S. Ct. Civ. No. 2008-0056

The Superior Court did not err in granting summary judgment for an employer on a claim for constructive discharge under the Virgin Islands Wrongful Discharge Act. While this Court has not yet ruled on whether a claim for constructive discharge may be pursued under that statute, and does not address that question in this opinion, plaintiff made no allegation, nor was there any evidence in the record before the trial court, that the defendant undertook activities or allowed conditions which compelled him to resign from his position, which is a prerequisite to any constructive discharge claim. But the Superior Court erred in denying the plaintiff's motion for leave to amend the complaint on the ground that the proposed amended complaint was futile, because it based that decision on a burden-shifting approach which has recently been rejected by this Court, which has held that a plaintiff only has the burden of pleading - and ultimately proving - that he was discharged, while the permissible grounds for discharge set forth in sections 76(a)(1)-(9) and 76(c) are affirmative defenses that the defendant would be required to plead and prove. Plaintiff's proposed amended complaint met the pleading requirements by alleging that the defendant American discharged him in violation of the wrongful discharge laws of the Virgin Islands. The Superior Court erred in holding that a formal termination is required to maintain an action under the VIWDA. Instead, it is sufficient if the words or actions of the employer would logically lead a prudent person to believe his tenure had been terminated, and plaintiff's proposed allegation that the defendant failed to schedule him for additional shifts after a specified date sufficiently alleges a discharge within the meaning of the VIWDA and plausibly states a claim on which relief may be granted. Because the proposed amended complaint properly states a cause of action under the VIWDA, the Superior Court erred in holding that the amendment was futile and denying his request for leave to amend. Therefore, that portion of the Superior Court's May 23, 2008 order granting summary judgment is affirmed, but the portion of that order denying the plaintiff's motion to amend is reversed, and the case is remanded for further proceedings.