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  • U.S. Virgin Islands Supreme Court Affirms Compensatory Damages Award To Former LIAT Employee Claiming Age Discrimination

U.S. Virgin Islands Supreme Court Affirms Compensatory Damages Award To Former LIAT Employee Claiming Age Discrimination

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On December 5, 2022, the Supreme Court of the Virgin Islands upheld a 2019 jury verdict, which found that Caribbean airline LIAT (1974), Ltd., had discharged its former area manager, William Cherubin, because of his age in violation of the Virgin Islands Civil Rights Act (VICRA). In doing so, the court addressed the standards for establishing liability under the VICRA and rejected several challenges advanced by LIAT concerning the sufficiency of the evidence supporting the jury’s award of damages.

Background

On June 4, 2015, LIAT terminated the employment of Cherubin, a 71-year-old area manager who had worked for LIAT for 47 years, based upon a determination that he had engaged in “gross misconduct” due to his involvement in incidents that prompted the issuance of two written warning letters three months earlier. Approximately one month before it involuntarily separated Cherubin, LIAT had launched a voluntary separation program and an early retirement program for employees under age 65 in furtherance of an effort to reduce operating costs.

Cherubin filed suit against LIAT on February 27, 2017, alleging that LIAT had unlawfully terminated his employment because of his age, and the case proceeded to trial approximately two years later, in February 2019. In finding LIAT liable for age discrimination in violation of the VICRA, the jury awarded Cherubin compensatory damages in the amount of $1,633,320, consisting of $82,000 in lost wages and $1,551,320 for mental anguish.

The Virgin Islands Supreme Court’s Decision

LIAT appealed the judgment, arguing that the trial court erred when it denied LIAT’s renewed motion for judgment as a matter of law because Cherubin had failed to introduce sufficient evidence to establish that LIAT had discharged him due to his age and not because of misconduct or other permissible reasons. In its discussion rejecting LIAT’s challenge to the finding of liability, the court instructed that the McDonnell Douglas burden-shifting framework applicable to claims under the federal Age Discrimination in Employment Act (ADEA) did not apply to claims arising under the VICRA because the McDonnell Douglas framework was inconsistent with Virgin Islands law regarding the burden of proof in civil cases. Nonetheless, the court concluded that Cherubin had provided the jury with “sufficient affirmative circumstantial evidence” to “reasonably infer that LIAT systematically discriminated against its employees based on age, and that age discrimination therefore was a motivating factor in its decision to terminate Cherubin.” Specifically, the court highlighted the following evidence:

  • LIAT discharged Cherubin based upon incidents that had occurred three months earlier, had only resulted in a warning, and had not been repeated.
  • LIAT’s employee manual stated that the age of 65 constituted the company’s “normal retirement age.”
  • “LIAT established an ER [early retirement] program one month before it terminated [Cherubin], which was limited only to employees under the age of 65 and provided workers with progressively diminished benefits based solely on age.”
  • Although Cherubin remained eligible to apply for a voluntary separation program, employees under the age of 65 were not required to elect between the two programs offered by LIAT between May 5, 2015, and June 19, 2015.

The court also rejected LIAT’s challenge to the damages awarded for mental anguish, which LIAT asserted were unauthorized by law and excessive. In affirming the portion of the judgment based upon the jury’s award of noneconomic damages, the court rejected LIAT’s suggestion that “Cherubin should have been required to provide proof of psychological counseling, a physical injury, or other compelling extrinsic evidence” of mental anguish, concluding that “the record [was] replete with testimony from both Cherubin himself and other witnesses that, if credited by the jury, support[ed] a finding that he experienced mental anguish.” Of note, the court declined to find that the jury could not have credited the witnesses merely because they consisted of Cherubin and his family members and friends.

Addressing LIAT’s assertion that the award of noneconomic damages was excessive because it was nineteen times larger than the amount awarded for lost wages, the court declined to adopt a proportionality standard akin to that applicable to an award of punitive damages. Instead, the court explained that although Cherubin’s lost wages were cut off due to LIAT’s cessation of its operations in the Virgin Islands less than two years after discharging Cherubin, “the jury heard evidence that Cherubin continued to suffer mental anguish well after LIAT ceased operations” and that he would likely continue to do so for the foreseeable future. The court therefore reasoned, “[W]hile the jury calculated Cherubin’s lost wages from June 2015 to March 2017, it likely predicated the award of mental anguish damages based on a period running from June 2015 to a much later date, resulting in a longer time period over which the harm he suffered, and the resulting damages he incurred from it, accrued.”

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Key Takeaways

The court’s decision highlights the importance of understanding the differences between federal law and Virgin Islands antidiscrimination law and taking into account the applicability of both sets of laws when operating a business in the Virgin Islands. In addition, the decision provides yet another example of the deference afforded by the court to jury determinations of noneconomic damages in employment cases and other civil actions.

SOURCE: Ogletree

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REQUEST FOR EXPRESSIONS OF INTEREST

(CONSULTING SERVICES – INDIVIDUAL SELECTION)

 

OECS MSME Guarantee Facility Project

Loan No.: IDA-62670, IDA-62660, IDA-62640, IBRD-88830, IDA-62650

Assignment Title: Senior Operating Officer (SOO)

Reference No. KN-ECPCGC-207852-CS-INDV

 

The Governments of Antigua and Barbuda, Commonwealth of Dominica, Grenada, St. Lucia and St. Vincent and the Grenadines have received financing in the amount of US$10 million equivalent from the World Bank towards the cost of establishing a partial credit guarantee scheme, and they intend to apply part of the proceeds to payments for goods, and consulting services to be procured under this project. 

The consultant will serve as the “Senior Operating Officer (SOO)” for the ECPCGC and should possess extensive knowledge of MSME lending with some direct experience lending to Micro, small and medium-sized businesses, knowledge of the internal control processes necessary for a lending operation and the ability to design and implement risk mitigation procedures. The ideal candidate should possess an Undergraduate Degree from a reputable college or university, preferably in Business, Accounting, Banking or related field, with a minimum of 5 years’ experience in lending, inclusive of MSME lending. The initial employment period will be for two years on a contractual basis. Renewal of the contract will be subject to a performance evaluation at the end of the contractual period. The assignment is expected to begin on September 30th, 2021.  The consultant will report directly to the Chief Executive Officer of the ECPCGC.

The detailed Terms of Reference (TOR) for the assignment can be viewed by following the attached link below. 

 

https://bit.ly/3iVannm

 

The Eastern Caribbean Partial Credit Guarantee Corporation (ECPCGC) now invites eligible “Consultants” to indicate their interest in providing the Services. Interested Consultants should provide information demonstrating that they have:

  • An Undergraduate Degree from a reputable college or university, preferably in Business, Finance, Banking or related field; and
  • Minimum of 5 years’ experience in MSME lending. Applicants should also have:
  • The ability to design and implement risk management procedures 
  • Extensive knowledge of MSME lending with some direct experience lending to small and medium-sized businesses
  • Extensive knowledge of MSME banking operations
  • Knowledge of the internal controls necessary for a lending operation and the ability to design and implement risk management procedures
  • Experience developing and presenting information in public, including responding to questions in real-time
  • Experience lending to MSMEs located in the ECCU
  • Knowledge of marketing and communicating with the MSME sector
  • Ability to draft procedures to be used in a lending operation
  • Familiarity with the mechanics of a loan guarantee program
  • Exceptional written, oral, interpersonal, and presentation skills, and
  • Proficiency in the use of Microsoft Office suite.

The attention of interested Individual Consultants is drawn to Section III, Paragraphs 3.14, 3.16, and 3.17 of the World Bank’s Procurement Regulations for IPF Borrowers July 2016, [revised November 2017] (“Procurement Regulations”), setting forth the World Bank’s policy on conflict of interest. A Consultant will be selected in accordance with the Approved Selection Method for Individual Consultants set out in the clause 7.34 of the World Bank Procurement Regulations for IPF Borrowers. 

 

Further information can be obtained at the address below during office hours 0800 to 1700 hours:

Eastern Caribbean Partial Credit Guarantee Corporation

Brid Rock, Basseterre,

St. Kitts.

Expressions of interest must be delivered in a written form by e-mail by August 11th, 2021, to [email protected]

 

For further information, please contact:

Carmen Gomez-Trigg                                                            Bernard Thomas

Chief Executive Officer                                                          Chief Financial Officer

Tel: 868-620-8144                                                                  Tel: 869-765-2385

Email: [email protected]                                          [email protected]