Canaii, Jr. v. Government of the Virgin Islands , Albert Bryan et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX

)
ARTHUR B. CANAII, JR., )
)
Plaintiff, )
)
v. ) Civil Action No. 2021-0256
)
GOVERNMENT OF THE VIRGIN ISLANDS )
ALBERT BRYAN JR., ATTORNEY )
GENERAL DENISE N. GEORGE, DIRECTOR )
OF THE VIRGIN ISLANDS FIRE SERVICE )
DARYL A. GEORGE SR., VIRGIN ISLANDS )
FIRE SERVICE DEPUTY INSPECTOR II )
GEORGE L. OTTO, and VIRGIN ISLANDS )
FIRE SERVICE DEPUTY INSPECTOR III )
RYAN O. RAWLINS, SR., )
)
Defendants. )
__________________________________________)

Appearances:
Arthur B. Canaii, Jr., Pro Se
St. Croix, U.S.V.I.

Zuleyma Chapman, Esq.
St. Croix, U.S.V.I.
For Defendants

MEMORANDUM OPINION
Lewis, District Judge
THIS MATTER comes before the Court on Defendants’
1
“Motion to Dismiss” (Dkt. No.
20) and Plaintiff Arthur B. Canaii, Jr.’s (“Plaintiff”) Opposition thereto (Dkt. No. 23). For the
reasons that follow, the Court will deny Defendants’ Motion.

1
Defendants are: Government of the Virgin Islands Albert Bryan Jr.; Attorney General Denise N.
George; Director of the Virgin Islands Fire Service Daryl A. George Sr.; Virgin Islands Fire
Service Deputy Inspector II George L. Otto; and Virgin Islands Fire Service Deputy Inspector III
Ryan O. Rawlins, Sr. (Dkt. No. 1 ¶¶ 6-10). Plaintiff is suing Defendants in their official capacities.
(Dkt. No. 23 at 9).
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 1 of 17

2

I. BACKGROUND
Plaintiff initiated this action on June 15, 2021, bringing three causes of action against his
employer, the Virgin Islands Fire Service (“VIFS”). (Dkt. No. 1). First, Plaintiff seeks relief for an
alleged lack of a reasonable accommodation of his disability—or disability discrimination—under
various federal laws. Id. ¶¶ 141-145. Second, Plaintiff seeks relief for alleged sexual harassment,
under a theory of hostile work environment, pursuant to both federal and Virgin Islands law. Id.
¶¶ 146-156. Third, Plaintiff seeks relief for alleged unfair labor practice and retaliation pursuant
to federal law. Id. ¶¶ 157-163. Plaintiff seeks, inter alia, injunctive relief and monetary damages
under Title VII (42 U.S.C. § 2000e et seq.), the Americans with Disabilities Act (“ADA”) (42
U.S.C. § 12101 et. seq.), 29 CFR § 1604.11
2
and the Virgin Islands Civil Rights Act (“VICRA”)
(10 V.I.C. § 64a). Id. ¶¶ 141-63.
Defendants were served with the summons and Complaint on June 23, 2021 and June 24,
2021 and the proofs of service were filed on June 30, 2021. (Dkt. Nos. 10-14). Defendants have
moved to dismiss the Complaint (Dkt. No. 20),
3
and Plaintiff opposes (Dkt. No. 23).
4
The relevant
allegations from the Complaint are as follows.

2
This regulation, promulgated by the EEOC, clarifies that “[h]arassment on the basis of sex is a
violation of [Title VII].” 29 CFR § 1604.11(a).

3
Plaintiff correctly notes that Defendants’ Motion to Dismiss was untimely and that Defendants
failed to seek an extension of time. (Dkt. No. 23 at 2-3); Fed. R. Civ. P. 12(a). Nonetheless, the
Court will exercise its discretion to consider Defendants’ Motion, with the admonition to
Defendants’ counsel that further violations of the applicable Rules will not be viewed favorably
by the Court.

4
Over three months after their reply was due, Defendants filed a motion seeking leave to file a
reply to Plaintiff’s Opposition. (Dkt. No. 29). The Court denied this request, finding no excusable
neglect to justify Defendants’ failure to meet the original deadline. (Dkt. No. 39).
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 2 of 17

3

Plaintiff is employed by the VIFS as a Deputy Inspector III and Firefighter on St. Croix.
(Dkt. No. 1 ¶ 29). During his employment with VIFS, Plaintiff alleges that he was subjected to
numerous instances of discriminatory treatment. Id. ¶¶ 142-163. According to Plaintiff, between
April 2020 and December 2020, he requested legal representation from his Union to address his
concerns—at least once orally and twice in writing—but such representation was never provided.
Id. ¶¶ 26, 95-97, 109. Nonetheless, in an attempt to resolve his concerns, Plaintiff alleges that he
has been actively pursuing his claims through various administrative avenues. Id. ¶ 26.
First, Plaintiff alleges that Fire Marshal Leon Battiste (“Battiste”) was responsible for
investigating his allegations. Id. ¶ 61. On March 25, 2020, Plaintiff received the results of Battiste’s
investigation, which concluded that the matter should be closed due to insufficient evidence. Id. ¶
81. Plaintiff alleges numerous deficiencies with this investigation, such as: Battiste’s lack of
responsiveness to Plaintiff; Battiste’s failure to review evidence submitted by Plaintiff, including
a flash drive containing recordings of Plaintiff’s encounters with Defendants George L. Otto
(“Otto”) and Ryan O. Rawlins (“Rawlins”); and Battiste’s false conclusion that no witness
corroborated Plaintiff’s allegations. Id. ¶¶ 62-65, 81, 85-86, 88-90.
Second, Plaintiff alleges that on October 23, 2019, he filed formal charges against
Defendants Otto and Rawlins with the Division of Personnel (“DOP”). Id. ¶ 58. The investigation
included a meeting with DOP Investigator Kurell Hodge (“Hodge”) on February 27, 2020, id. ¶
68, 75, a rebuttal interview for Plaintiff in July 2020, id. ¶¶ 100-104, and the submission of
additional evidence— including a transcribed conversation—to Hodge following the rebuttal
interview, id. ¶ 104. On October 15, 2020, Plaintiff received an email from Hodge containing a
disposition from DOP. Id. ¶ 107. Plaintiff’s Complaint does not indicate the outcome of the DOP
investigation.
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 3 of 17

4

Third, Plaintiff alleges that on April 4, 2020, he filed charges with the United States Equal
Employment Opportunity Commission (“EEOC”), claiming discrimination, retaliation, sexual
harassment, and hostile work environment. Id. ¶¶ 27, 92. After Plaintiff’s meeting with an EEOC
representative, id. ¶ 108, and the submission of a rebuttal to Plaintiff’s claims by VIFS, id. ¶ 110,
the EEOC issued, and Plaintiff received, a Dismissal and a Notice of Rights to file suit, id. ¶¶ 111,
112.
Fourth, Plaintiff alleges that on February 5, 2020, he initiated contact with various
members of VIFS—including Defendant Director Daryl George, Assistant Director Antonio O.
Stevens, Fire Chief Klebert Titus (“Titus”), and Deputy Chief Paul Christian (“Christian”)—to
attempt to receive an accommodation for his Severe Sleep Apnea. Id. ¶ 113. Plaintiff’s doctor’s
orders stated that, due to his sleeping disorder, Plaintiff was to avoid working 24-hour shifts. Id. ¶
114. After being placed on sick leave by Christian and obtaining a second opinion at the behest of
VIFS, Plaintiff alleges that he was informed that VIFS does not offer “Light Duty,” although
Plaintiff claims that at least one other firefighter had received “Light Duty.” Id. ¶ 131. As of the
filing of the Complaint, VIFS had failed to make any accommodations for Plaintiff’s Severe Sleep
Apnea. Id. ¶ 132.
Fifth, Plaintiff alleges that on February 4, 2020, he delivered a grievance to the President
of his Union, Melbourne Adams, Jr. (“Adams”), id. ¶ 67, which was ultimately accepted by Titus,
id. ¶¶ 68-73. The grievance was apparently denied and subsequently appealed. Id. ¶¶ 74, 77, 78.
After the time to respond to the appeal had expired, id. ¶ 80, Plaintiff requested arbitration, id. ¶
82. Plaintiff then received the overdue response to his appeal, which found that VIFS did not
violate its Collective Bargaining Agreement with the Union (“VIFS CBA”) or its Rules and
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 4 of 17

5

Regulations. Id. ¶¶ 84, 87. The Complaint does not have any information regarding the resolution
of the arbitration proceedings.
Finally, Plaintiff alleges that on April 4, 2020, pursuant to the advice of Adams, he
submitted an Unfair Labor Practice Complaint (“ULPC”) with the Public Employee Relations
Board (“PERB”). Id. ¶¶ 87, 91. On April 27, 2020, Adams allegedly informed Plaintiff that PERB
had responded with a motion to dismiss due to lack of evidence. Id. ¶ 99. The Complaint does not
contain any further details regarding the resolution of the ULPC.
Defendants seek to dismiss the Complaint in its entirety for failure to state a claim. (Dkt.
No. 20). Defendants argue that the grievance procedure outlined in VIFS CBA is the exclusive
remedy for Plaintiff’s claims and that Plaintiff is required to exhaust these “administrative
remedies” before filing suit. Id. at 4-5. Defendants also maintain that dismissal is warranted
because “[s]ervice of process has not been met.” Id. at 6. Plaintiff opposes Defendants’ Motion,
asserting that his allegations state plausible claims for relief and that service of proper was properly
executed. (Dkt. No. 23 at 7-9). He argues that he has “made every effort to exhaust his
administrative remedies” prior to bringing suit, but contends that the process has been “unfair,
biased, and prejudicial.” Id. at 4. Plaintiff further maintains that the CBA grievance procedure does
not govern sexual harassment claims. Id. at 5-6.
II. APPLICABLE LEGAL PRINCIPLES
A. Subject Matter Jurisdiction
Subject matter jurisdiction is “non-waivable.” Nesbit v. Gears Unlimited, Inc., 347 F.3d
72, 76 (3d Cir. 2003). Thus, “courts have an independent obligation to satisfy themselves of
jurisdiction if it is in doubt. A necessary corollary is that the court can raise sua sponte subject-
matter jurisdiction concerns.” Id. at 76-77 (internal citations omitted).
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 5 of 17

6

Under 28 U.S.C. § 1331, a district court “has federal-question jurisdiction in a case where
a plaintiff makes a nonfrivolous allegation that he or she is entitled to relief under the U.S.
Constitution or a federal statute.” Bizzarro v. First Nat'l Bank, 804 F. App'x 190, 190 (3d Cir.
2020).
Pursuant to 28 U.S.C. § 1367(a), when a district court has federal question or diversity
jurisdiction, the court has supplemental jurisdiction “over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a); Exxon
Mobile v. Allapattah Servs., 545 U.S. 546, 559 (2005). In order for a court to exercise supplemental
jurisdiction over state law claims, “[t]he state and federal claims must derive from a common
nucleus of operative facts” and “the plaintiff's claims [must be] such that he would ordinarily be
expected to try them all in one judicial proceeding.” Lyon v. Whisman, 45 F.3d 758, 760 (3d Cir.
1995) (citing United Mineworkers v. Gibbs, 383 U.S. 715, 725 (1966)).
Title 28 U.S.C. § 1367(c) identifies four circumstances in which a district court may decline
to exercise supplemental jurisdiction over a state law claim under Section 1367(a):
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction,
or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.

28 U.S.C. § 1367(c). When assessing whether to exercise supplemental jurisdiction over a pendent
state law claim, courts should “consider [] the values of judicial economy, convenience, fairness,
and comity . . . .” De Ritis v. McGarrigle, 861 F.3d 444, 459 n.13 (3d Cir. 2017) (quoting Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 6 of 17

7

B. Service of Process
Federal Rule of Civil Procedure 12(b)(5) permits a district court to dismiss an action for
insufficient service of process. The party responsible for service bears the burden of proving
sufficient service of process. See Sims v. City of Phila, 552 Fed. App'x 175, 177 (3d Cir. 2014)
(citing Grand Entm't Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993)).
Service of the summons and complaint must be completed within 90 days after the complaint is
filed. Fed. R. Civ. P. 4(m).
C. Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) calls for dismissal of a complaint if it “fail[s] to
state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). As stated in Connelly v.
Lane Construction Corp., the Third Circuit follows the analysis set forth by the Supreme Court in
Bell Atlantic v. Twombly and Ashcroft v. Iqbal when considering a Rule 12(b)(6) motion:
Under the pleading regime established by Twombly and Iqbal, a court reviewing
the sufficiency of a complaint must take three steps. First, it must “tak[e] note of
the elements [the] plaintiff must plead to state a claim.” Iqbal, 556 U.S. at 675.
Second, it should identify allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at 679; see also Burtch
v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (“Mere restatements of
the elements of a claim are not entitled to the assumption of truth.” (citation and
editorial marks omitted)). Finally, “[w]hen there are well-pleaded factual
allegations, [the] court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

Connelly, 809 F.3d 780, 787 (3d Cir. 2016) (quoting Bell Atlantic v. Twombly, 550 U.S. 544 (2007)
and Ashcroft v. Iqbal, 556 U.S. 662 (2009)); see also Mamouzette v. Jerome, No. CV 13-0117,
2024 WL 2271880, at *2-3 (D.V.I. May 20, 2024) (reviewing the applicable Rule 12(b)(6)
analysis).
“When assessing the merits of a Rule 12(b)(6) motion, we accept as true all factual
allegations in the complaint and view those facts in the light most favorable to the non-moving
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 7 of 17

8

party.” Doe v. Univ. of the Scis., 961 F.3d 203, 208 (3d Cir. 2020). Further the district court must
accept “all reasonable inferences that can be drawn from [well-pleaded factual allegations] after
construing them in the light most favorable to the nonmovant.” Boseman v. Upper Providence
Twp., 680 Fed. App’x 65, 66 (3d Cir. 2017) (internal citation and quotation omitted). “To survive
a motion to dismiss, a complaint must contain sufficient factual allegations, taken as true, to ‘state
a claim to relief that is plausible on its face.’” Nekrilov v. City of Jersey, 45 F.4th 662, 668 (3d Cir.
2022) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Boseman, 680 Fed. App’x at 67.
III. DISCUSSION
A. Subject Matter Jurisdiction
As an initial matter, the Court will address its subject matter jurisdiction over this action.
Plaintiff has alleged “nonfrivolous” discrimination claims under Title VII and the ADA, as well
as a related federal regulation. Bizzarro, 804 F. App'x at 190. As such, the Court has federal
question jurisdiction over these claims pursuant to 28 U.S.C. § 1331. See McIntosh-luis v. Petty,
Civil Action No. 2020-0023, 2024 U.S. Dist. LEXIS 133310, at *13 (D.V.I. July 29, 2024) (finding
subject matter jurisdiction existed where the plaintiff raised nonfrivolous claims under federal
law); Davis v. Potter, Civil Action No. 2022-0062, 2024 U.S. Dist. LEXIS 58664, at *12 (D.V.I.
Mar. 30, 2024) (same).
As for Plaintiff’s pendant state law claims under 10 V.I.C. § 64a, these claims fall under
this Court’s supplemental jurisdiction, as they are derived from a common nucleus of operative
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 8 of 17

9

facts—Plaintiff’s allegations of harassment and discrimination—as Plaintiff’s federal law claims.
5

See Tratthen v. Crystal Window & Door Sys., No. 3:20cv2341, 2024 U.S. Dist. LEXIS 135011, at
*3 (M.D. Pa. July 31, 2024) (finding supplemental jurisdiction existed over the plaintiff’s state
law discrimination claims where the plaintiff had brought federal claims under Title VII); Hartley
v. Pocono Mt. Reg'l Police Dep't, 417 F. App'x 153, 155 (3d Cir. 2011) (same); see also Gautier-
James v. Hovensa, L.L.C., Civil Action No. 2006-106, 2023 U.S. Dist. LEXIS 119637, at *7
(D.V.I. July 12, 2023) (“[T]his Court often encounters and addresses . . . local law claims . . . in
the context of cases . . . that also present federal claims for adjudication.”).
B. Service of Process
Defendants argue that “service of process has not been met.”
6
(Dkt. No. 20 at 6).
Defendants claim that there are two deficiencies with service of process. First, they assert that,
because Plaintiff failed to file Proofs of Service with this Court for any of the Defendants, proper
service of process cannot be determined at this time. Id. Second, they contend that Plaintiff’s
failure to indicate whether Defendants are sued personally or in their official capacity precludes
Defendants from filing a proper response to the Complaint. Id.

5
This Court has previously declined to exercise supplemental jurisdiction over a sexual harassment
claim under VICRA because the application of this provision is a novel issue of Virgin Islands
law. Gautier-James v. Hovensa, L.L.C., Civil Action No. 2006-106, 2023 U.S. Dist. LEXIS
119637, at *6-8 (D.V.I. July 12, 2023). However, in Gautier-James, there were no federal claims
pending for adjudication. Here, Plaintiff has multiple live federal claims. As such, “the values of
judicial economy, convenience, fairness, and comity,” De Ritis, 861 F.3d at 459 n.13, weigh in
favor of exercising supplemental jurisdiction over Plaintiff’s VICRA claim, despite the novel
issues of local law raised therein. See Davis v. Dawgs of St. John, Inc., No. 3:20-cv-0112, 2022
U.S. Dist. LEXIS 226711, at *47 (D.V.I. Dec. 16, 2022) (exercising supplemental jurisdiction over
a sexual harassment claim under VICRA where the plaintiff had federal claims pending).

6
Defendants include this argument as part of their request for dismissal for failure to state a claim
pursuant to Fed. R. Civ. P. 12(b)(6). Nonetheless, the Court will treat this as a request to dismiss
for insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(5).
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 9 of 17

10

In response, Plaintiff asserts that he filed Proofs of Service for every Defendant prior to the
filing of the instant Motion. (Dkt. No. 23 at 9). Plaintiff also argues that it is clear that he is suing
Defendants in their official capacity based on the caption of the proceedings—which includes the
official title of every Defendant—and his allegations regarding conduct in the workplace. Id. at 9.
Plaintiff filed his Complaint on June 15, 2021. (Dkt. No. 1). The record shows that
Defendants Denise N. George and Albert Bryan Jr. were served with a copy of the summons and
Complaint on June 23, 2021. (Dkt. Nos. 11-12). The record also shows that Defendants George L.
Otto, Ryan O. Rawlins Sr., and Daryl A. George Sr. were served with a copy of the summons and
Complaint on June 24, 2021. (Dkt. Nos. 10, 13-14). Thus, service of each Defendant fell well
within the 90-day time limit established by Fed. R. Civ. P. 4(m). Further, proof of service for each
Defendant was filed on the docket in this matter on June 30, 2021, and again on July 23, 2021
(Dkt. Nos. 10-19). As for Defendants’ concerns regarding whether they are being sued in their
personal or official capacity,
7
these concerns do not warrant a dismissal for insufficient service of
process because Defendants do not assert that service of process was improper in either respect.
Accordingly, the two proof-of-service-related arguments advanced by Defendants are
rejected.
C. Failure to State a Claim
1. Federal Claims
The Court will now address the sufficiency of Plaintiff’s federal claims. Defendants
contend that Plaintiff has failed to state a claim for relief because: (1) Plaintiff, through the VIFS

7
Plaintiff’s Opposition clarifies and confirms that his suit is against Defendants in their official
capacity. (Dkt. No. 23 at 9). Thus, any uncertainty left from the caption of the Complaint and the
nature of the allegations contained therein should now be eliminated.

Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 10 of 17

11

CBA, waived his right to seek redress in a judicial forum for his claims; and (2) Plaintiff failed to
exhaust his available administrative remedies before filing suit.
8
(Dkt. No. 20 at 4-5).
a. Waiver of a Judicial Forum
Defendants first urge the Court to find that the VIFS CBA waives Plaintiff’s right to seek
redress in a judicial forum for his claims. (Dkt. No. 20 at 4-5). Defendants argue that the grievance
procedure outlined in the VIFS CBA (Dkt. No. 20-1 at 17-19), is Plaintiff’s exclusive remedy for
work-related disputes, precluding him from filing suit based on the instant allegations. (Dkt. No.
20 at 4). In his Opposition, Plaintiff does not dispute the authenticity of the CBA attached by
Defendant, and thus its consideration is appropriate in the Court’s Rule 12(b)(6) analysis. See
George v. Gov't of Virgin Islands Dep't of Educ., No. CIV. 2007-110, 2007 WL 3124923, at *2
(D.V.I. Oct. 19, 2007) (analyzing a CBA at the motion to dismiss stage because the parties did not
dispute its authenticity).
“A federal-statutory-discrimination dispute falls within the scope of a collective bargaining
agreement's arbitration provision ‘when (1) the arbitration provision clearly and unmistakably
waives the employee's ability to vindicate his or her federal statutory right in court; and (2) the
federal statute does not exclude arbitration as an appropriate forum.’” Darrington v. Milton
Hershey Sch., 958 F.3d 188, 192 (3d Cir. 2020) (quoting Jones v. Does 1-10, 857 F.3d 508, 512

8
Defendants also offer a third argument in support of their motion to dismiss for failure to state a
claim. (Dkt. No. 20 at 4-5). Defendants assert that 24 V.I.C. § 374(d)—which prohibits certain
public employees from availing themselves of multiple grievance procedures for the same
dispute—bars this Court from consideration of both Plaintiff’s federal claims and state claims. Id.
Regarding Plaintiff’s federal claims, Defendants have offered no basis for applying this state law
in a federal court exercising federal question jurisdiction. See Gambocz v. Yelencsics, 468 F.2d
837, 841 n.4 (3d Cir. 1972) (explaining that, while federal courts may apply state substantive law
in a diversity action, “[s]tate law is inapplicable” when a court holds federal question jurisdiction).
Thus, Section 374(d) cannot prohibit Plaintiff from pursuing his federal claims in this Court. As
for Plaintiff’s state law claims, the applicability of Section 374(d) is addressed in Section III.C.2,
supra.
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 11 of 17

12

(3d Cir. 2017)); see also Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 82 n.2 (1998) (“[A]
union waiver of employee rights to a federal judicial forum for employment-discrimination claims
must be clear and unmistakable.”); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 260 (2009) (finding
that the NLRA provides unions with the “statutory authority to collectively bargain for arbitration
of workplace discrimination claims” so long as “Congress did not terminate that authority” with
respect to the applicable federal anti-discrimination statute).
Neither the ADA nor Title VII exclude arbitration as an appropriate forum. See, e.g.,
Maldonado v. SecTek, Inc., No. CV 19-693, 2019 WL 3759451, at *9 (E.D. Pa. Aug. 8, 2019)
(emphasis in original) (“[T]he plain language of the ADA evinces Congress's intent to encourage
arbitration, not to preclude it.”); Darrington, 958 F.3d at 192 (“Title VII claims are arbitrable.”)
Thus, the issue here is whether the VIFS CBA clearly and unmistakably waives Plaintiff’s ability
to bring suit under these statutes.
“The clear-and-unmistakable-waiver standard is satisfied if a collective bargaining
agreement, interpreted according to applicable contract-interpretation principles, clearly and
unmistakably waives a judicial forum for statutory claims.” Darrington, 958 F.3d at 194. In the
Third Circuit, a waiver of a judicial forum for statutory claims need not “individually enumerate
specific statutes” or contain any “magic words” so long as it is “particularly clear and explicitly
stated.” Id. at 194-95 (internal quotations omitted). As such, to be enforceable, the waiver must
clearly state that it is waiving statutory rights or anti-discrimination rights. See Lawrence v. Sol G.
Atlas Realty Co., 841 F.3d 81, 84 (2d Cir. 2016) (explaining that the clear-and-unmistakable-
waiver standard requires “specific references in the CBA either to the statutes in question or to
statutory causes of action generally”); Darrington, 958 F.3d at 195-96 (finding the clear-and-
unmistakable waiver standard satisfied where the provision stated that it applied to “any dispute
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 12 of 17

13

alleging discrimination . . . based upon membership in any protected categories under federal or
state law”).
The VIFS CBA states that its grievance procedure “shall be the exclusive means of
settlement of all grievances arising under [the CBA], including discharge, suspension, or
demotion.” (Dkt. No. 20-1 at 17). It also states that its grievance procedure “shall be the exclusive
remedy for disputes between the parties to this Agreement.” Id. at 19.
The VIFS CBA waiver does not “clearly and unmistakably waive[] a judicial forum for
statutory claims.” Darrington, 958 F.3d at 194. It wholly fails to reference statutory rights or a
right to seek judicial redress for violations of federal law, let alone indicate that an employee is
waiving any of these rights. The provision similarly fails to reference discrimination protections
or clearly indicate that these protections have been waived. Instead, it contains far more general
language, purporting to be the “exclusive” remedy for the parties to the Agreement as well as any
claims arising under the CBA. General provisions such as this do not satisfy the clear-and-
unmistakable-waiver standard and thus do not waive an employee’s right to a judicial forum for
statutory claims. See Robinson v. Giant Eagle, No. CV 20-1439, 2021 WL 2661842, at *2 n.2
(W.D. Pa. June 29, 2021) (finding that a CBA provision—requiring arbitration for “any
controversy, complaint, misunderstanding or dispute arising as to the interpretation, application or
observance of any of the provisions of the Agreement”—was not a clear and unmistakable waiver
of the right to a judicial forum for discrimination claims); Reed v. Girard Coll., No. CV 20-2325,
2020 WL 4601246, at *3 (E.D. Pa. Aug. 11, 2020) (finding that a waiver was not enforceable
because “[n]owhere in the relevant sections of the CBA is there any mention of an employee
waiving his or her statutory right to pursue a lawsuit alleging discrimination in state or federal
courts.”); Fernandez v. Windmill Distrib. Co., 159 F. Supp. 3d 351, 361 (S.D.N.Y. 2016) (finding
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 13 of 17

14

that the clear-and-unmistakable-waiver standard was not satisfied by a CBA provision that
provided that arbitration would be the “exclusive forum” for discrimination claims); De Souza
Silva v. Pioneer Janitorial Servs., 777 F. Supp. 2d 198, 205 (D. Mass. 2011) (same); Savant v.
APM Terminals, Civil Action No. 4:11-1980, 2013 U.S. Dist. LEXIS 200167, at *32 (S.D. Tex.
Aug. 27, 2013) (explaining that a CBA provision providing that the “grievance procedure and
arbitration shall be the exclusive remedy with respect to any and all disputes arising between the
Union or any person working under the [CBA]” would not, standing alone, satisfy the clear-and-
unmistakable-waiver standard).
The VIFS CBA does not clearly and unmistakably waive Plaintiff’s right to seek redress
under federal anti-discrimination statutes in a judicial forum. Thus, the grievance procedure under
the VIFS CBA does not provide the exclusive remedy for resolving Plaintiff’s federal statutory
anti-discrimination claims.
b. Exhaustion of Administrative Remedies
Turning to the issue of exhaustion, Defendants argue that, prior to filing suit, Plaintiff is
required to exhaust the administrative remedies available to him. (Dkt. No. 20 at 4). In essence,
even if the VIFS CBA grievance procedure is not Plaintiff’s exclusive remedy under the
circumstances here, Defendants maintain that Plaintiff must still take the administrative process to
its conclusion before he can avail himself of this Court.
“The rule for determining whether a plaintiff is required to exhaust remedies provided for
in a collective bargaining agreement before bringing the claim in federal court is well established.”
Collins v. Lobdell, 188 F.3d 1124, 1127 (9th Cir. 1999). “If the claim is based on rights arising
from the collective bargaining agreement, the plaintiff is required to exhaust remedies created by
the agreement.” Id. (citing Barrentine v. Arkansas–Best Freight Sys., Inc., 450 U.S. 728, 736–37
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 14 of 17

15

(1981)). “However, if the claim arises from statutory rights, the plaintiff is not required to exhaust
agreement remedies . . . .” Id. (citing Barrentine, 450 U.S. at 737); see also Preddy v. Davidson
Hotel Co. LLC, No. 18-CV-07730, 2019 WL 3254237, at *4 (N.D. Cal. July 19, 2019) (finding
that a plaintiff pursuing statutory discrimination claims was not required to exhaust the grievance
procedure from her CBA); Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 519 n.11 (3d Cir. 2001)
(citing Alexander v. Gardner–Denver Co., 415 U.S. 36 (1974)) (explaining that employees can
simultaneously “pursue discrimination claims against their employers both through union
grievance procedures and in federal court”).
Here, Plaintiff is pursuing claims pursuant to federal anti-discrimination statutes, rather
than rights created by the VIFS CBA. Accordingly, no exhaustion requirement applies.
* * *
The VIFS CBA grievance procedure is not Plaintiff’s exclusive remedy for his federal
statutory claims and he is not required to exhaust this procedure prior to bringing suit for these
claims. Therefore, Defendants’ request to dismiss Plaintiff’s federal claims pursuant to Fed. R.
Civ. P. 12(b)(6) will be denied.
2. State Claims
Plaintiff has also raised a claim under Virgin Islands law pursuant to 10 V.I.C. § 64a, which
prohibits sexual harassment in employment. Defendants’ request to dismiss Plaintiff’s local claim
for failure to state a claim raises a novel issue of local law preferably left to resolution by the
Supreme Court of the Virgin Islands. There is an open question as to whether Plaintiff’s availment
of various administrative grievance procedures deprives him of his right of access to a judicial
forum for his VICRA claim. In this regard, 24 V.I.C. § 374(d) provides that:
Any agreement between a public employer and an exclusive representative may
provide procedures, applicable only to members of the bargaining unit, for the
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 15 of 17

16

consideration and settlement of employee grievances and/or disputes; Provided,
however, That no employee may avail himself of more than one grievance
procedure for the resolution of a particular grievance and/or dispute.”

24 V.I.C. § 374(d). In a contractual dispute, the Superior Court of the Virgin Islands interpreted
Section 374(d) to prohibit an employee from accessing a judicial forum for her claim that the
defendant had failed to abide by a stipulated agreement between the parties because she had
already filed a complaint with PERB over the same dispute. See Francis v. Gov't of the V.I., No.
ST-13-CV-387, 2014 V.I. LEXIS 43, at *8 (V.I. Super. Ct. July 10, 2014).
Here, Plaintiff’s allegations describe the various administrative procedures he has used to
attempt to resolve this dispute. As such, if Section 374(d) applies here, it might prohibit Plaintiff
from using this Court as a forum to resolve claims arising under Virgin Islands law. However,
unlike the plaintiff in Francis, who brought a contractual claim, Plaintiff raises a Virgin Islands
statutory claim. Virgin Islands courts have not addressed the issue of whether Section 374(d)
precludes statutory claims, and thus, it is unclear whether this provision applies under the
circumstances here.
9
Put another way, there is an open question of Virgin Islands law regarding
which Virgin Islands statute—Section 374(d) or VICRA—this Court should apply.
In light of the Court’s conclusion that this novel issue of Virgin Islands law is “most
appropriately resolved by seeking the guidance of the Supreme Court of the Virgin Islands on the
underlying controlling issue under Virgin Islands law,” Hall v. Hall, No. 2011-54, 2018 U.S. Dist.
LEXIS 53221, at *5 (D.V.I. Mar. 29, 2018) (quoting Banks v. Int'l Rental & Leasing Corp., No.

9
This Court has previously addressed Section 374(d) in Mamouzette v. Jerome. No. CV 2013-
0117, 2017 WL 3083628 (D.V.I. July 19, 2017). However, in that case, the plaintiff had not availed
himself of administrative remedies for his dispute. Thus, the question raised in the instant action—
—whether a plaintiff who has availed himself of administrative remedies available under his CBA
may nonetheless pursue Virgin Islands statutory claims—remains a novel issue.

Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 16 of 17

17

08-1603, 2011 WL 7186340, at *3 (3d Cir. Apr. 19, 2011)), the Court will certify this question of
law to the Supreme Court of the Virgin Islands in accordance with the procedures outlined in
Virgin Islands Supreme Court Rule 38 (“Rule 38”).
10
Specifically, the Court will certify the
following question of law: Whether Title 24 V.I.C. § 374(d) precludes litigants who have availed
themselves of an administrative grievance procedure from accessing a judicial forum for
corresponding statutory claims arising out of the same dispute.
In light of the Certification Order, the Court will deny Defendants’ Motion to dismiss
Plaintiff’s VICRA claim, with leave to refile as appropriate. While the Supreme Court of the Virgin
Islands considers the certification request, Plaintiff’s claims will proceed in this Court.
IV. CONCLUSION
In view of the foregoing, the Court will deny Defendants’ “Motion to Dismiss.”
An appropriate Order accompanies this Memorandum Opinion.
Date: October 4, 2024 _______/s/_______
WILMA A. LEWIS
District Judge

10
Pursuant to Rule 38, “[t]he Supreme Court of the Virgin Islands may answer questions of law
certified to it by a court of the United States . . . if there is involved in any proceeding before the
certifying court a question of law which may be determinative of the cause then pending in the
certifying court and concerning which it appears there is no controlling precedent in the decisions
of the Supreme Court.” Rule 38(a). “A certification order shall set forth: (1) The questions of law
to be answered; (2) A statement of all facts relevant to the questions certified; (3) The nature of
the controversy in which the questions arose; and (4) A designation of the party or parties who
will be the appellant(s), i.e. the party holding the affirmative, in the appellate court.” Rule 38(d).
Case: 1:21-cv-00256-MAK-GAT Document #: 43 Filed: 10/04/24 Page 17 of 17