                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-1994

Nickeo v. V.I. Tel. Corp.
Precedential or Non-Precedential:

Docket 92-7679




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Recommended Citation
"Nickeo v. V.I. Tel. Corp." (1994). 1994 Decisions. Paper 218.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/218


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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                          _______________

                            NO. 92-7679
                          _______________


                           WILLIAM NICKEO

                                  v.

                VIRGIN ISLANDS TELEPHONE CORP.,

                                            Appellant

                           ______________

     On Appeal from the District Court of the Virgin Islands
                    (D.C. Civil No. 90-00370)
                         _______________

         Submitted Pursuant to Third Circuit LAR 34.1(a)
                        December 5, 1994

            Before:    SLOVITER, Chief Judge, SCIRICA,
                      and COWEN, Circuit Judges

                   (Filed December 13, 1994)
                         _______________

Michael C. Dunston
Law Office of Michael C. Dunston
Charlotte Amalie
St. Thomas, U. S. Virgin Islands 00802

          Attorney for Appellant

George M. Miller
Miller & Iverson
Charlotte Amalie
St. Thomas, U. S. Virgin Islands 00802

          Attorney for Appellee



                        OPINION OF THE COURT
SLOVITER, Chief Judge.

            This is an interlocutory appeal from an order of the

District Court of the Virgin Islands denying defendant's motion

to dismiss a complaint seeking damages for termination of

plaintiff's employment under 42 U.S.C. § 1981 and the Virgin

Islands Wrongful Discharge Act.    The district court held (1) that

the count filed under 42 U.S.C. § 1981 was actionable because the

Civil Rights Act of 1991 applies retroactively to claims pending

on the date of the Act's enactment, and (2) that the count filed

under the Virgin Islands Wrongful Discharge Act was actionable

because that Act does not require exhaustion of administrative

remedies.    This court has jurisdiction over this appeal pursuant

to 28 U.S.C. § 1292(b).

                                  I.

                    FACTS AND PROCEDURAL HISTORY

            The appellant Virgin Islands Telephone Company

(hereinafter "VITELCO") is a privately owned utility providing

telephone service to the Virgin Islands under regulation of the

Virgin Islands Public Service Commission, an independent

administrative agency of the Virgin Islands government.

Plaintiff-Appellee William Nickeo was hired by VITELCO in 1972.

            On October 23, 1989, Nickeo was terminated from his

position at VITELCO after an altercation with his supervisor.

Pursuant to the collective bargaining agreement between VITELCO

and United Steelworkers of America, Local Union No. 8713, Nickeo

filed a grievance following his dismissal, and the case went to

arbitration.    On November 5, 1990, the arbitrator ruled that
Nickeo's dismissal was without proper cause, and Nickeo was

subsequently reinstated with full back pay.

           On December 6, 1990, Nickeo filed a four-count

complaint in the District Court of the Virgin Islands seeking

compensatory and punitive damages as well as declaratory and

injunctive relief.   Count II of the complaint alleges that

VITELCO's termination of Nickeo's employment violated 42 U.S.C. §

1981.   Count IV of the complaint asserts a claim for wrongful

discharge against VITELCO under the Virgin Islands Wrongful

Discharge Act, 24 V.I.C. § 76 et seq.3

          VITELCO moved to dismiss Counts II and IV of the

complaint, arguing that Nickeo could not state a claim under

section 1981 because of the decision of Patterson v. McLean

Credit Union, 491 U.S. 164 (1989), holding that section 1981 was

inapplicable to claims such as discriminatory discharge from

employment.   VITELCO also argued that Nickeo's claim under the

Wrongful Discharge Act must fail because Nickeo had failed to

exhaust his administrative remedies as required under that Act.

          The district court denied VITELCO's motion to dismiss

on April 29, 1992.   The court noted that Patterson would have
precluded Nickeo's section 1981 claim, but held that the claim

was valid because section 101(2)(b) of the Civil Rights Act of

1991 amended section 1981 to cover the "performance, modification

and termination of contracts."   Pub. L. 102-166, § 101(2)(b), 105

Stat. 1071, codified at 42 U.S.C. § 1981(b) (Supp. III 1991).

1
.   Apparently the other two counts remain pending.
The court interpreted the 1991 Act to apply retroactively to

section 1981 claims pending on the date of the Act's enactment.

Although Nickeo had concededly not exhausted the administrative

procedures available under the Virgin Islands Wrongful Discharge

Act, the court held that the Act does not require exhaustion of

administrative remedies prior to seeking judicial relief.

          On VITELCO's motion, the district court amended its

order and certified the following two issues for appeal pursuant

to 28 U.S.C. § 1292(b):
          1. Whether the Virgin Islands Wrongful
          Discharge Act, 24 V.I.C. [§] 76 et seq.,
          requires exhaustion of administrative
          remedies prior to seeking judicial relief,
          and

          2. Whether the Civil Rights Act of 1991
          applies retroactively to 42 U.S.C. [§] 1981
          claims pending on the date of the Act's
          enactment.


          VITELCO filed a petition for permission to appeal which

this court granted.   VITELCO promptly filed an appeal with this

court addressing these two issues.    Both issues present pure

questions of law and this court's review is therefore plenary.

D.P. Enterprises, Inc. v. Bucks County Community College, 725
F.2d 943, 944 (3d Cir. 1984).

                                II.

                            DISCUSSION

        A.   Retroactivity of the Civil Rights Act of 1991

          The issue involving the retroactivity of section 101 of

the Civil Rights Act of 1991 was unresolved in this circuit at

the time this appeal was filed.   The Supreme Court, however,
recently addressed this precise issue in Rivers v. Roadway

Express, Inc., 114 S. Ct. 1510 (1994).     In Rivers, the Court held

that section 101 of the 1991 Act, which defines the scope of

section 1981 actions to include all phases of a contractual

relationship including termination, does not apply to cases

pending on the date the Act was passed.    The Court rejected the

retroactive application of that section because it "increas[ed]

liability . . . [and] also . . . establish[ed] a new standard of

conduct."   Id. at 1515.   In the companion case of Landgraf v. USI

Film Products, 114 S. Ct. 1483 (1994), the Court held that

section 102 of the Civil Rights Act of 1991 granting a jury trial

to plaintiffs who seek compensatory or punitive damages also does

not apply retroactively.

            The Rivers decision is controlling in this case.   There

is no dispute that Nickeo's section 1981 claim, which was filed

on December 6, 1990, was pending on November 21, 1991, the date

the Civil Rights Act of 1991 was passed.    Nickeo concedes that

recent relevant caselaw precludes retroactive application of 42

U.S.C. § 1981 to his claim.    See Rivers, 114 S. Ct. at 1515; see

also Hook v. Ernst & Young, 28 F.3d 366, 371-73 (3d Cir. 1994)
(refusing to apply retroactively the expansive causation standard

of section 107 of the 1991 Act).

            It follows that Count II is barred under the Supreme

Court's decision in Patterson, 491 U.S. at 171, because the

alleged discrimination arose well after the formation of the

contract between Nickeo and VITELCO and did not interfere with

Nickeo's right to enforce established provisions of the contract.
            Therefore, the district court's denial of VITELCO's

motion to dismiss Count II of Nickeo's complaint must be

reversed.

            B.    Exhaustion of Administrative Remedies    under the
                  Virgin Islands Wrongful Discharge Act



            VITELCO also challenges the district court's conclusion

that the Virgin Islands Wrongful Discharge Act, 24 V.I.C. §§ 76-

79, does not require Nickeo to exhaust his administrative

remedies prior to seeking judicial relief.      As discussed below,

we find no merit in VITELCO's arguments and therefore affirm the

district court's denial of VITELCO's motion to dismiss Nickeo's

claim under the Wrongful Discharge Act.4

            Section 76(a) of that Act includes a list of

permissible bases for the dismissal of an employee.       See 24

V.I.C. § 76(a).    The Act then provides that "[a]ny employee

discharged for reasons other than those stated in subsection (a)

of this section shall be considered to have been wrongfully

discharged."     Id. § 76(c).   Section 77 of the Act states that

"[a]ny employee discharged for any reason other than those

contained in section 76 of this chapter may . . . file a written

complaint with the Commissioner."      Id. § 77(a) (emphasis added).

2
 . In resolving the legal issue of whether exhaustion of
administrative remedies is required under §§ 76-79, we note that
VITELCO also argues that Nickeo's wrongful discharge claim was
not cognizable because the collective bargaining agreement
"modified by contract" Nickeo's rights within the meaning of 24
V.I.C. § 76(a). We express no opinion on that issue which was
not reached by the district court.
The Commissioner is empowered to hold a hearing on the matter,

issue findings, and, if appropriate, serve upon the employer an

order requiring that the employee be reinstated with back pay.

Id. § 77(b)-(c).    The Commissioner may request the Territorial

Court to enforce the order.    Id. § 78.

          Section 79, at issue here, provides, in part:
               In addition to the remedies provided by
          sections 77 and 78 of this chapter, any
          wrongfully discharged employee may bring an
          action for compensatory and punitive damages
          in any court of competent jurisdiction
          against any employer who has violated the
          provisions of section 76 of this chapter.

Id. § 79 (emphasis added).


          Both parties concede that no language in the Wrongful

Discharge Act explicitly states that the administrative procedure

outlined in section 77 is a prerequisite to filing an action

under section 79.    Despite the apparently permissive wording of

the Act, VITELCO bases its argument that administrative

exhaustion is required before the initiation of a lawsuit on the

fact that the statute provides that the administrative remedy is

available to "[a]ny employee", see 24 V.I.C § 77(a), whereas the

judicial remedy by contrast is available to "any wrongfully

discharged employee."    24 V.I.C. § 79.   This difference, VITELCO

reasons, implies that an administrative determination of the

wrongfulness of the discharge must be made prior to the filing of

the lawsuit.

          VITELCO also argues that the references in section 79

to compensatory and punitive damages are designed to refer to
remedies "additional" to those to which the "wrongfully

discharged employee" could be entitled upon administrative

exhaustion, such as reinstatement with back pay.

          Notwithstanding the ingenuity of VITELCO's argument, we

conclude that it is unpersuasive in light of the plain language

of the statute, which must always be the starting point in

interpreting a statute.   See Barnes v. Cohen, 749 F.2d 1009, 1013

(3d Cir. 1984), cert. denied, 471 U.S. 1061 (1985).    We find no

support in the plain language for VITELCO's contention that

exhaustion is required.    First, and most significantly, the

statute explicitly uses the permissive term "may" with reference

to both the filing of an administrative action and the filing of

a complaint.    Second, section 79 provides that the judicial

remedy is available "[i]n addition to the remedies provided by

sections 77 and 78."   24 V.I.C. § 79 (emphasis added).   There is

nothing to suggest that the judicial remedy is only available

after the plaintiff has filed and pursued a claim pursuant to

section 77.    Thus, while the sequential nature of the provisions

advocated by VITELCO might have been a reasonable approach for

the Virgin Islands legislature to adopt, the statute simply

contains no language that adopts it.5
3
 . In most of the Third Circuit cases cited by VITELCO in which
we required exhaustion, the administrative procedures had already
been invoked. See Babcock and Wilcox Co. v. Marshall, 610 F.2d
1128 (3d Cir. 1979); First Jersey Securities, Inc. v. Bergen, 605
F.2d 690 (3d Cir. 1979), cert. denied, 444 U.S. 1074 (1980); see
also Daniel v. St. Thomas Dairies, Inc., 27 V.I. 120 (Terr. Ct.
1992). In contrast, we did not require exhaustion where
administrative remedies had not been invoked. See, e.g., Cerro
Metal Products v. Marshall, 620 F.2d 964 (3d Cir. 1980). In the
only other case cited invoking exhaustion, the statutory language
           VITELCO next cites Virgin Islands cases interpreting

the term "may" in a manner that, if employed here, would require

exhaustion of administrative remedies prior to the filing of a

complaint in the district court.   These examples are

unconvincing.   In Heywood v. Cruzan Motors, 792 F.2d 367 (3d Cir.

1986), the statute that we construed to require exhaustion prior

to the filing of a complaint in court identified the eligible

class of persons who could sue as those "aggrieved by the

decision of [the agency]."   Id. at 370 n.1 (quoting 12A V.I.C. §

7(b), repealed June 24, 1987, No. 5265, § 707(h). Sess. L. 1987.

p. 81).   Thus, the language of that statute explicitly limited

the cause of action to cases where an administrative remedy had

been pursued.

           Similarly, VITELCO's reliance on unreported cases such

as Wynter v. Dowson Holding Co., Civ. No. 86-105 (D.V.I. Feb. 11,

1991), and Theodore v. L.S. Holding, Inc., Civ. No. 1987/47

(D.V.I. Oct. 19, 1988), which addressed the Virgin Islands

employment discrimination statute, 24 V.I.C. § 451 et seq., is

unpersuasive.   That statute not only limits judicial review to

"person[s] aggrieved by a final order of the [agency]," see id. §
457(a), but also states that "[n]o objection that has not been

(..continued)
clearly suggested such a requirement. See Lyons v. U.S.
Marshals, 840 F.2d 202, 205-07 (3d Cir. 1988) (remanding for a
determination of whether an exception to the exhaustion
requirement applied). Because we find that the statutory
language at issue in this case suggests that exhaustion is not
required, we decline to exercise whatever "sound judicial
discretion" we may have to impose such a requirement. Cerro, 620
mitchellchristy@example.net.
urged before the . . . [agency] shall be considered by the court

unless the failure or neglect to urge such objection is excused

because of extraordinary circumstances."   Id. § 457(b).   Thus,

unlike the Wrongful Discharge Act, the employment discrimination

law explicitly requires that the administrative procedure be

completed prior to obtaining judicial review.

          Indeed, the examples cited by VITELCO demonstrate that

the Virgin Islands legislature was well aware how to impose an

exhaustion requirement prior to judicial review if it so

intended, leading us to the inference that the legislature did

not intend to impose a requirement of exhaustion.6

          Finally, we note that the courts of the Virgin Islands

have uniformly declined to impose a requirement that plaintiffs

exhaust their administrative remedies prior to filing actions

brought under section 79.   See, e.g., Diaz v. Pueblo Int'l, Inc.,

23 V.I. 346, 351-52 (Terr. Ct. 1988) (legislative history of the

Wrongful Discharge Act fails to support conclusion that

legislature intended exhaustion doctrine to apply); Ravariere v.

4
 . VITELCO's reliance upon the statement of legislative purpose
of the chapter in which §§ 76-79 are found is also unconvincing.
That statement provides that "[t]he purpose of this chapter is to
encourage the friendly adjustment of employer-employee disputes
through the practice and procedure of collective bargaining." 24
V.I.C. § 61. VITELCO reasons that this language manifests a
legislative preference for the more flexible procedures available
in the administrative process. Although the Virgin Islands
legislature may well have intended to encourage resolution of
employer-employee disputes, there is no indication how the
legislature sought to achieve that goal. Indeed, the legislature
may have determined that an additional judicial remedy was needed
for employees in order to balance possible power disparities
between employees and employers.
ADT Security Systems of the V.I., Inc., Civ. No. 1991-136 (D.V.I.

Oct. 4, 1991) (same); see also Daniel v. St. Thomas Dairies,

Inc., 27 V.I. 120, 123-24 (Terr. Ct. 1992) (noting that the

Wrongful Discharge Act does not require exhaustion of

administrative remedies, but holding that once a plaintiff has

elected the administrative remedy available under section 77,

exhaustion is required); General Offshore Corp. v. Farrelly, 743
F. Supp. 1177, 1181 (D.V.I. 1990) (suggesting that a plaintiff may

file an action under section 79 or "[i]nstead, or in addition"

may file for administrative review).    While these decisions are

not binding on this court, they lend further support to the

district court's conclusion that the plain language of the

Wrongful Discharge Act does not impose an exhaustion requirement

as a condition for actions brought under section 79.

                              III.

                           CONCLUSION

          For the foregoing reasons, we will reverse the district

court's denial of VITELCO's motion to dismiss Nickeo's section

1981 claim, affirm the district court's denial of VITELCO's

motion to dismiss Nickeo's claim under the Virgin Islands
Wrongful Discharge Act, and remand for further proceedings

consistent with this opinion.
