeal with the clerk of the appellate court, as Charles did here, referencing Title 24 VI Code Section
70(3) However, by her “Notice ofAppeal” Charles did ask the Conn to issue an “Order ofa Writ of Review
and the Court accordingly issued such an Order Charles needed only to request that the Court review the
administrative decision and the Court should have granted the review on appeal without the need to issue a
“writ of review ” These procedural anomalies do not affect the Court’s analysis or its conclusions, which
are governed by the relevant statutes and Jurisprudence as set forth herein
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FACTUAL AND PROCEDURAL BACKGROUND

1|2 On June 30, 2009, Petitioner filed her Petition, asking the Court to review and
vacate the Department 5 June 1 2009 Final Order in OHVINA CHARLES v KELLY S CLEANING
SERVICES INC (WD 030 2003 STX) The record shows that Respondent Kelly conducted
business with the Virgin Islands as a janitorial cleaning service At all times pertinent to this matter,
Kelly operated under a contract executed by a federal agency pursuant to the McNamara 0 Hara
Service Contract Act of 1965 (“SCA”) 2 In November I998, Kelly hired Petitioner Charles as a
janitor Charles s duties consisted of cleaning various offices within the Almeric A Christian
Federal Building on St Croix (‘ Federal Building”) For several months preceding Kelly’s
termination of Charles 5 employment, Kelly paid Charles at the rate of $6 73 per hour, in addition
to $350 per month However, Charles should have been paid $6 99 per hour, in addition to an
allotment of $3 72 per month as established by the U S Department of Labor pursuant to the SCA

113 In January 200], Kelly s president, Orneth La Corbiniere, met with Charles
regarding concerns about Charles s behavior and work performance La Corbiniere was concerned
that Charles was not cleaning some bathrooms properly, that her attitude toward her supervisor
was not [CSpCCtfilL and that she was leaving work earlier than scheduled La Corbiniere informed
Charles, as well as other employees, that a recent quarterly inspection of the Federal Building by
an official of the U S General Services Administration identified several areas of poor
performance The areas of poor performance identified by the official included the restrooms and
the lobby, areas within the scope of Charles s responsibility At some point in 2002, Charles
became aware of the wage rate for janitors as prescribed by the SCA Charles then conferred with
other employees and determined that the other employees had been underpaid as well Charles
spoke to La Corbiniere regarding the underpayment, which triggered discord between her and La
Corbiniere

$4 In a letter addressed to La Corbiniere, dated December 20, 2002, the U S General
Services Administration 5 property manager Stanley R Brown, identified several areas in the

2 The McNamara O’Hara Service Contract Act of 1965 requires general contractors and subcontractors
performing services on prime contracts that exceed $2,500 to pay their service employees in various classes
no less than the wage rates and fringe benefits prevalent in the locality as determined by the U S
Department of Labor
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Federal Building that were dirty and required immediate attention Charles had been responsible
for cleaning the areas Brown identified in his letter to La Corbiniere

1|5 On several occasions during Charles’s tenure, La Corbiniere observed her not
performing work while on the job La Corbiniere also received complaints from Charles’s
supervisor, Pauline Garry, that Charles was insubordinate and argumentative On March 13, 2003,
La Corbiniere addressed Charles’s alleged insubordination toward Gan at a staffmeeting, as well
as Charles’s alleged failure to properly perform all assigned tasks At the meeting, Charles
acknowledged that there was a long standing feud between herself and Garry, and that the rift
would continue La Corbiniere notified Charles that further complaints would result in her
immediate termination

116 On March 19, 2003, La Corbiniere informed Charles that she had received a
complaint from a federal employee alleging that Charles had not emptied the employee’s garbage
and had observed Charles reading a newspaper La Corbiniere tem'linated Charles for causing
injury to the business because of her offensive conduct towards employees of the federal
government, performing work assignments in a negligent manner, and engaging in conduct that
made her coworkers unable to work with her

117 On March 26, 2003, Charles filed a written complaint with the Virgin Islands
Department of Labor alleging that she was discharged from her employment with Kelly in
violation of the Wrongful Discharge Act (“WDA”) 3

‘ In an action brought under the WDA, “a plaintiff need only prove that the defendant was his employer
and that he was discharged, while the defendant must affirmatively prove that the plaintiff had been
discharged for a permissible ground such as misconduct [T]his pleading regime is based on the plain
text of the VIWDA which is drafied in a way which essentially presumes that all discharges are wrongful
unless the defendant proves that the employee was dismissed for one of the nine statutorily enumerated
permissible reasons LIAT(1974) Ltd v Cherubm 2022 VI 21 1H8 (VI 2022) (citing Rennie v Hess 011
VI Corp , 62 VI 529, 544 (VI 2015) Those nine statutorily enumerated permissible reasons are as set
out in 24 VI C § 76(a) as follows
(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;
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1|8 On February 6, 2008, the matter came on for a formal hearing Administrative Law
Judge (“ALI”) James W Kitson presided over the hearing and heard testimony from Olivina
Charles and Ometh La Corbiniere, as well as Linda Valetino and David Francis who testified on
behalf of Charles The ALJ adjourned the hearing Sine dze The matter reconvened and was heard
to its conclusion on March 19, 2008 After hearing the testimony and considering the evidence, on
August 26, 2008 the ALJ issued his Decision finding that while La Corbiniere’s reliance on 24
V I C § 76(a)(2) and § 76(a)(9) for terminating Charles was unwarranted, there was sufficient
evidence on the record to establish that Charles performed her work negligently under § 76(a)(5)
and that she was, therefore, lawfully terminated for cause The ALJ rejected Charles’s contention
that she was unlawfully terminated for exposing La Corbiniere for underpaying employees, finding
the record devoid of “any tangible nexus tethering [Charles’s] actions in exposing this practice to
[La Corbiniere s] decision to discharge [Charles] ”

119 On September 8, 2008, Charles filed a Motion for Reconsideration of the August
26, 2008 Decision and Order with the Commissioner of Labor In the Final Order dated June 1,
2009, the Commissioner denied Charles’s motion and affirmed the AL] ’8 Decision Charles filed
her Petition here on June 30, 2009

1]]0 In her Petition, Petitioner argues that (1) the Court should accord preclusive effect
to a prior finding made by the Virgin Islands Employment Security Agency (“VIESA’) that
Petitioner did not engage in misconduct under 24 V I C § 304(b)(3), (2) the Decision is
unsupportable based on the substantial evidence of the record as a whole; (3) the AL! 5 Decision
erroneously states that “Pauline Garry James attended as a witness for Respondent” despite the
fact that James never testified at the hearing, and (4) the ALJ’s Decision should address

(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 patr0nizing 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 dishonest, or
(9) whose conduct is such that it leads to the refusal, reluctance or inability of other employees to work
with him
24 v1 0 § 76 (a)
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Petitioner’s objection to the ALJ’s ruling at the outset of the hearing that Petitioner had the duty
to go forward

LEGAL STANDARD

1111 V I Code Ann tit 24 § 70(a) allows any person aggrieved by a final order of the
Commissioner of Labor granting or denying in whole or in part the reliefsought to “obtain a review
of such order by filing in the Superior Court within 30 days of its issuance, a written petition
praying that such decision of the Commissioner be modified or set aside Id § 70(a) Charles
timely filed a Petition on June 30, 2009 Therefore, the Superior Court has jurisdiction over the
Department of Labor’s June 1, 2009 Final Order

1|12 In granting a petition for review under § 70(a), the reviewing court will not consider
any Obj ection not raised before the Commissioner unless the failure or neglect to raise the objection
is “excused because of extraordinary circumstances ’ § 70(b) Furthermore, the Commissioner 3
factual determinations, if supported by substantial evidence, shall be conclusive ” Id

1|l3 Where the Legislature has not explicitly required courts to apply a more deferential
standard of review, the Superior Court exercises plenary review of an agency’s conclusions of law
Bryan v Fawkes 61 V I 201 226 27 (V I 2014) In the instant case because the Legislature did
not require a specific standard of review under § 70(b) for the Department of Labor’s conclusions
of law, the Court reviews those determinations de novo However, § 70(b) does require that the
Superior Court review all factual conclusions under the substantial evidence standard

DISCUSSION
A Issue preclusion does not apply to the instant case
1|14 Charles relies upon the doctrine of issue preclusion in seeking this Court to set aside
the Department’s decision that Charles was not wrongfully discharged under 24 V I C § 76 In
support of her argument, Charles urges this Court to note VIESA’s decision that she was not
disqualified for unemployment insurance benefits under 24 V I C § 304(b)(3) VIESA found that
Charles did not engage in willfiJl or deliberate misconduct in connection with her work This Court
finds that the doctrine of issue preclusion does not apply to the instant case

1115 Issue preclusion, also known as collateral estoppel, prevents the relitigation of
issues adjudicated in a prior action Stewart v Virgm Islands Bd ofLand Use Appeals 66 V I
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522, 547 (V I 2017) Under the doctrine of issue preclusion, “once a court has decided an issue of
fact or law necessary to its Judgment, that decision may preclude relitigation of the issue in a suit
on a different cause of action involving a party to the first case Allen 12 McCurry 449 U S 90,
94 (1980) The policy behind issue preclusion is that “a losing litigant deserves no rematch after a
defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he
subsequently seeks to raise ” Id Furthermore, issue preclusion reduces the attendant costs of
multiple lawsuits, facilitates judicial economy, promotes judicial consistency, and fosters reliance
on adjudication Id

'|[l6 The Supreme Court of the United States has traditionally favored application of
common law preclusion doctrines “to those determinations of administrative bodies that have
attained finality ”Astoria Fed Sav & Loan Ass n v Soltmmo 501 U S 104, 1 11 (1991) In Astoria
Federal Savmgs and Loan, the Supreme Court held

When an administrative agency is acting in a judicial capacity and resolves disputed
issues of fact properly before it which the parties have had an adequate opportunity to
litigate, the courts have not hesitated to apply reSJudzcata to enforce repose
Id (quoting United States v Utah Constr & Mmmg Co 384 U S 394 422 (1966))

1|17 Under Virgin Islands law, to bar relitigation of an issue under the doctrine of issue
preclusion, an asserting party must demonstrate that (1) the issue to be barred is identical to an
issue actually and necessarily decided in the prior action; (2) the prior action was adjudicated in a
decision that was final, valid, and on the merits, (3) the party against whom the doctrine is asserted
was a party or in privity with a party to the prior action; and (4) the party against whom the doctrine
is asserted had a hill and fair opportunity to litigate the issue in the prior action Stewart, 66 V I
at 548 If any of the foregoing conditions is unsatisfied, then the application of issue preclusion is
inappropriate, for said application would unjustly foreclose matters that have yet to be litigated
See Hawksbzll Sea Turtle v Fed Emergency Mgmt Agency 126 F 3d 461 475 (3d Cir 1997)
Only the first condition is relevant to this dispute

1|18 In determining whether the issues in the prior and subsequent proceedings are
identical, reviewing courts must “look beyond the superficial similarities between the two issues
to the policies behind the two actions Swmeford v Snyder Cnty Pa 15 F 3d 1258 1267—68 (3d
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Cir 1994) Thus, only in the instance where the two actions promote similar policies will the two
issues be identical for purposes of issue preclusion Id

1119 The Territorial Court of the Virgin Islands has previously considered whether a
finding of misconduct ’ under 24 V I C § 304(b)(3) precludes a wrongfiil discharge claim under
Section 76(3) In the case of Charles v Dally News Pub Co 29 V l 34 (V I Terr 1994) the court
held that the issue of whether an employee engaged in willful or deliberate misconduct as
determined by VIESA was not identical to the issue of whether the employee had been wrongfiJlly
discharged In reaching this conclusion, the court recognized that while VIESA was interpreting
24 V I C § 304(b)(3) to determine the employee’s eligibility for unemployment insurance, a
wrongful discharge claim required the court to decide the distinct statutory issue of whether the
employee was terminated within the parameters of 24 V I C § 76 1d 29 V I at 36

{[20 In Harrzlal v Blackwooa' 44 VI 144 (VI Terr 2001) the Territorial Court held
that a finding of “misconduct in an unemployment compensation proceeding, based upon the
employee’s involvement in an altercation with a co worker, did not preclude the employee’s
wrongful discharge claim The Terntorial Court reasoned that ‘ the analysis involved in a wrongful
discharge action encompasses a separate set of policies and rights than a determination of
unemployment benefits ” 1d at 150 Further, the court held

Because the factual predicates for both questions involve different requirements, I e ,
a finding of misconduct for section 304(b)(3) versus the existence of one of nine
scenarios for section 76(a), an administrative determination that Harrilal was ineligible
for unemployment benefits does not inform a finder of fact in a subsequent proceeding
whether or not she was improperly terminated
Id at 152

1|21 As in Harrllal the relevant inquiry here is whether Charles’s VIESA and Wrongful
Discharge proceedings present “identical ’ issues The Court finds that there are factual and legal
differences between the questions decided in Charles’s VIESA proceedings and those decided in
her Wrongful Discharge proceedings Therefore, issue preclusion does not apply in the instant
case

1122 In Charles’s VIESA proceedings, the issue before the ALJ was whether Charles
was ineligible for unemployment compensation benefits by reason of her willful “misconduct”
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under Section 304(b)(3) By contrast, the issue before the ALJ in the Wrongful Discharge
proceedings was whether Charles s conduct fell within one ofthe nine reasons permitting dismissal
under Section 76(a) ‘ Misconduct’ as defined by the courts under Section 304(b)(3) is not included
among the permissible grounds for termination under Section 76(a) Therefore, given that the ALJ
in the VIESA proceedings was charged only with determining whether Charles’s behavior
constituted “misconduct” under Section 304(b)(3), the ALJ’s decision never resolved which, if
any, of the enumerated Section 76(a) grounds might apply to Charles’s case That question was
presented for the first time to the ALJ in Charles s Wrongful Discharge proceedings

1123 Accordingly the Court finds that the decision by the ALJ in the VIESA proceedings
does not preclude the determination by the ALJ of the different issue in the Wrongful Discharge
proceedings

{[24 Sound policy supports the Court’s decision As the U S Supreme Court has
previously held, unemployment compensation must be provided to those deserving with utmost
expediency Californza v Java 402 U S 121, 136 (197]) For that reason both the federal
government, through the United States Department of Labor, and the Legislature ofthe U S Virgin
Islands, through the enactment of the applicable provisions ofTitle 24 of the Virgin Islands Code,
have established procedures designed to get ‘ money into the pocket of the unemployed worker at
the earliest point that is administratively feasible ’ Id

1125 The stated purpose of the Virgin Islands Unemployment Insurance Act (“UIA”)
which includes Section 304(b)(3 ), is to establish a general unemployment fund to help “sustain the
morale and conserve the skills and standards of living of those who became unemployed, by
enabling them to meet their essential expenses 24 V I C § 301 Essential expenses,” logically,
need expeditious delivery Thus, granting preclusive effect to VIESA findings would undermine
the implicit policy of providing quick relief under the present system of unemployment insurance,
as “a broad rule of collateral estoppel” might place undue pressure on employers to “litigate to the
utmost Fleming James, Jr & Geoffrey C Hazard, Jr , Civil Procedure, § 11 17, at 620 (3d ed
1985) To the extent that VIESA findings were deemed to be preclusive, employers could choose
to litigate vigorously rather than risk compromising their defense in a subsequent action, such as
one for wrongful discharge, where potential liability could be much greater Applying issue
preclusion in such a setting could result, therefore, in lengthy hearings that would slow the receipt
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of benefits and frustrate the intent of quickly putting money into the pocket of the unemployed
worker See Swmeford 15 F 3d at 1268—69 (3d Cir 1994)

1126 Further support for the Court 3 present holding can be found in the stated purpose
of the Labor Relations statutes of Title 24, including Section 76 That purpose “is to encourage the
fiiendly adjustment of employer employee disputes through the practice and procedure of
collective bargaining, and to protect the exercise by workers of full freedom of association, self
organization, and designation ofrepresentatives of their own choosing[ ] ’ 24 V I C § 61 So, while
the Code aims to regulate employer employee relations and protect workers’ rights to organize
and unionize, the UIA is concerned with safeguarding the welfare of the individual worker during
times of unemployment Thus, the different policy considerations and priorities between the two
administrative schemes counsel against issue preclusion in the context presented here

B The ALJ’s finding that Charles was not wrongfully discharged is based on substantial
evidence

1|27 Charles argues that the ALJ s conclusion that she was terminated for cause is not
based on substantial evidence The Court finds, to the contrary, that the ALJ’s determination that
Charles was not wrongfiilly discharged is supported by substantial evidence in the record
Substantial evidence is ‘ such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion ” Virgm Islands Coalition of Citizens With Disabilities Inc /St Thomas v
Government of the Virgm Islands 47 VI 315 320 21 (VI Super 2005) (quoting Black 3 Law
Dictionary (8th ed 1999)) If ‘ no reasonable fact finder could make [a particular] finding on the
administrative record,” then an administrative record is not based on substantial evidence Dta v
Ashcroft 353 F 3d 228 249 (3d Cir 2003) Furthermore simply because the Court could reach a
different conclusion based on the factual record before it does not mean that the record is
unsupported by substantial evidence Consolo v Federal Maritime Commisszon, 383 U S 607, 619
(1966) That is, “substantial evidence allows for the possibility of drawing two inconsistent
conclusions ’ V.I Coalztton ofCitizens wzth Dlsabllltles 47 VI at 320 Accordingly, so long as an
administrative decision is supported by substantial evidence, it is not subject to reversal simply
because it might also support a contradictory finding Port Norris Exp Co Inc v I C C 697 F 2d
497 502 (3rd Cir 1982) (citing Consolo v FCC 383 U S at 620)
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1|28 When the Court applies the substantial evidence test, it is required to consider the
“whole record ” La Vallee Northszde Ctvzc Ass 11 v Virgin Islands Bd ofLand Use Appeals, 30 VI
9 16 (VI Terr 1994) (quoting Universal Camera Corp v NLRB 340 U S 474 (1951)) In other
words, the Court must do more than simply find a justification for the agency 5 decision, it must
also determine whether the agency’s ruling was reasonable in light of all the evidence presented
1d “The substantiality 0f the evidence must take into account whatever in the record fairly detracts
from its weight ” Government of the Virgm Islands v Public Employee Relations Board, 22 VI
12, 23 (VI Terr 1986) Finally, when the Court reviews an agency record for lack of substantial
evidence, it must be conscious ofthe ALJ s opportunity to appraise the credibility and consider the
weight of the evidence in the first instance Marta De Velez 1 Virgm Islands Dept Qf Lab ,
Memorandum Opinion and Order Case No ST 2013 CV 00268 at 3 (V I Super July 25 2018)
(unpublished)

1129 Here, the ALJ heard and considered the testimony of Petitioner Olivina Charles and
Ometh La Corbinicre, Respondent Kelly s president The ALJ also heard the testimony of two
witnesses for Charles At the hearings, both Charles and La Corbiniere testified at length about
their respective recollections of the events preceding and following the termination of Charles’s
employment Furthermore, the ALJ considered the various letters La Corbiniere had sent Charles
over a period of more than two years regarding Charles’s Job performance The letters indicate a
pattern of poor work quality and insubordination by Charles One letter was sent in January 2001,
much earlier than the 2002 discord that arose between Charles and La Corbiniere regarding the
underpayment of wages The testimony and documentary evidence considered by the ALJ support
the ALJ’s finding that Charles was terminated for cause and, thus was not wrongfully discharged
from her position, and a reasonable person could reach the same conclusion if presented with the
same evidence

C The witness testimony record is accurate

1130 Charles claims that the ALJ ’3 Decision erroneously states that “Pauline Garry
James attended as a witness for Respondent” notwithstanding the fact that James never testified at
the hearing
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