Prosper v. Bureau of Corr.

DIANE PROSPER, Plaintiff, v. BUREAU OF CORRECTIONS, GOVERNMENT OF THE VIRGIN ISLANDS,AND DIRECTOR RICK MULLGRAV, Defendants.

1:17-cv-00020

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

March 4, 2021

TO: Martial A. Webster, Esq.

Venetia H. Velazquez, Esq., AAG

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court upon Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (ECF Nos. 124, 128), Plaintiff Diane Prosper's Response (ECF No. 137), Defendants' Reply (ECF No. 138), and parties' supplemental briefs (ECF Nos. 143, 144).¹

I. BACKGROUND

In 1995, Prosper, an African American, Caribbean female, began working for the Defendant Bureau of Corrections, and was eventually promoted to Assistant Warden (ECF No. 1; Compl. ¶¶ 3, 8). Prosper was allegedly assigned to perform duties of Acting Wardenduring various months from 2008 to 2009 and from 2014 to 2015. Id. ; Compl. ¶¶ 9-10. Prosper alleges that, following the end of the 2008 temporary appointment, Mr. Keith Francois became Warden and received $75,000.00 per year. Id. ; Compl. ¶ 14. Prosper further alleges that Mr. Ira Phillip became Warden in 2011 and received $75,000.00 per year, as well as Ms. Tracey Brown, from the mainland United States, in 2012, id., Compl. ¶¶ 17-18; Mr. Basil Richards, from the mainland U.S., the same year, receiving $85,000.00 per year, id., Compl. ¶ 19; and Mr. Donald Redwood, from the mainland U.S., a few years later, receiving $85,000.00 per year. Id., Compl. ¶ 20.²

Prosper also alleges that she was appointed Acting Warden from October 21, 2014 to October 19, 2015 after Mr. Redwood resigned but was relieved from the appointment after a female from the mainland U.S. assumed the position of Warden, receiving $75,000.00 per year. Id. ; Compl. ¶ 22.

Prosper retired from the Defendant Bureau of Corrections in December 2015. Id. ; Compl. ¶ 7.

On February 24, 2016, Prosper filed a charge of discrimination with the Equal Employment Opportunity Commission (ECF No. 128-1). In the section asking, "cause of discrimination based on," Prosper marked the box indicating sex with a checkmark; all other boxes indicating race, retaliation, color, national origin, religion, age, disability, orother were not marked. See id. In the particulars' portion of the EEOC charge, Prosper described the discrimination she faced:

• Pursuant to Title 7 Civil Rights Act of 1964

• Discrimination of sex

• Disparity of pay based on gender

• Equal Pay Act: Discrimination on gender

• Mr. Rick Mullgrav is denying my compensation based on my gender. I served in acting position for one year without being compensated. However, male individuals who served in acting positions were compensated.

See id.

Prosper attached a letter to the EEOC charge of discrimination alleging that she sent Defendant Rick Mullgrav "a certified document dated January 20, 2016" which "ask[ed] him to stop the retaliation/ discrimination and to sign the document that [she could] be compensated...[, but] Mr. Mullgrav did not respond to [her] request" (ECF No. 128-1). In addition, Prosper alleged in the letter that Mullgrav's "inaction in authorizing [her] paperwork and authorizing the male [sic] paperwork is discrimination....[and] retaliation towards [her]...." Id.

Prosper received a Notice of Suit Rights from the EEOC dated January 31, 2017 indicating, "You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost" (ECF No. 1-1).

On April 27, 2017, Prosper filed a complaint for intentional discrimination against Defendants Bureau of Corrections, Government of the Virgin Islands, and Director Rick Mullgrav, alleging discrimination on the basis of gender and national origin, in violation of both Title VII of the Civil rights Act of 1964 and the Equal Pay Act of 1963 (ECF No. 1; Compl. ¶¶ 25, 28). Specifically, Prosper asserts that she was discriminated against in her rate of compensation and in promotion and hiring on the basis of gender and national origin. Id. ; Comp. ¶¶ 15-24.

Defendants have filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction, in which they seek dismissal for several reasons (ECF Nos. 124, 128). Specifically, Defendants argue that: (1) the Court lacks subject-matter jurisdiction to review Prosper's Title VII claims because she failed to exhaust administrative remedies and her claims are time-barred; (2) the Court lacks subject-matter jurisdiction to review Prosper's Title VII claims because exclusive jurisdiction rests before the court of appeals; (3) the Court lacks subject-matter jurisdiction to review Prosper's Equal Pay Act claim because she is not within the class of persons protected under the statute; (4) the Court must dismiss Title VII claims against Defendant Director Rick Mullgrav because he does not constitute an employer under Title VII; (5) the Court must dismiss claims against Defendant Mullgrav because he is entitled to qualified immunity; (6) the Court must dismiss claims against Defendant Bureau of Corrections because it does not constitute a legal entity that may be separately sued; and (7) the Court lacks jurisdiction to review claims for punitive damages because punitive damages may not be assessed against the Government (ECF No. 128). Additionally, Defendants argue that Prosper's demand for a jury trial must be stricken. Id. Prosper filed a Response, opposing and conceding to the reasons above (ECF No. 137).

Before going further, however, the Court must note that Prosper agrees with the fourth, fifth, sixth, and seventh grounds for dismissal, including the request to strike the jury demand. Specifically, Prosper asserts

[I] agree[] with Defendants' remaining arguments concerning Defendant Mulgrave and the Bureau of Corrections as defendants, and with regard to punitive damages against the Government of the Virgin Islands and jury trial against the Government. [I], nevertheless request[] that Defendants' motion with respect to [my] Title VII claim be denied

(ECF No. 137 at 6). Since Prosper concedes with Defendants' fourth, fifth, sixth, and seventh grounds for dismissal, the Court will dismiss all claims against Defendants Director Rick Mullgrav and the Bureau of Corrections, as well as the punitive damages claim against the Government of the Virgin Islands. See, e.g., Kerrigan v. Osuka Am. Pharm., Civil Action No. 4346, 2012 U.S. Dist. LEXIS 157336, at *4 (E.D. Pa. Nov. 1, 2012) (dismissing claim with prejudice after plaintiff conceded in briefing on a motion to dismiss that claim lacked viability). In addition, the Court will grant Defendants' request to strike the jury demand. Accordingly, the Court will focus its attention on the first, second, and third grounds for dismissal. But before doing so, the Court continues with the posture of the case.

After vacating a Memorandum Opinion and Order, the Court ordered supplemental briefing on two issues not previously addressed by the parties: (1) whether Fort Bend County v. Davis, 139 S. Ct. 1843 (2019)—in which the United States Supreme Court held that Title VII's charge-filing requirement is not jurisdictional but, instead, claims-processing—affects the Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by Defendants; and (2) whether the EEOC issued a final order and, if not, whether a procedural defect occurred at the administrative level (ECF No. 142).³

In supplemental briefing, Prosper raises several points. First, she argues that the EEOC took more than 180 days from the filing of her claim to issue a right-to-sue letter and there exists no evidence that it filed a civil action against Defendant Bureau of Corrections, so no procedural defect occurred (ECF No. 144 at 4-5). Second, Prosper argues that since jurisdictional facts are in dispute the Court cannot dismiss for lack of subject matter jurisdiction. Id. at 5. Third, Prosper argues that being an exempt employee does not preclude her from seeking relief under Title VII. Id. at 6. Lastly, Prosper asserts that, as Fort Bend mandates that the charge-filing requirement of Title VII is claims-processing and Defendants waived the objection by taking three years to file this action, the Court must deny the Rule 12(b)(1) motion. Id. at 7-8.

In supplemental briefing, Defendants raise several propositions. First, they argue that Fort Bend does not apply to this case because Prosper is an employee for purposes of the GERA and not under Title VII, and the Court does not have jurisdiction to entertain claims under the GERA (ECF No. 143 at 1-4). Second, Defendants argue that even underFort Bend dismissal is warranted because they timely raised—in their answer and Rule 12(b)(1) motion—Prosper's failure to file claims before the EEOC and failure to exhaust administrative remedies. Id. at 1, 4-8. Third, Defendants argue that the Court still has jurisdiction to dismiss the complaint because Prosper failed to allege discrete facts of discrimination before the EEOC within "applicable time periods" or before this Court "(if applicable)." Id. at 1, 4-9. Lastly, Defendants assert that the Court cannot decide the propriety of a final order by the EEOC because Prosper did not file a GERA claim and only the court of appeals may entertain GERA claims. Id. at 1-2, 9-10. With supplemental briefing, this matter is ripe for adjudication.

II. DISCUSSION

A. STANDARDS OF REVIEW

In Fort Bend County v. Davis, 139 S. Ct. 1843 (2019), the United States Supreme Court held that Title VII's administrative exhaustion requirement is "not a jurisdictional prescription delineating the adjudicatory authority of courts," but instead a claim-processing rule subject to waiver or forfeiture. Fort Bend County, 139 S. Ct. 1843, 1850-51. Shortly after, the Third Circuit relied on Fort Bend to hold that the first-to-file bar of the False Claims Act was not jurisdictional...