ST. CROIX — A federal magistrate judge has denied a motion by former Senator Genevieve Whitaker seeking entry of default against current and former elections officials in her nearly decade-long civil lawsuit alleging sex-based pay discrimination when she was deputy supervisor of elections for the St. Croix District.
Whitaker, who first filed suit in 2016, claims she was paid less than her male predecessor while serving as deputy supervisor of elections for the St. Croix District, in violation of federal anti-discrimination laws.
Whitaker, who worked as deputy supervisor from October 13, 2013 until her resignation on January 8, 2021 after being elected to the 34th Legislature, claims she was paid “substantially less” than her male predecessor — former Senator James Weber III, according to her second amended complaint filed on April 4, 2023.
Specifically, Whitaker notes that she was paid $72,000, which is $8,000 less than Weber’s salary of $80,000. From her date of hire, Whitaker noted she only received a 3% increase that was afforded to all staff of the Elections System of the Virgin Islands, increasing her salary to $74,160 starting on January 31, 2019 until her resignation.
Plaintiff’s motion for default:
On October 1, Whitaker, representing herself in the case, filed a request for clerk’s entry of default under Federal Rule of Civil Procedure 55(a), asserting that the defendants failed to answer or otherwise respond to her complaints despite being properly served in 2016.
Whitaker pointed to a June 28, 2016 waiver of service signed by the defendants’ counsel, noting that under federal rules, the defendants’ response was due within 60 days. She argued that because defendants had not filed an answer to her second amended complaint, they were in default of their obligation to “plead or otherwise defend.”
Defendants’ opposition:
In response, filed October 3 by Assistant Attorney General Julie Beberman, the defendants opposed the motion, arguing that they had actively defended the case since its inception. They cited several filings — including motions to dismiss and a prior answer to the first amended complaint — as evidence that default was not warranted.
Defendants also maintained that under the Federal Rules of Civil Procedure, a pending motion to dismiss suspends the obligation to file an answer until after the court rules on that motion.
The defendants filed a motion to dismiss the second amended complaint for failure to state a claim on April 17, 2023. Whitaker responded on April 26, 2023. The defendants replied to Whitaker’s opposition the same day. The defendants’ motion to dismiss remains pending.
Court’s ruling:
In an order denying entry of default issued on October 3, Magistrate Judge Emile Henderson III rejected Whitaker’s request. The court held that Whitaker’s application was procedurally insufficient and substantively incorrect, noting the defendants have appeared and have litigated the case since it was filed in 2016.
Procedurally, the court noted that Whitaker’s filing lacked the required affidavit or declaration attesting to the facts supporting default, as required by Rule 55(a) and established case law. The request also did not include a memorandum of law or proof of service documentation verifying the alleged failure to respond.
Substantively, the court determined that the defendants had not “failed to plead or otherwise defend,” as they had filed multiple motions, including one to dismiss the second amended complaint — the operative pleading in the case.
Because defendants had continued to participate in the litigation, the court concluded that the requirements for entry of default were not satisfied and denied the motion.
Plaintiff’s objection:
Following the denial, Whitaker filed an objection to the magistrate judge’s order on October 3, contending that the court erred because the defendants had never answered the operative complaint. She argued that an answer to the prior amended complaint became a “nullity” once the second amended complaint was filed, and that defendants’ continued delay warranted default.
Whitaker asked the district judge to vacate the magistrate judge’s order and direct the clerk to enter default against all defendants.
Defendants’ response to the objection:
In a response to objection filed October 7, the defendants defended the magistrate judge’s ruling, emphasizing that the order was properly issued under Rule 72(a), which governs nondispositive pretrial matters. They also cited federal case law holding that a defendant is not required to answer a complaint while a motion to dismiss is pending. The defendants argued that the magistrate judge did not abuse his discretion and that Whitaker’s objection should be overruled.
Case background:
Whitaker claims the defendants — Supervisor of Elections Caroline Fawkes and several members of the Board of Elections, including former board members and two who remain on the board — violated the federal Equal Pay Act and the Virgin Islands Equal Pay Policy Law. She seeks redress for disparate pay due to her sex. She claims the defendants’ behavior toward her when she first addressed the issue of her unfair pay and since she filed her initial complaint on June 16, 2016 constitutes retaliation in violation of federal statute.
In addition to Fawkes, the other defendants include two current board members — Raymond Williams, board chair, and Lilliana Belardo de O’Neal — and six former board members — Alecia Wells, Arturo Watlington Jr., Lydia Hendricks, Lisa Harris-Moorhead, Rupert Ross Jr., and Harry Daniel. Whitaker was an employee of the defendants.
Wells served as board chair and Watlington served as secretary at the time Whitaker was hired, which was when there was a Joint Board of Elections that became a single Board of Elections when Act No. 7892 was signed into law on July 30, 2016. Whitaker alleges Wells and Watlington executed a document on or about October 13, 2013 falsely claiming her salary was set at $72,000. She further alleges that Fawkes worked behind the scenes with administrators from the Division of Personnel and Department of Finance to alter her salary with the authorization from the defendants to disregard the rules of the board, the Virgin Islands Equal Pay Policy Law, and the federal Equal Pay Act.
Whitaker seeks all amounts due to her for the defendants’ failure to pay her an amount equal to her male predecessor (back pay), liquidated damages in an additional equal amount, inclusive of the calculated amount of the differential of the salary gap between her and her predecessor, as well as the 3% increase on the salary of $80,000 minus her salary of $74,000 she received toward the end of her service. She also seeks damages for pain, suffering, and emotional distress caused by this action as a result of the mistreatment by defendants and reasonable court fees in addition to costs, pain, and suffering, and such other relief as the court shall deem appropriate.
Next steps:
The District Court will now review Whitaker’s objection under the “clearly erroneous or contrary to law” standard applicable to magistrate rulings on nondispositive matters, according to Federal Rule of Civil Procedure 72(a). Unless the court finds that the magistrate judge committed legal error, the denial of default is likely to stand.
If the pending motion to dismiss the second amended complaint is resolved in the defendants’ favor, Whitaker’s claims could be dismissed entirely. If denied, the defendants would be required to file an answer within 14 days of the ruling.
