ST. CROIX — The Virgin Islands Department of Justice has moved to dismiss a discrimination, harassment, and wrongful termination complaint filed against the government in District Court in the St. Thomas/St. John District by a former 20-year offshore employee of the VI Department of Tourism on the basis that the court lacks jurisdiction and the DOT lacks the capacity to be sued.
The Department of Justice, in its motion to dismiss submitted Monday, argued that performance issues led to the July 2023 termination of the plaintiff, Kay Milliner-Kitchens. The government argued that the plaintiff failed to show up for assignments, including a marketing meeting in Atlanta where she was director of sales.
Milliner-Kitchens, a resident of Atlanta, had been employed by the DOT as regional manager for Atlanta, regional manager for the Midwest, and, most recently, as acting director of sales. She sued the VI government, Department of Tourism, and Tourism Commissioner Joseph Boschulte in a civil complaint filed August 29, 2024.
In her first amended complaint filed December 4, 2024 by attorney Namosha Boykin, Milliner-Kitchens, a native of St. Thomas who has lived stateside since she was 13 years old, alleged six counts, including discrimination on the basis of age, race, and national origin. She further alleged harassment based on her age and national origin, a hostile work environment created by a change in the terms and conditions of her employment, retaliation, wrongful termination, and nepotism.
The government made three arguments in its motion as to why the action should be dismissed — because the court lacks jurisdiction over the defendants due to improper service of process by the plaintiff, because the DOT lacks the capacity to be sued and is, therefore, an improper party, and because the count of nepotism is not a valid cause of action.
The government argued that the plaintiff has failed to properly serve the defendants to initiate this case, noting the Federal Rules of Civil Procedure require a summons to be served with a copy of the complaint. The government noted the first amended complaint references exhibits that were not included with the summons and FAC served upon Governor Albert Bryan Jr., Attorney General Gordon Rhea, and Boschulte. At least one of the exhibits, the right to sue letter, was missing, according to the government. Since these exhibits are part of the complaint, and the complete complaint, including integral parts, was not served upon the defendants, the government argued that the plaintiff should be required to serve the defendants again, correctly.
The DOJ argued the Department of Tourism is an improperly named party to the litigation. Although the plaintiff identifies the DOT as a party in the complaint, the government argued such identification is contrary to Title 3 of the Virgin Islands Code, Section 331 outlining the powers and duties of the Department of Tourism, which does not grant the department the right to sue or be sued. The government argued the DOT is, therefore, an improper party to the complaint and must be dismissed.
Milliner-Kitchens alleged in her first amended complaint that the Department of Tourism discriminated against her based on nepotism in violation of Title VII of the Civil Rights Act of 1964 and the Virgin Islands Code, Titles 10 and 24. She alleged the department hired and provided more favorable working conditions, compensation, and general treatment to hires who had relatives in high-ranking government positions. She alleged independent contractors with a close degree of kinship to high-ranking government officials were not subject to discipline and were not required to maintain key performance indicators, account for their deliverables, or perform any work whatsoever.
The government argued in its motion to dismiss that there is no violation of the Civil Rights Act or local labor statutes based on nepotism. In the case of Holder v. City of Raleigh, the court stated that to plead any claim pursuant to Title VII of the Civil Rights Act, a plaintiff must establish that they are a member of a protected class based on race, color, religion, sex, or national origin, according to the motion. The government argued that dismissal is appropriate where the complaint does not address the plaintiff’s race, religion, ethnicity, or any fact that would establish she is a member of a Title VII protected class.
Although Milliner-Kitchens asserts in her complaint that she was discriminated against because independent contractors were treated better than she was, the government indicated in its motion that discrimination must be based on a protected class opposed to employment status. The government argued that the plaintiff’s allegation that she had a less valuable compensation package than the staffing contracts of the independent contractors doing similar jobs for the DOT were false. As an unclassified government employee, the government noted Milliner-Kitchens was entitled to and received a salary and all the fringe benefits proscribed by VI law. The government argued that Milliner-Kitchens and independent contractors who worked for the Department of Tourism were not similarly situated, noting independent contracts do not enjoy the fringe benefits government employees receiving, including health insurance, paid annual leave, paid sick leave, life insurance, and a retirement annuity.
Additionally, the plaintiff alleged that native-born Virgin Islanders were getting favorable treatment at the Department of Tourism since Boschulte became commissioner in January 2019. The government argued this claim is negated in the complaint itself because Milliner-Kitchens admits she is a native-born Virgin Islander of African descent. As such, the government argued she is a member of the very group that she asserts is getting favorable treatment at the DOT and by Boschulte.
The government requested the court dismiss the complaint for failure to effectuate service of process, failure to state a civil rights claim, failure to state a wrongful termination claim, and for failure to state a federal question.
