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Gomez v. Government of Virgin Islands

argued: April 24, 1989.

CHARLES GOMEZ, APPELLANT,
v.
GOVERNMENT OF THE VIRGIN ISLANDS, DEPARTMENT OF PUBLIC SAFETY & POLICE BENEVOLENT ASSOCIATION, APPELLEES



Appeal from the United States District Court for the District of the Virgin Islands, (St. Croix), D.C. Civil Action No. 86-0213.

Hutchinson, Cowen and Garth, Circuit Judges.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

I.

In this case we must decide what statute of limitations applies to a hybrid contract/breach of the duty of fair representation action brought under the Virgin Islands Public Employee Labor Relations Act (PELRA), V.I.Code Ann. tit. 24, §§ 361-383 (Equity Supp. 1988) against an employer and a union. The District Court for the District of the Virgin Islands, analyzing the action as a National Labor Relations Act (NLRA) § 301 hybrid contract/fair representation claim, applied the six month statute of limitations in § 10(b) of the NLRA, 29 U.S.C.A. § 160(b) (West 1973), granted summary judgment for the Department of Public Safety (Department) and dismissed the complaint as untimely. After allowing Gomez to amend his complaint, the district court concluded that the statute of limitations was not equitably tolled because Gomez failed to allege with particularity his claim that Gomez's union, the Police Benevolent Association (PBA), fraudulently concealed its withdrawal of his arbitration request. The district court again granted summary judgment to the Government and dismissed Gomez's complaint.

We hold that the district court erred in applying the six months limitation period of NLRA § 10(b) to this case which arises under § 383 of PELRA. We also hold that PELRA § 379 does not provide a limitations period for civil actions brought under § 383. Finally, because the general statutes of limitations enacted by the Virgin Islands legislature to govern civil actions apply by their terms to all cases for which no limitations period is otherwise expressly provided, we hold that there is neither need nor basis to apply either NLRA § 10(b)'s or PELRA § 379's six month limitations period to hybrid civil actions. See V.I.Code Ann. tit. 5, § 31 (Equity 1967 and Supp. 1988). Since the shortest applicable general statute of limitations is two years, Gomez's complaint was timely filed and we must reverse the district court's order granting summary judgment against him and remand for further proceedings.

II.

Gomez was a police officer employed by the Department and a member of the PBA. His employment was governed by a collective bargaining agreement (agreement) between the Department and the PBA. By letter dated June 4, 1984, the Department notified Gomez that charges had been filed against him for three separate violations of Department rules; the letter also gave the date and time of the hearing. Appellant's Appendix (App.) at A25-27. Gomez received the letter on June 15, 1984. He did not personally appear at the hearing before Chief of Police George A. Washington, but was represented by the PBA. On July 2, 1984 Chief Washington recommended that Gomez be dismissed. Department's Supplemental Appendix (Supp. App.) at SA-59-61. Commissioner Otis L. Felix concurred in the recommendation on July 19, 1984. Id. at SA-62.

On July 24, 1984, Commissioner Felix sent Gomez a letter notifying him that he was dismissed effective July 2, 1984. Id. at SA-64-66. The letter asked him to return all of his police equipment. It also advised him of his right to appeal under Article V of the agreement. Gomez signed the letter as received on July 30, 1984.*fn1

On August 2, 1984, Gomez's attorney, Frank Ford III, asked the PBA to start arbitration proceedings. App. at A28. Ford again requested arbitration on August 21, 1984. Id. at A29. On August 31, 1984, the PBA asked the Department to participate in Article V arbitration for Gomez. Supp.App. at SA-70. The PBA withdrew the arbitration demand on April 9, 1985.*fn2 App. at A30. Gomez was not copied on either letter. The Department and PBA claim that Gomez was notified both orally, before the request was withdrawn, and in writing when the PBA sent him a copy of his file along with its April 9, 1985 letter withdrawing the request for arbitration. See Affidavit of Ancil Alexander, President of PBA, App. at A43. Ford received nothing in writing from the PBA but somehow learned of the withdrawal in May, 1986. Id. at A17, A31. Gomez maintains that he knew nothing of the withdrawal until Ford told him about it in May, 1986. Id. at A17.

Gomez filed a complaint in district court on September 5, 1986 against both the Department and the PBA, alleging that the Department breached its contract with him by improperly discharging him and that the PBA breached its duty to fairly represent him by refusing to arbitrate his claim. He sought reinstatement to his position as a police officer with full back pay and reasonable costs and attorney fees. Id. at A4-5a.

The Department filed motions to dismiss and for summary judgment. The district court granted summary judgment for the Department on July 16, 1987. The district court concluded sua sponte that because "Gomez's complaint is a hybrid contract/unfair labor practice claim against the PBA, . . . he is entitled to raise the federal jurisdiction of this Court." Id. at A6.*fn3 However, it held that Gomez's complaint was time-barred because the six month federal statute of limitations applied.

On July 27, 1987, Gomez filed a motion to alter the judgment, alleging for the first time that the PBA fraudulently concealed its withdrawal of his arbitration request from him. Such action, if true, would have tolled the statute of limitations. The district court reinstated the complaint and allowed Gomez to amend it. After the amended complaint was filed, the Department renewed its motion for summary judgment. On February 9, 1988, the district court again granted summary judgment and dismissed Gomez's complaint with prejudice because Gomez's amended complaint failed to recite any facts ...


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