Dona Aaron v. Virgin Islands Government Hospital and Health Facilities Corporation

• Court: Superior Court of The Virgin Islands
• Decided: March 8, 2021
• Docket: SX-14-CV-423
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

DONA AARON Civil N0 SX 14 CV 423

PLAINTIFF ACTION FOR WRONGFUL TERMINATION BREACH OF V CONTRACT AND DAMAGES

HOSPITAL AND HEALTH FACILITIES CORPORATION CITE AS 2021 VI SUPER 30p DEFENDANT

Appearances Clive Rlvers, Esq Law Office of Clive Rivers St Thomas U S Vilgin Islands Fm Plamtzfi‘

Denise N George, Esq Christopher M Timmons Virgin Islandx Department of Justice St Croix U S Virgin Islands F0; Defendant

MEMORANDUM OPINION

WILLOCKS Presiding Judge

‘11 1 THIS MATTER came before the Court on Defendant Virgin Islands Government Hospital

and Health Facilities Corporation 5 (hereinafter VIGHHFC ) motion f0: judgment on the

pleadings pursuant to Rule 12(c) of Virgin Islands Rules of Civil Procedure filed on September

18 2020 Plaintiff Dona Aaron (hereinafter Plaintiff ) did not file an opposition

BACKGROUND

(fl 2 On November 7 2014 Plaintiff filed d complaint against Governor Juan Francisco Luis

Hospital and Medical Center (hereinafter J FL ) in connection with the termination of her A010" 1 VIGHHFC 9X [4 CV 42% Memorandum Opinion 2021 VI SUPFR 301’ Page 2 0t 21

employment with JFL Viigin Islands Department of Justice appeared in this matter to represent

JFL Plaintiff s complaint 21116:ng the foilowing causes of action against JFL ' Count I breach of

‘ Plainliti did not inLluci: (h:~ natty. ()fthc spunk. cause oi anion 101 each count Thus Eh: mm. 01 ll“. spuific cans; of action tor each count is deUCLd 1mm flu. tollowing statcmenls in Piainlili a complaint Count i l3 Piaintifl reptals and u. aIELgLs Em akkgations wnlaincd in paragraphs 1 [branch 12 inclusiwe as {hunch SLt torth herein xerbaiim l4 Defendant IFL through its principafs and aunts cnlcred into an employmcm agrumcnt with Plainlifl whim has impEiLd by law a counanl of good faith and fair dcaiing by which anuulant J FL and Defendant Chili Exmutiv: 0mm 3:.” A Dickson promised lo gin lull L(mperation [0 Plaintiff in 1h: performanu oi [ht employmcnt agrccmem and {a rnfrain from an act which wuuid prawn! 0r impch Plaintift {mm purtorming all conditions of [he avrccmcnt to b: puiormcd by PM and but ability :0 mm a fixing l5 Dutendants bmachcd {ht implicd meanl of good faith and fair dLaiing with rward to thc. Plainlifl by wrongtuiiy tuminating bu withoulj'ust cause i L toning her out of work E6 As a rcsult of the build} 0t (ht. tmenanl of good faith and lair dealing and in Violation of lb: Virgin Islands COdL Dclcndanls Lama} ?laimitf [0 suilu snug emotional distress loss of ways and the benLtits whiuh would haw. bun rcuuiud had Defcndams not wronglully terminated ha Count II 17 Plaintitf rchats and n, allugcs [he aElcgations Lomaimd in Paragraph K through E6 inclusiw as though 5L! tom: hutch} \Lrbalim l8 PIaimift and Dethdant wan to an cmployant rulationship/agrccmem tin. terms oi which WLrL b} unions written and vubal communiuations pmmisLs anti erformanLLs 19 Plainlilt took prim. in ha work and (1min skikiiull) and Liticicnlly with no Lompiaints 0r disLiplinaly aption mkm against ha by DLandanls "’0 Dnlendams brLEiLhLd [hm cmploymcm Lemma both prlcss and impEiLd bclwcen {Inc panics and thcrcby forLcd Piaimiit out 01 hut job wilhoul iusliIiLalions {3qu agrccmcm human Eh; panics by tuning ha from hm job without just cause 21 As a dirLLl rank and proximal; result of brLaLh PEaimiti sutferLd damagns and Mil confirm. to suffer damaans in [11L fawn as alleged abmt. Count [II 22 Plaintiff FLpLdtb and n. aElLvLs Eh: alkgations containcd in tht. Paragraphs 1 Ehmu‘Ih 2| inLlusiu as though at! torlh herLin \Lrbatim 2% Th; action at Defcndant in forcing Plaintiff 0H {hLir premises and out 01 work constituth wrongful disnharg; in Violation of 24 V l C Salim 76 e: Seq 24 As a rcsuit of Dcfundant s actions. Plaintilf sufturgd damagLs Detendam s actions wan purposdul intentional reckless and outragwus in nature and committed with sud] disregard for tin. riUhls 0f the Piaimiff as 10 amide PEaintiff [0 an award 0% damages inLluding punitive damages as provided {or nude] 24 V I C Quaint] 79 Count IV 25 Plaintiff rcpnals and manages {hc allegations wntained in Paragraph I through 2| inLiusiw as though sat forth herein verbatim 26 Throuohom hen empioy must with Detendants Plaintiff was a IO) 31 employeL who partormed her dulics in a computenl and Lonscitntious manna and as a direct resuil 0t Defendants unlawtui actions in terminating Piaimitt s. cmployment without justification Piaintitf suffered intentionai infliction of emotional distress Admin VIGHHFC SX 14 CV 42? Memorandum Opinion 2021 VI SUPER 301' Page '4 0t 21

implied covenant of good faith and fair dealing Count II breach of employment contract Count

111 wrongful discharge in violation of Title 24 V I C §76 et seq and Count IV intentional

infliction of emotional distress or in the alternative negligent infliction of emotional distress In

response to Plaintiff’s complaint JFL filed a motion to dismiss complaint on December 22 2014

and a notice of filing supplemental authority in support of its motion to dismiss complaint on

October 1 1 2016 Plaintiff did not file a response to either document On October 24 2016 the

Court entered an Older whereby the Court gtanted in part and denied in part JFL s motion to

dismiss complaint dismissed with prejudice Count 111 for wrongful discharge in violation of Title

24 V I C §76 et seq and Oldered Plaintiff to file an amended complaint naming the proper

delendant(s) in this case within thirty day% from the date of entry of the order and effectuate service

of process as deemed appxopriate a (Oct 24 2016 Order p 6)

27 [1 not intentional Piaintitt suffered negiioent infliction 01 emotional distress{ 1 28 As a direct and proximate result 01 Defendant s intentional and/m reckless acts or omissions Plaintitl sutured damages as alleged hcreinl ] ’ In the (ktobu 24 2016 order the Court explained The Court emphasizes that the Legislature granted [11L [Virgin Islands Gowrnment Hospitals and Health Facilities Corporation] with the power to sue and be sued subject to the limitations and requirements 01 existin0 law applicable to the Government of the Virgin Islands 19 VI C § 244(a) No such powu has been granted to [Governor Juan Francisco Luis Hospital and Media“ Center] Thus because [Gowmor Juan Frantisw Luis Hospital and MLdiLa] Center] is a public hLdIIhLdt‘L (anility under the jurisdiction 01 the [Virgin Islands Government Huspitals and Health Facilities Corporationl and the [Virgin Islands Govern ment Hospitals and Health Facilities Corporation} is a public entity of the Government the provisions 01 the [Wrongful Discharae Act] do not apply to inditiduals employed at [Governor Juan Franciseo Luis Hmpital and Medieal Center] See Gmdzne) t Vugm Islands Hospitals and Health Faulmes Com Super Ct C1V N0 9X 2104 CV 112 at *9 1-1 (Oct 4 2016) (opining that the [Wronotul Discharge Au] does not apply to [Virgin Islands Gournment Hospitals and Health Facilities Corporation] or to [Governor Juan Francisco Luis Hospital and Medial! Center}) Theretore Aaron 5 claim tar wrongful discharge must be dismissed The dismissal of Aaron s wrongful discharge claim does not howevu terminate this Litiaation As noted alum. Aaron alleges three other causes of action in her complaint The tact that the [Virgin Islands Government Hospitalis and Hea1th Facilities Corporation] is a public employer does not mandate a dismissal 01 these claims Aceordinoly because Defendant has not made any arouments as to why the other claims should be dismissed and because {Governor Juan Francisco Luis Hospital and Medium Center] is not a legal entity that has the authority to sue or ht. sued the Court will permit Aaron to file an amended complaint to name the proper parties in this ease See Gm tEmplmeev Re! Sts 2016 V 1 LEXIS 128 at *IO 1‘5 (Oct 24 20160rder pp 5 6) Amont VIGHHFC sx 14 CV 42: Memorandum Opinion 2021 VI SUPER 30? Page 4 01 21

‘11 3 On November 4 2019 Plaintiff and the Virgin Islands Department of Justice filed a

proposed joint discovery and scheduling plan with the following caption Dona Aaron v Vugm

Islands Gmernment Hospital and Health Facllmes Cmpomtmn On November 12 2019 the

Court entered an order granting the proposed joint discovery and scheduling plan

‘I[ 4 On September 18 2020 VIGHHFC filed an answer and noted

On October 24 2016 this court dismissed Plaintiff s wrongful discharge claim with prejudice and further dismissed the remainder of Plaintiff 5 claims against JFL Hospital without prejudice because JFL is not a legal entity with authority to sue or be sued In its Order Granting in Part and Denying in Part Defendant s Motion to Dismiss Ms Aaron was ordered to file an amended complaint naming the appropriate parties within thirty days of its ordet and to effect service thereof Accoxding to the Court a docket in this matte: (See Exhibit A) Plaintiff has failed to file her First Amended Complaint Defendants do howevei have a copy of a document purporting to be Plaintiff s First Amended Complaint (hereinafter FirstAmended Complaint 01 PAC ) which consistent with the abcence of a filing on the docket does not indicate that it has been filed It would appear based on the certificate of service therein that Plaintiff served (but did not file) her First Amended Complaint on or about September 3 2019 (some three years late according to the Court 5 October 24 2016 Order) At present there is no operative complaint on the Court’s docket governing the present dispute Defendants file this Answer out of an abundance of caution and in light of the deadline for dispositive motions presently in effect (Answet p l n l) (emphasis in original)

A copy of the docket for this matter and a copy of executed employment agreement between JFL

and Plaintiff dated December 14 2010 (hereinafter Employment Agreement ) I was attached as

Exhibit A and Exhibit B respectively

‘1[ 5 On September 21 2020 VIGHl-IFC filed this instant motion for judgement on the

pleadings and noted

According to the Court 3 docket in this matter (see Exhibit A) Plaintiff has failed to file her First Amended Complaint Defendants do however have a copy of a document purporting to be Plaintiff’s First Amended Complaint (hereinafter First Amended Complaint 0r PAC ) which consistent with the absence of a filing on the docket does not indicate that it has been filed It would appear based on the certificate of service therein that Plaintiff served (but did not file) her First Amended Complaint on or about September

1 The Employment Agreement was signed by Dona M Aaron and Jetf Nelson the Chiel ExecutiVe Officer 01 JFL Aamn1 VIGHHFC 8X 14 CV 42? Memorandum Opinion 2021 VI SUPER 30? Page 5 of 21

3 2019 (some that years late according to the Court 5 October 24 2016 Order) At present there is no operative complaint on the Court 3 docket goveining the piesent dispute However in an abundance of caution in light of the Court 8 scheduling ordei in this matter setting the deadline for dispositive motions on September 18 2020 Defendants file the instant Motion for Judgment on the Headings (Motion for Judgment on the Pleadings pp 1 2) ‘I[ 6 On January 27 2021 the Court entered an order whereby the Court ordered (1) that the

following documents to be stricken from the record (1) VIGHHFC s answer filed on September

18 2020 (2) VIGHHFC s motion forjudgment on the pleadings pursuant to Rule 12(c) of Viigin

Islands Rules of Civil Procedure filed on September 18 2020 and (3) the joint discovery and

scheduling plan of Plaintiff and VIGHHFC entered on Novembet 12 2019 (ii) Plaintiff appear

101 a show cause hearing and (iii) Plaintiff to file a first amended complaint 4

‘11 7 In response to the Court ts January 27 2021 order Plaintiff filed a notice of previously filed

first amended complaint and request to quash the order to show cause A copy of the first amended

complaint date Stamped September 3 2019 a copy of Plaintiff s motion to rescind the show cause

4 In its January 27 2021 order the Court explained The Court must note at the outset that there are two glaring issues that must be dealt with immediately First Plaintiti has not filed a lint amended complaint per the Court 5 ()etober 24 2016 order A: sueh the original eompiainl is still the operatite eomplaint ‘ Thus VIGHHFC is not eunently a party in this lawsuit and its answer and motion is not properly before the Court The Court wili strike from the reeord VIGHHFC 5 answer and motion Similarly the Count will also strike from the reeord the joint discovery and seheduling plan 01 Plaintitt and VIGHHFC entered on November 12 2019 Second it is extremeiy tumbling to the Court that over four years have passed and Plaintiff still has not Lompiied with the Court .s ()etober 24 2016 order " The Court will order Plaintiff to show eause why she should not be he1d in eontempt and sanetioned tor tailing to eomply with the Court 5 October 24 2016 order See Title 14 V I C § 581 ( Every eourt oi the Virgin Islands shall have the power to punish by fine or imprisonment at its diseretion sueh eontempt of its authority and none other as (1) disobedienee or resistanee to its law ful writ proeess order rule decree 0r eommand ) The Court will also cider Plaintiff to tile 21 first amended eomplaint per the Court 5 ()etober 24 2016 order within three days mm the date 01 entry of this ordei

4 The ()etober 24 2016 order did not dismiss the original complaint instead Plaintiff was ordered to amend the complaint to name the proper defendantts) ‘ While VIGI-IHFC s ansWer indieated that [ilt would appear based on the eertifieate of seniee [oi the Untiled PAC] that Plaintiff served (but did not 1i1e)her[the Untiled PAC] on 01 about September 3 2019 However the eertiticate of service attached to the Untiled PAC was for the service 01 Motion to Rescind the Show Cause Order and not the Unfiled PAC Thus it is unclear when it at all VIGHHFC was served with a eopy 01 the Unified FAC See supra footnote 3 14611011 , VIGHHFC 3X 14 CV 4"? Memorandum Opinion 2021 VI SUPER 30F Fag: 6 01 21

order dated September 3, 2019, and a copy of the order granting Piaintiff s motion to Iescind the

show cause order entered on September 9 2019 were attached to Piaintiff 5 notice Plaintiff’s

first amended complaiflt alleged the following causes of action against VEGHHFC 5 Count I

breach of implied covenant of good faith and fair dealing Count II breach of employment comma

‘ ?laintifl did no! 111L1UdL the name 01 thc spunk, tans: 01 action tar cad! mum Thus IhL name. of the spunk cause of anion 1’01 Lad: noun! is deduced from 1h; foilowinv stathtnts in Plaintiff s first ammde Lompiaint Count I 15 Plaintiff rchais and n. aingu [11L allagations contained in paramaphs 1 through 14 inclusiu. as {howl} 5L1. 103111 hunin Vcrbatim 16 Dcfcndant through its prinLipaEs and agLnts mural into an meloy mun! agrcumnl with Plaintiff which has implied b) law a cownam 01 good faith and fair dLaIino by which Duicndant its aganiLs and its lel‘LbLntaliVLs‘ pmmiscd to gin. fun cooperation to Plaintiff in [In pcrformanu. cf tilt. unploy mum agreLanl and lo rcfrain from an ant which would pawn! 0r impala Piaintitf from partorming alf Londitions 01 the agrumcm to be perforde by her and her ability to cam a livino E7 dedants hrtflLhLd {ht impliul wwnarit 01 good faith and fair dcaling with regard [0 [ha i’laintiti by mongtuily [erinaling ha uithoutjust cause i & Inning ha out oi work 18 A9 2111.511]: 01 1h: breach ()1 1h; covenant 01 good faith and fair dcaling and in Vioiation 01 PEaintiit 9 rights DLandants and/or its 30mm Lauscd Plaintitt [o sufter swan. amolional distluszs 1053 of wanes and thc bLnLtils which would haw. bun “44.in had DekndanEs not wrongfuliy tuminaled hm all 10 ha damagLs Count 11 19 Plaintiff erLats and n. alELgLs E111, allcgalions wmainpd in Paraglaph 1 through 18 111L1USiVL as though set forth ercin wrbalim 20 PEaintiif and Dctandam mun, partius to an employment rLlationship/agrwmcnt thy Icrms of which “LIT, made by Various writan and \Lrbal communications prumiscs and performances 71 Plaintiff [00k pridL in er work and dutius skillfully and cttigibnliy with no Lumpiainls or disciplinary action taken against bur by DLtcndanE 22 Dcfcndants brnachcd [ht employmml contract both prrcssly and impiiuil) batman Eh: partiLs. and thatch)! turch Plaintiff out 01 her job without just cans: 7? As a dircu result and proximal“. rLsull of breath Piaintift buttered damages and wiil Lontinuu m sufici- damagcs in the {mum as alleged Elbow. all 10 ht; damage Count {II '74 Plaintift rcpnats and reailegcs {he alkagaiions contained in Paragraph 1 through 2? inclusiu. a5 {houoh set forth hcrcin verbatim 25 Throughout ha employ man! with Dctcndanls Plaintiti was a inyal meloyLe who performed her duties in a Lompetml and Lonscitmious manna and as a direct result 01 Defendant s unlawful actions in tnrmindling Plaintiff s emp1oymnnl wilhoutjustiiicalion Plaintift summed intentional infliction 01 emotional éistnss 26 It not intcntionai Plaintiff sutfcred m.gligent infliction of emotional disllLss 27 As a (firm and pmximatc rLsuli 01 Seiendam s inientional andlor reckless aw, or omissions ?laimifl suffcred damages as 21111.ng herein Admin VIGHHFC 8X 14 CV 423 Memorandum Opinion 2021 VI SIJPER 301’ Page 7 01 21

Count 111 intentional infliction of emotional distress or in the alternative negligent infliction of

emotional distress On February 24 2021 the Court entered an order whereby the Court ordered

the docket for this matter updated to reflect that Plaintiff s first amended complaint was filed on

September 3 2019 the show cause hearing scheduled for Plaintiff on March 11 2021 vacated the

portion of the Couxt 5 January 27 2021 order striking the following documents from the record

(1) VIGHHFC s answer filed on September 18 2020 (2) VIGHHFC s motion for judgment on

the pleadings pursuant to Rule 12(0) of Virgin Islands Rules of Civil Piocedure filed on Septembei

18 2020 and (3) the joint discovery and scheduling plan of Plaintiff and VIGHHFC entered on

November 12 2019 vacated the docket for this matter updated to reflect that VIGHHFC 5 answer

was filed on September 18 2020 VIGHHFC s motion for judgment on the pleadings pursuant to

Rule 12(c) of Virgin Islands Rules 01 Civil Procedwe was filed on September 18 2020 and the

joint discovery and scheduling plan of Plaintiff and VIGHHFC was entered on November 12

2019 and a status conference scheduled As such VIGHHFC s motion for judgment on the

pleadings pursuant to Rule 12(0) of Virgin Hands Rules of Civil Procedure is currently pending

QTANDARD OF REVIEW

‘fl 8 The cou1t should not grant a motion for judgment on the pleadings unless the moving

party has established that there is no material issue of fact to resolve and that it is entitled to

judgment in its favor as a matter oflaw Benjamin 1 A10 Ins Co ofP R 56 V I 558 at 566 (V I

2012) (quoting Mele 1 Fed! Reserte Bank of N Y 359 F 3d 251 253 (3d Cir 2004)

(quoting Leamert Famer 288 F 3d 532 535 (3d Cir 2002))) see also United Corp v Hunted

64 V I 297 305 (2016) ( [a] motion for judgment on the pleadings should not be granted unless

the moving party has established that there i§ no material issue of fact to re501ve and that it is

entitled to judgment in its favor as a matter of law ) see also Reynolds 1 Rohn 70 V I 887 896 Aaron t VIGHHFC SX 14 CV 423 Memorandum Opinion 2021 VI SUPER 30F Page 8 0t 21

(2019) (quoting United 64 V I at 305) As with a Rule 12(b)(6) motion this Court view{s] the

facts alleged in the pleadings and the inferences to be drawn from those facts in the light most

favorable to the plaintiff Benjamm 56 V I at 566 (quoting Mele 359 F 3d at 253

(quoting Leamer 288 F 3d at 535)) see also Unwed Corp 64 V I at 305 (noting that the court

views the facts alleged in the pleadings and the inferences to be drawn from those facts in the

light most favorable to the plaintiff ) seealvo Remolds 70 VI at 896 The court is foreclosed

from considering eVidence fiom any source outside of the pleadings and the exhibits attached to

the pleadings in determining whether it was ptoper to grant a motion for judgment on the

pleadings Benjamin 56 V I at 566 see also United Corp 64 V I at 305 (noting that the court

may not e0nsider[] evidence from any source outside of the pleadings and the exhibits attached

to the pleadings in determining whether it was proper to grant a motion for judgment on the

pleadings ) see alto Remolds 70VI at 896

DISCUSSION

(fl 9 In in motion VIGHHFC argued that it is entitled to judgment as a matter of law because

Plaintiff cannot prevail on her claims for breach of contract breach of implied covenant of good

faith and fair dealing intentional infliction of emotional distress and negligent infliction of

emotional dishes» and thereby the Court should grant its motion The Court will discuss each of

Plaintiff 5 claims in turn

1 Breach of Contract

(ll 10 In its motion VIGHHFC argued that it is entitled to judgment as a matter of law as to

Plaintiff 3 claim for breach of contract because Plaintiff was an at will employee and the

Employment Agreement provided [VIGHHFC] the express authority to terminate [Plaintiff s]

employment with or without cause (Id at p 8) VIGHHFC made the following assertions in Admin VIGHHFC §X 14 CV 42? Memorandum Opinion 2021 VI SUPER 301’ Page 9 0| 2|

support of its argument (i) Plaintiff“ s employment was at will 6 (Id) and (ii) Plaintiff 9

Employment Agreement provided Defendant the express authority to terminate [Plaintiff 9]

employment with or without cause 7 (Id )

(II I l The Virgin Islands Supreme Court has adopted the following four elements underlying a

claim for breach of contract as the soundest path forw aid in the Virgin Islands (1) an agreement

(2) a duty created by that agreement (3) a breach of that duty and (4) damages Phllllp 1 Marsh

Montana) 66 V I 612 620 (V I 2017) Here it is not in dispute that Plaintiff 9 employment with

JFL was governed by a contract In her first amended complaint Plaintiff aIleged that Plaintiff

and [VIGHHFC] were parties to an employment relationship/agreement the terms of which were

made by ValiOLlS written and veibal communications promises and performances (FAC ‘11 20) In

its answer VIGHHFC admit[ted] that it entered into written employment agreements with

Plaintiff“ and attached a copy of the Employment Agreement as Exhibit B to its answer (Answer

‘I[ 16) In its motion VIGHHFC again acknowledged the Employment Agreement and argued that

it governed Plaintiff 5 employment with JFL Plaintiff did not dispute VIGHHFC 3 claim since

Plaintiff did not fiIe an opposition to VIGHHFC s motion that the Employment Agreement

governed her employment with JFL According to the Employment Agreement 8 {the Chief

Executive Officer of the Hospital9 may terminate the Employee'0 with or without cause

(Employment Agreement HI 5) While Plaintiff alleged in the first amended compIaint that her

" VIGI-[I-IFC refereneed VIGHHFC s arguments made as to Plaintiff s claim for breath 0t implied covenant of good taith and Iair dealing 7 VIGHHFC referenced Employment Agreement ‘I[ 5 R The Court is not foreelosed from eonsidering the Employment Agreement since a eopy of the Employment Agreement was attaehed as Exhibit B 10 VIGHHFC 5 answer See Benjamin 56 V l at 566 (The eourl is toreelosed from eonsidering e\idenee from any sour“ outside of the pleadings and the exhibits attached to the pleadings in determininc whether it was proper to grant a motion for judgment on the pleadings ) 9 In the Employment Agreement the Hospital was defined as JFL I” In the Employment Agreement Employee was defined as Dona M Aaron A(llOlll VIGHHFC 9X l4 CV 42? Memorandum Opinion 2021 VI SUPER 30? Page IO 0i 2}

employment with JFL was governed by written and verbal communications promises and

performances the first amended complaint did not reveal the existence of a contract provision

whether mitten or oral creating a duty to terminate Plaintiff only for just cause Even assuming

aiguendo that there were other written or oral agreements these other agreement are not

enforceable because the Employment Agreement also included an unambiguous merger clause

[t]his [Employment Agreement] constitutes the entire Agreement between the parties and all

prior understandings are merged herein (Employment Agleement (ll 7) (emphasis added) Where

as here the parties by their own unambiguous teims manifest their intent that a writing

represent the entiie agreement between them we will follow [the] plain meaning [of that writing]

and abstain from imputing language 01 interpretations that are not in accordance with [such

writing 5} plain meaning Phl/llp 66 V I at 627 (quoting Wear) 1 Long Reef Condo A9312 57

V I 163 69 70 (V I 2012)) Thus the Court finds that the parties inclusion of a merger clause

indicated theii intention for the Employment Agreement to contain theii entire agreement and

under the plain meaning of the Employment Agreement any and all prior agreements governing

Plaintiff 5 employment with JFL were no longer binding on either party as a mattei of law See

Phillip 66 VI at 627 ( The patties inclusion of a merge: clause further indicates that they

intended for the second contiact to contain their entire agreement )

(II 12 In her tint amended complaint Plaintiff alleged that VIGHHFC breached the

employment contract both expressly and impliedly between the parties and thereby feiced

Plaintiff out of her job without just cause (Comp! ‘11 22) However there is no duty under the

Employment Agreement to terminate Plaintiff only for just cause because as noted above the

Employment Agreement piovided that Plaintiff may be terminated with or without cause Absent

a duty no breach of duty can occur As such VIGHHFC has established that there is no material Aaron 1 VIGHHFC 9X 14 CV 42? Memorandum Opinion 2021 VI SUPER 3UP Page I 1 01 21

issue of fact to resolve and it is entitled to judgment in its favor as a matter of law as to Plaintiff 5

claim for breach of contract Benjamin 56 V I at 566

2 Breach of Implied Covenant of Good Faith and Fair Dealing

‘11 13 In its motion VlGHI-IFC argued that it is entitled to judgment as a matter of law as to

Plaintiff‘s claim fox bleach of implied covenant of good faith and fair dealing because Plaintiff

was an at will employee and the implied covenant of good faith and fail dealings does not impose

an obligation to terminate an at will employee only for just cause (Motion p 6) (emphasis

omitted) VIGHHFC made the following assertions. in support of its argument (1) The Virgin

Islands Supreme Court has observed that the employment at will doctrine hag been adopted in

nearly every American jurisdiction and our Superior Court has pursuant to a Bank: analysis

determined that the common law doctrine of at will employment is the soundest rule for the Vitgin

Islands and [tlherefore the common law principle that an employment relationship is at will

unless it is modified by a statute such the WDA or an express contract provision ” (Id at p 3)‘

(ii) While at will employment has been abrogated for some public sector employees by statute

not all public sector employees haVe a prom ietary interest in their continued employment such that

they may be terminated only for cause ‘7 (Id at pp 3 4) (iii) With respect to public sector

employment in the Virgin Islands our Supreme Coutt has determined that only Iegular

employees of the Vitgin Islands Government have such a legitimate claim of entitlement H

” VIGHHFC relercnted Canton; VI Humanmes Comm! 7017 V1 LEXIS 116 at 15 16 (Super Ct July 26 2017) ( To rule otherwise would judicially abrogate the WDA which abolished (ht, common law employment at will doetrinefm (meled emplmees ) '7 VIGHHFC relerenced Canion 2017 VI LEXIS 116 at *24 Willmnm Jackson 1 Pub Emples Rels 8d 52 VI 4-15 451(Vl 2009) thImks Gan ale 1 Pub Emps Relationde 71VI 117 l44t§uper Ct 2019) n VIGHHFC relerented Williams Jackson 52 V l 445 Flemmg t Cm 62 VI 702 (20] 5) (Liting lies \ dc Jongh 6'18 F 3d 169 17-1 (1d Cir 201 l)( [U]nder the employee termination procedures 01 ['4 V I C I §530 [only] employees who are legulcu emplmees may ht. terminated only for cause thus granting them a property interest in continued employment )) Awont WGHHFC SX 14 CV 42% Memorandum Opinion 2021 VI SUPER 301’ Page 12 01 2|

however not all career service employees may be filed only f0: cause but rather only those

who also meet the definition of regular employees 14 (Id at p 4) (iv) [T]o be considered a

regular employee of the career service one must satisfy the requirements of both 3 V I C §451

and 3 V [C §530 ’ (Id ) (emphasis omitted)‘ (v) [Title 3 V I C ] §§42l [sic] and 530 should be

lead in harmony to mean that a regular employee must have been appointed by competitive

examination pursuant to 3 V I C 521 have served for more than two years in the executive branch

or in an instrumentality and must not be on contract or on probation '6 and when these provisions

are applied to the facts here Plaintiff was not a regular employee in the classified service

because she was not appointed through a competitive examination process 17 (Id at p 5) (vi)

Plaintiff was employed for more than two years as is specified in § 530 and employed on

contact (the express telms 01 which were that she could be terminated without cause) and [a]s

such by definition Ms Aaron was not a regular employee and had no teasonable expectation of

long term employment '8 and thereby Plaintiff was an at will employee subject to termination

at any time without cause (Id at pp 5 6) (Vii) [W]hile the implied covenant of good faith and

fail dealing applies to at will employment contlacts in the V11 gin Islands it is well settled that the

implied covenant only protects the employee s payment earned from labor previously

performed '9 and [aln at will employee does not have a reasonable expectation 01 continued

” VIGHHFCILICI‘anLd Fm en PollceBenemlentAss n L0u118l6 7017 V I LEXIS 177 at r12. 11 75 (VI Super Ct 2017)(LIIII‘10”€S) Willlarm Judson 52 VI 211453 " VIGHHFC referenLed Willocks Gonzalez 7| V] at 144 " VIGHHFC relLanLcd Id 71 VI at 148 I VIGHHFC relLanLed Id 7! V I at 151 Williams Jackson 52 VI £11452 1" VIGHHFC referenced Willows Gan ale 7| VI 137 " VIGHHFC relereneed Canton 2017 VI LEXIS 116 Schrader Cook“ Gm tofr/ze VI 2019 V1 LEXIQ 110 (Super Ct Dec 6 2019) Auront VIGHHFC 9X 14 CV 42% Memorandum Opinion 2021 VI SUPER 301’ Page 1% of 21

employment or just cause termination 7” (Id at p 6) and (viii) Plaintiff does not claim that she

has been deprived of payment for labor previously performed and appears to argue that she was

entitled to long term employment terminable only for just cause but the implied covenant of

good faith and fair dealing will not override the contract 5 express language 7' (Id at p 7)

(ll 14 Cuuently there are no Virgin Islands law or rules and no p1i01 precedent from the Virgin

Islands Supreme Court that addresses the issue of whether the common law doctrine of implied

duty of good faith and fail dealings in contracts should be applied to at will employment contracts

In Canton the LOUIt after a Banks analysis concluded that the best rule fot the Virgin Islands is

to confitm that an implied duty of good faith and fair dealing exists in at will employment

conttacts [but] the implied duty only protects an employee 5 reasonable expectations stemming

from the employment contract i e payment earned fiom labor provided and thereby concluded

that [a]n at will employee does not have a teasonable expectation of continued employment or

just cause termination 2017 V I LEXIS ] 16 at * 24 The Court agrees and adopts the reasoning

and determinations of the Canton court as to the issue of whethel the common law doctrine of

implied duty of good faith and fair dealings in contracts should be applied to at will employment

contracts

0 VIGHHFC relerenced Id Espeuen I Sugm Ba\ Club & Result Cmp 2018 V I LEX1§ 68 al )‘26 27 Super Ct July 18 2018) (emphasis added) (the court held that the implied duty 01 good faith and lair dealing exists in at will employment contracts but insolar as only proteLtEing] an employees reasonable expectations stemming 1mm the employment contract 1t. payment earned 1mm labor provided so that an m ml] emplmee does not lune a Ieamnable expectanon ofamtmueu' emplownent 02 just cause termmatmn) Canton 2017 VI LEXIS 116 " VIGHHFC referenced Fields 1 Thompson Pmmng C0 36? F 3d 259 271 72 (3d Cir 2004) see also Mende 1 CoastalSu Det No 2005 0165 2008 US Dist LEXI‘I 1%5122 (DVI May 20 2008) Mende 1 P113110 Rica): ImlCos No 05' 174 2013 US Dist LEXIS [46228 (D V! 0a 4 2013) (finding that breach of Lowenant 01 good laith and fair dealing constitutes breach of an obligation created by underlying contract and only allows for Lontratt damages) Aamnt VIGHHFC 9X 14 CV 47% Memorandum Opinion 2021 VI SUPER 30F Page 14 of 21

(H 15 As noted above Plaintiff s employment with JFL was governed by the Employment

Agreement which provided that Plaintiff may be terminated with or without cause Thus the Court

finds that the Employment Agreement was an at will employment contract and therefore Plaintiff

was an at will employee and her employment could be terminated with or without cause In her

first amended complaint Plaintiff did not allege that her termination was motivated by Defendant s

desire to avoid providing a reasonably expected benefit or that she has been deprived of any

retrospectiVe right to earned benefits' instead Plaintiff alleged that Defendants [sic] breached the

implied covenant of good faith and fair dealing with regard to the Plaintiff by terminating her

without just cause i e forcing her out of w0tk (PAC ‘1[ 17) However the implied duty does not

protect Plaintiff from termination without just cause because Plaintiff as an at will employee had

no reasonable expectation of continued employment or just cause termination Canton 2017 V I

LEXIS 116 at ’24 ( An at will employee does not have a teasonable expectation of continued

employment or just cause termination ) Again absent a duty n0 breach of duty can occur As

such VIGHHFC has established that there is no material issue of fact to resolve and it is entitled

to judgment in its favor as a matter of law as to Plaintiff 5 claim for breach of implied covenant of

good faith and fair dealing ” Benjamin 56 V I at 566

” In its motion VIGHHFC argued that Plainlill “as not a regular employee as defined under Title ‘1 V I C § 451 and Title ”I V I C § 521 Howuu whether Plaintiff was a regular employee as defined under Title 1 V I C § 451 and Till: ‘1 V I C § 521 is not an issuz before thc Court First Plaintiff did not allege in th first amended complaint that she was a rcgular employee under Title 3 V I C § 451 and Title 3 V I C § 521 Plaintiff simply alleged that her employ ment with JFL was governed by an agreement Plaintilf and [VIGHHFC] were parties to an employment relationship/agreement tht. terms 01 which were made by tarious written and verbal Lommunitations promises and performances (FAC ‘11 20) §ee0nd Plaintiff did not file an opposition to VIGHHFC s motion to argue that unlike what VIGI-IHFC claimed she was a reoular emploth under Title 3 V I C § 451 and Title 3 V I C § 521 It is the duty of Plaintitl s counsel to admeate for Plaintiff 5 position not the Court 5 and tht. Court will not make [ht arguments for Plaintiff Seeeg Josepht Joseph 2015 VI LEXIS 4‘1 *5 (VI Super Ct Apr 2? 2015)(the Court will not make a mo» ants arguments for him when he has tailed to do so) Thus at this juncture the Court need not address the issue of whether Plaintiff was a regular employee as defined under Title 1 V I C § 451 and Title 3 V I C § 521 Amont VIGHHFC 9X 14 CV 42? Memorandum Opinion 2021 VI SUPER SOP Page 15 of 21

3 Intentional Infliction 0f Emotional Distress

‘11 16 In its motion VIGHHFC argued that it is entitled to judgment as a matter of law as to

Plaintiff’s claim for intentional infliction of emotional distress (IIED) because Plaintiff has not

allege any extreme our {sic} outrageous behavior on the part of [VIGHHFC] as a predicate to her

IlED claim (Id at p 9) VIGHHFC made the following assertions in support of its argument (i)

To prevail on a claim of intentional infliction of emotional distress Plaintiff must demonstrate

that Defendant s conduct was outrageous in chatacter extreme in degree and beyond all possible

bounds of decency to be regarded as atrocious and utterly intolerable in a civilized community

such that the recitation of the facts to an average member of the community would arouse his

resentment against the actor and lead him to exclaim Outtageous! 7; (Id at p 8) (ii) [T]he

suspension or termination of an at will employee is not the type of outrageous conduct that could

be deemed atlocious and utterly intolerable such that no reasonable petson in a ciVilized society

would be expected to endure it and [i]n fact auch activity ie legal and typical of an at will

employment relationship u (Id ) (iii) [I]t i9 exttemely rare to find conduct in the employment

context that will rise to the level of outrageousness necessary to provide a basis for recovery for

the tort of intentional infliction of emotional distress at all 7‘ (Id at p 9)’ and (iv) Plaintiff is

complaint tests 501er on the fact that Defendant terminated her employment (Id at p 9)

H VlGHHFC referenced Edmuds t Mmmm Hotel Mgnzr Co (VI) [in 2015 VI LEXIS l? at *2") 25 (Super Ct Jan 29 20l5) 1‘ VIGHHFC relereneed S(hiader Cooke 72 V I at 247 ‘VlGHHFC referenced Id (quoted in Ramon SI CromAIumma LLC 277 F Supp 2d 600 604(D VI 2001)) Marc ak \ Frankfmd Cam!» & C/mwlate C0 Hf) F 3d 933 940 (2d Cir 1997) see also Pemuck 1 VI Behatwlal 5cm No 2006 0060 2Ol” US Dist LEXIQ 27402 at "ll 1" (DVl Feb 22 2012) Hodget Dam News Pub] Co Inc 52 VI l86 2009 VI LEXI§ 26 (VI Super Ct Dec 4 2009) (outrageous conduct is a very difficult standard to meet in an employment context) Altare t Pueblo International [m 24 VI 141 [47 (Terr Ct I989) (termination 0t employment does not rise to the level of conduct so outragLous in character and $0 extreme in degree as to go be) 0nd all possible bounds of decency and to be regarded as atrociom and utterl) intolerable in a civilized society ) Aaron» VIGHHFC 9X 14 CV 423 Memorandum Opinion 2021 VI SUPER 3UP Page 16 01 21

‘11 17 Currently there are no Virgin Islands law or rules and no prior precedent from the Virgin

Islands Supreme Court that xecognizes 0r identifies the elements of an intentional infliction of

emotional disttess claim In Joseph 1 Sugar Em Club & Retort and Did I Ramsden the courts

after a Banks analysis both concluded that RESTATEMEENT (SECOND) 0F Toms § 46 represents

the soundest rule for the Virgin Islands 7" and held that [t]0 recover damages for this tort Plaintiff

must show that the Defendant s conduct was so outrageous in character and so extreme in degree

as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly

intolerable in acivilized society Joseph 2014 V I LEXIS l4 *8 9 (Super Ct Match 17 2014)

rel (101101116; grounds 2015 V I Supleme LEXIS 4 (V I 2015) Dza 67 VI 8] 88 (Supel Ct

Sep 22 2016) The Court agrees and adopts the reasoning and detetminations of the Joseph court

and Dza court as to the recognition of an intentional infliction of emotional distress claim and the

elements thereto

‘11 18 In her first amended complaint Plaintiff alleged that as a direct tesuit of [VIGHHFC s]

unlawful actions in terminating Plaintiff 5 employment without justification Plaintiff suffered

intentional infliction of emotional distress and [211$ direct tesult and proximate result of

[VIGI-IHFC s] intentional and/or reckless acts or omissions Plaintiff suffered damages but

Plaintiff did not elaborate on the nature or extent of emotional distress she suffered (PAC (|in 25

" RESTATEMHVT (SECOND) 01- TORTS § 46 provides § 46 Outrageous Conduct Causing Sewn. Emotional Distress ( 1) One who by extreme and outlageous tondutt intentional“) or reck1essl) causes severe emotional distress to another is subject t0 liability for such emotitmal distress and it bodily harm to the othernesults from it tor such bodily harm (2) Where such conduct is directed at a thild person the actor is subject to liability it he intentionally or recklessly tauses snare emotional distress (a) to a member of such person s immediate family who is present at the time whether or not such distress results in bodily harm or (b) to any 01er person who is present at the time it such distress results in bodily harm Amoni VIGHHFC 9x 14 CV 42: Memorandum Opinion 2021 VI SUPER 30F Pact. 17 01 21

27) In other words Plaintiff s intentional infliction of emotional distress claim is predicated on

VIGHHFC s conduct of terminating hen employment without cause The Court finds that the

termination of Plaintiff 9 employment without cause is not the type of conduct that rises to the

level so outrageous in chatacter and so extreme in degree as to go beyond all possible bounds

of decency and to be regaided as atrocious and utterly intolerable in a civilized society that can

form the basis of an intentional infliction of emotional distress claim ’7 Joseph 2014 V I LEXIS

14 at 9 ( this already high standard [of IIED] is very difficult to meet in an employment

discrimination case ) (citing Hodge t V1rgm Islands Dam News 52 VI 186 198 (Super Ct

Dec 17 2009) Cf. Altare t Pueblo 24 V I 141 147 (Terr Ct March 8 1989) (holding an

employers exercise of such discretion in dismissing an employee does not rise to the level of

conduct so outrageous in character and so extreme in degiee as to go beyond all possible bounds

of decency and to be regarded as atrocious and utterly intolerable in a civilized society ) see also

Sc hmdez Cooke 72 V I at 247 ( The suspension 01 termination of an exempt employee is not the

type of outrageous conduct that could be deemed atrocious and utterly intolerable such that no

reasonable person in a civilized society would be expected to endure it It is extremely rare to find

conduct in the employment context that will rise to the level of outrageousness necessary to

provide a basis for recovery for the tort of intentional infliction of emotional distress )

(quoting Smith 1 VI Housmg Auth 2011 US Dist LEXIS 19409 24 (D V I

201 1) (citing Matt clk t Frankfmd Candy and Chocolate C0 136 F 3d 933 940 (3d Cir 1997)))

In fact the Employment Agreement which governed Plaintiff 5 employment with JFL explicitly

provided that Plaintiff may be terminated with or without cause As such VIGHHFC has

77 Based on the Court 5 finding it is not necessary to determine the lmel 0t suerity of emotional distress at this Juneturt. Aamn 1 VIGHHFC 8X I4 CV 42% Memorandum Opinion 2021 VI SUPER 301’ Pace 18 0t 21

established that there is no material issue of fact to resolve and it is entitled tojudgment in its favor

as a matter of law as to Plaintiff s claim for intentional infliction of emotional distress Benjamin

56 V I at 566

4 Negligent Infliction of Emotional Distress

‘1[ 19 In its motion VIGHHFC argued that it is entitled to judgment as a matter of law as to

Plaintiff s claim for negligent infliction of emotional distress (NIED) because NIED is not the

168361 included offense of IIED and Plaintiff has not alleged harm or emotional distress to tise

to the level necessary to sustain [NIED] claim 78(Id at pp 9 ll) VIGHHFC made the following

assertions in support of its argument (i) While the Supreme Court of the Virgin Islands has not

recognized a claim for negligent infliction of emotional distless (NIED) the Superior COUII has

recognized and (pursuant to 3 Banks analysis) defined elements necessary to establish a claim of

NIED as, follows to prevail on a claim of negligent infliction of emotional distiess under a theory

that the plaintiff was the direct victim of a defendant 5 negligent conduct a plaintiff must prove

( 1) that the defendant owed the plaintiff a duty of care to ensure the plaintiff does not suffer serious

or severe emotional injury which duty either arose by contract or was imposed as an independent

legal obligation that the defendant breached its contractual 01 legal obligation ie its duty and

(3) that as a direct and proximate result of defendant 5 bleach the plaintiff suffered a serious or

severe emotional injury )9 (Id at p 10) (ii) The District Court has retained the physical injury

requirement from the Restatement ‘0 while the Supeiior Court has leaned towards their

5 VIGHHFC referenced GemIdt Denise) 2016VI LEXIS 115 (Super (,t Ave 22 2016) " VIGHHFC referenced Dunastorg 1 Dam New 5 Pub! Co 6'4 V I at 196 [5mm ofBumen i K0 1' Foods of the 1/ I 69VI 50(Super Ct 2016) m VIGHHFC referenced Meme; 1 Gm toft/ze VI DeptofEc/uc No 2014 50 2016 US Dist LEXIS 115643 at 38 "49(DVI gap 30 2016) Arno“ I VIGHHFC 9X 14 CV 42? Memorandum Opinion 2021 VI SUPER 30F Pave 19 0f 21

abandonment 1’ (Id ) (iii) In support of her NIED claim Plaintiff simply asserts if not

intentional Plaintiff suffeted negligent infliction of emotional distress but the Superior Court

held that similar pleadings that the acts of Defendants as stated above If not mtennonal were

neglzgemly done for the purpose of inflicting severe emotional distress on Plaintiff Plaintiff has

suffered infliction of emotional distress economic damages as well as damages to his reputation

[sic] are insufficient to state a claim for NIED as a matter of law ‘7 (Id at p 11) and (iv)

[Wlithout specificity indicating emotional injury beyond the migraine/headaches stress and

other ailments [the plaintiff] has not adequately pied facts to state a claim for negligent infliction

of emotional distress “ (Id at pp 1 l 12)

(II 20 Currently there are no Virgin Islands law or rules and no prior precedent from the Virgin

Islands Supreme Court that recognizes or identifies the elements of a negligent infliction of

emotional distress claim In Donation; and Dza the courts after a Banks analysis both concluded

that the following is the soundest ru1e for the Virgin Islands

[T]0 prevail on a claim of negligent infliction of emotional distress undex a theory that the plaintiff was the direct Victim of a defendant % negligent conduct a plaintiff must prove ( 1) that the defendant owed the plaintiff a duty of care to ensure the plaintiff does not suffer serioug or severe emotional injury which duty eithet arose by contract or was imposed as; an independent legal obligation (2) that the defendant breached its contractual or legal obligation i e its duty and (3) that as a direct and proximate result of defendant 5 breach the plaintiff suffered a serious 01 severe emotional injury

Donastorg 2015 V I LEXIS at 314 Dza 67 V I at 88

" VIGHHFC reterenced Dunasmig 63 V I at 312 ( The Court also rejects the requirement that emotional distress must produce physical symptoms before the emotional injury M“ be considered seVere Althouah courts in the Virgin Islands have imposed such a requirement in the past this requirement ignores the facts that individuals respond ditterently to the same cunt and that some mental injuries persist despite an absence of ph) sical sy mptoms ) but set. D10 1 Ramsden 67 V I 81 at 93 (Super Ct 2016) ( An NIED claim may be bronchi by an individual u I10 [5 pinsrcullt 111/(He’d or a plaintitt who witnesses injury to a third person ) and 31mm infra (maintaining sewerity of emotional injury requirement as a distinguishing tactor between IIED and NIED) 1 VIGHHFC referenced Gerald 2016 VI LEXIS 115 ‘3 VIGHHFC referenced Smuht Law Offices ofKaun A Bent P C 2017 VI LEXIS 111 at ”‘15 16(9uper Ct July 20 2017) Antoni VIGHHFC 9X 14 CV 423 Memorandum Opinion 2021 VI SUPER 30F Page 20 0t 2|

The Court agrees and adopts the reasoning and determinations of the Donastorg court and Dug

count as to the recognition of a negligent infliction of emotional distress claim and the elements

thereto

‘II 21 In her first amended complaint Plaintiffs claim for negligent infliction of emotional}

distress was alleged as an alternative cause of action to Plaintiff 8 claim for intentional infliction

of emotional distress to wit [Hf not intentional Plaintiff suffered negligent infliction of

emotional distress and again Plaintiff did not elaborate on the nature 01 extent of emotional

distress she suffered (PAC ‘1} 26) In other words Plaintiff s negligent infliction of emotional

distress claim is similarly predicated on VIGHHFC 5 conduct of terminating her employment

without cause

‘11 22 The Court must note that negligent infliction of emotional distress is not a lesser included

offense of intentional infliction of emotional distress so to speak[ ] [t]hey are different torts

Amos I Hess Corp 71 V I 463 507 (Super Ct Oct I7 2019) Plaintiff did not allege that

VIGHHFC owed he: a duty of care that arose from a contract 01 existed due to a preVious‘Iy

imposed legal obligation that VIGHHFC breached such duty and that Plaintiff suffered a serious

or severe emotional injury as a direct and proximate result of VIGHHFC s breach

‘1[ 23 The Court finds that VIGHHFC did not owe Plaintiff a duty of care that arose from a

contract or existed due to a prexiously imposed legal obligation to terminate Plaintiff only for just

cause In fact as noted above the Employment Agreement which governed Plaintiff 5

employment with JFL explicitly provided that Plaintiff may be terminated with or without cause

Plaintiff did not allege in the first amended complaint that VIGHHFC owed her a duty to terminate

her only for just cause and Plaintiff did not dispute VIGHHFC 9 claim Again absent a duty n0 AaHm t VIGHHFC 9X 14 CV 421 Memorandum Opinion 2021 VI SUPER 30F Face 21 0t 21

breach of duty can OCCUI 14 As such VIGHHFC has established that there is no material issue of

fact to resolve and it is entitled to judgment in its favor as a mattet of law as to Plaintiff 9 claim

f01 negligent infliction of emotional distress Benjamin 56 V I at 566

CONCLUSION

‘l[ 24 Based on the foregoing the Court will grant VIGHHFC s motion for judgment on the

pleadings as to all the causes of action alleged in Plaintiff s complaint Count I breach of implied

covenant of good faith and fair dealing Count II breach of employment contract Count III

intentional infliction of emotional distress or in the alternative negligent infliction of emotional

distress Additionally the Court will close this matter since there are no other pending issues

heiein An OI‘dCl and judgment consistent with this Memorandum Opinion will be entezed

contemporaneously heiewith

DONE this ‘3“ day of March 2021 a

t v

HAROLD L WILLOCKS Presiding Judge of the Superior Court

34 Based on the Court 5 finding it is not necessary to determine the level 0t Severity 0t emotional distress and whether physical harm is required for a negligent infliction of emotional distress Llaim