FIGUEROA v. BUCCANEER HOTEL INC.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Appellant Catherine Figueroa brought this action against appellees, The Buccaneer Hotel, Inc., Companion Assurance Company, and Meridian Engineering, Inc., contending that appellees fired her because of her religion. She argues on appeal that the District Court erred in granting summary judgment in favor of appellees on her Title VII and Virgin Islands Civil Rights Act claims, and in dismissing her remaining claims with prejudice for failure to state a federal cause of action. Figueroa also urges us to reverse the District Court's October 16, 1998 award of $20,000 in costs to appellees. For the reasons stated below, we will affirm in part and reverse in part.

I. Facts

Figueroa was employed by appellees as a property manager, bookkeeper, and accountant at the Buccaneer Hotel in St. Croix, United States Virgin Islands. She worked for appellees from 1989 until 1994, at which point, she claims, she was suspended from her position for "spreading her religious beliefs." Figueroa claims that thereafter she was told that she would be demoted upon her return to work, that she protested the demotion, and that she was then "constructively terminated."

On February 8, 1995, Figueroa filed a religious discrimination claim with the Equal Employment Opportunity Commission (the "EEOC"). Thereafter, on or around August 9, 1995, Figueroa received a "Notice of Right To Sue" letter, notifying her that she had ninety days to bring suit or be barred. Figueroa commenced this action against appellees in the United States District Court for the Virgin Islands 169 days after receiving her right to sue letter. Figueroa listed the following causes of action in her Complaint: religious discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (Count I); violation of the Virgin Islands Wrongful Discharge Act, 24 V.I.C. § 76 et seq. (Count II); religious discrimination in violation of the Virgin Islands Civil Rights Act (the "Act") (Count III);1 breach of contract (Count IV); intentional infliction of emotional distress (Count V); and entitlement to punitive damages (Count VI). Figueroa did not file a complaint with the Virgin Islands Civil Rights Commission (the "Commission") or the Virgin Islands Department of Labor.

Appellees filed two motions for partial summary judgment, one asserting that the Title VII claim was time-barred as it was not brought within the ninety day window specified in § 2000e-5(f)(1) of the statute, and the other arguing that Count III should be dismissed because the Virgin Island Civil Rights Act does not afford a private cause of action. The District Court granted both of appellees' motions in a decision and order dismissing Counts I and III. The court also dismissed Figueroa's remaining counts for lack of subject matter jurisdiction, granted appellees' costs as the prevailing party pursuant to 5 V.I.C. § 541, and "invite[d] defendants to move for sanctions under 28 U.S.C. § 1927." Appellees did not move for sanctions but submitted a "Bill of Costs." The court ordered that appellees "are awarded attorneys fees in the amount of $20,000 payable jointly and severally by plaintiff and her counsel." Figueroa appeals from the court's orders granting summary judgment and granting appellees' fees. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

II. Discussion

Our review of a grant of summary judgment is plenary. We apply "the same test the district court should have utilized initially," viewing those inferences that may be drawn from the underlying facts in a light most favorable to the nonmoving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976). We review the District Court's refusal to exercise supplemental jurisdiction for abuse of discretion. Sparks v. Hershey, 661 F.2d 30, 33 (3d Cir.1981). We normally review the District Court's award of costs and sanctions for abuse of discretion, but if the procedure the court employs in imposing sanctions raises due process concerns, our review is plenary. See Martin v. Brown, 63 F.3d 1252, 1262 (3d Cir.1995) (stating that the district court's imposition of sanctions is reviewed for abuse of discretion unless its procedure raises due process concerns, in which case our review is plenary); Hamdallah v. Warlick, 935 F.Supp. 628, 631-32 (D.Vi.1996) (review award of costs under § 541 for abuse of discretion). We will address each of appellant's arguments in turn.

A. Title VII

The District Court dismissed Figueroa's Title VII claim for failure to bring the claim within the ninety day period mandated by 42 U.S.C. § 2000e-5(f)(1).2 Figueroa does not dispute that she did not bring this claim within the ninety day window specified by the statute, but argues that appellees waived this defense by not raising it in a meaningful way before filing their motion for partial summary judgment, seventeen months after the institution of this suit. We will affirm the District Court on this issue, concluding that appellees did not waive this defense and that it is a complete bar to Figueroa's Title VII claim.

Section 2000e-5(f)(1) requires that claims brought under Title VII be filed within ninety days of the claimant's receipt of the EEOC right to sue letter. This requirement has been treated by the courts as a statute of limitations rather than a jurisdictional prerequisite to suit. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Thus, it is subject to waiver. Id. at 393, 102 S.Ct. 1127. We have held that a claim filed even one day beyond this ninety day window is untimely and may be dismissed absent an equitable reason for disregarding this statutory requirement. See Mosel v. Hills Dep't Store, Inc., 789 F.2d 251, 253 (3d Cir.1986). Figueroa argues that the "shotgunned" nature of appellees' assertion of the statute of limitations defense in their Answers somehow supplies an equitable justification for finding waiver. This argument is unsupported and totally lacking in merit. All three appellees timely asserted the statute of limitations as an affirmative defense in their Answers to Figueroa's Complaint, clearly preserving this issue. Further, appellees' first Motion for Partial Summary Judgment, which was timely filed in accordance with the court-approved Stipulated Scheduling Order, argued that the statute of limitations barred Figueroa's Title VII claim. These assertions were clearly sufficient. Accordingly, Figueroa's failure to file suit within the 90-day time period completely bars her Title VII claim. We will affirm the District Court on this issue.

B. Virgin Islands Civil Rights Act

The District Court dismissed Figueroa's claim under Title 10 of the Virgin Islands Civil Rights Act based on its belief that Title 10 affords no private cause of action. The court did not distinguish between a claim brought under chapter 1 of Title 10 and one brought under chapter 5 of Title 10, ruling that, in either case, "only the Commission can sue to recover damages [under the Act], not the individual claiming to be aggrieved." Dist. Ct. Op. at 4 (Feb. 19, 1998). Although the District Court relied upon Anderson v. Government, Civ. No. 96-118(N) (D.V.I. Nov. 21, 1997), for the proposition that there is no private cause of action under Title 10 of the Act, the parties at oral argument conceded that, as we discuss more fully below, the Anderson case is not on point, and the issue before the District Court has not previously been addressed by either the Territorial Court of the Virgin Islands or the district court sitting in the Virgin Islands.

We will first provide the context for this issue by explicating the pertinent provisions of the Act. The Virgin Islands legislature enacted the Civil Rights Act in 1950 with the intent to "prevent and prohibit discrimination in any form." The Act contains six chapters, only two of which— chapter 1 and chapter 5—are relevant to this case. Chapter 1 of the Act, 10 V.I.C. §§ 1-11, substantially amended and effective in 1961, contains a statement declaring the public policy of prohibiting and punishing discrimination based on race, creed, color, or national origin. § 1. It recognizes the right to equal treatment with respect to employment and working conditions, and specifies those discriminatory acts prohibited under the chapter. § 3. In section 7, the legislature provided civil and criminal penalties for violations of the chapter, including a specific provision for punitive damages.§ 7.3 As an aid to its interpretation, it also includes a provision requiring courts to "construe [it] liberally in furtherance of its intent as stated in section 1." § 10.

In 1974, the Virgin Islands legislature enacted chapter 5 of Title 10, §§ 61-75, and created the Virgin Islands Civil Rights Commission, granting it "general jurisdiction and power" to combat discrimination. § 61. The Commission was empowered to investigate allegations of discrimination, collect information about the denial of equal protection of the law in the Virgin Islands, appraise the laws and policies of the Virgin Islands as to such discrimination, hold hearings and disseminate information regarding discrimination, and impose sanctions or provide other remedies in individual cases of discrimination. § 63. Chapter 5 also contains a list of prohibited discriminatory practices, targeting discrimination based on race, color, religion, and national origin as in chapter 1, and also discrimination based on sex and political affiliation. § 64. Chapter 5 provides a mechanism for those aggrieved by discrimination covered under the chapter to file a claim with the Commission, which will then investigate the claim and issue a cease and desist order, and such other orders that in the judgment of the Commission are consistent with enforcement of the chapter.4 §§ 71-72. Finally, "the Commission may bring a civil action in the Territorial Court of the Virgin Islands by filing with it a complaint" setting forth the facts of the discrimination and requesting such relief as it deems necessary to enforce the Act. § 73. The 1974 amendments to the Act creating the Commission also affected chapter 1 of the Act, adding references to the Commission and deleting sections deemed unnecessary in light of the amendments.5 The 1974 amendments did not, however, alter section 7 of chapter 1, which continued to provide the right of individuals to recover damages in a civil action, although it did increase the maximum possible imprisonment for a violation of chapter 1 from six months to one year.

Appellees proffer several arguments in support of their position that chapter 1 does not afford a private cause of action and that all grievances brought under the Act must be brought through the Commission. Primarily, they argue that all claims must be brought through the Commission and offer Anderson v. Government and Codrington v. Virgin Islands Port Authority, 911 F.Supp. 907 (D.Vi.1996), in support of this reading of Title 10. Figueroa acknowledges that the Commission is given the authority to effectuate the Act's anti-discrimination policies in chapter 5, but urges that chapter 1 clearly creates a private cause of action and the grant of jurisdiction in the Commission to enforce the Act did not replace or eradicate this cause of action. She argues, alternatively, that, even if the Act were read to require a claimant to bring a claim through the Commission, such a requirement should be excused in her case where, due to a Commission member's animosity toward her counsel, the Commission would not have taken action in her behalf.

We agree with Figueroa. The language of section 7 of chapter 1 leaves us with little doubt that the Virgin Islands legislature not only intended to create, but did create, a private cause of action. It creates liability for a violation of the Act, states the type of damages available, states they are recoverable "in a civil action by the person aggrieved," and even states that recovery under the Act does not preclude other remedies. § 7. This language, present in the 1961 version of the Act, was the only remedial provision until the 1974 amendments created the Commission. If the language of section 7 of chapter 1 does not create a private cause of action, then, at least until 1974, the Virgin Islands Civil Rights Act was a toothless statement of policy and intent. We can conceive of no permissible reading of chapter 1—which states the Act's intent to combat discrimination, lists those acts constituting discrimination, and states the damages available "in a civil action by the person aggrieved"—that would not include a private cause of action as clearly provided by section 7 of chapter 1 of the Act. § 7 (emphasis added); see Government v. Puerto Rican Cars, Inc., 10 V.I. 9 (D.V.I. 1973) (case prior to the 1974 amendments recognizing private cause of action under chapter 1).

We must then consider whether the legislature revoked or replaced this existing cause of action when it amended the Act and created the Commission in 1974. Nothing in the language of chapter 5 itself, nor in any legislative history—which is nonexistent—so indicates. Nowhere in chapter 5, or anywhere else in the Act, did the legislature state an intent to detract from or alter the remedies that were available before the creation of the Commission in 1974. Further, nowhere does chapter 5 state or even imply that the Commission would have exclusive jurisdiction to enforce the Act. Finally, although the 1974 amendments did apply to the language of chapter 1, even amending section 7, they did not alter the critical language in section 7 giving persons aggrieved under the Act the right to bring a civil action for damages. The 1974 amendments merely created an agency with multiple enforcement responsibilities under the Act without expressing any intent to undo the previously granted cause of action.

Appellees argue that the later creation of the Commission, however, changed the statutory scheme such that all actions must proceed through the agency. Does the creation of additional remedies somehow incorporate, override, or annul the previously existing remedy? Although Virgin Islands law has not addressed this issue, we believe universal principles of statutory construction apply.6 "Where an additional statutory remedy is added to one previously created without expressly or impliedly supplanting or abrogating it, the new statutory remedy is generally not deemed to be exclusive." 1 Am.Jur.2d Actions § 63 (1994). This principle that the creation of one statutory remedy does not, in itself, abrogate a pre-existing remedy has been commonly recognized in case law. See, e.g., United States v. Jordan, 915 F.2d 622, 627 (11th Cir.1990) ("The fact that Congress codified a preexisting remedy, however, does not, by itself, stand for the proposition that Congress also implicitly intended to circumscribe other available, preexisting statutory remedies."); Leist v. Simplot, 638 F.2d 283, 313 (2d Cir.1980) ("When as here Congress adds a new remedy . . . where other remedies had been clearly recognized, it would be expected to say so if it meant the new remedy to be exclusive."), aff'd sub nom., Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982); Supreme Grand Lodge, Modern Free and Accepted Colored Masons of World v. Most Worshipful Prince Hall Grand Lodge, Free and Accepted Masons, 209 F.2d 156, 157 (5th Cir.1954) (stating the creation of a new statutory remedy did not by necessary implication abrogate the pre-existing remedy); see also Rodriguez v. United States, 480 U.S. 522, 524, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (stating that there is a presumption against repeals by implication); Du Pont v. Ball, 106 A. 39, 42 (Del.1918) (holding that new statutory remedy did not abrogate pre-existing remedy). Thus, we cannot conclude from the enactment of chapter 5 alone that the Virgin Islands legislature intended to revoke the right of action that existed prior to the amendment.

We note that we do not find the District Court's reasoning as dictating a different result. The District Court's analysis was based upon a faulty premise—that prior case law had held that no private cause of action existed under chapter 1 of Title 10 and that a claimant was relegated to proceeding before the Commission. However, the court's reliance on Anderson v. Government, Civ. No. 96-118(N) (D.V.I. Nov. 21, 1997), was misplaced. Anderson does not decide whether there is a private cause of action under Title 10. Rather, in Anderson, the court dismissed a private cause of action brought against the Virgin Islands government under Title 10 because chapter 1, by its terms, does not permit such an action against the government, and there is no private cause of action under chapter 5. Codrington v. V.I. Port Authority, cited by appellees, similarly does not decide whether a private cause of action exists under chapter 1. 911 F.Supp. 907 (D.Vi.1996). Instead, Codrington involved a sexual harassment claim and is not relevant, since chapter 1, by its terms, does not include claims for sexual harassment.

Although there is no Virgin Islands authority on point, in Samuel v. Virgin Islands Telephone Corp., No. 75-6, 1975 WL 289, at *7 n. 4 (D.V.I. July 8, 1975), Judge Christian noted in a footnote:

Samuel, 1975 WL 289, at *7 n. 4.7 The District Court did not refer to this case in its decision. We see Judge Christian's observation as reinforcing the statutory construction principles we employ.

Other case law supports our view that the mere creation of an agency such as the Commission does not necessarily reflect legislative intent to exclude private enforcement of the Act and that an express indication of exclusivity of remedies is required. See, e.g., Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 424-25, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987) (concluding that a private cause of action existed where statute and its legislative history were devoid of an indication that exclusive enforcement authority was vested in HUD); Naegele Outdoor Adver. Co. v. Moulton, 773 F.2d 692, 699-700 (6th Cir.1985) (holding that the creation of the Kentucky Registry to investigate violations of campaign financing rules does not mean, without an express statement to the contrary, that the Registry has exclusive jurisdiction to investigate violations of these rules).8 Here, there is no implication that chapter 5 was to constitute an exclusive remedy, let alone an express statement to that effect. The only logical interpretation of the 1974 amendments is that the legislature intended to augment the civil rights laws and remedies, not reduce or somehow limit them.

Appellees also argue that chapter 1 of the Act does not recognize claims of religious discrimination such as Figueroa's. This argument is also without merit. Chapter 1 of the Act applies to discrimination based on "race, creed, color or national origin." § 3 (emphasis added). According to the Webster's II New Riverside University Dictionary (1984), creed is defined as a "formal statement of religious belief" or a "confession of faith." Clearly then, chapter 1 encompasses discrimination based on religion.

Thus, we find that, contrary to the holding of the District Court, a Title 10 claimant is not required to bring a claim with or through the Commission because chapter 1 of Title 10 creates a private cause of action for discrimination based on religion. For this reason, we will reverse the decision of the District Court and will remand for proceedings consistent with this decision.9 Due to our holding that Figueroa was not limited to bringing her claim through the Commission, we need not decide whether she was excused from doing so because of its alleged ineffectiveness.

C. Supplemental Jurisdiction

The District Court, after resolving Figueroa's claims under Title VII and the Virgin Islands Civil Rights Act, dismissed Figueroa's remaining claims for lack of jurisdiction. Figueroa argues on appeal that the District Court's refusal to exercise supplemental jurisdiction over her remaining claims, or its failure to articulate its reasons for doing so as required by Sparks v. Hershey, 661 F.2d 30, 33 (3d Cir.1981), constituted an abuse of discretion. For the reasons stated below, we find that the court did not abuse its discretion in dismissing Figueroa's remaining claims.

Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over a claim if "the district court has dismissed all claims over which it has original jurisdiction." The District Court made no reference to section 1367 in its order dismissing Figueroa's remaining territorial claims, stating only that "[a]s the remaining counts state no federal cause of action, this case will be dismissed with prejudice for lack of subject matter jurisdiction." We deduce from the language of the District Court, however, that the court was aware that it had the discretion to exercise supplemental jurisdiction over these claims under section 1367, but declined to do so based on the consideration set forth in section 1367(c)(3), namely, the dismissal of all claims over which the court had original jurisdiction. We find that the court acted well within its discretion in dismissing Figueroa's remaining territorial claims, as it had dismissed the Title VII claim that provided the court with its jurisdiction.10 In addition, we hold that, where we can readily determine that the District Court dismissed a claimant's remaining claims based on a consideration enumerated in section 1367(c), it is not reversible error for the court to not state its reasons for doing so. Although in Sparks, which was decided prior to the enactment of section 1367, we stated that we prefer the district court to set forth its basis for dismissing state claims on a jurisdictional basis, Sparks, 661 F.2d at 33, failure to do so is not a grounds for reversal when the court's dismissal is clearly based on a statutorily enumerated basis for declination of jurisdiction, as is the case here. Thus, we will not disturb the District Court's dismissal of Figueroa's remaining territorial claims.

Although we do not take issue with the District Court's dismissal of Figueroa's remaining claims, we do take issue with the court's statement that it was dismissing these remaining claims "with prejudice." Figueroa argues that a dismissal for lack of subject matter jurisdiction is not an adjudication on the merits and thus should be ordered "without prejudice." We agree. See Ray v. Eyster (In re: Orthopedic "Bone Screw" Products Liability Litigation), 132 F.3d 152, 155 (3d Cir.1997) (stating that if a court decides that it lacks jurisdiction, it cannot decide the merits); Korvettes, Inc. v. Brous, 617 F.2d 1021, 1024 (3d Cir.1980) ("A dismissal for lack of jurisdiction is plainly not a determination of the merits of a claim. Ordinarily, such a dismissal is `without prejudice.'"). While we could interpret the court's language "with prejudice" narrowly as a statement regarding Figueroa's inability to later pursue these claims in federal court, we will follow the dictates of our case law in the interest of clarity and consistency, and, as we will send this case back on remand, we will require the District Court to amend its order to reflect dismissal of the territorial claims "without prejudice."11

D. Fee Award

In its February 19, 1998 decision, the District Court awarded appellees costs under 5 V.I.C. § 541,12 and invited appellees to move for sanctions under 28 U.S.C. § 1927 on the basis that "at least the Title VII claim was frivolous and filed in bad faith." Appellees never moved for sanctions, but did submit a "Bill of Costs" seeking $22,305.41 in fees pursuant to section 541 and Federal Rule of Civil Procedure 54(b). Appellant filed an Opposition to Defendants' Bill of Costs, contending it was improper under section 541, but not specifically challenging it under Rule 54. The District Court rejected all of appellant's arguments except that pertaining to $319.85 in fees for a deposition never taken. The court subtracted $319.85 from the award, "along with other adjustments," and awarded appellees $20,000, payable jointly and severally by plaintiff and her counsel. Appellant contests this order, presenting several arguments as to why the District Court erred in awarding fees under the auspices of section 541 or Rule 54(b), or as a sanction under section 1927. Although not stated in the order, we read the District Court's order as awarding a fee under section 541 and Rule 54(b),13 but also as imposing a sanction "based on the frivolous filing of certain counts in this suit."14 For the reasons stated below, we will vacate the District Court's fee order to the extent it awarded fees under section 541 and constituted a sanction under section 1927.

A district court has the authority to award fees under section 541 and Rule 54(b), in its discretion, to the prevailing party. There are, however, caveats to these awards, requiring a court to consider specifically what fees are appropriately awarded under a given rule. In awarding fees to a prevailing party under section 541, which is a provision of territorial law, the court must subtract fees and costs associated with federal claims, as section 541 is only applicable to fees for the litigant who succeeds in pursuing Virgin Islands territorial claims. See Thorstenn v. Barnard, 883 F.2d 217, 218 (3d Cir.1989). Thus, in this case, the court could not award fees associated with the Title VII claim under section 541. Further, in light of our decision reversing the District Court's dismissal of Figueroa's Virgin Islands Civil Rights Act claim, appellees are no longer, at this stage of the litigation, the prevailing party with regard to any territorial claims.15 Therefore, the award of fees for appellees, without separating out the federal claim, was error and is now rendered a nullity by our reversal of the dismissal of the territorial claim.

To the extent that any of the $20,000 award was entered as a sanction— as it appears from the District Court opinion—we conclude that the court lacked the authority to issue a sanction given the lack of notice and a hearing. Appellees did not accept the court's invitation to move for sanctions pursuant to section 1927. Although a court has the authority to enter sanctions under section 1927 on its own motion, it cannot do so without providing the sanctioned party with due process, or fair notice and an opportunity for a hearing on the record, with regard to any threatened sanctions. See Martin, 63 F.3d at 1262-63 (stating that the fundamental requirements of due process— including notice of the grounds for the sanction under consideration—must be afforded before a sanction is imposed). No such notice or hearing was afforded in this case. The court's "invitation" to move for sanctions was the only possible notice and provided plaintiff and counsel no warning of the form of the sanctions threatened, the legal basis for the sanctions, or what specific conduct prompted the sanctions. Nor did appellees' Bill of Costs seek sanctions. The award of fees as a sanction under these circumstances violated Figueroa's due process rights. Id. at 1262; Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1357 (3d Cir.1990) (stating that "a court must provide the party to be sanctioned with notice and some opportunity to respond to the charges").

Finally, appellant challenges the District Court's award of fees under Rule 54 based on appellees' failure to follow the mandatory procedures set forth in the rule. Specifically, appellees did not file and serve a motion for fees within 14 days after entry of judgment as is required. See Rule 54(d)(2)(B). Appellant, however, did not raise this argument in the District Court. We have previously stated that the time constraint of Rule 54 is not jurisdictional. See Mints v. Educational Testing Serv., 99 F.3d 1253, 1260 (3d Cir.1996). Accordingly, under Federal Rule of Civil Procedure 6(b)(2), had Figueroa raised the Rule 54(d)(2)(B) argument in the District Court, appellees could have asked the court to extend the time for filing the Bill of Costs. In Mints v. Educational Testing Service, we encountered a similar situation and declined to consider the objection, noting our usual practice of not entertaining arguments initially raised on appeal. 99 F.3d at 1260. However, we also noted that, depending on the procedural posture, we could remand the matter for the District Court to consider whether it should extend the time for filing so that the Bill of Costs would be deemed timely. Since we are remanding the issue of the fee award in any event, we think it proper that the District Court consider whether to extend the time to file the Bill of Costs and thus whether appellees' motion was timely.

For all of the foregoing reasons we have reviewed, the award of $20,000 will be vacated.

III. Conclusion

For the reasons stated herein, we will affirm the District Court's orders dismissing Figueroa's Title VII claim and its declination to exercise supplemental jurisdiction over Figueroa's remaining territorial claims. We will reverse the District Court's dismissal of Figueroa's Virgin Islands Civil Rights Act claim, and will vacate the District Court's $20,000 fee award. We will remand for further proceedings consistent with this opinion.