On Appeal from the District Court of the Virgin Islands. (D.C. Civil No. 90-00370).
Before: Sloviter, Chief Judge, Scirica, and Cowen, Circuit Judges.
This is an interlocutory appeal from an order of the District Court of the Virgin Islands denying defendant's motion to dismiss a complaint seeking damages for termination of plaintiff's employment under 42 U.S.C. § 1981 and the Virgin Islands Wrongful Discharge Act. The district court held (1) that the count filed under 42 U.S.C. § 1981 was actionable because the Civil Rights Act of 1991 applies retroactively to claims pending on the date of the Act's enactment, and (2) that the count filed under the Virgin Islands Wrongful Discharge Act was actionable because that Act does not require exhaustion of administrative remedies. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(b).
FACTS AND PROCEDURAL HISTORY
The appellant Virgin Islands Telephone Company (hereinafter "VITELCO") is a privately owned utility providing telephone service to the Virgin Islands under regulation of the Virgin Islands Public Service Commission, an independent administrative agency of the Virgin Islands government. Plaintiff-Appellee William Nickeo was hired by VITELCO in 1972.
On October 23, 1989, Nickeo was terminated from his position at VITELCO after an altercation with his supervisor. Pursuant to the collective bargaining agreement between VITELCO and United Steelworkers of America, Local Union No. 8713, Nickeo filed a grievance following his dismissal, and the case went to arbitration. On November 5, 1990, the arbitrator ruled that Nickeo's dismissal was without proper cause, and Nickeo was subsequently reinstated with full back pay.
On December 6, 1990, Nickeo filed a four-count complaint in the District Court of the Virgin Islands seeking compensatory and punitive damages as well as declaratory and injunctive relief. Count II of the complaint alleges that VITELCO's termination of Nickeo's employment violated 42 U.S.C. § 1981. Count IV of the complaint asserts a claim for wrongful discharge against VITELCO under the Virgin Islands Wrongful Discharge Act, 24 V.I.C. § 76 et seq.*fn1
VITELCO moved to dismiss Counts II and IV of the complaint, arguing that Nickeo could not state a claim under section 1981 because of the decision of Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), holding that section 1981 was inapplicable to claims such as discriminatory discharge from employment. VITELCO also argued that Nickeo's claim under the Wrongful Discharge Act must fail because Nickeo had failed to exhaust his administrative remedies as required under that Act.
The district court denied VITELCO's motion to dismiss on April 29, 1992. The court noted that Patterson would have precluded Nickeo's section 1981 claim, but held that the claim was valid because section 101(2)(b) of the Civil Rights Act of 1991 amended section 1981 to cover the "performance, modification and termination of contracts." Pub. L. 102-166, § 101(2)(b), 105 Stat. 1071, codified at 42 U.S.C. § 1981(b) (Supp. III 1991). The court interpreted the 1991 Act to apply retroactively to section 1981 claims pending on the date of the Act's enactment. Although Nickeo had concededly not exhausted the administrative procedures available under the Virgin Islands Wrongful Discharge Act, the court held that the Act does not require exhaustion of administrative remedies prior to seeking judicial relief.
On VITELCO's motion, the district court amended its order and certified the following two issues for appeal pursuant to 28 U.S.C. § 1292(b):
1. Whether the Virgin Islands Wrongful Discharge Act, 24 V.I.C. [ § ] 76 et seq., requires exhaustion of administrative remedies ...