Syreeta Gumbs vs, Government of the Virgin Islands and Association of Firefighters Local 2125

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IN THE SUPERlOR COURT OF THE VIRGIN lSLANDS DIVISION OF 81 THOMAS AND ST JOHN ***** SYREETA GUMBS ) ) CASE NO ST 2020 CV 00154 Plaintiff, ) vs ) ) JURY TRIAL DEMANDED GOVERNMEN1 OF THE VIRGIN ISLANDS ) and ASSOCIATION OF FIREFIGHTERS ) Loca12125 ) ) Defendants ) Cite as 2024 VI Super 29U MEMORANDUM OPINION AND ORDER 1|! Pending before this Court are 1 Defendant Government of the Virgin Islands’ Summary Judgment Motion, ﬁled July 31 2023 2 Statement of Undisputed Facts in Support of Government of the Virgin Islands’ Summary Judgment Motion ﬁled J uly 31, 2023 3 Memorandum in Support of the Support of Govemment of the Virgin Islands Summary Judgment Motion ﬁled July 31 2023 4 Plaintiff‘s Opposition to Defendant’s Government of the Virgin Islands’ Motion for Summary Judgment, ﬁled October 30, 2023; and 5 Defendant Association of Fireﬁghter’s Response to Government of the Virgin Islands Motion for Summary Judgment, ﬁled June 7, 2024; 6 Defendant Association of Fireﬁghter’s Response to Government of the Virgin Islands Statement of Undisputed Facts, ﬁled June 7, 2024; and 7 Memorandum in Support of Defendant Association of Fireﬁghter’s Response to Government of the Virgin Islands’ Motion for Summary Judgment, ﬁled June 7, 2024 Gumbs v Government ofthe Vugm Islands, 6! a! 2024 V1 Super 29U Case No ST 2020 CV 00I54 Memorandum Opinion Page 2 of 23 112 Defendant Govemment of the Virgin Islands (‘ GVI ’) moves the Court for summary judgment against Plaintiff Syretta Gumbs’ (‘ Gumbs”) Complaint, ﬁled on March 10, 2020 For the reasons that follow, GVl’s Motion for Summary Judgment will be granted in part and denied in part Speciﬁcally, the Motion will be granted as it pertains to Gumbs claims for wrongful discharge and breach of duty of good faith and fair dealing The Motion will be denied as to Gumbs’ claims for sexual harassment and retaliation, violations of the Virgin Islands Civil Rights Act (VlCRA) I Gumbs concedes that summary judgment is appropriate with respect to her wrongful discharge claim, but otherwise opposes the Motion 2 I BACKGROUND 1|3 Gumbs began working as a ﬁreﬁghter with the Virgin Islands Fire Service (‘ VIFS”) in 2007 and alleges that she encountered sexual harassment and sexual assault at the hands of her employer Gumbs was also a member of VIFS associated union, the Association of Fireﬁghters Local 2125 ( the Union ) 114 Gumbs ﬁled her Complaint against the Union and CV] in March 2020 Among other assertions Gumbs alleges that GVI violated 10 V I C §§ 64 and 64(a) of the Virgin Islands Civil Rights Act during her employment with VIFS She argues that as an employee of VIFS, she was sexually harassed by fellow ﬁreﬁghters and retaliated against by management for reporting the harassment 3 Gumbs Complaint alleges four separate instances of sexual misconduct between 2009 and 2017 when she was “groped, shown sexual acts on \ideo,4 and awakened from sleep to her breast being sucked on against her will ”5 1|5 Gumbs argues that GVI is strictly liable for its employees’ ‘ unchecked sexual harassment and “creation of a hostile work environment ’ under the Virgin Islands Civil Rights Act Gumbs further asserts that GVl contributed to a hostile work environment by failing to remove employees from employment who sexually harassed and sexually assaulted her, and that it breached its duty of good faith and fair dealing by failing to properly investigate and timely discipline the assailant who admitted to sexually harassing her in 2017 6 ' VI Code Ann tit 10 §64 etseq 7 Plaintiff acknowledges that GVI is exempt from the Virgin Islands Wrongful Discharge Act P] s Opp n to Det‘s Gov 0ftheVI s Mot for Summ J at l 3 Compl 1|43 4 The Court notes the following discrepancies Gumbs states that she was shown nude photographs Compl 1|]0 l l GVI asserts Gumbs claimed “that she had text messages from Miller to show that he had been sexual [sic] harassing her Mem in Support of the Gov of the V I s Summ J Mot at 7‘ The Union asserts that Gumbs alleged her supervisor showed her a “1er video Mem in Support of Def Ass 11 of Fireﬁghters’s Resp to Gov of the V l ’s Mot for Summ J at4 5 Pl 3 Opp n to Det‘s Gov of the VI 3 Mot for Summ J at 7 " Compl at 6 Gumbs also alleges that the Union breached a duty to enforce provisions of the CBA on her behalf Gumbs v Government 0fthe Virgin Islands, e! a! 2024 VI Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 3 of 23 116 Gumbs further maintains that, aﬁer she lodged the fonnal complaints with VlFS management, she was confronted with retaliation from her supervisors As a result of what Gumbs believed to be a hostile work environment, she felt forced to resign from her position For its part GVI argues that it responded to each of Gumbs’ allegations and Gumbs failed to cooperate in the necessary steps for investigations of her reports 1|7 In support of its motion for summary judgment, GVI further argues that Gumbs failed to present evidence showing ‘ VIFS conduct unreasonably interfered with her work performance or created an intimidating hostile work environment ”7 GVI also asserts that evidence is lacking to show Gumbs experienced retaliation for reporting harassment or that GVI violated a duty of good faith and fair dealings GVI further argues that Gumbs abandoned her 2009 and 20138 allegations of sexual harassment, and that, nevertheless, those particular allegations are also time barred by statute of limitations 118 Lastly, VIFS, GVI, and the Union are parties to a Collective Bargaining Agreement (“CBA”) Pursuant to its Preamble, the purpose of the CBA is ‘ to achieve and maintain harmonious relations between the employer and union ” and ‘ to provide for equitable, prompt and peaceful adjustment ofdifferences which may arise ”9 GVI argues that Gumbs failed to follow the appropriate reporting process pursuant to the CBA, and that she did not exhaust administrative temedies as required by the CBA '0 GVI contends that Gumbs’ sexual harassment grievances duting her employment with VIFS fall under the governance of the CBA and the grievance procedure provided therein " Comp! 1n 48 52 7Mem Support ofGov V1 sSumm J Mot at2 8 Gumbs Complaint states that after she was transferred in 2009 she worked without incident until 2013 Comp! 1110,1 1 All parties acknowledge that Gumbs submitted a complaint against her supervisor, however, GVI assigns 201 l as the year of Gumbs complaint and argues that the behavior Gumbs complained of at the time was not of a sexual nature In its Motion, GVI does not dispute the date that Gumbs provides Therefore, for purposes of this Order the Court will use the 2013 year date as provided by Gumbs Statement of Speciﬁc Undisputed Facts in Support of Gov V1 Summ J Mot 1W6 21 Compl1|1l9 l0 Pl s Opp n to DePs Gov 0fthe V] s Mot for Summ J at 9 " Def Gov Vl Mot Stay Litigation & Compel Arbitration Ex CBA at I (Preamble) '0 EV en though Gumbs waited nearly three months after the incident allegedly occurred to notify VIFS management, GVI investigated Gumbs assertion of sexual assault Under the CBA Gumbs was required to report this incident within ﬁve (5) working days of its occurrence ’Mem in Support of the Gov of the V I s Summ J Mot at 10 “ The CBA states that ‘{t]he Employer recognizes the Union as the exclusive bargaining representative of all ﬁre ﬁghters, and ﬁre corporals in the Virgin Islands Fire Service, Government of the Virgin Islands St Thomas, St John, and St Croix as certiﬁed by the Public Employees Relations Board of the Virgin Islands Def Gov V l Mot Stay Litigation & Compel Arbitration Ex CBA at 2 ( Article 1 Recognition) The CBA further states that the Grievance Procedure contained within ‘shall be the exclusive remedy for disputes between the parties to this Agreement ’ Def Gov V I Mot Stay Litigation & Compel Arbitration, Ex CBA at 16 (Article XVII Grievance Procedure Section 7 4) Gumbs v Govemmem‘ of the Virgin Islands, e! a! 2024 VI Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 4 0f 23 1|9 Gumbs did not respond to GVI s assertion concerning the CBA, however, the Union contests GVI 5 position It argues that Gumbs allegations of sexual misconduct are not covered by the CBA '2 As a party to the CBA and a co defendant to the instant case, the Union contends that no provision of the CBA covers Gumb s allegations of sexual harassment The Union maintains that it has “no duty or jurisdiction over complaints of sexual haiassment and sexual crimes committed by any of Gumbs fellow ﬁreﬁghters “especially a ﬁreﬁghter of equal rank pursuant to the CBA '3 For its part, the Union submits that ‘ the proper question before the Court on Summary Judgment is whether the alleged events constitute grievances under the CBA "4 [I SUMMARY JUDGMENT STANDARD 1110 Summary judgment is governed by Rule 56 0f the Virgin Islands Rules of Civil Procedure, which states A party may move for summary judgment identifying each claim or defense— or the part 01 each claim or defense—on which summary judgment is sought The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law The court should state on the record the reasons for granting or denying the motion '5 1111 Summary judgment is a ‘ drastic remedy '6 The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact '7 Summary judgment will be granted if the “pleading, deposition, answers to interrogatories, and admissions on ﬁle, together with the afﬁdavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law '3 A fact is “material” only if its existence or non existence will affect the outcome of a lawsuit under applicable law, and an issue is ‘ genuine” if the evidence is such that a reasonable jury could return a verdict for the non moving party ”'9 Or, as the Virgin Islands Supreme Court stated in Antilles School Inc v Lembach,20 summary ' Resp to Gov V1 Statement of Undisputed Facts (48 52 Association of Fireﬁghters Local 2125 8 Statement of Undisputed Material Facts in Support of Resp to Gov s Mot for Summ J 1 3, Mem in Support of Def Ass n of Fireﬁghter s Resp to Gov ofthe V l ’s Mot for Summ J at 2 '3 Mem in Support of Def Ass n of Fireﬁghter s Resp to Gov ofthe V I s Mot tor Summ J at 2 '4 Mem in Support of Def Ass n of Fireﬁghter’s Resp to Gov of the V l ’s Mot for Summ J at 2 l5V1 Civ P 56(3) "’ Anthony 1 FusIBanA Virgin Islands 58 V I 224 228 (V I 2013) (quoting Williams v United Corp 50 V1 191 I94 (V1 2008)) ‘7 Kanlz i Unit 0fthe VI No 2008 0047 2016 U S Dist LEXIS 65973 at *13 (D VI May 19 2016) '3 Fed R Civ P 56(c) (LIOIGY Cmp 1 C(Ult” 477 US 317 322 23(1986) see also Skopbtmki Allen Williams Corp 39 VI 220 221 (DVl 1998) Accwd Green i Hess Oil l’ugm Islands Corp 29 VI 27 30 (Super Ct 1994) 1" Andelson i Liberty Lobby Inc 417 U S 242 247 48 (1986) 0 64 V l 400 (V I 2016) Cumin v Government of the Virgin Islands, 0! a! 2024 VI Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 5 of 23 judgment is appropriate when after ‘considering all of the evidence, accepting the nonmoving party’s evidence as true, and drawing all reasonable inferences in favor of the nonmoving party the court concludes that a reasonable jury could only enter judgment in favor of the moving party ’2' Summary judgment is proper if the non moving party fails to establish the existence of an element essential to its case and on which the party would bear the burden of proof at trial 22 The simple assertion of a themetical cause of action or theory of liability is not enough; a showing must be made as to each of the essential elements of the claim 23 1112 The nonmoving party must show in its response to a motion f0: summary judgment that there are ‘ speciﬁc, facts showing a genuine issue for trial 24 In addition, “[t]he non moving party may not rest upon mere allegations but must present actual evidence showing a genuine issue for trial Such evidence may be direct or circumstantial, but the mere possibility that something occurred in a particular way is not enough[ ] ’25 “If the non movant offers evidence that is ‘merely colorable’ or not signiﬁcantly probative, summary judgment may be granted ”26 1113 Finally, the “Court may not itself weigh the evidence and determine the truth; rather, we decide only whether there is a genuine issue for trial such that a reasonable jury could return a verdict for the non moving party ’27 “[A]ll reasonable ‘inferences, doubts, and issues ofcredibility should be resolved against the moving party Consequently, summary judgment is precluded if a disputed fact exists which might affect the outcome of the suit under the controlling substantive law The court must determine whether the evidence presents a sufﬁcient disagreement to require submission to a Jury or whether it is so one sided that one party must prevail as a matter of law ’23 ' Id 211409 7’ Celorex at 322 23 White v Westinghouse Elect! (C CO 862 F 2d 56 (3d Cir 1988) 2“ Williams 50 V I at 194 (V I 2008) (quoting FED R CW P 56(e)) see V I R Civ P Rule 56 see 01:0 80ch Sens Inc v Gm I of the VI , 71 V I 652, 658 (2019) ( A movant is entitled to summary judgment if there is no triable issue of material fact ’ ) 25 Anthony, 58 V I at 229 (quoting Williams, 50 V I at 194 95); see also Andelson v Amencan Fed n of Teachers, 67 V I 777 789 (V l 2017) (quoting Perez 1 R112 Carlton (VUglII Islands) Inc 59 V I 522 527 28 (V I 2012)) ( For a nonmoving party to show some genuine issue of material fact for trial, the nonmoving party may not rest on its allegations alone, but must present actual evidence, amounting to more than a scintilla,’ in support of its position ) ’6 Pembcrlon Sales & Saw \ Banco Popular de P R 877 F Supp 961 965 (D V I 1994) 7 Williams“ 50 VI at 195 (citing Anderson 1 Libeity Lobby Inc 477 U S 242 255 (1986)) 8 Kamz 1 Unn offlie V1 No 08 47 2018 U S Dist LEXIS 200595 at *4 (D V 1 Nov 26 2018) (citations and internal quotation marks omitted) Gumbs v Government 0fthe Virgin Islands, e! a! 2024 VI Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 6 of 23 Ill ANALYSIS A Applicable Legal Standards {[14 Gumbs contends that GVI failed to cite or analyze the applicable standard of law in its Motion As Gumbs points out GVI relies on federal precedent to argue Gumbs sexual harassment and hostile environment claims which were ﬁled pursuant to VICRA GVI premises its Motion on the federal standards pursuant to Title VII of the Civil Rights Act of 1964 Gumbs asks the court to dismiss GVI’s petition on this basis alone pursuant to Kantz v Umi erszty ofthe Virgin Islands because “GVI failed to meet its initial summary judgment burden by failing to articulate the proper standard ”29 1|15 In the Virgin Islands, sexual harassment claims are governed by the Virgin Islands Civil Rights Act (VICRA) 10 V I C § 1 et seq which is enforced by the Virgin Islands Department of Labor ( DOL ) The Supreme Court of the Virgin Islands has established that the VICRA is signiﬁcantly broader in scope ’ than the federal Civil Rights Act 3" VICRA ‘ predates the adoption of the federal Civil Rights Act by nearly a decade ” and Virgin Islands Courts have questioned why any case interpreting the federal Civil Rights Act is of any assistance in interpreting the VICRA ’3' Nevertheless, what Title VII and VICRA do have in common is an objective to avoid harm 32 The underlying theme is “employers should nip harassment in the bud ”” 7" Pl 3 Opp n to Der Gov of the V l s Mot for Summ J at S 6 The plaintiff in Kamz alleged discrimination based on her race and color as a white woman employed at the University of the Virgin Islands The V I Court in Kamz could not analyze Plaintiff‘s VICRA claims. by simply assuming that the same legal principles that govern her Title VII claims apply to her local claims ” The Court found it could not grant summary judgment on the record before it because the Defendant in Kant did not argue or cite any Virgin Islands case authority that set ‘forth the legal or evidentiary standard for determining what constitutes a viable claim under the VICRA, or conducted any analysis to determine what the law should be Kan! \ Lmi afﬁx I I No 2008 0047 2016 US Dist LEXIS 65973 at *64 (D V I May 19, 2016) Between the time that the Motion for Summary Judgment was ﬁled in Kantz and the time it was decided, the Virgin Islands Supreme Court decided Rennie I Hess 0t! l’ugm Islands Corpomuon, 62 V I 529 (2015) Given the impact of Rennie on the case, the Court denied without prejudice the Defendant's Summary Judgment Motion in Kantz as it pertained to the Plaintiff‘s VICRA claims Kan! at *1 2 See Rennie vHess 011 Virgin Islands Corp at 551 552 (ﬁnding the federal Civil Rights Act of little assistance for interpreting the Virgin Islands Civil Rights Act) 3”Kant 1 Unit 0fthc VI N0 2008 0047 2016 U S Dist LEXIS 65973 at ’63 64 (D VI May 19 2016) 3' Kart! i Unn Oflhc VI No 2008 0047 2016 U S Dist LEXIS 65973 at ‘63 (D VI May 19 2016) (citing Ranmei Hess 011V! C011) 62 V1 529 551 52 (2015) ‘ See Fmagliel i City ofBoca Raton 524 U S 775 780 118 S Ct 2275 2280 (1998)( Although Title VII seeks to make persons whole for injuries suffered on account of unlawful employment discrimination, its "primary objective," like that of any statute meant to inﬂuence primary conduct is not to provide redress but to avoid harm ”), see also Rvmer v Kmart C01p 68 V I 571, 578 n 2 (2018) (“U S Supreme Court decisions while persuasive, are not binding on matters of Virgin Islands local law ”) 3’ Mchdy v AIL State Police 375 F 3d 762 772 (8th Cir 2004) Gumbs v Government of the Vlrgm Islands“, 0! a! 2024 VI Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 7 of 23 1116 Federal law is persuasive authority; however the Court ultimately looks to Virgin Islands law in making its ﬁndings 3“ GVl articulates the plain language of 10 V I C §64(c) asserting that Gumbs ‘ failed to present evidence that VIFS’ conduct unreasonably interfered with her work performance, or created an intimidating, hostile work environment ”35 Accordingly, GVI invokes an appropriate standard B A jury could find GVI liable under Title 10 V 1 C §§ 64 et seq 1117 Virgin Islands law provides that “sexual harassment ’ means ‘ any unwelcome sexual advances or requests for sexual favors or any other verbal or physical conduct of a sexual nature when (A) Submission to that conduct or those advances or requests is made either explicitly or implicitly a term or condition of an individual's employment, or (B) Submission to or rejection ofthe conduct or advances or requests by an individual is used as the basis for employment decisions affecting the individual or (C) The conduct or advances or requests have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment ”36 1118 Gumbs reported harassment by her superiors in 2009 and 2013, and by her coworker in 2017 She alleges a hostile work environment existed at VIFS under Title 10 V I C § 64 Gumbs asserts that CV] is strictly liable for the sexual harassment she experienced in 2017 by VIFS employee Lionel Warrell, and for its failure to remove Warrell from employment afterwards 1[ 19 In opposition, GVI argues that Gumbs was not subjected to a hostile work environment and that it cannot be held liable for Warrell s conduct because when it was made aware of Gumbs’ 2017 harassment claim, VIFS addressed it, and Gumbs was no longer harassed GVI further contends that strict liability was never part of the legislative intent for 10 V I C § 64 (a) 1|20 Because proof of discriminatory intent often depends on inferences rather than on direct evidence, very little evidence of such intent is necessary to defeat summary judgment 37 ‘ Courts are directed to determine whether an environment is sufﬁciently hostile or abusive by looking at all the circumstances 33 In detennining whether an employer is vicariously liable under agency ‘4 The Court notes that both parties invoke federal precedent within their respective briefs Pl ’3 Opp'n to Def 8 Gov V1 Mot for Summ J at [0' Mem Support OfGOV VI sSumm .1 M01 at 34 35 Mem Support of Gov V I s Summ J Mot at 2 ‘The conduct or advances or request have the purpose of reﬂect of unreasonably interfering with and individual 3 work performance or creating an intimidating, hostile, or offensive working environment 10 V I C §64a (4)(C) 3" 10 V I C § 643 37 Thomasu Regents ofUnn ofCaI 97 Cal App 5th 587 592 315 Cal Rptr 3d 623 632 (2023) 33 Famghet 1 Cm ofBooa Raton 524 U S 275 780 118 S Ct 2275 2280 (I998) Gumbs v Government oflhe Virgin Islands, er al 2024 VI Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 8 of 23 rules, one of the court’s considerations is to look at whether an employer “takes swift and effective action the minute it learns of a single incident of supervisor sexual harassment ’39 l The Court ﬁnds there exists a genuine dispute of material facts as to whether a hostile work environment existed within VIFS due to inconsistencies of protocol in handling Gumbs’ complaints and the multiple directives provided by CV] 1121 GVI provides references to three different directives for handling employee grievances the CBA ‘0 VIFS Rules and Regulations,"l and its own Policy and Guidance for Prevention of Sexual Harassment 42 inconsistency can reveal genuine matters of dispute, and the record shows an inconsistency in how VIFS responded to and remediated each of Gumb’s sexual harassment complaints 43 a The Collective Bargaining Agreement 1122 F irst, GVI asserts that employee complaints, such as Gumbs’ are governed by the CBA,44 which provides a speciﬁc procedure for employees to follow that requires that an employee grievance “be ﬁled with the Chief of the Fire District within ﬁve (5) working days aﬁer its occurrence, or aﬁer the employee, or Union, knew or should have known of the matter complained of ’45 ‘9 Mchdy i Alk State Police 375 F 3d 762 771 (8th Cir 2004) sec also Faraghu 1 CH) ofBoca Raton 524 U S 775, 780 (1998) (ﬁnding a sexually hostile work environment was created by petitioner s supervisors where the city failed entirely to disseminate its policy against sexual harassment among beach employees, its ofﬁcials made no attempt to keep track of conduct of supervisors in question and city's sexual harassment policy did not include any assurance that harassing supervisors could be bypassed in registering complaints As a matter of law, the city could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct ) We hold that an employer is vicariously liable for actionable discrimination caused by a supervisor but 4° Statement of Speciﬁc Undisputed Facts in Support of Gov V I s Summ J Mot 111m 46 52 ‘1 Statement of Speciﬁc Undisputed Facts in Support of Gov V I s Summ J Mot 1|54 ‘2 Statement of Speciﬁc Undisputed Facts in Support of Gov V I s Summ J Mot 1|1l56 63 64 4‘ See e g Fwagher | City ofBoca Raton 524 U S 775 118 S Ct 2275 141 L Ed 2d 662 (I998) (ﬁnding plaintiff‘s employer was vicariously liable for a sexually hostile work environment where it “failed entirely to disseminate its policy against sexual harassment among beach employees, its ofﬁcials made no attempt to keep track of conduct of supervisors in question, and [its] sexual harassment policy did not include any assurance that harassing supervisors could be bypassed in registering complaints ); cf Kauffman v Allied Signal Inc , Autolite Div , 970 F 2d 178 at 184 185 (6th Cir 1992) (holding harassing supervisor acted within scope of employment, but employer was not liable because of its quick and effective remediation) 4“ ‘ All grievances under [the CBA] shall be handled in the manner outlined in the following paragraphs A) Grievances of Discharge, Suspension, or Demotion B) Processing of other Grievances’ and all “other grievances (excluding discharge, demotion, or suspension) are governed by 7 l (B) of the CBA, which provides that ‘ all other grievances shall be ﬁled with the Chief of the Fire District within ﬁve (5) working days after its occurrence, or after the employee, or Union, knew or should have known of the matter complained of Statement of Speciﬁc Undisputed Facts in Support of Gov V I s Summ J Mot 1H] 48 50 ‘5 Statement of Speciﬁc Undisputed Facts in Support of Gov V l s Summ J Mot Till 48 50 Def Ass n Fireﬁghter s Resp to Gov VI Mot for Summ J Ex CBA1i1l46 59 Gum!» v Government ofthe Virgin Islands, 0! a! 2024 VI Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 9 of 23 1123 As discussed above, GVI contends that Gumbs was required to follow the complaint procedure provided within the CBA The Union, on the other hand maintains that the CBA does not cover complaints of sexual harassment As codefendant in the instant case and a party to the CBA, the Union disputes application of the CBA to Gumbs’ sexual harassment complaints against other ﬁrefighters b The Virgin Islands Fire Service’s rules and regulations 1124 Second GVI refers to VIFS’ Rules and Regulations which mandate that its chain of command be used ‘ in any matters pertaining to City Department Business ’46 According to GVI, the chain of command includes 1) immediate supervisor 2) deputy ﬁre chief 3) ﬁre chief, 4) Director, VIFS, [and] 5) Lieutenant Governor ’47 GVI further states that “[f]inal departmental disciplinary authority and responsibility rests with the Director of VIFS and that “other supervisory personnel may take the following disciplinary measures 1) oral reprimand, 2) written reprimand 3) written recommendations to the director for other penalties ’48 c GVl’s policy and guidance for prevention of sexual harassment {[25 Finally, Virgin Islands Code mandates that the Government of the Virgin Islands adopt a policy against sexual harassment that includes inter aha, a speciﬁc ‘ description of the process for ﬁling internal complaints about sexual harassment ”49 Training for supervisory and managerial employees must include ‘ speciﬁc responsibilities of supervisory and managerial employees and the methods that these employees should take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints "50 1126 GVI’s Policy and Guidance for Prevention of Sexual Harassment states that “[i]n order to rise to the level of legally actionable sexual harassment, conduct creating a hostile work environment must be severe or pervasive,” however the following conduct is considered inappropriate and is prohibited in the workplace ‘ regardless of whether it rises to the level of being ‘scvere or pervasive ’ verbal abuse of a sexual nature; unwelcome, offensive sexual ﬂirtation; unwelcome, graphic verbal comments about an individual's body, sexually “’ Statement of Speciﬁc Undisputed Facts in Support of Gov V I Summ J Mot 1|] ‘7 Statement of Speciﬁc Undisputed Facts in Support of Gov V I Summ J Mot 1H] 1, 2 ‘3 Statement of Speciﬁc Undisputed Facts in Support of Gov V I Summ J Mot 114 GVI further states that the formal charging or preferring of charges” is the ﬁrst step towards disciplinary actions “against members' and that charges ‘may be preferred by one member against another, or by any civilian against a member 1d at 115 ‘9 IO V I C 9‘ 64a (c) (2) (A)(v) 5° 10 v I C g 64a (0) (2) (B)(ii) Cumin v Government 0fthc Virgin Islands. e! a! 2024 VI Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 10 of 23 degrading words or slurs to describe an individual, unwelcome brushing touching, patting, or pinching an individual's body sexually explicit gestures; the display in the workplace of sexually suggestive, sexually demeaning or pornographic objects, pictures, posters, or cartoons; unwelcome inquiry or comment about sexual conduct or sexual orientation or preferences or verbal abuse consistently taigeted at only one sex, even if the content of the abuse is not sexual Whether the conduct is severe or pervasive shall be considered in determining the level of appropriate corrective action required 5' 1127 According to GVI’s policy ‘ [c]omplaints are to be made in writing or verbally to the Director of the Division of Personnel ( DOP ’) or to a supervisor or Department Head, “who shall then submzt the complaint to the DOP 52 All complaints of sexual harassment or retaliation shall be promptly and thoroughly investigated, and ‘ [c]opies 0f the investigators' ﬁnal report shall be submitted to the Director of the DOP 53 Only individuals who “have received speciﬁc training to conduct investigations relating to sexual harassment complaints and related matter may be named to investigate the complaint by the Director of DOP ”54 The Director of the DOP is responsible for maintaining records of all reports or complaints of sexual harassment or unlawﬁJl adverse employment actions and to determine the resolution of every such report or complaint ’55 {[28 The policy further states that ‘ [i]f during an investigation, it is determined that there is probable cause to believe the conduct complained about did, in fact, occur and that some action is required to correct a hostile working environment, such action will be taken, and the investigation will continue until conclusion 56 1129 DOP is not mentioned in VIFS chain of command, and VIFS’ rules state that ﬁnal disciplinary authority rests with the Director of VIFS not DOP Standards for investigations are also not mentioned, although GVI policy distinctly requires that investigators receive speciﬁc training to conduct investigations relating to sexual harassment complaints 57 In his deposition, VIFS Director Clifford Johnson articulated that several investigative interviews were conducted 5' Gov of U S V I Policy & Guidance for Prevention of Sexual Harassment at 4 Div of Personnel, http //www dopusvi org wp contenduploads 2020/06/Sexual Harassment Policy pdf 52 Gov of U S V I Policy & Guidance for Prevention of Sexual Harassment at 5 Div of Personnel, http l/“ww dopusvi org wp contem/uploads 2020/06/Sexual Harassment Policy pdf (emphasis added) ‘3 Gov of U S V l Policy & Guidance for Prevention of Sexual Harassment at 6, Div of Personnel, http //www dopusvi org wp content/uploads/2020/06/Sexual Harassment Policy pdf 5“ Gov of U S V I Policy & Guidance for Prevention of Sexual Harassment at 6, Div of Personnel http //www dopusvi org wp content/uploads 2020/06/Sexual Harassment Policy pdf 5‘ Gov of U S V l Policy & Guidance for Prevention of Sexual Harassment at 3, Div of Personnel, http llwww dopusvi org wp content/uploads 2020/06/Sexual Harassment Policy pdf ‘6 Gov of U S V I Policy & Guidance for Prevention of Sexual Harassment at 7, Div 0t Personnel, http //www dopusvi org wp content/uploads 2020/06/Sexual Harassment Policy pdf ’7 Gov of U S V I Policy & Guidance for Prevention of Sexual Harassment at 6 Div of Personnel, http f/www dopusvi org wp contem/uploads 2020/06/Sexual Harassment Policy pdf Gumbs v Government ofrlte Virgin Islands, at a! 2024 VI Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 11 of 23 by VlFS in r sponse to Gumbs’ 2017 complaint and that he was not aware of whether DOP or VIPS required speciﬁc sexual harassment training to conduct such interviews 58 d Gumbs’ 2009, 2013 and 2017 complaints 1l30 Gumbs alleges that she made four separate reports of sexual misconduct by coworkers while employed with VIFS Although the parties do not agree on all details they do agree Gumbs made three of the four alleged reports 5° 1|3l First, in 2009, Gumbs alleges she was groped by her supervisor, that she asked to be moved to St John as a result, and that it took a full month before action was taken on her behalf The record shows that Gumbs reported the incident to Rick Mercer a fellow ﬁreﬁghter, and to Deputy Chief Andre Smith 60 GVI acknowledges a report was made by Gumbs involving her Captain, Arthur Edwards, however, GVI asserts that Gumbs never alluded to behavior of a sexual nature between herself and Edwards, or behavior that occurred on VlFS property 6' According to GVI, Gumbs complained to VIFS Deputy Chief Smith that Edwards was bothering her by coming to her home and asking that she braid his hair 62 Although the parties disagree on whether the conduct reported was of a sexual nature, the record is void of further investigation into the conduct that Gumbs complained about Chief Smith resolved the situation by transferring Gumbs to St John 63 GVI contends that Chief Smith “was authorized to address Gumbs’ complaint pursuant to VIFS Rules and Regulations, however GVI does not indicate what action was taken to address the matter other than transferring Gumbs to another work location 64 The record is void of any other action taken In addition, it does not appear from the record that Gumbs’ complaint made its way up the 53 Johnson Dep 34 6 l3 Mem Support of Gov VI sSumm J Mot VlFS Director CliffordA Joseph directed Oral Wheatley VIFS Chief of St Thomas/ St John District, to conduct interviews of all persons involved and to collect facts Id at 33 14 25 34 I [2 5° Gumbs also claims that sometime in 2013 she reported being pinned against a wall by a male ﬁreﬁghter, and that no action was taken by her superiors after she reported the incident Comp] 1] l 5 Gumbs does not remember the name of the accused ﬁreﬁghter or to whom she reported the incident Mem Support Mot Summ J at4 Comp] 1116 Gumbs contends that after making the repon she was later transferred to another squad and station Comp] 116 VIFS does not present record of this alleged report ‘5" Pl 3 Opp n to Def‘sGov ofthe V I s Mot for Summ J at 9 6' Statement of Speciﬁc Undisputed Facts in Support of Gov VI Summ J Mot 1]1|l0,ll Chief Andre Smith disagreed that Gumbs’ 2009 complaint against Arthur Edwards was of a sexual nature ‘ [S]he said he was harassing her She said he was coming to the house, but she never indicated to me that there was sexual relationship or anything sexual between them She said he’s harassing me, and she said it was something about braiding hair and coming to my house " Smith Dep Mem Support of Gov V 1 's Summ J Mot °’ Statement of Speciﬁc Undisputed Facts in Support of Gov V I ‘ Summ J Mot 119 ‘ ‘ Chief Smith stated that Gumbs was offered several choices, like taking her out of group, keeping her in St Thomas taking her completely out of the group but she requested to go to St John And we always had a need for personnel up St John It was a perfect way for me to resolve the issue that was, I thought at the time, satisfactory to her And thatswhatldid Isenther St John Smith Depo 264 ll Mem Support of Gov VI sSumm J Mot 6“Mem Support ofGov VI sSumm J Mot at 7 Gumbs v Government 0} the Virgin Islands, e! a! 2024 VI Super ”A Case No ST 2020 CV 00154 Memorandum Opinion Page [2 of 23 chain of command within VIFS Furthermore Deputy Chief Smith did not contact the Director of DOP as GVl’s protocol requires for a sexual harassment complaint In his deposition Chief Smith concedes that at the time of Gumbs initial complaint, female ﬁre ﬁghters were relatively new to VIFS 65 1132 Looking next to the 2013 complaint 66 all parties agree that Gumbs reported that Sargeant Chazmal Miller a fellow ﬁreﬁghter who later became Gumbs’ supervisor showed her sex acts on his phone 67 Gumbs stated that the incident caused her to become “withdrawn’ and standofﬁsh ”68 By this time Andre Smith was VIFS Chief,69 and Gumbs contends that once she reported Miller’s behavior to Chief Smith, Miller, who was her supervisor, treated her harshly in retaliation, and gave her more tasks than her fellow ﬁre ﬁghters 7° Gumbs alleges that she complained of her supervisor’s harsh treatment and again reported that she was shown nude pictures by him," and that no action was taken on her behalf 72 The record indicates that the only action taken by VIFS aﬁer Gumbs made her report was her transfer to another post )3 In its defense, GVI argues that Gumbs never produced evidence of her allegations against Miller and that she chose not to press charges against Miller Chief Smith stated that he did not believe Gumbs’ statements to be truthﬁJl 74 According to GVl, once VIFS learned of the incident, Gumbs reﬁJsed to cooperate with its investigation 75 1133 Although the complaint was clearly of a sexual nature, Chief Smith apparently did not forward Gumbs complaint to the Director of DOP, as GVI protocol requires Moreover, it appears that Gumbs’ complaint never made it up VIFS own chain of command beyond Chief Smith 76 The record shows that the Union was also not notiﬁed of Gumbs’ allegations 77 M Smith Dep 25 2 ll Mem Support ofGov VI sSumm J Mot "" CV! and Gumbs provide conﬂicting dates GVI reports that the incident occurred in 2011 Statement of Speciﬁc Undisputed Facts in Support of Gov VI Summ J Mot 111116 2!. Mem Support of Gov VI 5 Summ J Mot at 7 Gumbs states the incident occurred in 2013 Compl11119 IO P] s Opp n to Der Gov of the V l s Mot for Summ J at 9 " Mem Support ofGov VI sSumm J Mot at 7 Pl sOpp n to Der Gov of the VI sMot for Summ J at9 Compl 11119 l0 6“ Compl 11 ll 6" Gov of theVl sMot for Summ J at9 Compl 11l0 7° Compl 1111 l l 12' Statement of Speciﬁc Undisputed Facts in Support of Gov V I s Summ J Mot 1116 IS 7* Compl 1113 7 Compl 1114 73 Pl ’3 Opp n to Der Gov ofthe V I ’s Mot for Summ J at 9 7" Smith Dep 10 8 23 Mem Support of Gov V l s Summ J Mot 75 Mem Support ofGov VI sSumm J Mot at 7,8 7" Statement of Speciﬁc Undisputed Facts in Support of Gov V l s Summ J Mot 1111 l 2 4 ( I VIFS Rules and Regulations mandated that members utilize the chain of command in any matters pertaining to City Department Business Exhibit l VlFSOOOl7] ["2 2 The chain of command included 1) immediate supervisor (corporal, sergeant, lieutenant, captain) 2) deputy ﬁre chief 3) ﬁre chief, 4) Director, VIFS 5) Lieutenant Governor Exhibit 1 VlFSOOOl 71 4 Final departmental disciplinary authority and responsibility rests with the Director other supervisory personnel may take the following disciplinary measures 1) oral reprimand, 2) written reprimand 3) written recommendations to the director for other penalties Exhibit l VIFSOOOI74 I75 ) GVI maintains that Gumbs complaint would have been governed by the CBA, to which the Union is also a party Gumbs v Government ofthe Virgin Islands, e! a! 2024 VI Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 13 of 23 1134 Finally, there is no dispute that Gumbs reported she was sexually assaulted on November 6, 2017, by fellow ﬁreﬁghter Lionel Warrell while they were both stationed in St John After Hurricanes Irma and Maria destroyed the Cruz Bay ﬁre stations’ lodging quarters, ﬁreﬁghters working 24 hour shiﬁs were housed at the St John Westin, and Gumbs was given her own room within a suite 73 During the early morning on November 6, Gumbs was asleep in her suite when she was ‘ woke up to her shirt liﬁed above her breast and Warrell sucking on her breast without her consent ”79 Gumbs screamed and immediately told Worrell to get out of her room, she later confronted him about the incident 3" Warrell subsequently admitted to Gumbs allegations 3' 1135 Gumbs did not report the incident to her supervisor, Captain Lynda” Anthony, until over two months aﬁer the fact, on January 28, 2018 81 Captain Anthony reported the incident to Union President Andre Dorsey 33 Gumbs, too, reported the incident directly to Andre Dorsey on or about Jan 28, 2018 3“ Dorsey wrote a letter to Clifford Joseph, VlFS Director, on Feb 5, 2018, informing him of Gumbs sexual harassment allegation 35 In addition, ‘ Anthony reported the incident up the VIFS chain ofcommand, including VlFS Director Clifford Joseph "36 Captain Anthony also ‘ took statements from both Gumbs and Warrell, ’ and forwarded them to the DOP 87 As discussed above, DOP is the entity designated to handle investigations of a sexual harassment complaint, and the investigation must be conducted by a person trained in such matters 83 1136 The record shows that once VlFS Director Clifford Joseph received Gumbs’ complaint, he told ChiefOral Wheatley VlFS Chief for St Thomas and St John that facts need to be collected and taken down to the Division of Personnel 'cause no longer does any agency handle sexual harassment cases 89 Chief Wheatley was tasked with ‘ gathering the facts” to provide to the Division of Personnel 9° Chief Wheatley was also instructed to make sure ‘ the accused is removed from the shiﬂ 9‘ 7‘ Compl 1111 17 19 7" Compl 1121 23 8° Compl 111122 26 3' Mem Support of Gov V I ’s Summ J Mot , Ex D O P Personnel Investigation Report ‘2 Compl 1132 83 Pl 5 Opp n to Def’s Gov ofthe V I 's Mot for Summ J at 9 8“ Compl 1134 ‘5 Compl 1138 8" Statement of Speciﬁc Undisputed Facts in Support of Gov V l ’s Summ J Mot 154 37 Statement of Speciﬁc Undisputed Facts in Support of Gov V l ’s Summ J Mot 1156 8“ Gov of U S V I Policy & Guidance for Prevention of Sexual Harassment at 6, Div of Personnel, http www dopusvi org wp content uploads 2020 06 Sexual Harassment Policy pdf 3° Joseph Dep at 33 Mem Support ofGov V] sSumm J Mot ”0 Statement of Speciﬁc Undisputed Facts in Support of Gov V I s Summ J Mot 1155 9| 1d Gumbs v Government of(he Virgm Islands, or a! 2024 VI Supei 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 14 of 23 1137 Sexual harassment complaints are to be taken seiiously, and employees must be able to trust that their superiors will respectfully handle such sensitive complaints according to established protocol, diligently holding all employees to account and remediating as necessary 1138 GVI carries the burden to demonstrate an absence of any issue of material fact, and the court ﬁnds it fails to do so The record presents a medley of protocols employed by VIPS in the handling of Gumb’s complaints and GVI provides different authorities for guidance There is little on the record ﬁrmly resembling GVI 3 Policy for how an investigation should be conducted under such circumstances {[39 Viewing the evidence in the light most favorable to Gumbs and drawing all reasonable inferences in favor of Gumbs as the non moving party, a jury could reasonably ﬁnd that a hostile work environment susceptible to sexual harassment existed within VIFS While the Court expresses no opinion on whether the evidence is strong enough to actually show that a hostile environment existed at VIFS, the Court holds that the evidence is sufﬁcient to create a genuine issue of material fact precluding summary judgment 92 2 Gumbs’ 2009 and 2013 claims of misconduct are viable ones 1140 GVI argues that Gumbs abandoned her allegation of misconduct against Edwards in 2009 because she ‘ did not want to ﬁle a charge, did not want to be moved to a different team, did not want VlFS to address her assailant, and that “her only request was to be transferred to a new location in St John ’9‘ 1141 GVI ﬁthher argues that Gumbs also abandoned her 2013 claim of misconduct because she “declined to continue with charges against Miller and refused to cooperate with her employer 5 investigation of the matter "’4 Gumbs did not present physical evidence of her allegations when it was requested of her and she does not deny that she resisted participation with VIFS’ investigation Gumbs maintains that she lost trust in how her supervisors handled her complaints and that male employees within VlFS demonstrated to her a pattern of covering up or ignoring inappropn'ate behavior 9‘ 9 See 8 g M(Curd1 1 Ark State Pollu 375 F 3d 762 767 68 (8th Cir 20040) ( To establish a hostile work environment claim created by a supervisor, Mac urdy must prove "(1) that she is a member of a protected group (2) that she was subject to unwelcome sexual harassment (3) that the harassment was based on sex, and (4) that the harassment affected a term, condition or privilege of employment ") ”Mem Support of Gov VI sSumm J Mot at7 ’4 Mem Support of Gov VI sSumm J Mot at8 ‘7‘ Pl 3 Opp n to Der Gm ofthe V l s Mot for Summ J at [0 Gumbs v Government offlte Virgin Islands, er a! 2024 V] Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 15 of 23 1142 [t is reasonable to expect that when faced with a sexual harassment complaint, an employei is not relieved of its duty to ensure the work environment is free from sexual harassment once a complaint is made, regardless of whether the alleged victim cooperates or not GVl Policy guidelines state that both the “complainant and the alleged harasser shall be advised of the ﬁndings reached on the complaint 96 It is unclear whether this ever occurred According to Gumbs, she did not receive the ﬁndings reached Viewing the evidence in the light most favorable to Gumbs, and drawing all reasonable inferences in favor of Gumbs, a trier of fact could reasonably ﬁnd that VIFS failed to take sufﬁcient remedial action, and that it was VIFS that abandoned these claims not Gumbs ’7 Accordingly, the Court ﬁnds summary Judgment inappropriate here a Gumbs’ 2009 and 2011 allegations are not time barred under the Continuing Violations Doctrine 1143 GVI seeks summary judgment, contending, inter aha, that Gumb’s 2009 and 2013 claims are time barred Gumbs counters that although the six year timeframe for ﬁling a claim under the statute of limitation has expired, an exception is warranted under the ‘ continuing violations” doctrine 93 According to Gumbs, the “multiple instances of unwelcome sexual advances, requests, and conduct by [VIFS] male employees” constitutes a pattern that demonstrates a hostile and offensive work environment within VIFS 9" As such, Gumbs argues that the 2009 and 2013 ‘incidents are part of [VIFS’] continuing violation of VICRA, ’ which in turn makes VIFS ‘liable for all acts, ’ regardless of the Statute of Limitations "’0 In opposition, GVI asserts that each of Gumbs’ allegations were independent and discrete acts” that do not represent a pattern, do not qualify under the ‘ continuing violation" exception, and consequently do not toll the deadline timeframe of the Statute of Limitations The question before the Court is whether Gumbs’ hostile work environment claim is timely under the continuing violations doctrine where the alleged mishandling of the 2017 sexual harassment incident occurred and was part of a course of conduct that comprised the hostile work environment 96 Gov of U S V I Policy & Guidance for Prevention of Sexual Harassment at 6 Div of Personnel, http www dopusvi org wp content/uploads 2020 06 Sexual Harassment Policy pdf 97 See Sicini AG United States No 22 2862 2023 U 8 App LEXIS 14753 at *1 (3d Cir June 14 2023) (ﬁnding summary Judgment m defendant 5 favor 0n plaintiff‘s hostile work environment claim because plaintiff‘s employer took prompt remedial action in response to plaintiff‘s report of the sexual harassment incident by reassigning the coworker who created the hostile environment, changing his hours issuing him a cease and desist order, and implementing additional controls to prevent him and plaintiff from being alone together at work ) °3 Pl 5 Opp n to DerGov ofthe V I s Mot for Summ J n 5 at 8 “ Pl sOpp n to Def's Gov 0fthe V] s Mot for Summ J at 8 0 PI 3 Opp n to Det‘s Gm ofthe V l ’s Mot for Summ J n 5 at 8 Gumbs v Government of the Virgin lvlands, L! a! 2024 VI Super 290 Case No ST 2020 CV 00154 Memorandum Opinion Page 16 of 23 i Statute of Limitations 1144 Title 5 V I C § 31(3)(B) establishes a six year limitation period for ﬁling claims The statute provides that a civil action “upon a liability created by statute, other than a penalty or forfeiture” must be commenced within six years ‘ after the cause of action shall have accrued ’ The Virgin Islands Legislature intended to create a private right of action when it enacted 10 V I C §§ 64(14) and 64a, dealing with sexual harassment Accordingly, the six year statute of limitations of 5 V l C § 31(3)(B) applies to a sexual harassment claim, since it is an action upon a liability created by statute '0' ‘ The time for any statute of limitation begins to run when the cause of action accrues Accrual takes place upon the occurrence of the essential facts that give rise to that cause of action ”'02 1145 Gumbs’ failed to ﬁle claims within six years of either the 2009 or 20l3 causes of action Accordingly, the statute of limitations prohibits her claims, barring any exceptions ii Continuing Violation Doctrine 1146 The continuing violations doctrine is an equitable exception to the timely ﬁling requirement Normally, the time frame for any statute of limitations begins when the cause of action accrues Accrual takes place on the occurrence of the essential facts that give rise to that cause of action However, under the continuing violations’ doctrine, when a claim involves continuing or repeated conduct, the limitations period does not begin to run until the date of the last injury or when the wrongful conduct ceased ”1m “Before a court will consider whether the equitable doctrine is available, the plaintiffmust make a threshold showing that the claim involved continual unlawful acts not continual ill effects from an original violation ”'04 1147 “The continuing violation doctrine allows a plaintiff to rely on a discrete act to render a hostile environment claim timely only if the plaintiff establishes that the discrete act was part of the ongoing discriminatory practice that created a hostile work environment An unrelated discrete '°‘ See (anomel 1 Mahogany Run Condo Ann 54 VI 210 216 VI LEXIS 10 (VI Super Ct 2011)( Where a liability would not exist but for a statute, a six year statute of limitations applies, and suing for damages for sexual harassment is an action for a liability created by statute Thus the six year statute of limitations applies ) “" Broulllaldi DUMortg Capital Inc 63 VI 788 789 (2015) "” Anthoni l FmtBtmk VI 58 V I 224, 230 (20l3); see also BIom/lmdi DU Mong Capital Inc 63 V I 788 796 (2015) (‘ When courts apply the continuing violation doctrine, the claim will not be barred provided that at least one wrongful act occurred during the statute of limitations period and that ll was committed in ﬁmherance of a continuing wrongful act or policy or is directly related to a similar wrongful act committed outside the statute of limitations ’) '“Anthom 1 FmtBank VI 58 VI 224 225 (2013) Gumbs v Government oflhe Vrrgm lvlamls, at a! 2024 V1 Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 17 of 2‘1 act different in kind from the conduct giving rise to the hostile environment, does not trigger the continuing violation doctrine ’ '05 1148 What may appear to be a legitimate Justiﬁcation for a single incident of alleged harassment may look pretextual when viewed in the context of several other related incidents ‘06 Therefore, a factﬁnder should not necessarily examine each alleged incident of harassment in a vacuum ’ '0; The Court refrains from considering each of Gumbs’ complaints of harassment in isolation and instead considers the evaluation better served as one of the sum total of potential abuse over time 149 Gumbs argues that her various complaints represent a pervasive environment at VIFS In contrast, GV1 contends that Gumbs’ complaints fall into the category of ‘ discrete act claims” as opposed to “hostile work environment claims '03 1150 Drawing all reasonable inferences in favor of Gumbs as the nonmoving party, a trier of fact could ﬁnd that the incidents reported were not discrete and unrelated but were part of an ongoing discriminatory pattern or practice of sexual based harassment Although several years lapsed between the alleged conduct, Andre Smith was the same superior to whom Gumbs reported her harassment claims to in both 2009 and 2013 '09 Furthermore, Chief Smith acknowledged that at the time of Gumbs’ initial complaint, female ﬁre fighters were relatively new to VIFS "0 In addition the agency had not dealt with sexual harassment complaints before Gumbs and the record demonstrates a lack of consistency in the protocol followed in response to each of her complaints 1151 November 6, 2017, is the date of the last alleged injury Because Gumbs’ most recent claimed injury occurred within the limitations period, the continuing violation doctrine renders Gumbs’ 2009 and 2013 claims timely The Court concludes that a reasonable jury could enter judgment in favor of Gumbs and consider the 2009, 2013, and 2017 incidents of alleged sexual harassment and the manner in which GVI handled those complaints as ongoing, discriminatory practice that created a hostile work environment Accordingly, summary judgment is denied 05 King 1 AramarkSens 96 F 4th 546 551 (2d Cir 2024) 0" Andrewr \ Philadelphm 895 F 2d 1469 1484 (3d Cir 1990) '07 Andrews 1 Pluladelphm 895 F 2d 1469 1484 (3d Cir 1990) '08 Pl 3 Opp‘n to Der Gov 0fthe V1 9 Mot for Summ J at 11 '09 Andre Smith was Deputy Chief in 2009 and Chief in 2013 See Goree \ City of Verona, No I I " CV 93 SA DAS‘ 202! U S D15! LEXIS [85429 at ’15 (N D M133 Sep 28 2021) (ﬁnding that a signiﬁcant lapse in time between alleged conduct plus intenening personnel changes the Chief of Police title changed hands multiple times defeated any attempt to argue that multiple incidents of harassment should be treated as a single violation under the continuing violation doctrine) "0 Smith Dep 25 2 ll Mem Support ofGov V1 sSumm J Mot Gumbs v Government ofrhe Virgin Islam“. e! a] 2024 V1 Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 18 of 23 3 Retaliation {[52 [n Count 1 ofher Complaint, Gumbs argues that she was retaliated against aﬁer she reported being sexually harassed “in violation of 10 V I C §64 and the Virgin Islands Civil Rights Act "‘ Under Count IV Gumbs asserts that she had to end her employment with GVI due to “harassment, discrimination and retaliation ”' '2 GVI argues that Gumbs fails to present a prima facie showing of retaliation 1|53 Gumbs cites three instances of alleged retaliation First, after reporting that she felt harassed by Arthur Edwards in 2009, she was transferred to St John as retaliation '13 Second, she asserts that after reporting that she was sexually harassed by her supervisor, Sargeant Chazmal Miller, he ‘ treated her harshly in retaliation and gave Gumbs more tasks than her fellow ﬁre ﬁghters " '4 Finally, Gumbs alleges that she was then transferred from her post “[a]s retaliation for reporting the sexual harassment "'5 In its defense, GVI counters that Gumbs herself requested both transfers GVI also argues that Gumbs failed to present physical evidence she claimed to have had in her possession, and that she declined VIFS’ efforts to investigate and pursue the matters 1154 Virgin Islands Code prohibits retaliation against employees for reporting a violation or suspected violation of Virgin Islands law ”" With regard to summary Judgment, although the facts are to be interpreted in the light most favorable to the nonmoving party, the nonmoving party may not rest upon mere allegations and must present actual evidence showing genuine issue for trial ”7 1155 According to the record, Gumbs declined Police Chief Andre Smith’s offers to forward her 2009 complaint up the chain of command or to have a Union ofﬁcial involved in the matter ”8 Smith further claims that it was Gumbs who requested a transfer to St John ”9 Gumbs asserts that she was transferred to a different squad and station after she reported the alleged 2009 assault, "' Comp] $43 " Comp] 155 "‘ Comp] $143 "‘Comp1111lll 12 13 16 "‘ Pl sOpp n to Def's Gov ofthe V I s Mot for Summ J at 9 "6 Set S< Inadel Cooke 1 601 I oflhe VI 72 V I 218 248 (Super Ct 2019) ( 24 V 1 C 9 451a(a) provides that [a]n employer shall not discharge, threaten, or otherwme discriminate against an employee regarding the employee's compensation terms conditions, location, or privileges of employment because 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 ’); see also Blomker v Jewell, 831 F 3d 1051 1059 (8th Cir 2016) ( [R]eta11ation must be the 'but for' cause of the adxerse empioyment action " ) " Schmder Cookex Gm tofthc VI 72Vl 218 219 (Super Ct 2019) "5 Smith Dep 264 ll Mem Support of Gov VI sSumm J Mot "" Smlth Dep 264 ll Mem Support ofGov VI sSumm J Mot Gumbs v Government of the Virgin Islands, e! a! 2024 V1 Super 29U Case No 81 2020 CV 00154 Memorandum Opinion Page 19 of 23 however, Gumbs does not controvert Smith’s claim that she was transferred at her own request '20 In addition, VlFS contends that it had a need for employees to voluntarily transfer to St John '2' Smith stated that he considered the move to be “a perfect way to resolve the situation '22 {[56 In regards to Gumbs’ 2013 allegations, she provides no evidence to support that ‘ [t]he offending supervisor treated her harshly in retaliation and gave Gumbs more tasks than her fellow ﬁre ﬁghters ”'23 Furthermore, Gumbs claim that she was transferred from her post as retaliation for reporting the alleged misconduct in 2013 is countered by GVl’s assertion that the decision to reassign Gumbs had been made at her own request and for valid reasons other than retaliation Chief Smith stated that Gumbs requested to join the Prevention Unit and that VlFS had a valid personnel need at the Prevention Unit 124 1157 At this juncture, Gumbs does not demonstrate that she suffered adverse employment action because of her complaints against Miller, Edwards, or Warrell She does not dispute that she req uested and was granted the transfers that occurred after she reP orted the alle ged incidents of sexual harassment in 2009 and 2013 However, both transfers were executed by the same person, Andre Smith, with whom Gumbs reported both the 2009 and 2013 complaints Because disputed questions remain as to whether a hostile environment existed within the agency, and the transfers were approved by the same supervisor that both 2009 and 2013 allegations were reported under, the Court is persuaded that summary Judgment is not appropriate here Although slight, a genuine dispute exists as to whether the purported reasons for Gumbs transfers were pretexts for retaliation towards her 4 Duty of Good Faith and Fair Dealing 1158 Gumbs argues that GVI breached a duty of good faith and fair dealing because it failed to properly investigate Gumbs’ claims of sexual harassment and assault, failed to “properly and timely discipline Warrell once an investigation was conducted, ’ and “forced [Gumbs] to continue working with her sexual abuser ” ”5 Gumbs states that she “had a reasonable expectation of employment free from sexual harassment” and VlFS had a duty to “adhere to Virgin Islands law (VICRA)” to ensure that its employees were not subject to sexual harassment '26 Gumbs also argues that “VlFS had a duty to perform an investigation pursuant to its own rules and regulations, "0 Compl 11" '2' Smith Dep 25 2 1] 264 11 Mem Support ofGov V] sSumm J Mot "2 Smith Dep 25 2 1] Mem Support ofGov VI s Summ J Mot m Compl 1112 '7‘ Smith Dep 26 12 21 Mem Support ofGov V I s Summ .1 M01 Pl s Opp n to DePs Gov ofthe V] s Mot for Summ J at9 ' 5 Compl 1‘46 '6 Pl sOpp n to DerGov ofthe V1 sMot for Summ J at 15 Gumbs v Govemmem 0fthe Vtrgm Islands. e! a! 2024 V1 Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 20 of 23 which they did not do ”'77 She asserts that VIFS failed to conduct any of its required investigatory steps” and DOP’s subsequent investigation took more than eight months while her assailant was permitted to keep working '23 Gumbs further contends that Warrell, who admitted to sexual harassment, should have been terminated instead of only suspended without pay {[59 For its part, GVI argues that a breach of duty of good faith and fair dealing arises from conttact law, and Gumbs fails to provide the source of contract between herself and GVI '29 GVI argues that it investigated Gumbs sexual assault complaint and notes that Gumbs refused to participate in a hearing on the matter '30 GVl states that Gumbs supervisors gave priority to the situation once she did make her complaint and that Gumbs was no longer harassed aﬁer she reported the 2017 incident '3' 1|60 ‘ The implied duty of good faith and fair dealing arises by implication through the existence of a contract itself ”'32 “Indeed, there can be no breach of good faith and fair dealing to perform a particular promise when the promise was never made ’ '33 “A successful claim by an employee for breach of the duty of good faith and fair dealing requires proof of acts amounting to fraud or deceit on the part of the employer "34 1161 Gumbs appears to rely on VIFS rules and regulations, as well as the VICRA statute for the contractual element of her breach of duty claim Gumbs does not point speciﬁcally to provisions allegedly breached within VICRA Gumbs also does not provide case law to support that an individual may use a breach of contract action as a vehicle to seek redress for violation of a Virgin Islands statute governing sexual harassment Nevertheless, even if the duty of good faith m Pl 5 Opp n to Def’s Gov ofthe V l s Mot for Summ J at 15 ”a P] s Opp n to Def‘s Gov of the V l s Mot for Summ J at 12 Gumbs reported the November 2017 incident with Warrell in January 2018, and VIFS‘ investigation began Feb 5, 2018 A letter of suspension was issued to Warrell on October 25 2018 and he was suspended without pay from Oct 29 2018 to March 31 2019 "9 GVI argues assuming arguendo any claim that VIFS failed to properly investigate [Gumbs ] claims would be govemed under the CBA and Gumbs failed to exhaust her administrative remedies in this regard Mem Support of Gov V l s Summ J Mot at 10 The grievance procedure within the CBA requires complaints to be ﬁled within ﬁve working days of its occurrence Id The Union was not notiﬁed of either the 2009 or 2013 complaints and Gumbs reported the 2017 incident to the Union and VIFS approximately two months after its occurrence '30 Mem Support ofGov VI sSumm J Mot at 10 11 '3' Mem Support ofGov VI sSumm J Mot at3 '3 Chapman 1 Cornwall 58 VI 43 ] 44l 42 (20l3) ”3 M0110“. 1 Safemn Storcs Inc No CV 08 2l69 PHX JAT 2009 U S Dist LEXIS 102045 at*l l (D Ariz NOV 2, 2009) In Martme Plaintiff worked in the deli department of a Safeway grocery store, and the Court determined that statements contained in Safeway’s policies were not terms of an employment contract between Plaintiff and Safeway As such, Safeway could not be held liable for a breach of good faith and fair dealing of these policies See also Chapman v Comwall, 58 V l 431 434 (2013) (“To establish a breach of contract claim, a plaintiff must prove that a contract existed, that there was a duty created by that contract, that such duty was breached and that he suffered damages as a result ) '34 Chapman 1 Cornwall 58 V] 431 434 (2013) Gumbs v Govemmem ofthe Virgin Islands“, e! a] 2024 V1 Super 29U Case No ST 2020 CV 00154 Memorandum Opinion Page 2] 01' 23 and fair dealing is applicable to Gumb's employment relationship via VlFS’ regulations and a Virgin Islands statute the Court ﬁnds that summary judgment on the theory that these covenants were breached is appropriate It is true that the duty of good faith limits the parties' ability to act unreasonably in contravention of the other party's reasonable expectations, however, “[a] successful claim requires proof ofacts amounting to fraud or deceit on the part ofthe employer ass 1162 The Court ﬁnds that GVI fails to clearly demonstrate that it handled Gumbs’ complaint appiopriately and according to GVI s own standards '36 However, the Court does not ﬁnd that GVI acted in a manner inconsistent with the purpose of VlCRA or its own rules or the reasonable expectations of the parties with fraudulent intent or deceit Gumbs herself does not deny that she refused to cooperate with GVI s investigation More to the point, while GVI may not have handled Gumbs complaint in the manner preferred and expected these circumstances do not rise to the level of breach Gumbs does not present evidence that allows a ﬁnder of fact to determine the actions of GVI 0r VIFS amounted to fraud or deceit Consequently Gumbs fails to establish a genuine dispute 01 any breach under this theory ‘35 Chapman v Comwall, 58 V I 431, 434 (2013), see also Pauli Hmema No 1 07 cv 00051 AET GWC 2013 U S Dist LEXIS 80855, at *8 (D V I June 7, 2013) (ﬁnding Plaintiff's allegations insufﬁcient to raise a genuine issue of material fact as to a breach of the implied covenant of good faith and fair dealing where delays in accommodation and termination of employment “did not constitute the type of fraud and deceit required to support such a claim ) '36 Although GVI contends that VIFS properly and timely disciplined Warrell despite Gumbs failure to cooperate with the investigation VIFS took statements from Gumbs and Warrell and does not address whether its own rules concerning the investigation of sexual harassment complaints were diligently followed According to GVI s policy on sexual harassment, an investigation into a sexual harassment complaint should take no more than 30 to 60 days Gov of U S V 1 Policy & Guidance for Prevention of Sexual Harassment at 7, Div of Personnel, http www dopusvi org wp content/uploads 2020 06 Sexual Harassment Policy pdf The policy also lays out specific standards of investigation to be followed Complaints of sexual harassment or of retaliation for making such complaints are to be made to the Director of the DOP or to a supervisor or Department Head who shall then submit the complaint to the Director of the DOP ’ Id at 5; Individuals that have received speciﬁc training to conduct investigations relating to sexual harassment complaints and related matter investigation will accomplish a departmental investigation 1f the department does not have personnel speciﬁcally trained for this type of inquiry, then the Division of Personnel will conduct the investigation and initiate the action to resolve the complaint and address all related issues Id at 6 “Only individuals that have received speciﬁc training to conduct investigations relating to sexual harassment complaints and related matter may be named to investigate the complaint by the Director of DOP Id at 6 Gumbs v Government ofrhe Vrrgm Islands, er a] 2024 V1 Super 29U Case No ST 2020 C\ 00154 Memorandum Opinion Page 22 of 23 a The Collective Bargaining Agreement 1163 In its response to GVI 8 Motion, the Union appeals to the Court for an Order declaring that the incidents alleged by [Gumbs] in her Complaint do not constitute grievances under the CBA, and that the Union had no duty concerning any events of which Gumbs failed to notify the Union "37 The Union maintains that it has ‘ no duty or jurisdiction over complaints of sexual harassment and sexual crimes committed ’ by any of Gumbs fellow ﬁreﬁghters, “especially a ﬁreﬁghter of equal rank "33 According to the Union, the “proper question before the Court on Summary Judgment is whether the alleged events constitute grievances under the CBA "39 1]64 First, the record is clear although the Union was not notiﬁed concerning Gumbs’ 2009 or 2013 sexual harassment complaints, the Union did receive notice of her 2017 complaint Second, the Court understands that the Union would like to see itself removed from the matter, however, several other “proper questions remain blatantly unanswered If the CBA is the playbook, the Bible” governing “the union’s representation of a member during a grievance, what prevents the Union ﬁ'om handling a sexual harassment grievance? '40 The Union’s president stated that sexual harassment is not covered by the CBA because sexual harassment is a criminal matter, yet he could not show where that is stated in the CBA or Union bylaws '4' According to the record, the Union had never received a sexual harassment complaint before Gumbs ‘42 Gumbs met with multiple Union representatives including the Union president and vice president conceming the 20l7 sexual harassment incident and she was never informed that the Union could not process a grievance concerning a criminal action 143 In fact, the record shows that a Union representative forwarded Gumbs a grievance form to complete ”4 {I65 Lastly, GVl a party to the CBA is clearly under the impression that sexual harassment grievances are under the purview of the CBA Furthermore, it is GVI who mandates that all government employees receive sexual harassment training ”5 This includes the Union 1166 The Court questions why a dues paying Union member employed with VIFS could be '37 Mem in Support ofDef Ass n of Fireﬁghter s Resp to Gov of the V I ’s Mot for Summ J at 3 '33 Id at 2 I39 Id "0 Dorsey Dep 20 19 222 Def Ass n Fireﬁghter s Resp to Gov VI Mot for Summ J (June 10 2024) '4' Dorsey Dep l7 7 8 20 4 IO 43 25 44 3 Def Ass 0 Fireﬁghter s Resp to Gov V I Mot for Summ 1 (June 10 2024) GVI requires the Union to receive sexual harassment training '4’ Dorsey Dep at 20 2] Def Ass 11 Fireﬁghter sResp to Gov VI Mot for Summ J (June 10 2024) '4‘ Gumbs Dep l4l, Def Ass 11 Fireﬁghter s Resp to Gov V I Mot for Summ 1 (June 10,2024) ”4 Dorsey Dep 230 23 25 Def Ass n Fireﬁghter s Resp to Gov VI Mot for Summ J (June 10 2024) ”5 Dorsey Dep 34 22 35 21 5 22 3 Def Ass a Fireﬁghter s Resp to Gov VI Mot for Summ 1 (June 10 2024) Gumbs v Government of the Virgin lclands, et ul 2024 V1 Super 29U Case 1\o ST 2020 CV 00154 Memorandum Opinion Page 23 of 23 caught between the disagreement as to whether the CBA applies to sexual harassment grievances Given the above, the Court will deny the Union’s request for declaration at this juncture which should have been the subject of a timely motion and not included in its response to a motion IV CONCLUSION 1167 The nonmoving party cannot be required ‘to deﬁnitively prove its case at summary judgment, or to even provide the most convincing evidence supporting its case Its only burden is to submit sufﬁcient evidence to create a genuine issue of material fact for a jury to resolve ”‘4" Upon review of the parties pleadings, exhibits and all other reasonable inferences from the evidence in the light most favorable to Gumbs, the Court ﬁnds that there exists a genuine dispute as to certain material facts concerning whether Gumbs worked in a hostile environment at VIFS and whether Gumbs experienced retaliation for reporting sexual harassment in the workplace {[68 Based upon the foregoing, the Defendant Government of the Virgin Islands’ Summary Judgment Motion, ﬁled on August 1, 2023, will be granted with respect to Plaintiff Syreeta Gumbs’ claims for wrongful discharge and breach of duty of good faith and fair dealings The Motion will be denied with respect to Plaintiff Syreeta Gumbs’ claims for sexual harassment, retaliation and violations of the Virgin Islands Civil Rights Act An Order consistent with this Memorandum Opinion follows DATED August 4 2024 2% W ggémo DENISE M F NCOIS Judge of the Superior Court of the Virgin Islands ATTEST TAMARA CHARLES Clerk of the Co B LATO A CAMA HO ourt Clerk Supervisor X Z ”0 Umlcd Corp i Horned 64 VI 297 311 (2016) [N THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN ***-k* SYREETA GUMBS ) ) CASE NO ST 2020 CV 00154 Plaintiff, ) vs ) ) JURY TRIAL DEMANDED GOVERNMENT OF THE VIRGIN ISLANDS ) and ASSOCIATION OF FIREFIGHTERS ) Local 2125 ) ) Defendants D Cite as 2024 VI Super 29U ORDER AN D NOW, consistent with this Court 3 Memorandum Opinion of even date, it is hereby ORDERED that Defendant Government of the Virgin Islands’ Summary Judgment Motion, ﬁled July 31, 2023, is GRANTED with respect to Plaintiff Syreeta Gumbs claims for wrongﬁil discharge and breach of duty of good faith and fair dealing, and Counts II and IV of Plaintiff’s Complaint are DISMISSED and it is further ORDERED that the Defendant Government of the Virgin Islands Summary Judgment Motion, ﬁled July 31, 2023, is DENIED with respect to Count I of Plaintiff‘s Complaint and it is further ORDERED that a copy of this Order and the accompanying Memorandum Opinion shall be directed to counsel of record DATED August 6 2024 MW E2 2% (1Y3 DENISE M NCOIS Judge of the Superior Court of the Virgin Islands ATTEST TAMARA CHARLES Clerk ofth urt Bq ATOYA CAN ACHO ourt Clerk Supervisor X b 2%