Venessa Hendricks v. Pinnacle Services, LLC; and Limtetree Bay Terminal, LLC

• Court: Superior Court of The Virgin Islands
• Decided: March 16, 2020
• Docket: SX-18-CV-199
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

VENESSA HENDRICKS, ‘ I

PLAINTIFF, ‘ ! X 18 CV 199 v

PINNACLE SERVICES, LLC, AND LIMTETREE BAY TERMINAL, LLC,

DEFENDANTS

ORDER

AND NOW, in accordance with the Memorandum Opinion of even date it is hereby

ORDERED that the Motions to Stay Proceedings and Compel Arbitration are GRANTED it

is further

ORDERED that the parties confer and proceed to arbitration within THIRTY (30) DAYS It

is further,

ORDERED that the parties appear for a status conference on May 14 2020 at 9 30AM in

Courtroom 206 4*

DONE and so ORDERED this lb day of March 2020

ATTEST / ‘ Tamara Ch2" es HARD D L WILLOCKS

7 4/4 a” Clerk oft a r ' esiding Judge of the Superior Court

By A I I //A C rt Clerk upe isor O Dated / (Q. SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

VENESSA HENDRICKS,

PLAINTIFF,

v SX 18 CV 199 PINNACLE SERVICES, LLC, AND LIMTETREE BAY TERMINAL, LLC, Cite as 2020 V I Super 037

FOR PUBLICA TION

Appearances

ATTORNEY LEE J ROHN, ESQ For Plazm‘IJjr

ATTORNEY GEORGE H LOGAN, ESQ For Pinnacle Servzces LLC

ATTORNEY STEPHANIE L ADLER PAINDIRIS, ESQ For leetree Bay Termmals LLC

MEMORANDUM OPINION

WILLOCKS, Administrative Judge

1} 1 THIS MATTER is before the Court on the Motion to Stay Proceedings and Compel

Arbitration of Pinnacle Services, LLC (hereinafter ‘Pinnacle’ ), filed June 28, 2018, and the motion by

Limetree Bay Terminals, LLC (hereinafier ‘Limetree’ ), filed July 6, 2018 The motions will

respectively be referred to as ‘Pinnacle’s Motion’ and Limetree 5 Motion ” Reviewing the two

motions, it appears that Limetree essentially joined in Pinnacle’s Motion The motions are based on

the same Employment Agreement and arbitration provision that the Plaintiff executed corollary to her

employment with Pinnacle on or about May 22 2017 and has put forward the same legal arguments

The Plaintiff responded in opposition to both motions on July 13 2018 Thereafter Pinnacle filed its

reply on July 25 2018 and Limetree filed theirs on July 27 2018 The parties also supplemented their Hem/7'1 mks \ Pinnacle e! a] 2020 V I Super 037 sx 2018 CV 199 Memorandum Opinion Page 2 of 8

briefing pursuant to Court order Pinnacle and Limetree filed their supplements on September 18,

2018 and the Plaintiff filed hers on September 19 2018

1}, 2 According to Pinnacle and Limetree the Plaintiff agreed to arbitrate work related disputes as

a condition of her employment (See Pinnacle’s Mem to Mot 3 ) The arbitration provision states in

relevant part

14 ARBITRATION

Except as provided below in this section, all claims controversies or disputes (collectively referred to as ‘claims for purposes of this Agreement) whether by Employer or Employee arising out of or in any way relating to this Agreement or to Employee 5 employment by Employer, or the termination of that employment, or for bodily injury or property damage, or arising out of or related to Employee 5 presence (during the term of Employee 5 employment by Employer) at The Facility, or any other property owned leased or controlled by Employer or any subsidiary or parent or affiliated company including claims by Employee against Employer, its shareholders or subsidiary or parent or affiliated companies and its or their shareholders, members officers, directors, employees and agents (all of the foregoing shall be collectively referred to as Employer” for purposes ofthis Agreement to arbitrate) shall be resolved solely and exclusively by arbitration as provided in this Agreement

in addition Employee specifically agrees that all claims, accruing from this day forward, that Employee may have against LIMETREE, HOVENSA, or any Contractor at the Facility and its or their members shareholders or subsidiary or parent or affiliated companies and its or their officers directors, employees, and agents all as intended third party beneficiaries of this Agreement (all of the foregoing shall be collectively referred to as LlMETREE’ ‘HOVENSA’ or Contractor’ as applicable for purposes of this agreement to arbitrate) arising out of or in any way relating to Employee 3 employment by Employer, or the discipline lay off or termination of that employment, or for bodily injury or property damage or arising out of or related to Employee’s presence (during the term of Employee 3 employment by Employer) at The Facility or Employee 5 dealings with LIMETREE HOVENSA or LIMTETREE s HOVENSA s dealings with Employee or LIMETREE s HOVENSA s dealings with Employer or Employer 5 dealings with LIMETREE HOVENSA shall be resolved solely and exclusively by arbitration as provided in this Agreement

15 MATTERS ARBITRABLE

Arbitrable matters shall be those specified in this Agreement Arbitrable matters include, but are not limited to any provisions of Titles 10 and 24 of the Virgin Islands Code, including without limitation claims for wrongful or retaliatory discharge or wrongful or discriminatory treatment under Virgin Islands law, including without limitation the Wrongful Discharge Act, 24 V I Code § 76, Whistleblowers Protection At 10 V] Code 121 et seq and the Plant Closing Act 24 V I Code 471 et seq Hendrick“ Pinnacle eta] 2020 V I Super 037 SX 20l8 CV I99 Memorandum Opinion Page 3 of 8

any other law of the United States or the Virgin Islands prohibiting employment discrimination or retaliation or otherwise making any employment action unlawful;

tort law, including without limitation claims against Employer or Client 5 Name or any Contractor at the Facility for bodily injury of any nature defamation and infliction of emotional distress; or property damage

this Agreement or any other contract and

any law or regulation affecting Employer 5 right to discipline promote, demote or terminate the employment of Employee

The parties also agree to arbitrate the issue of arbitrability of any claim The arbitrator shall decide all issues of arbitrability including, but not limited to any defenses to arbitration based on waiver, delay or like defense The arbitrator shall also decide whether any and all conditions precedent to arbitrability have been fulfilled The parties agree that all matters of substantive and procedural arbitrability shall be decided exclusively by arbitration (Id at l 3 see also Pinnacle 5 Exhibit A)

113 In sum Pinnacle and Limetree (collectively the Defendants ) assert that the arbitration

agreement must be enforced pursuant to the Federal Arbitration Act (hereinafter ‘FAA ) because the

provision applies to the Plaintiffs claims which are wrongful discharge and discrimination in

violation of the Virgin Islands Civil Rights Act

1% The Plaintiff opposes enforcement of the arbitration agreement on the ground that the

Defendants have not met their burden of proving that the Employment Agreement demonstrates a

transaction that affects interstate commerce ‘ (Pl ’5 Supp Br I ) Specifically, the Plaintiff notes that

her job never took her outside the Virgin Islands that her employment notices were to be sent to a

Virgin Islands address and that her duties did not involve any interstate commerce or interaction with

the Defendants’ products (Id at 4 5 ) According to the Plaintiff ‘[t]he employment contract at issue

here does not evidence a transaction affecting interstate commerce where the parties to the

contract are a Virgin Islands corporation and a Virgin Island[er], and the transaction is providing

security guard services solely at a facility in the Virgin Islands (Id at 5 )

' In the Plaintiffs Supplemental Brief she concedes that the FAA applies to the Virgin Islands under certain circumstances such as when a contract demonstrates an interstate nexus Pl 5 Supp Br I Hendn'cks 1 Pinnacle er a] 2020 V i Super 037 5X 2018 CV I99 Memorandum Opinion Page 4 of 8

STANDARD OF LAW

1’; 5 Pursuant to Rule 12(d) of the Virgin Islands Rules of Civil Procedure, a motion made under

Rule 12(b)(6) must be treated as one for summaryjudgment under Rule 56’ when matters outside the

pleadings are presented and not excluded by the Court V I R Civ P 12(d) ‘All parties must be given

a reasonable opportunity to present all the material that is pertinent to the motion ’ Id

1[ 6 In this case the motions of Pinnacle and Limetree are based on failure to state a claim upon

which relief can be granted under Rule 12(b)(6) However, in deciding whether a dismissal (or a stay)

is warranted the Court must review the Employment Agreement and arbitration provision at issue and

which goes beyond the pleadings As such, the Court will treat the motions as motions for summary

judgment ‘The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law V l R Civ

P 56(a)

DISCUSSION

17 In Whyte v Bockmo the Supreme Court of the Virgin Islands found that [w]hen the FAA is

applicable through the Commerce Clause a contract comes within the purview fo the FAA if an

interstate nexus is shown 69 V I 749 (S Ct 2018) (citations and original brackets omitted) ‘Thus

a party seeking to compel arbitration must not only Show that an agreement to arbitrate exists but also

show that the contract evidences an interstate nexus ” Id (citations omitted) However, the burden on

the compelling party to show that a contract evidences an interstate nexus is relatively low ’ Id

(citations omitted) The contract need only 017236! interstate commerce and ‘need not be m interstate

commerce nor have a substantial effect on interstate commerce ’ Id (citations omitted)

1i 8 It is apparent then that the FAA applies to the Virgin Islands when an interstate nexus can be

demonstrated In this case the contract at issue is the Plaintiff‘s Employment agreement and its

arbitration provision By the terms ofthe arbitration provision, the Plaintiff” 3 claims must be arbitrated Hendricks v Pinnacle e! a] 2020 V 1 Super 037 SX 2018 CV 199 Memorandum Opinion Page 5 of 8

As the Plaintiff points out, however, the Defendants have failed to offer proof that the contract relates

to interstate commerce If the Defendants had merely noted that Limetree is in the business of an oil

refinery which makes interstate shipments, and that the Plaintiff was hired to guard that business there

would be no further discussion necessary

1% 9 As it is the Court is reviewing these motions with an eye for summary judgment Pursuant to

Rule 56(e), [i]f a party fails to properly support an assertion of fact or fails to properly address another

party’s assertion of fact,’ the Court can give an opportunity to address that fact or grant summary

judgment if the circumstances show that the movant is still entitled to it V l R Civ P 56(e) Though

a motion for summary judgment must include a statement of undisputed facts to which the nonmovant

must have an opportunity to respond, the Court finds that ordering the parties to provide such

statements and to conduct further briefing would be a waste of judicial resources and of the parties

time

1% 10 If the Court was to take this route, it would order the Defendants to submit briefs regarding the

interstate nature of the business that the Piaintiff was protecting The Defendants would do so and it

would only confirm what the Court has already determined that an oil refinery is necessarily engaged

in interstate commerce and that the guarding of such a facility affects interstate commerce by

protecting the business even if the employment agreement does not specifically state so The Court

can conceive of no additional facts, undisputed or otherwise, which are not already before it that would

affect the Court 5 ruling on the Defendants’ motions

13 11 The Court therefore finds that there is no genuine dispute as to any material fact and that the

Defendants are entitled to have their motions granted as a matter of law The Court more completely

finds as follows Hendticks t Pinnacle er a] 2020 V 1 Super 037 SX 2018 CV I99 Memorandum Opinion Page 6 of 8

ll 12 The Plaintiff is a former employee of Pinnacle She was hired as a security guard and assigned

to protect Limetree s facility, an oil refinery that transforms crude oil into other products and then

ships those products to other locations outside of the Territory

1% 13 On May 23 2018 the Plaintiff filed a Complaint against the Defendants alleging that she was

harassed and sexualiy assaulted at work She further alleged that after reporting the abuse the

Defendants took no action to resolve the Plaintiff‘s complaints and instead violated their own sexual

harassment policies by not maintaining confidentiality and by failing to discipline the employees who

had attacked and harassed the Plaintiff The Plaintiff further alleges that she was retaiiated against in

terms of work assignments and that she was ‘constructively discharged” on April 2, 2018 The

Complaint alleges wrongful discharge and discrimination in violation ofthe Virgin Islands Civil Rights

Act

1} 14 In the course of her employment the Plaintiff signed an Employment Agreement which

requires the arbitration of all disputes against the Defendants relating to her employment or termination

by Pinnacle and her presence at the Limetree’s facility The claims alleged in the Complaint fail under

the terms ofthe Employment Agreement, which also requires that the issue of arbitrability be arbitrated

into addition to any actual claims

1] 15 The Court further finds that the FAA applies to the Employment Agreement because it is

apparent that the Employment Agreement has an interstate nexus As a security guard the Plaintiff

was involved in protecting Limetree s facility thereby allowing it to continue engaging in interstate

commerce While the Plaintiff‘s Employment Agreement with Pinnacle is not an agreement in

interstate commerce it affects interstate commerce

1‘; 16 Moreover the parties have completely neglected to consider that the FAA is applicable to the

Virgin Islands through the Territorial Clause The Supreme Court’s analysis in Whyte v Bockmo Hendricks \ Pinnacle e! a] 2020 V I Super 037 SX 2018 CV I99 Memorandum Opinion Page 7 of 8

focused on the Commerce Clause has the vehicle for enforcement of the FAA in the Virgin Islands

However, the Supreme Court stated

Although the FAA applies to the states through the commerce clause it is not clear whether the FAA applies to the Virgin Islands by way of the commerce clause The United States Supreme Court has determined that the FAA applies to the states through the Commerce Clause based on the legislative intent outlined in H R Rep No 96, 68'“ Cong lst Sess at l (1924) But the language in that House Report does not resolve which powers Congress used in applying the FAA to the Virgin Islands Congress has the authority to regulate the Virgin Islands through legislation under the Territorial Clause The FAA, a legislation by Congress applies to ‘any territory of the United States,’ including the Virgin Islands Hence because the FAA Is a legislation Wthh plainly states that It applies to the Virgin Islands the Act may very well apply to the territory by way ofthe Terrttorzal Clause

Whyte 69 V l at 759 60 (emphasis added) It is apparent that the FAA applies to the Virgin Islands

for the simple fact that it is an act of Congress applicable to U S territories by virtue of the Territorial

Clause and there is no need to continually search for an interstate nexus in contracts subject to

arbitration

1} 17 These facts findings and circumstances all indicate to the Court that there is no genuine dispute

that the Plaintiff‘s claims must be arbitrated pursuant to the Employment Agreement

CONCLUSION

1] 18 In sum the FAA applies to the Virgin Islands and specifically applies to the present matter

There is no cause to reach any other issue such as the federal preemption of 24 V I C § 74a or whether

this matter should be stayed or dismissed The Court intends to order the parties to arbitration and to

keep this case on its docket as a means of ensuring that arbitration takes place with minimal delay

Accordingly, it is hereby

ORDERED that Motions to Stay Proceedings and Compel Arbitration are GRANTED; it is

further

ORDERED that the parties confer and proceed to arbitration within THIRTY (30) DAYS It

is further, Hendricks v Pinnacle et a] 2020 V I Super 037 SX 2018 CV 199 Memorandum Opinion Page 8 of 8

ORDERED that the parties appear for a status conference on May 14, 2020 at 9 30AM in

Courtroom 206

DONE and so ORDERED this [aw/[day of March 2020

ATTEST Tamara Ch 3 I I, lW4 4 HAROLD W L WILLOCKS M/

M/fl/A, // / 1 ,/ 4' Clerk oft ' . P iding Judge of the Superior Court

By Dated I . V Gr 1’ 044 v V