Patricia Schrader-Cooke v. Mary Moorhead and V.I. Board of Education

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

PATRICIA SCHRADER COOKE Plaintiff CIVIL NO SX 2016 CV 00655 V5 ACTION FOR DEFAMATION MARY MOORHEAD and V I BOARD OF EDUCATION 2024 v1 SUPER 220 Defendants

MEMORANDUM OPINION AND ORDER 1] 1 THIS MATTER is before the Court on Defendant V I Board of Education 3 (“BOE’ or “the Board”) Motion for Summary Judgment, or, Alternatively, to Dismiss for Lack of Subject Matter Jurisdiction, Pursuant to V I R CIV P 56 and 12(b)(l) (“Motion”), filed November 15, 2021 Plaintiff’s Opposition filed January 17 2022 and Defendant BOB 3 Reply filed January 2022 1[ 2 By Memorandum Opinion and Order entered December 9, 2019, the claims of Plaintiff’s May 23 2017 First Amended Complaint ( FAC ) deemed filed Februaty 28 2017 were dismissed with prejudice, with the exception of that set forth in “Count VI Defamation and Slander as to Moorhead,” alleging that Moorhead 3 March 23, 2016 published statements made on a radio talk show stated a claim for defamation ' The Order indicated that the case would proceed against Moorhead alone “the Government Defendants having been dismissed ”2

' Plaintiff’s PAC in eight counts alleged violation of due process. breach of contract, breach ofthe covenant of good faith and fair dealing, intentional interference with contractual relations (two counts against individual Defendants), defamation and slander (against Defendant Mary Moorhead), intentional infliction of emotional distress, and negligence per se (seeking injunctive relief regarding violations of 24 V I C {5 451(3)) against Defendants Government of the Virgin Islands, Board of Education, Mary Moorhead, Judy Gomez, Winona Hendricks, La Verne Slack, and Arah Lockhart, individually and in their capacity as Board members By the same Opinion and Order, the Court denied Defendant Mary Moorhead’s Motion to Dismiss (treated as a motion for summary judgment pursuant to V1 R Cw P 56(h) presenting matters outside the pleadings) regarding the defamation claim against Moorhead individually Schrader Cooke v VIBOE e! a] ' SX 2016 CV 00655 Memorandum Opinion and Order Page 2 of II 2024 VI SUPER 22U 1] 3 The July 23, 2020 Final Pretrial Conference was converted to a Status Conference, as jury trials were suspended during the global pandemic Addressed at that conference, among other things, was Plaintiff’s Motion for Clarification, filed on January 23, 2020 claiming that Count VI of the PAC presented a claim against Moorhead in both her individual and official capacities The Court advised that the Order dismissing BOB, permitting Plaintiff’s defamation claim against Moorhead to proceed alone, was predicated on a plain reading of Count VI of the PAC that presented a defamation claim only against Moorhead individually 4 Subsequently with her October 22, 2020 Motion for Relief from Orders, Plaintiff submitted a copy of her June 10 2016 Notice of Intention to File Tort Claim, filed pursuant to the Virgin Islands Tort Claims Act( VITCA ) (33 V I C §§ 3401 3417) that included inter alia her claim that [o]n March 23 [2016] VIBOE through the Chair Mary Moorhead defamed my character by making false and disparaging remarks impugning my integrity and character on a local talk show ” Thereafter, in its November 2, 2020 Opposition, in Part, to Plaintiff’s Motion for Relief from Orders, BOB acknowledged that its original dispositive motion had not addressed Plaintiff’s defamation claim, and that it did not, therefore, oppose the Court allowing that claim to proceed against Moorhead in both her personal and official capacities 1| 5 On the basis of the foregoing, including the parties’ filings, the Court “clarifies” that it accepts Count VI of the PAC as presenting Plaintiff’s claims against Moorhead as alleging liability both personally and in her official capacity as Chair of BOB It is with this procedural history that Defendant BOE’s Motion is considered No motion is presented seeking disposition of the claim against Moorhead individually 6 In its Motion, BOB asserts that there is no material dispute that the alleged defamatory statements of Moorhead were made outside the scope ofher employment As such, they fall outside the Govemment’s limited waiver of sovereign immunity set forth in the VITCA Alternatively, BOB argues that dismissal or summary judgment is appropriate, as the alleged defamatory statements constitute protected speech that cannot as a matter of law be considered actionable defamation For the reasons that follow, BOE’s Motion will be granted, judgment will enter in favor of B013 and against Plaintiff on Count VI of the PAC, and Plaintiff’s claim of defamation against Defendant BOB will be dismissed with prejudice Schrader Cooke v VIBOE e! a] SX 2016 CV 00655 Memorandum Opinion and Order Page 3 of II 2024 V1 SUPER 22U BACKGROUND 1| 7 The factual background herein is well known to the parties and was set forth in detail in the December 9 2019 Memorandum Opinion (2019 VI SUPER 167) granting the Government Defendants’ Motion for Summary Judgment and denying Defendant Moorhead’s Motion to Dismiss The factual background will not be repeated here except as relating to the allegations against BOB set out in Count VI of the PAC With its Motion, BOB presents its Statement of Material Facts (“SOP”), some of which are supported by accompanying exhibits Plaintiff’s Opposition does not include, in a separate section or otherwise, any substantive response addressing each of the facts upon which BOB has relied To the extent the facts set out in the SOF have not been controverted or challenged by Plaintiff, the Court considers those facts undisputed for purposes of the Motion See V I R ClV P 56(c)(2)(B) and (e)(2) 1| 8 Prior to Moorhead’s ascension to BOB Chair, BOB hired Plaintiff Schrader Cooke as Associate Executive Director and Acting Executive Director SOP 1| 1 Exh 1 Defendant Moorhead was elected as Board Chair in January 2016 Through Moorhead, by letter of February 5, 2016, BOB suspended Plaintiff for seven days for her unauthorized approval of a Notice of Personnel Action to reclassify a fellow BOB employee from exempt service to classified service, failing to inform and obtain prior BOB approval actions deemed to be a breach of the “Board’s confidence to execute your tasks with honesty and worthy of the trust required of your office ” SOP 11] 2 3 Exh 2 3 1| 9 On March 23, 2016, Defendant Moorhead appeared on the local radio talk show In Sesszon, hosted by her nephew, Robert Moorhead and made the statements about B013 and Plaintiffgiving rise to the defamation claims set forth in Count VI of the PAC Motion, Exh 6, Dep of Mary Moorhead at 36 19 25 37 1 11 Schrader Cooke alleges that Defendant Moorhead stated that Plaintiff “engaged in a ‘breach of trust and violation of her authority;’” “approved a request for a change of classification for the Business and Finance Director from exempt to classified,” “engaged in ‘unethical actions’ and ‘unethical business actions;”’ “improperly cancelled the

3 lnjunctive relief was granted by temporary restraining order nullifying Moorhead’s election and subsequent BOB actions in Sekou et a] v Moorhead e! a], Case No SX 2016 CV 00071 Following dissolution of the TRO, the Board reconvened, and Moorhead was again elected chair, and all BOB actions that had been taken through Moorhead from January 16 February 19, 2016 were ratified by the Board on April! 2016 SOF1"4 6 Schrader Cooke v VIBOE e! a! 8X 2016 CV 00655 Memorandum Opinion and Order Page 4 of 11 2024 VI SUPER 22U contract of the regular cleaning company and tried to hire its employee,” “was ‘using the Board as her personal subsidy,’ (such activity would constitute a crime under 14 V I C § 895) ” PAC 1] 88 1| 10 As the record included no recording or transcript or verbatim account of Moorhead’s alleged defamatory statements, by Order entered November 15, 2019, the Court required that Plaintiff “deliver to Defendant Moorhead, with copy to the Court, a written transcription or verbatim account of the specific actual words of Defendant Moorhead allegedly constituting defamatory statements made on the March 23, 2016 radio talk show referenced in 11 88 of the First Amended Complaint ” By Notice of Filing, filed January 9, 2020, Plaintiff submitted portions of a verbatim transcript of the March 23, 2016 radio program, setting out “the defamatory language of Defendant Mary Moorhead,” consisting of several different statements 4 LEGAL STANDARD 11 A party may move for dismissal under V I R CIv P l2(b)(1) if the Court lacks subject matter jurisdiction, and “[i]f the court determines at any time that it lacks subj ect matter jurisdiction, the court must dismiss the action ” V I R CIV P 12(h)(3) The plaintiff“always bears the burden of convincing the court, by a preponderance of the evidence, that the court has jurisdiction Lynch v JuanF Lats Hosp & Med Ctr 2018 VI LEXIS 25 at *2 (VI Super Ct Feb 20, 2018) (internal citations omitted) “Prior to considering the merits of a matter before it, a court is obligated to examine whether it has subject matter jurisdiction over the dispute ” Brunn v Dowdye 59 V I 899 904 (V I 2013) (citing VJ Gov 1 Hosp & Health Faczlmes Corp v Gov t ofthe VI 50 V I 276 279 (V I 2008))

4 Plaintiff’s Notice included Exhibit A, “identifying by underlining and highlighting the defamatory language of Defendant Mary Moorhead contained in the transcript of the March 23, 2016 radio program ” Exhibit A tracks in part the allegations of PAC 1[ 88, and includes highlighted language as follows And the reason for the suspension was because of a breach of trust and violation oftheir authority ”, “ to change the classification of the Finance Director from Exempt to Classified and the Acting Executive Committee, who approved the request ”, “ but when you have directors who you can’t trust to do the best thing in the interest of the Board ”, one last fact finding is the unethical action of the Acting Executive Director what we have come to learn is that she canceled the company 3 contract and then tried to hire the worker for the company to come do the cleaning Now, tell me if that is not unethical? the unethical action of the Acting Director ”, ‘ these particular people who want to make the Board their personal business and subsidy for their employment ”; “you have people who are callus [sic], indifferent, greedy, and selfish, and simply want to use the Government for their own benefit ” Schrader Cooke v V1305 et al SX 2016 CV 00655 Memorandum Opinion and Order Page 5 of 11 2024 V1 SUPER 22U 12 A Rule 12(b)(1) motion to dismiss may challenge the facial allegations of the complaint, arguing that they are insufficient to establish subject matter jurisdiction On review of a facial challenge, the allegations of the complaint are presumed to be true Where a defendant denies the complaint’s allegations and raises a factual challenge to a court 8 jurisdiction to hear a matter, the plaintiff’s allegations are not presumed to be true, and the court must evaluate the merits of the jurisdictional claims based on the evidence each party presents to determine its own jurisdiction See Williams v Juan F Luzs Hosp 2019 VI SUPER 54U 1111 4 5 (V I Super Ct 2019) 13 In the alternative, BOB asserts that if the Court determines that it does have jurisdiction to hear the matter, BOB is entitled to summary judgment pursuant to Rule 56(a) BOE claims that there are no diSputed genuine issues of material fact and BOE is entitled to judgment as the statements in issue are not defamatory as a matter of law See Baszc Servs Inc v Gov t ofthe VI , V I 652 658 (V I 2019) 1| 14 The burden is on the moving party to demonstrate that there are no genuine issues of material fact in dispute Martm v Martm 54 V I 379 391 (V I 2010) Then the burden shifts to the non moving party who may not rest upon allegations but must present actual evidence showing a genuine issue from which a jury might reasonably return a verdict in its favor Rymer v Kmart Corp 68 V I 571 576 (V I 2018) ANALYSIS 15 The Superior Court is bound by jurisprudence of the U S Court of Appeals for the Third Circuit holding that a claimant’s failure to comply with procedural prerequisites of the VITCA deprives the reviewing court of subject matter jurisdiction chhara'son v Knud Hansen Mem 1 Hosp 744 F 2d 1007 1010 (3d Cir 1984) 5 BOB 3 Motion does not allege that Plaintiff failed to comply with jurisdictional prefiling procedures Rather, BOE claims that because Moorhead was not acting within the scope of her employment or the BOB office when she published the allegedly

5 The Supreme Court of the Virgin Islands has to date not addressed that issue, and has held that “in the context ofdecisions the Third Circuit rendered while serving as the de facto court of last resort in the Virgin Islands,” those decisions “are binding upon the Superior Court even if they would only represent persuasive authority when this [C]ourt considers an issue ’ Nayawwz v People, 58 V | 315, 327 28 (V I 2013) (citing In re PeOple ofthe VI 51 V I 374 389 n 9 (V I 2009)) Schrader Cooke v VIBOE et a1 SX 2016 CV 00655 Memorandum Opinion and Order Page 6 of I] 2024 V1 SUPER 22U defamatory statements the Coutt lacks jurisdiction as beyond the scope of actions for which the Government of the Virgin Islands has waived sovereign immunity 6 {I 16 B013 does not claim that the Court must dismiss the action on the basis that the facial allegations of the Complaint fail to establish subject matter jurisdiction Because the Motion and Plaintiff’s Opposition rely on evidence outside the pleadings, the Court analyzes the Motion as a factual attack to its jurisdiction under Rule 12(b)(1) See Hansen v Gov Juan F Luzs Hosp & Med Ctr 2018VI LEXIS 87 *6 (VI Super Ct June 22 2018) By its factualchallenge arguing that the Court lacks power to hear the case, the Court nevertheless must weigh the record evidence presented by each side to determine whether it may exercise jurisdiction Williams v Juan F Luis Hosp 2019 VI SUPER S4U 11 5 (V I Super Ct 2019) (citing Mortensen v First Fed Sav and Loan Ass n 549 F 2d 884 891 (3d Cir 1977)) ‘ 17 Specifically, VITCA provides that the Government of the Virgin Islands has waived immunity and agreed to assume liability for personal injury caused by the negligent or wrongful act or omission of an employee of the Government “while acting within the scope of his office or employment ’ 33 V I C § 3408(a) As an elected member of BOB, a governing board of the Government of the Virgin Islands, Moorhead is undisputedly an employee of the Government of the Virgin Islands for purposes of VITCA See 33 V I C § 3401 Accordingly BOB s immunity waiver applies with respect to Moorhead’s alleged defamation only if those statements were made while Moorhead was acting within the scope of her office or BOB employment 1] 18 In determining the scope of employment issue, the Supreme Court of the Virgin Islands has favorably cited the persuasive authority of the Restatement (Third) of Agency, noting that “[a]n employee’s act is not within the sc0pe of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer ” Brunn v Dowdye 59 V I at 907 (quoting RESTATEMENT(TH1RD) OF AGENCY § 7 07(2))

6 “Although the Virgin Islands is not a sovereign entity in the same manner as a state, Congress has provided that ‘no tort action shall be brought against the government of the Virgin Islands or against any officer or employee thereof in his official capacity without the consent of the legislature ’ Revised Organic Act of 1954 § 2(b) 48 U S C § 1541 The Virgin Islands Legislature later waived this grant of immunity to the extent set forth in the VITCA Brunn v Dowdye 59 V I at 902 n I Schrader Cooke v VIBOE e! a! SX 2016 CV 00655 Memorandum Opinion and Order Page 7 of 11 2024 VI SUPER 22U 19 The comments to Section 7 O7 explain If an employee’s tortious conduct is unrelated either to work assigned by the employer or to a course of conduct that is subject to the employer’s control, the conduct is outside the scope of employment If an employee undertakes a course of work related conduct for the sole purpose of furthering the employee’s interests or those of a third party, the employee’s conduct will often lie beyond the employer’s effective control

An independent course of conduct represents a departure from, not an escalation of, conduct involved in performing assigned work or other conduct that an employer permits or controls When an employee commits a tort with the sole intention of furthering the employee’s own purposes, and not any purpose of the employer, it is neither fair nor true to life to characterize the employee’s action as that of a representative of the employer The employee’s intention severs the basis for treating the employee’s act as that of the employer in the employee’s interaction with the third party RESTATEMENT (THIRD) OF AGENCY § 7 07 cmt b 1] 20 The question of whether an employee’s actions were within the scope of employment is typically a question of fact However, “it becomes a question of law when the facts are undisputed ’ Brunn v Dowdye, 59 V I at 905 (citation omitted) In Brunn, the Supreme Court held that “an intentional, premeditated murder is inherently outside the scope of Dowdye’s employment as a police officer,” and affirmed the trial court’s holding that “Dowdye’s intentional murder of James was outside the scope of his employment as a matter of law and dismissing Brunn’s claim against the Government based on respondeat superior ” 1d at 906, n 7, 907 1] 2] To address the issue of the scope of Moorhead’s employment as BOE Board Chair, the starting point is the Virgin Islands Code provisions defining official actions and authorized business of the Virgin Islands Board of Education The quorum of the Board shall be a majority of its members No official action may be taken by the Board unless at a regular meeting, or a meeting called by the Chairman or by the members of the Board at which a quorum is present by affirmative vote of a majority of its members present V I C § 97(h) The business which the Board is authorized to transact shall be done at regular or special meetings at which not less than five members are present, and no act shall be valid unless voted for by an affirmative vote of a majority of the members present, and a true record made of such votes V I C § 98(b) Schrader Cooke v VIBOE e! a! SX 20l6 CV 00655 Memorandum Opinion and Order Page 8 of II 2024 VI SUPER 220 1| 22 Moorhead’s statements of which Plaintiff complains were not “official action” or authorized business transactions of a majority of the Board pursuant to 3 V I C §§ 97(h) or 98(b) Yet, Plaintiff claims that Moorhead’s statements were within the scope of her employment, arguing that afier the fact, BOB failed “to condemn Mary Moorhead” or disavow her unauthorized statements Without citation to authority, Plaintiff argues that BOE’s silence amounts to acquiescence and ratification of Moorhead’s statements and shows “that Mary Moorhead was doing exactly what the Board wanted her to do, i e performing within the scope of her employment as a Board member, and was mnhering the Board’s agenda ’ Opposition, at 2 3 1| 23 Plaintiff further claims that “[t]he razson d etre for Mary Moorhead’s radio appearance was the Virgin Islands Board of Education ” Id at 3 Moorhead used the term “‘we, concerning matters surrounding the Board’s defense against the TRO,” such that “[i]t is undeniable that Moorhead spoke in defense of the Board” and “in furtherance of the interest of the Board ” Id at 4 1| 24 Plaintiff’s claims that Moorhead Spoke in defense of the Board regarding the prior action for injunctive relief are, at best, ill informed The Verified Complaint in Case No SX 2016 CV 0007] was initiated by then BOB Chair Nandi Sekou and two other members of the Board, “as Members of the Virgin Islands Board of Education and on behalf of the Virgin Islands Board of Education ” The action was brought against Mary Moorhead and four other Board members, seeking declaratory judgment and inj unctive relieffor violations of statutory law and BOE Bylaws As such, Moorhead’s comments relating to the TRO action and the use of the term “we” were not “in defense of the Board” nor in furtherance BOE’s interests with respect to that action but were rather made in defending herself from allegations brought “on behalf of the Board ” 25 Moorhead prefaced her statements on the talk show with the disclaimer “I wanted to make it clear that even though on the 18‘h the election was redone and I was elected chair of the board, I am not here appearing as chair of the board I m here appearing on my own, simply as a Member ” Motion at 14 Exh 9 Radio Tr at 4 17 25 51 7 1|26 Moorhead claims that the purpose of the radio program interview was to defend herself and to discuss “her personal views on a myriad of issues unrelated to the Board ” Motion, at 18, Exh 10 at 59 l 14, 60 4 25; 61 1 6; 62 73 This characterization of Moorhead’s appearance and Schrader Cooke v VIBOE er a1 ' SX 2016 CV 00655 Memorandum Opinion and Order Page 9 of II 2024 VI SUPER 22U the totality of the presented evidence on the purpose and the substance of her comments weigh in favor of a finding that her conduct was independent and not in fimherance of BOE’s interest f 27 The transcript of the radio program provides context to Moorhead’s statements And, if I may, I would like to first give some background personally, because I am a St Croix District elected Member of the Virgin Islands Board of Education, and I wanted to make it clear that even though on the 18th, the election was redone, and I was elected Chair of the Board, I am not here appearing as Chair of the Board I m here appearing on my own, simply as a Member, speaking to the TRO, because even though we gave the news medias [sic] the information to answer to the allegations in the TRO, none of it was ever printed And it is important that the Public knows exactly what the facts are Now, I want to make it clear, too everyone out there should be remembering that ever since I got elected in January sorry November of 2012, sworn in January of 2013, one of my campaign promises was to always be transparent and to report to the Public, and I want to remind the Public that I have been doing that I am the only Member on the Board who have, yes, been writing reports and having them published in the newspapers So in keeping with that sense of transparency, that is why it was important for me and I am very much appreciative to be here today to give the facts to the allegations in the TRO that was filed against Gomez, Hendricks, Lockart, Slack, and myself But I must make sure it is understood that they will notice, to anyone who read the TRO, that I was really singled out other than the other four Motion Exh 9 Radio Tr at 4 20 25 5 1 25 1[ 28 While 3 V I C §§ 97(h) and 98(b) describe official BOE actions and the transaction of authorized BOB business, the Code is silent as to whether actions taken by an individual member, or by the Board Chair, outside such meetings may constitute actions of the Board Former BOB Chair Nandi Sekou testified in deposition regarding her understanding of public statements made on behalf of BOB Q Can Board members just go out unilaterally and make public statements?

A No That is very clear And the reason why I’m so familiar with that is because we have discussed that over and over, because we’ve had members who would go out and speak on behalf of the Board, and so it was very, very clear that the chairperson is the person who speaks on behalf of the Board based on resolutions or motions that the Board has passed If the chair goes out and speaks on behalf of the Board, then they need to make it clear that they are speaking as an individual II May 31, 2024 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix PATRICIA SCHRADER-COOKE, Case Number: SX-2016-CV-00655 Plaintiff Action: Breach Of Contract & Damages v. GOVERNMENT OF THE VIRGIN ISLANDS et al, Defendant.

NOTICE of ENTRY of Order To Peter J. Lynch, Esq. Venetia H. Velazquez, Esq. : Raymond T James, Esq.

Jeffrey B.C. Moorhead, Esq.

Ariel Smith, Esq.

Please take notice that on May 31, 2024 a(n) Memorandum Opinion and Order dated May 30, 2024 was/were entered by the Clerk in the above-titled matter.

Dated May 31, 2024 Tamara Charles : Clerk of the Court By:

Brianna Primus Court Clerk II