Philsbert Codrington v. GME Dospiva, LLC, and Virgin Islands Department of Labor

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

PHILSBERT CODRINGTON )

Petitioner; CIVIL NO sx 2010 CV 00102 V l PETITION FOR W RlT OF REVIEW GME DOSPlVA LLC and VIRGIN ISLANDS l DEPARTMENT OF LABOR ) Respondents ; 2023 VI SUPER 80U

)

MEMORANDUM OPINION AND ORDER

{:1 B) Order enteled June 22 2010 ( Order Granting Writ ) the Coult granted Appellant Philsbert Codrington s petition f01 writ of review, titled Notice of Appeal (herein Petition ) timely filed on March 4 2010 I The Petition sought relieffiom the February 3 2010 Decision of the Administlative law Judge ( ALJ’) affilming (on other gtounds) the initial determination of the Adjudicator within the Division of Unemployment Insurance of Respondent Virgin Islands Department of 1 abor ( DOL or Depaltment ) Thelein in deciding Petitionel C0dringt0n 5 internal appeal 01 the Adjudicator s determination to deny C0drington 5 application for unemployment benefits the AL] found that Codrington was not disqualified from leceixing benefits due to misconduct but concluded that Codrington had toltlntarily quit his job without good cause and was [hetefore ineligible to receive unemp10)ment insutance benefits Respondent GME Dospiva Ll C ( 0MP ) filed an Opposition to the Petition for Writ of Review on Ma), 21 2010 denied by the Order Granting Wlit The Olden Granting W1 it did not set a briefing schedule Petitioner filed no brief to supplement the g1 ounds for seeking rex iew set out in the Petition and

l The Orden Glanting Writ required the Department of Labor to produce a transcript of the above mentioned case within sixty davs B) lettel of August 1.: 2010 the Department of Labor transmitted its original file and original transcript Unemplo)ment lnsmance benefit Appeal Hearing

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neither Respondent filed a brief For the reasons that follow, the Court finds that the AL] 5 Decision is supported in the record by substantial evidence and will affirm the Decision 2

FACTUAL AND PROCEDURAL BACKGROUND

$2 On March 4 2010, Petitioner filed his Petition asking the Court to review and vacate the ALJ 5 February 03 2010 Decision in PHIL S'BER T CODRINGTOV V OMB D09PIVA LLC (VI App No 016 02 10) The record3 shows that GME hired Codrlngton to work full time as a C A D operator in August 2007 On September 22 2009 Codrington informed GME 3 owner and manager, Brent Whitney, that he would be late for work and that he wanted to speak with him

Codrington arrived at work at 9 a m but was unable to perform any work duties upon arrival because he was too mentally distressed due to personal matters Whitney arrived at the office around 11 am and observed that Codrington was not executing any assignments for work Subsequently Whitney pulled a folder from Codrington’s project files, and placed it on C0drington’s desk stating that he had work for Codrington to complete Codrington testified that Whitney slammed the file folder on his desk scattering the papers within Whitney then left the office through the door near Codrington s desk Codrington testified that Whitney slammed the door as he lefi the building Offended by what he perceived as disrespect, C0drington followed Whitney to GME 5 parking lot where Codrington and Whitney engaged in a verbal exchange

2 After this matter had lain dormant without action by any party for several years, by letter of February 19, 2021, requesting response within 30 days, the C lerk of the Court inquired of Petitioner whether he intended to proceed with his appeal The letter, sent certified mail, return receipt requested was returned by the U S Postal Service with the notation “3/21/21 Return to Sender, Unclaimed; Unable to Forward ” Petitioner did not respond to the Clerk’s letter Thereafter, by Order entered January 9, 2023, the Court ordered Petitioner to show cause in writing within 14 days why his Petition should not be dismissed for lack of prosecution pursuant to V I R Civ P 41(b) That Order was sent certified mail, and the receipt was returned to the Court on January 27, 2023, signed by Petitioner The Order was also personally served on Petitioner by the Office of Virgin Islands Marshal on January 25, 2023 Petitioner has filed nothing in response to the Court’s Order Despite that failure in light of the fact that “there is a strong public policy in the Virgin Islands for determining civil cases on the merits, Robertson v Banco Popular De P R , 2023 v13 11 37 (v1 2023) citing the Court wi11 review the Petition on its merits rather than enter a dismissal for lack of prosecution ‘ The “record” in the instant case includes letters exchanged between Cedrington and GME owner and manager Brent Whitney, admitted as exhibits at the hearing, the initial determination by the Department of Labor’s Adjudicator the transcript of the proceedings before the AL], and the ALJ’s February 03, 2010 Decision

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During the argument, Codrington uttered profane language to Whitney and at some point said, ‘if you don’t want me here, I m out of here ’

113 According to Whitney, upon hearing this proclamation, he advised Codrington that if he left the premises, it would be regarded as a voluntary resignation Codrington admits he heard that statement by Whitney but testified that Whitney told him to get the hell out of here and that his response was, you don’t have to tell me twice ” in addition to saying, if you don’t want me here, I m out of here ’ At the conclusion of the verbal exchange, Codrington gathered his personal items and left GME’s premises Codrington believed he was terminated notwithstanding the fact that he conceded that Whitney never expressly said ‘ you re fired ’ during the confrontation

134 On October 2, 2009, Codrington and Whitney spoke briefly when Codrington went to pick up his final paycheck During that encounter, nothing was mentioned regarding the September 22, 2009 incident After that date Codrington attempted to call Whitney several times, but his phone calls were not returned Finally on October 15, 2009, Whitney wrote a letter of termination to Codrington

15 On October 5, 2009, Codrington filed for unemployment insurance benefits On December 9, 2009 an Adjudicator determined that Codrington was not entitled to receive

unemployment insurance benefits because his actions as reported by GME, pursuant to V I Code Ann tit 24, § 304(b)(3) were a deliberate disregard of the standards of behavior [his] employer had a right to expect of [him] ” Disagreeing with the Adjudicator s decision, Codrington filed a notice of appeal under § 306(b) on December 16, 2009

116 On January 26, 2010 AL! Jamelia John Baptiste presided over the hearing and heard testimony from two individuals Philsbert Codrington Jr and Brent Whitney After hearing the testimony and considering the evidence, on February 2, 2010 the ALJ issued her Decision finding that Codrington was not terminated for misconduct under § 304(b)(3) but rather that Codrington voluntarin quit his position without good cause under § 304(b)(2) as interpreted by Cunnmgham v V! Unemployment Security Agency 20 VI 214 216 (D VI 1983) Codrington filed his Petition on March 4 2010

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117 In his Petition Petitioner contends that the ALJ s conclusions that (l) he voluntarily quit his job and (2) that he did so Without good cause under § 304(b)(2) were unsupportable based on the substantial evidence of the record as a whole

LEGAL STANDARD

118 V 1 Code Ann tit 24 § 306(c)(1)a110ws a party aggn'eved by a hearing examiner's decision to ‘initiate[ ] judicial review by filing in the [Superior] Court of the Virgin Islands a petition for review within 30 days after the hearing examiner’s deeision has been mailed to each party's last known address or otherwise delivered to him Id § 306(c)(1) Codrington timely filed the Petition on March 4 2010 Therefore, the Superior Court has jurisdiction over the Department of Labor ALJ 8 February 2 2010 Decision

$9 In granting a petition for review under § 306(c)(1), the reviewing court’s jurisdiction ‘ shall be confined to questions of law and in the absence of fraud, the findings of fact by the hearing examiner, if supported by substantial evidence regardless of statutory or common law rules, shall be conclusive ’ § 306(e)(3)

1110 Where the Legis1ature has not explicitly required courts to apply a more deferential standard of review, the Superior Coutt exercises plenary review of an agency’s conclusions of law Bryan v Fawkes 61 VI 201 226 27 (VI 2014) In the instant case because the Legislature did not require a specific standard of review under § 306(c)(3) for the ALJ’s conclusions of law the Court reviews those determinations de novo However § 306(c)(3) does reqmre that the Superior Court review all factual conclusions under the substantial evidence standard

DISCUSSION

A The ALJ’s finding that Codrington quit his job is based on substantial evidence

1111 C0drington contends that the ALJ’s conclusion that he voluntari1y quit his job was not based on substantial evidence

1112 The Court finds that the ALJ's determination that Codrington voluntarily quit his job was based on substantial ev1dence Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conc1usion ’ Virgm Islands Coalmon 0f Cztzzens With Disabzlztzes Inc /S't Thomas v Government of the Virgin Islands, 47 VI 315 320

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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 Dza 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 ConmIo v. Federal Marztzme Commzsszon 383 U S 607, 619 (1966) Therefore, substantial evidence allows for the possibility of drawing two inconsistent conclusions ’ I/I Coalttzon of Cztzzens wzth Dwabzlmes Inc /St Thomas 12 Govt ofthe Wrgm Islands 47 VI 315 320 (V1 Super 2005) 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 Norm Exp Co Inc v I C C 697 F 2d 497 (3rd Cir 1982)

1113 When the Court applies the substantial evidence test, it is required to consider the ‘ whole record ” La Vallee NorthSIde CIVIC Ass n v Virgm Iclands Bd ofLand Use Appeals, 30 VI 9 16 (VI Terr 1994) (quoting Umverval Camera Corp v NLRB 340 U S 474 (1951)) In other words, the Court must do more than simply find ajustification for the agency’s decision, it must also determine whether the agency’s ruling was reasonable in light of all the evidence presented Id ‘The substantiality ofthe evidence must take into account whatever in the record fairly detracts from its weight Government of the Virgin Islands v Public Employee Relatzons 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 of the ALJ s opportunity to appraise the credibillty and consider the weight of the evidence in the first instance 11am De Velez » I 1; gm Islands Dept of Lab Memorandum Opinion and Order No ST 13 CV 268 at 3 (VI Super July 25 2018)

$14 Here the ALJ heard and considered the testimony of two individuals Petitioner Philsbert Codrington, and Brent Whitney, Respondent GME’s owner and manager The record shows that at the hearing, both Codrington and Whitney were permitted to speak at length about their recollection of the events preceding and following the September 22, 2009 incident At one point during the hearing, the ALJ even admonished Whitney for interrupting Codrington as he testified The ALJ heard Codrington corroborate the fact that Whitney did indeed say that if he left the premises, it would be regarded as a “voluntary resignation ” Finally, the AL} heard Codrington state, under oath, that he never heard Whitney expressly say ‘ you are fired ’ in the parking lot The

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testimony and documentary evidence cons1dered by the ALJ, coupled with the AL] 5 corroboration 0f the facts during direct examination of both parties at the hearing, supports the AL] 5 conclusion that Codrington voluntarily quit his job, and a reasonable person could reach the same conclusion if presented with the same evidence

B Codrington voluntarily quit his job without good cause under section 304(b)(2)

1115 In his Petition Codrington contends that the AL] failed to follow the statutory construction outlined in section § 304 (b)(2) Codrington contends that the AL] erred in concluding that he left his position without good cause despite making a finding that Codrington 3 personal situation exacerbated his reactions towards Whitney

516 VI Code Ann tit 24, § 304(b)(2) disqualifies an insured worker from receiving waiting week credit or benefits for any week of his employment if he left his most recent suitable work voluntarily Without good cause ” However if the circumstances produce pressure to terminate employment that is both real and substantial and would compel a reasonable person under the circumstances to act in the same manner, the claimant has “good cause’ to ‘leave” a job within the meaning of 24 VI C § 304(b)(2) Taylor v Unemployment Compensation Board of Rewew 378 A 2d 829 832 33 (Pa 1977) (construing a similarly worded statute) That is the fact that the claimant for unemployment benefits is the one who commences the termination, and he does so of his own accord w1thout being fired or otherwise pressured by an employer to quit, does not necessarily preclude a finding of “good cause” under the terms of most unemployment schemes Cunnmgham v V] Empl S'ec Agency, 20 VI at 216—17 Although a subjective dissatisfaction with working conditions or wages is not enough to show good cause, a claimant could be justified in voluntarily separating from his or her employment where the discontent is based upon a substantial change in wages or working conditions that would make the work no longer suitable for the claimant considering the claimant s qualifications, earning ability, physical fitness and the like Id at 217

1i] 7 In the instant case, the record shows that it was in fact Codrington who unilateraily initiated a substantial change in his own work conditions by reducing his working hours below fulltime, to the detriment of his employer GME The record shows that Codrington’s employer was making a good, and ostensibly sincere effort to accommodate the changes and issues

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Codrington was experiencing in his personal life and that Whitney as manager and owner, was only asking Codrington to return to fulltime status and learn new skills that would likely benefit Codrington’s future career prospects as a C A D operator While it is apparent from the jurisprudence that the initiation of termination by an employee is not in and of itself sufficient to render his resignation as one ‘ without cause,” it is equally clear from the jurisprudence that the underlying reasons for the separation must stem from changes in working condltions, not changes in an employee 3 personal circumstances Here, it was Codrington’s work habits and work quality that changed, not the working conditions nor the wages that GME was offering him Therefore, Codrington did not have good cause to quit under the meaning of § 304(b)(2) and, accordingly, the AL} did not err in finding that he left his position without good cause In light of the foregoing, it is hereby

ORDERED that the decision in the matter PHIL ?BERT C ()DRINGTOV V. GME D09PIVA LLC (V 1 App No 016 02 10) is AFFIRMED It is further

ORDERED that Petitioner 3 Petition is DISMISSED WITH PREJUIDCE It is further

ORDERED that this case is CLOSED

DATED December 3‘ 2023 Q W DOUGLAS A BRADY J GE

ATTEST TAMARA CHARLES Cierk of the Co By é%: fl— Court Clerk pervisor

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

PHILSBERT CODRINGTON, Case Number: SX-2010-CV-00102 Petitioner, Action: Writ of Review v.

GME DOSPIVA LLC AND COMMISSIONER OF DEPARTMENT OF LABOR, Respondents.

NOTICE of ENTRY of JUDGMENT/ORDER To: Philsbert Codrington, pro se Michael R. Francisco, Esq., AAG H.A. Curt Otto, Esq.

Please take notice that on December 21, 2023 a(n) MEMORANDUM OPINION AND ORDER dated December 21, 2023 was/were entered by the Clerk in the above-titled matter.

Dated: December 21, 2023 Tamara Charles Clerk of the Court By:

Cheryl Parris Court Clerk III