Kenny P. Bryan v. Wenhaven, Inc. d/b/a Wendy's Old Fashion Hamburgers

• Court: Superior Court of The Virgin Islands
• Decided: December 4, 2023
• Docket: ST-2018-CV-375
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN ***

KENNY P BRYAN )CASE NO ST 2018 CV 00375 ) ) Plaintiff ) ACTION FOR DAMAGES vs ) ) WENHAVEN INC d/b/a WENDY S OLD ) FASHION HAMBURGERS ) )JURY TRIAL DEMANDED Defendant )

Cite as 2023 VI Super 77U

MEMORANDUM OPINION fill THIS MATTER is before the Court on 1 Defendant 3 Motion For Summary Judgment (“Motion ) filed January 27, 2022

2 Plaintiff’s Opposition To Defendant’s Motion For Summary Judgment filed April 29 2022

3 Defendant’s Reply Re Motion For Summary Judgment, filed May 4, 2022, and

112 The Court finds summary judgment in Wendy’s favor is appropriate as Bryan is a bona fide executive not covered by the Virgin Islands Wrongful Discharge Act I INTRODUCTION

113 On July 30 2018 Plaintiff Kenny P Bryan ( Bryan ) filed suit against Defendan t Wenhaven Inc , which does business as Wendy’s Old Fashion Hamburgers (“Wendy’s”) Bryan states in his Complaint that he was hired by Wendy s as a policy and procedures manager, was moved into the general manager position for a period of two (2) years and was wrongful ly terminated without just cause on or about April 3, 2018 ' Bryan asserts one (I) count in his Complaint Count I Violation of the Virgin Islands Wrongful Discharge Act 2 After initially filing a Motion To Dismiss on June 6, 2019, which was denied by the Court on Septemb er 29, 2020 Wendy s denied the allegations of Count I in its Answer filed on October 12, 2020

PI sCompl 2 Pl sCompl 3 4 Bryan v Wenlmven, Inc 2023 VI Super 77U Case No ST 2018 CV 00375 Memorandum Opinion Page 2 of II

114 Wendy’s moved for summary judgment on January 27, 2022, and attaches to its Motion three (3) depositions and the Wendy 5 Model Job Description for the District Manager position as evidence 3 In support of its Motion, Wendy’s cites Rule 56 of the Virgin Islands Rules of Civil Procedure and argues summary judgment is appropriate as it contends there are no issues of material fact 4 Wendy’s argues that Bryan was employed in a ‘ bona fide position in an executive capacity” within the meaning of V I CODE ANN tit 24, § 62, is therefore excluded from the protections of the Wrongful Discharge Act, and he was therefore terminable at will 5 115 Wendy’s states that the undisputed facts are, Inter aha, Bryan was a district manager of Wenhaven, Inc , a franchise made up of two (2) Wendy’s restaurants, one (1) located on St Croix and one (1) located on St Thomas, and his job was to “[m]anage[] the daily operations of the District to achieve sales, profits, customer satisfaction and human resource management objectives ”6 Bryan’s subordinates included two (2) to four (4) salaried general managers, shift supervisors paid hourly, and crew members (e g cooks, cashiers) also paid hourly 7 Each shift had ten (10) to twelve (12) crew members and there were two (2) to three (3) shifis 3 General or regular managers set crew member schedules, and district managers set supervisor schedules 9 Bryan regularly and customarily directed the work of some thirty (30) to thirty five (35) employees '0 116 Wendy 3 further states that other undisputed facts include that Bryan had the highest level of managerial authority other than shareholders, he was the highest paid employee receiving over $100,000 a year, he exercised managerial authority in his first position as a procedures manager including in hiring and disciplining employees, and the ultimate discipline authority resided in the district manager, with only occasional input from the president/majority shareholder, Dr Peter Kumpitch (“Kumpitch”), an optometrist on St Thomas “ The only other active shareholder was Dan Poganski (“Poganski”), a New York resident and vice president of the business who oversaw the business finances; most other shareholders were passive investors and Bryan oversaw the day to day management of Wendy’s '2 Bryan was terminated on April 3, 2018, by a majority of the shareholders due to a perceived decline in his “work ethic ’ and the standards of quality mandated by Wendy s franchise agreement, as well as perceived noncompliance with government regulations '3 117 Wendy’s had previously argued in its dismissal motion that Bryan was exempt from the Wrongful Discharge Act under federal law as he was a supervisor and on account of the bona fide executive exemption in the Virgin Islands labor law chapter This Court disagreed with Wendy’s Motion to Dismiss as it relied on outdated Third Circuit precedent which the Virgin Islands

3 The depositions are of Kenny Bryan Dan Poganski, and Peter Kumpitch 4 Def 5 Mot l 5 Def 5 Mot l 6 Def 5 Mot 2 7 Def 5 Mot 2 3 Def 5 Mot 2 9 Def 5 Mot 3 '0 Def 5 Mot 9 10 '1 Def 5 Mot 3 " Def 5 Mot 4 ‘3 Def ’5 Mot 4 Bryan v Wenhaven, Inc 2023 VI Super 77U Case No ST 2018-CV 00375 Memorandum Opinion Page 3 of II

Supreme Court may or may not set aside now that the Supreme Court has been established,'4 and this Court found the record to be insufficiently developed to rule on the second point '5 Now that discovery is completed, Wendy’s argues the facts on the record show that Bryan is, in fact, a bona fide executive and therefore exempt from the Wrongful Discharge Act '6 118 Wendy’s states that “executive” is a term of art not derived from the statute but is derived from federal law '7 Wendy’s points out that the Virgin Islands Fair Labor Standards Act (“VIFLSA”) uses the same verbatim language as the Federal Fair Labor Standards Act (‘ FFLSA ’), and that, as the Court stated in People v Pratt '8 when a local statute copies a federal statute verbatim, federal law is useful in assisting courts with making judicial decisions '9 The FFLSA provides that the Secretary of Labor defines who is a bona fide executive through regulations, and that the relevant regulation provides a short test which specifies that an employee who is compensated on a salary basis at a specified higher rate, and whose primary duty consists of the management of the enterprise or a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all the requirements of an “executive ”20 {[9 Wendy s cites Sorber v Glaczal Energy VI LLC,2| where this Court found the relevant test in the federal regulations located in 29 C F R (5 541 100, to be persuasive 22 Wendy’s quotes § 54] 100 (as amended in 2019), which defines a bona fide executive as someone who is

(l) Compensated on a salary of not less than $455 per week if employed in the U S Virgin Islands (2) Whose primary duty is management of the enterprise ,

(3) Who customarily and regularly directs the work of two or more other employees, and

(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight 23 1|10 Wendy’s argues that the evidence shows that Bryan made four (4) times the threshold salary amount, his central duty was to manage the “enterprise” of the two (2) Wendy 5 facilities,

14 2020 v1 Super 85U1I1| I6 23 15M at1l1|l415 ‘6 Def ’5 Mot 6 ‘7 Def 5 Mot 7 1850 V1318(Vl2008) ‘9 Id at 322 Def s Mot 7 7° Def 5 Mot 7 8 (citing first Thomas v Speaa’way SuperAmertca LLC 506 F 3d 496 502 (6th Cir 2007) then 29 C F R § 541 100) 'No CIVIL ST 10 CV 588 2013 WL 6184064 (V1 Super Ct Nov 22 20l3) ’Id at ‘3 Def sMot 8 329C F R {554] l00(a) (2019) Def sMot 8 9 Bryan v Werthaven, Inc 2023 VI Super 77U Case No ST 2018 CV 00375 Memorandum Opinion Page 4 of 11

he customarily and regularly directed two (2) or more employees, including several who had managerial authority of their own; and finally, even in his first position as a procedures manager, his opinion on who to hire or fire was given weight, and in his last position as district manager he had ultimate authority to hire and fire, with only occasional oversight by the majority shareholder 24 Thus, Wendy’s asserts, Bryan’s “job as district manager was paradigmatic of a ‘bona fide executive’ position There is no room for reasonable debate on the point ”25 {[11 Wendy’s then argues that Bryan was an employee who was terminable at will citing to the Banks analysis in Canton v Virgin Islands Humanities Council,26 where this Court stated that “the common law principle that an employment relationship is at will unless it is modified by a statute, such [sic] the WDA, or an express contract provision ”27 Wendy’s states that Bryan had no contract provision specifying the term of his employment, he was not covered by the Wrongful Discharge Act and there is “not the slightest suggestion that the termination transgressed any clearly defined and established Virgin Islands public policy and therefore he was terminable at will at any time for any or even no reason and ‘just cause’ is not required 23

1112 Bryan opposes Wendy 5 Motion and argues that the “federal wage and hour law definitions of a ‘bonafide executive” should be stripped from Wendy’s legal argument and the “plain dictionary meaning of the word ‘executive’” is all that need be considered 29 Bryan argues he was not employed in an executive capacity and thus is protected by the Wrongful Discharge Act 30 Bryan argues he never alleged he was a bona tide executive, and that while he “admits in his Complaint that at some point throughout his employment with Wendy’s, he had worked as a policy and procedures manager and as a general manager, and that he had overseen operations at two Wendy’s Old Fashioned Hamburger stores”, he was an employee and is therefore covered by the Wrongful Discharge Act 3' Bryan argues that ‘bona fide executive’ is a term used in the VIFLSA, that it is ‘inappropriate to automatically apply [National Labor Relations Act] definitions to the [Virgin Islands Wrongful Discharge Act] and while the VIFLSA may be parallel to the FLSA there is no parallel to the Wrongful Discharge Act 32 1113 Bryan cites to a 2014 District Court of the Virgin Islands case, Gumbs Heylzger v C W Assoczates Corporation,33 and states that the case provides a presumption that an employee was wrongfully discharged ifdischarged for any reason not stated in 24 V l C § 76(a) 3“ Bryan extends this presumption to all sections of the Virgin Islands labor code and states that therefore he is presumed to be an employee not an executive, and that he should not be required to prove that he was not working in an executive capacity 35 Bryan states that there is not a clear definition of

2‘ Def’s Mot 10 25 Def’s Mot 10 6 No ST 20l2 CV 00279 2017 V1 LEXIS ll6(V 1 Super Ct July 26 20l7) (unpublished) ’7 Id at * l6 ’3 Def 5 Mot ll 29 Pl 5 Opp n l 2 3" Pl 5 Opp n 2 3' Pl 5 Opp n 3 3’ Pl’s Opp’n 33 73 F Supp 3d 6l7 (D V l 20l4) 3“ Id at 622 Pl sOpp n 5 35 Pl 5 Opp n S Bryan v Wenhaven, Inc 2023 V1 Super 77U Case No ST 2018 CV 00375 Memorandum Opinion Page 5 of II

“executive capacity” and argues that Wendy’s needs to prove that Bryan was working “in a genuine position as a corporate officer at the upper levels of management ”3" 1114 Bryan argues, based on an email directing the restaurant be acid washed and steamed that in fact he was “directed and controlled by the true executives”, that Kumpitch was actually deeply involved in the day to day management; and that the shareholders such as Poganski and Kumpitch had direct control over Bryan 37 Bryan contends that if he were truly an executive, he would not be “micromanaged” by being directed how to clean the store nor would it be conceivable that he could be “written up ”33 Next, Bryan contends that he is not terminable at will and it is a fact issue for the jury to determine if he was dismissed for being negligent in his work or incompetent or inefficient 39 Finally, Bryan requests oral argument on the motions pursuant to Virgin Islands Rule of Civil Procedure 6 I(g) 40 1115 Wendy 3 replies that 24 V l C § 62 applies to all of chapter 3 of the Virgin Islands labor code, including the Wrongful Discharge Act that this exemption has existed for decades in Virgin Islands law, and even longer in Federal law 4' Wendy’s, citing to Gov t of the Virgin Islands v Servzcemaster Co ,42 argues that the Court must presume that the Virgin Islands Legislature knew the law when it legislated the bona fide executive exemption 43 Further, Wendy’s argues that even by the dictionary definition of ‘executive, “Bryan, as the District Manager of two fast food restaurant franchises earning a six figure salary and overseeing general managers, shift supervisors, and numerous staff employees, was clearly an ‘executive’ according to the common meaning of that term ”44 1116 Wendy’s then argues that bona fide executive has acquired a “peculiar and appropriate meaning in the law” and is a legal tenn of art 4‘ Wendy’s asserts that the “Virgin Islands legislature must be presumed to have been familiar with the federal definition of ‘bona fide executive’ when it amended Section 62’ and further cites to Sorber v Glacml Energy V1 LLC,46 where this Court adopted the same test from the Code of Federal Regulations for bona fide executive’ cited above 47 Wendy’s argues that the Court here should similarly find that test persuasive and use it to guide the current decision ‘8 In addition Wendy 3 points out that Bryan ‘ fails to posit any plausible alternative definition of bona fide executive’ for the Court’s consideration, and fails to articulate

’6 P1 5 Opp n 5 6 37 P1 5 Opp n 6 ’3 P1 5 Opp n 6 ’9 Pl 5 Opp n 7 4° Pl ‘5 Opp’n 8 V 1 R Clv P 6 I(g) states A request for oral argument shall be separately stated by the movant or respondent The court may set the motion for hearing or decide it based upon the submission(s) " Def 5 Reply 1 ‘ 2019 V1 Super 164 ‘3 1d at'113 Def 5 Reply 2 ‘4 Def 5 Reply 2 (citing Ereczmve WEBSTER S THIRD NEW INT L DICTIONARY 794 (1993)) ‘5 Def 5 Reply 2 ‘6 No ST 2010 CV 00588 2013 V1 LEXIS 69 (V I Super Ct Nov 22 2013) ‘7 Id at ’8 9 (“[N]either the Virgin Islands Code nor V l caselaw provides a definition of [bona fide executive] However the Code of Federal Regulations persuasively defines an employee employed in a bona fide executive capacity as ) Def 5 Reply 3 ‘3 Def 5 Reply 4 Bryan v Wenhaven, Inc 2023 VI Super 77U Case No ST 20l8-CV 00375 Memorandum Opinion Page 6 of ll

any coherent policy argument why the federal definition is unsuited to the [Wrongful Discharge Act] ”"9 1117 Wendy’s responds to Bryan’s “curious suggestion that he was no more than a subservient corporate functionary that all significant managerial authority was exercised by the franchise owners on a day to day basis ”50 Wendy’s points to evidence in the form of Bryan’s own deposition that this was not the case, namely that Bryan stated he was “the person with all the responsibility for the operation and management of the two Wendy’s stores”, that only anything “major” would go through Kumpitch, and when asked whether Kumpitch was a “hands on” owner, Bryan stated Kumpitch rarely appeared on site appearing only four (4) or five (5) times in the entire four (4) years Bryan worked there 5' Additionally, Wendy 5 presents deposition testimony that the other owners appeared even less frequently with Bryan responding that it is correct that “it wasn’t like any of them came twice a week and looked over your shoulder and directed you in your basic tasks as district manager, correct?”52 Wendy’s also points to deposition evidence where Bryan stated he was the ‘commander in chief” of day to day operations and that, other than shareholders, he had the highest level of managerial authority 53 118 Wendy s argues that simply because Bryan ‘ was generally accountable to board members, or even that they gave him specific instructions on occasion” does not detract from his status as a bona fide executive 5“ Further, Wendy’s notes that, unless an executive is also the sole shareholder, all executives are ultimately accountable to a board of directors 55 Wendy’s also refutes Bryan’s unsubstantiated argument that only those at the very top of the corporate hierarchy qualify as a ‘bona fide executive,’ citing cases from the Third Circuit and elsewhere to show that even assistant managers have been found to qualify for the exemption 5" Wendy’s concludes by reiterating that the Court should enter summary judgment in its favor 57 II LEGAL STANDARD

A Summary Judgment

1119 Summary judgment is governed by Rule 56 of the Virgin Islands Rules of Civil Procedure which states

A party may move for summary judgment, identifying each claim or defense or the part of each claim or defense—on which summary judgment is sought The court shall grant summary judgment if the movant shows that there is no

‘9 Def 5 Reply 4 5° Def 5 Reply 5 5‘ Def 5 Reply 5 6 5 Def 5 Reply 6 5’ Def 5 Reply 6 5‘ Def 5 Reply 6 55 Def 5 Reply 6 Wendy s cites to l3 V l C § 61 which states The business of every corporation organized under this chapter shall be managed by a board of directors except as hereinafier or in its articles of incorporation otherwise provided ” 5" Def 5 Reply 6 7 57 Def 5 Reply 7 Bryan v Wenhaven, Inc 2023 VI Super 77U Case No ST 2018-CV 00375 Memorandum Opinion Page 7 of I]

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law The court should state on the record the reasons for granting or denying the motion 58 1120 Or, as the Virgin Islands Supreme Court stated in Antilles School Inc v Lembach,59 summary judgment is appropriate when after “considering all of the evidence, accepting the nonmoving party’s evidence as true, and drawing all reasonable inferences in favor of the nonmoving party the court concludes that a reasonable jury could only enter judgment in favor of the moving party ”60 1121 Summary judgment is a “drastic remedy’ and only proper where “the pleadings, the discovery and disclosure materials on file show that there is no genuine issue as to material fact[ ]”6' The nonmoving party must show in its response to a motion for summary judgment that there are “specific facts showing a genuine issue for trial ”62 In addition, “[t]he non moving party may not rest upon mere allegations but must present actual evidence showing a genuine issue for trial Such evidence may be direct or circumstantial, but the mere possibility that something occurred in a particular way is not enough[ ]”"’3 For a nonmoving party to show some genuine issue of material fact for trial, “‘the nonmoving party may not rest on its allegations alone, but must present actual evidence, amounting to more than a scintilla,’ in support of its position ”6“ Further, “[i]f the non movant offers evidence that is ‘merely colorable’ or not ‘significantly probative,’ summary judgment may be granted ”65 Finally, the “Court may not itself weigh the evidence and determine the truth; rather, we decide only whether there is a genuine issue for trial such that a reasonablejury could return a verdict for the non moving party ”66

B Wrongful Discharge Act 1122 The Virgin Islands Code protects employees from being wrongfully discharged from employment and provides for nine (9) different grounds for discharging an employee in title 24, § 76(a) 67 Section 76(c) states that any employee not discharged for one (1) of those nine (9) reasons

5"V1 CW P 56(a) 5" 64 V I 400 (V i 2016) 60 Id at 409 6‘ Anthony v FirstBan/t Virgin Islands 58 V I 224 228 (V 1 2013) (quoting Williams v I ntted Corp 50 V I 191 194 (V 1 2008)) 6 Williams 50 V] at 194(V1 2008) (quoting FED R CIV P 56(e)) ‘3 Anthony 58 V I at 229 (quoting Williams 50 V I at 194 95) 6‘ Anderson v American Fed n of Teachers, 67 VI 777 789 (V 1 2017) (quoting Pere v R1! Carlton (Virgin Islands) Inc 59 v1 522 527 28 (VI 200.» Pemberton Sales & Serv v Banco Popular de P R 877 F Supp 961 965 (D V 1 I994) ‘ Williams 50 V] at 195 (citing Anderson v Liberty Lobby Inc 477 U S 242 255 (1986)) ” 24 V l C § 76(a) This section states

(3) Unless modified by union contract an employer may dismiss any employee (1) who engages in a business which conflicts with his duties to his employer or renders him a rival of his employer Bryan v Wenhaven, Inc 2023 V1 Super 77U Case No ST 2018 CV 00375 Memorandum Opinion Page 8 of 11

shall be considered to have been wrongfully discharged, however, nothing in this section shall be construed as prohibiting an employer from terminating an employee as a result of the cessation of business operations or as a result of a general cutback in the work force due to economic hardship, or as a result of the employee 3 participation in concerted activity that is not protected by this title {[23 Title 24, § 62 of the Virgin Islands Code provides for the definition of who counts as an “employee” and states “employee” includes any employee or any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but does not include any individual employed in a bonafide position in an executive or professional capacity[ ]”68 1124 Federal regulations define who constitutes a bona fide executive for federal labor law purposes in 29 C F R § 541 100(a) which provides that (a) The term “employee employed in a bona fide executive capacity” in section 13(a)(1) of the Act shall mean any employee (1) Compensated on a salary basis pursuant to § 541 600 at a rate of not less than $684 per week (or $455 per week if employed in the Commonwealth of the Northern Mariana Islands Guam, Puerto Rico or the U S Virgin Islands by employers other than the Federal government or $380 per week if employed in American Samoa by employers other than the Federal government), exclusive of board, lodging or other facilities (2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof, (3) Who customarily and regularly directs the work of two or more other employees and

(2) whose insolent or offensive conduct toward a customer of the employer injures the employer 5 business (3) whose use of intoxicants or controlled substances interferes with the proper discharge of his duties, (4) who willfully and intentionally disobeys reasonable and lawful rules orders, and instructions of the employer provided, however the employer shall not bar an employee from patronizing the employer 5 business after the employee 5 working hours are completed (5) who performs his work assignments in a negligent manner (6) whose continuous absences from his place of employment affect the interests of his employer, (7) who is incompetent or inefficient thereby impairing his usefulness to his employer (8) who is dishonest or (9) whose conduct is such that it leads to the refusal reluctance or inability of other employees to work with him

63 24 V I C § 62 Baum v Wenlmven, Inc 2023 Vi Super 77U Case No ST 2018 CV 00375 Memorandum Opinion Page 9 of II

(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight 69 1125 This is not the first time this Court has had to consider whether an employee qualified as a bona fide executive for purposes of the Wrongful Discharge Act In Sorber, this Court considered whether an employee hired as a ‘Manager of Application Support’ qualified as a bona fide executive under the Wrongful Discharge Act 70 The Court adopted the federal regulation test outlined above and found that the employee was a bona fide executive as a matter of law because (1) the employee had a salary of $150,000 per year, in excess of the $455 per week; (2) the employee managed a team of four (4) people, whose work she assigned and critiqued and whose work priorities she set, satisfying the second and third elements, and (3) her input was given particular consideration when it came to hiring, firing, and promoting other employees 7'

III ANALYSIS

1126 While not controlling, federal law may be used to elucidate areas of Virgin Islands law which may be novel or not fully developed and the Virgin Islands law is modeled after or parallel to the federal law 72 As in the case of Sorber, this Court finds the test and definition in the federal regulations to be useful in analyzing when someone may be considered a bona fide executive 73 While in a future case another criterion not enumerated in the federal test or definition may certainly be considered by the Court, the Court notes Bryan has not suggested any other test or what other factors the Court should consider here but that the Court merely go by the dictionary definition of executive ’74 Therefore, the Court will proceed with an analysis following this Court’s prior decision in Sorber and the test outlined in 29 C F R § 541 100(3) 1127 Bryan argues that Gumbs Heyltger v CMW Assoczates Corporation requires that there is a presumption that Bryan is an employee and not an executive 75 This is beyond a strained reading of the case that case simply provides that the [Wrongful Discharge Act] itself supports the conclusion that the burden ofpersuasion properly lies with the employer to prove that the employee was discharged for one of the nine permissible reasons under the Act ’ 76 It does not alter in anyway the definition of who is or is not an employee for purposes of the Wrongful Discharge Act One either is or is not an employee for the purposes of the Wrongful Discharge Act Assuming arguendo that Bryan is entitled to a presumption he was an employee, the undisputed facts indicate

6° 29 C F R § 541 l00(a) 7° Sarber 2013 V I LEXIS 69 at *1 2 7' Id at *8 l0 ’ See People v Pratt 50 V l 3 IS 322 (V l 2008) (‘ Because section 33(d)(3) is modeled afier its federal equivalent |8 U S C § 3731 which contains virtually identical language, judicial decisions interpreting the federal statute shall assist this Court in interpreting the same clause found in our local statute )(citing Brown v People ofthe V I 49 V I 378 38! (VI 2008)) ‘Sorber 2013 V [ LEXIS 69 at *8 4 Pl 5 Opp n l 2 5 Pl 5 Opp n 5 6 Gumbs Heyllger 73 F Supp 3d 6l7 at 623 Bryan v Wenlwven, Inc 2023 VI Super 77U Case No ST 2018 CV 00375 Memorandum Opinion Page 10 of II

he was not an employee but a bona fide executive and that Wendy’s has well met its burden of proof as the analysis below demonstrates 1|28 Bryan also argues that there exists a material dispute as to whether Bryan exercised managerial authority premised on emails directing Bryan to maintain a clean restaurant and another informing Bryan to secure flights and lodging for two (2) people who were coming to acid wash, ammonia clean, and steam clean the St Thomas restaurant 77 These two (2) emails, one (I) admonishing Bryan to keep a clean restaurant following a Department of Health visit and one (1) informing Bryan of cleaners coming to one (I) of the restaurants he manages hardly qualifies as “micromanaging ” In fact these emails appear to be in line with the standard oversight a board or majority shareholder exercises over an executive that manages the day to day affairs of a business and has not performed to the board 3 satisfaction that is one (1) email identifies an area where the executive needs to improve in the management and directs him to improve and the other email informs him of temporary outside assistance that will be coming in to provide help Given the nature of the enterprise, it is unlikely that a cashier or fry cook would be in charge of booking flights and rooms for cleaners brought in to perform a ‘deep clean,” or that Bryan himself would conduct the ammonia and steam cleaning One (1) email in four (4) years by the majority shareholder mandating such a deep clean does not deprive Bryan of his everyday authority and responsibility for the restaurants cleanliness These emails are not significantly probative to constitute a material dispute of fact as to Bryan’s management authority 1129 Similarly, Bryan provides no support for his position that it is inconceivable that an executive could be “written up” or in anyway reprimanded, and the Court is not of the opinion that a board or shareholder(s) holding an executive accountable in anyway deprives them of their status as an executive That one could be admonished or reprimanded has little bearing on whether one manages a business or some aspect of a business and the Court sees no reason to impose such a factor in determining whether someone is a bona fide executive and many reasons not to (e g businesses may find it a useful tool to ensure accountability for executives short of firing them) Finally, while Bryan has requested oral argument, the Court will decline the request as this matter is determinable on the filings 1f30 Looking now to whether Bryan qualifies as a bona fide executive under the first criterion, the undisputed evidence is that Bryan’s salary exceeded $100 000 per year (roughly $1 923 per week), far above the $455 per week stated in the test Other undisputed evidence shows that Bryan exercised increasing managerial authority eventually reaching the pinnacle of the corporate hierarchy apart from the shareholders, and he ultimately oversaw two (2) to four (4) general managers and ten (10) to twelve (12) crew members and ultimately some thirty (30) to thirty five (35) employees total satisfying criteria 54] 100(a)(2) and 54] 100(a)(3) of the test Lastly the facts indicate that Bryan had the authority to hire fire promote as district manager and even in his prior position as a procedures manager his opinion on who to hire, fire, or promote was given consideration Even if the majority shareholder Kumpitch gave input or had ultimate approval, it is clear at the very least Bryan had considerable weight in these areas Bryan then clearly qualifies as a bona fide executive

PlsOppn6 PlsEx 6 PI sEx l5 Bryan v Wenhaven, Inc 2023 VI Super 77U Case No ST 2018 CV 00375 Memorandum Opinion Page II of II

1131 As stated in 24 V I C § 62, a bona fide executive is not considered an employee for purposes of chapter 3 of title 24, and the WrongfiJl Discharge Act is contained within chapter 3 of title 24 Therefore, as a bona fide executive Bryan is not covered by the Wrongful Discharge Act Bryan had no express contract provision concerning his dismissal, and it is not argued, nor does the Court see how his dismissal would be contrary to public policy, thus he was terminable at will There exist no disputed facts material to this analysis, Wendy’s has presented sufficient evidence to support its position, and even taking all inferences in a light most favorable to Bryan, there is not a genuine issue such that a reasonable jury could find in favor of Bryan Therefore, summary judgment in favor of Wendy s and dismissing the sole count of ‘Violation of the Wrongful Discharge Act’ is appropriate IV CONCLUSION

1132 On or about April 3, 20l8, Bryan was discharged from his position as district manager of a Wendy s franchise which operates two (2) restaurants in the United States Virgin Islands, one (1) on St Thomas and one (1) on St Croix On July 30, 2018, Bryan sued Wendy s claiming a violation of the Virgin Islands Wrongful Discharge Act However as Bryan meets the definition of a bona fide executive he is not considered an employee for purposes of the Wrongful Discharge Act and is therefore exempt from its protections Consequently, Bryan’s Complaint alleging a single count of violation of the Virgin Islands Wrongful Discharge Act by Wendy’s will be dismissed

Ajudgment consistent with this Memorandum Opinion follows

DATED December fi 2023 MW {bum DENISE M FRA COIS Judge of the Superior Court of the Virgin Islands

ATTEST

TAMARA CHARLES Clerk of the Cou

33“ M LATOYA CAMACHO Court Clerk Supervisor 9 / ,1 /4:13 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN ***

KENNY P BRYAN, ) CASE NO ST 2018 CV 00375 ) Plaintiff ) ACTION FOR DAMAGES vs ) ) WENHAVEN INC d/b/a WENDY 8 OLD ) FASHION HAMBURGERS ) )JURY TRIAL DEMANDED Defendant )

JUDGMENT

AND NOW, in accordance with this Court’s Memorandum Opinion of even date it is hereby

ORDERED that Defendant s Motion For Summary Judgment filed January 27 2022 is GRANTED and it is further

ORDERED that Plaintiff’s Complaint and the above captioned action is DISMI SSED with prejudice; and it is further

ORDERED that the Joint Motion for Ruling on Defendant s Motion for Summar y Judgment, filed on May 3, 2023, is DENIED as moot; and it is further

ORDERED that Plaintiff‘s Request for Status Conference filed August 3 2023 is DENIED as moot

ORDERED that a copy of this Judgment and the Memorandum Opinion shall be directed to counsel of record

DATED December4_ 2023 M 7* \ :2 gamma DENISE M F NCOIS Judge of the Superior Court of the Virgin Islands ATTEST

TAMARA CHARLES Clerk of t

a LATOYA CAMACHO Court Clerk Supervisor Q_’Ji / <93 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Thomas/St. John

Kenny P. Bryan, Case Number: ST-2018-CV-00375 Plaintiff Action: Damages v.

Wenhaven, Inc. D/B/A Wendy's Old Fashion Hamburgers, Defendant.

NOTICE OF ENTRY OF MEMORANDUM OPINION AND JUDGMENT To: John Phillip Fischer Edward L. Barry, Esq., Scot F. McChain, Esq.

Please take notice that on December 05, 2023 a(n) Memorandum Opinion and Judgment dated December 04, 2023 was/were entered by the Clerk in the above-titled matter.

Dated: December 05, 2023 Tamara Charles Clerk of the Court

By: Danica A. Miller Court Clerk II