IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX

MARSHA JAGRUP )

PCtiti0n€rg CIVIL NO SX 2016 CV 00068

V ; PFTITION FOR WRIT OF REVIEW

JUAN F LUIS HOSPITAL & MEDICAL ;

CENTER and THE COMMISSIONER OF THE )

VIRGIN ISLANDS DEPARTMENT OF LABOR ) 2024 VI SUPER 8U

Respondents 3

MEMORANDUM OPINION AND ORDER

ll 1 By Order Granting Petition for Judicial Review entered May 26 2016 ( Order

Granting Writ ) the Court granted Petitioner Marsha Jagrup 5 Petition for Judicial Review timely

filed on February 12 2016 I The Petition sought relief from the January 125 2016 Decision ofChief

Administrative Law Judge June Austin ( ALJ ) affirming the initial determination of the

Adjudicator within the Division of Unemployment Insurance of Respondent Commissioner of the

Virgin Islands Department of Lab01 ( DOL or Department ) Therein in deciding Petitioner

Jagrup’s internal appeal of the Adjudicator s determination to deny J agrup’s application for

unemployment benefits, the ALJ found that Jagrup was disqualified from receiving unemployment

insurance benefits due to misconduct For the reasons noted below, the Decision will be affirmed

ll 2 Respondent Juan F Luis Hospital and Medical Center, ( ‘JFL’ ) filed an Opposition

to the Petition for Writ of Review on May 23 2016 denied by Orde1 of May 26 2016 The same

date, the Court’s Order Granting W1it established a briefing schedule by which Petitioner was

ordered to file and se1 ve Petitioner 5 Brief within thirty (30) days after DOL s filing and service

of the certified copy of the record of the proceedings, following which JPL and DOL would then

have thirty (30) days to file and SCIVC Respondents Brief

1 The 01de1 Granting Wxit required the Depaltment of Label to produce on 01 before July 1 2016, a record

of the proceedings in the matter concerning the claim fen unemployment insulance benefits By lettel of

June 20 2016 the Department of Label transmitted its 01 iginal file and 01 iginal t1 anSCI ipt 0f the

Unemployment Insurance benefit Appeal Hearing
Marsha Jagnq) v Juan F Luzs Hospital & Medical Centel and Dept ofLabor SX 2016 CV 00068

Memmandum Opinion and Order

Page 2 0f 10 2024 V1 SUPER 8U

113 When Petitioner failed to timely file her blief on May 2, 2017, DOL filed its

Motion to Dismiss for failure to prosecute By Memorandum Opinion and Order entered June 21 ,

2017 the Court denied DOL 5 Motion to Dismiss but required Jagrup to show cause why it should

permit an extension to file her brief notwithstanding her noncompliance with the Court’s

scheduling order In her July 10, 2017 Response to the Court 5 Order to Show Cause Jagrup

explained that the delay was partly due to a change in counsel and requested additional time to file

her inef By Order enteled May 9, 2018, the Court excused the delay and granted in part the

request for additional time and Oldered that the parties adhele to the briefing deadlines prescribed

by Virgin Islands Rule of Civil Procedure 91(f) (h) (twenty days for petitioner s brief and

respondents briefs; reply brief allowed only by court order)

11 4 On May 30 2018 Petitionel Jag1 up filed her brief followed on June 18 2018 by

DOL S Memorandum of Points and Authorities in Support of Affirming DOL s Denial of

Employment Benefits Respondent JFL did not file a brief The Court finds that the AL] 3 Decision

is supp01ted in the record by substantial evidence and will affilm the Decision

FACTUAL AND PROCEDURAL BACKGROUND

11 5 On Febluary 12 2016, Petitioner filed her Petition asking the Court to review and

vacate the ALJ 5 January 12 2016 Decision in MARVHA IAGRUP v JFLH (V 1 App No 003

02 2016) The record2 shows that JFL hired Jagrup in July 2014 as a full time Registered Nulse

assigned to the Surgical/Medical Unit, working on a Flex time schedule At the time of her

termination, Jagrup earned $63,000 annually

11 6 The Gov JFL Hospital & Medlcal Cenlel Employee Code of Conduct and

Compliance Guidelines ( Fmployee Manual’) was the manual that sets out regulations and

expectations of conduct, binding upon Jaglup and other J FL employees The Employee Manual

7 The tecord hetein includes the Gov JFL Hospital & Medical Centen Employee Code of Conduct and

Compliance Guidelines the Gov JFL Hospital & Medical Cente1 Employee Handbook the Employee

Acknowledgment Statement signed by Jaglup, Austin Thomas 5 My Living Will’ the Counseling and

Corrective Action Form regarding the June 12 2015 incident involving Jaglup the June 16 2015 1ette1

placing Jagrup on administtative leave, Jagrup s tel mination letter dated August 17, 2015, the thin Islands

Unemployment Sepatation Fact Finding Statement signed by Jaglupa the initial determination by the

Department Of Labor 3 Adjudicatm the Iedetelmination by the Department of 1 abet s Adjudicator the

Hansel ipt 0f the ptoceedings before the AU, and the ALJ’s January 12? 2016 Decision
Marsha Jag; up v Juan F Luis Hospital & Medical (elite: and Dept ofLabOI SX 2016 CV 00068

Memorandum Opinion and Ordei

Page 3 of10 2024 VI SUPER 8U

listed on pages 9 and 10 a non exclusive list of potential violations under the headings Conflzct of

[mere 91‘ and Busmess Laurie 8'18? ems and Customer S'uppllel Relations

1i 7 The Employee Manual under the Conflicts oflmerest heading defined a conflict

of interest as an activity, influence, or relationship that ‘ impairs, or even gives the appearance of

impairing one’s ability to make objective and fair decisions in the performance of his/her job

The Guidelines further admonished employees not to place themselves in any situation that might

lead them to place their personal or financial interests ahead of those of JFL The Employee

Manual conceded that conflicts of interest may arise despite an employee 3 best efforts to avoid

such situations, but that the correct course of action for an employee to take in that instance is to

disclose the matter to his or her supervisor

ii 8 Furthermore, under the Busmess Courtesles Gifts and Customer Supplzel Relations

heading, the Employee Manual permitted JFL employees to accept gifts with a total value of

$25 00 01 less in any one year from any individual or organization with a business relationship

with JFL The Employee Manual identified Physicians practicing in the hospital or facilities as

being in a business ielationship with JFL but did not so lefeience Nurses LPNs or RNs as

suppliers, customers or individuals who have a business relationship with JFL for the purposes of

gifts or business courtesies

1i 9 In pertinent part a section entitled Policy Headings stated that as agreed by signing

the Employee Manual, the employee should ask do I contact my supervisor or the Compliance

Department when I am not sure that I can keep a particular gift that I have been offered ” On

July 22 2014, Jagrup signed an Employee Acknowledgement Statement agreeing to comply with

the standards contained in the policies and procedures of the Employee Manual

1E 10 Jagrup was assigned to provide care for Austin Thomas, a JFL patient recovering

after surgery in the Surgical/Medical Unit On May 13 2015 at the iequest and direction of

Thomas from his hospital bed, Jagrup wrote out the words contained in Thomas s My Living

Will ( Living Will ) As set out therein all the real and personal piopeity in Thomas s possession

at his death was to be conveyed to Jagrup His last dictated w01ds stated that his wish was to be

cremated The document was witnessed by two individuals Thomas was subsequently released

from JFL but shmtly thereafter returned to JFL 5 Intensive Cale Unit wheie he soon passed away
Marsha JagrLIp v Juan F Luis Hospztal & Medical Centei and Dept ofLabOI SX 2016 CV 00068

Memorandum Opinion and Order

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11 11 Jagrup had called JFL 5 Risk Management official at some point during the writing

of the Living Will but only to inquire about how to have the will properly executed Jagrup never

informed Risk Management of the context surrounding the Living Will who wrote it and the fact

that she benefited from it and Jagiup never informed her superiors that she assisted Thomas in

drafting his Living Will

11 12 Jagrup carried out Thomas’s wishes as set forth in his Living Will that a local

funeral home would cremate his body on death, a directive cairied out when Thomas’s remains

were cremated

11 13 On June 12, 2015, a membei of JFL 3 management received a verbal complaint

fiom a neighbor 0t Thomas stating that Jagrup impioperly had her patient Thomas sign over all

his assets to her Thereafter, JFL’s management commenced an investigation

11 14 On June 15, 2015 JFL prepared a JFL Employee Counseling and Corrective Action

Form outlining Jagrup s inappropriate behavior and triggering further investigation by JFL and the

initiation of disciplinary action against Jagrup On June 15 2015 Jagrup was placed on

Administrative Leave with pay, pending the outcome of JFL’s investigation

11 15 By correspondence dated August 17 2015 JFL advised Jagrup that she was

telminated from her employment as a Registered Nu1 se in the Medical/Surgical Unit at JFL The

correspondence cited Jagrup’s violation of JFL’s policies and plocedures contained in the “Code

of Conduct’ as the reason for her termination

11 16 Jagrup did not challenge her termination but on October 8 2015, filed for

unemployment insurance benefits On November 9 2015 an Adjudicator determined that Jagrup

was not entitled to receive such benefits because her actions as reported by JFL and pursuant to

V 1 Code Ann tit 24 § 304(b)(3) demonstrated a disregard of the standaids of behavior that the

employel had a right to expect Disagreeing with the Adjudicator's decision Jagrup filed a notice

of appeal under § 306(b) on December 2 2015

11 17 On December 14, 2015 AI J Austin presided over the appeal healing and heard

testimony from Marsha Jagiup Patrick Piper a patient who testified on behalf of Jagrup, as well

as Frank Abednego, Chief Human Resources Officer Justa Encarnacion, Chief Nursing Officer

and Dyma Williams Corporate Compliance Officer who all appeared as witnesses for employer
Malsha Jagrup v Juan F Luis Hospital & Medical Camel and Dept ofLabor SX 2016 CV 00068

Memoxandum Opinion and Order

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J FL After hearing the testimony and considering the evidence, on January 12 2016 the ALJ issued

her Decision finding that Jagrup was correctly terminated for misconduct under § 304(b)(3), Citing

Jackman v Heylzger 20 V I 536 (D V I 1984) 3 Jagrup filed her Petition in this Court on February

12 2016

11 18 By her Petition, Petitioner asks the Court to reverse the ALJ’S January 12, 2016

Decision denying Petitioner unemployment benefits On May 26, 2016, the Court entered its Order

Granting Writ ordering the parties to submit briefs Following procedural delays, on May 30,

2018 Petitioner filed her Petitioner 3 Brief, arguing that the Court should leverse the ALJ s

January 12 2016 Decision for the following reasons (1) the ALJ’s finding that Jagrup engaged in

misconduct under § 304(b)(3) is not based on substantial evidence and (2) the Decision by the

AL] is contrary to the public policy set forth in the enabling statute

LEGAL STANDARD

11 19 V 1 Code Ann tit 24, § 306(e)(l) allows a party aggrieved by a hearing examiner's

decision to initiate[ ] judicial review by filing in the [Superior] Court of the Virgin Islands a

petition for review within 30 days after the hearing examinei s decision has been mailed to each

party’s last known address or otherwise delivered to him Id § 306(e)(1) J agrup timely filed the

Petition on February 12, 2016 Therefore, the Superior Court has jurisdiction over the Department

of Label ALJ’s January 12, 2016 Decision

11 20 In granting a petition f01 review under § 306(c)(1), the reviewing court’s

jurisdiction “shall be confined to questions of law and in the absence of fraud, the findings of fact

by the hearing examiner if supported by substantial evidence regardless of statutory or common

law rules, shall be conclusive § 306(e)(3)

11 21 Where the Legislature has not explicitly required courts to apply a more deferential

standard of review the Superior Court exercises plenary ICV1€W 01‘ an agency 3 conclusions of law

1 In Jackman the District Court held It is true that not every violation of employment proceduie which

constitutes a proper basis for an employee 3 dismissal constitutes misconduct wairanting denial of

unemployment benefits As used in the unemployment compensation statute misconduct means an act of

wanton 0r wilful disregard of an employei s inteiests a delibeiate violation of the employer 5 1u1es, a

dis1egaid for the standards of behavior which an employer has the right to expect from an employee, or

negligence indicating an intentional disxegard 0f the employer s inteiest or of employee 3 duties and

obligations to the employer ’ 20 VI at 538 39 (citations omitted)
Mai ska Iag1up v Juan F Luz? Hospital & Medlcal Lenten and Dept ofLabOI SX 2016 CV 00068

Memorandum Opinion and Older

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Bryan v Fawkes 61 VI 201 226 27 (V1 2014) In the instant case because the Legislature did

not tequire a specific standard of review under § 306(c)(3) for the ALJ s conclusions of law, the

Court reviews those determinations de novo Section 306(c)(3) does require that the Superior Court

teview all factual findings under the substantial evidence standard

DISCUSSION

A The ALJ’s finding that Jagrup’s actions constituted misconduct under section

304(b)(3) is based on substantial evidence

$122 Jagrup contends that the ALJ 3 Decision that her employment with JFL was

terminated due to misconduct under the meaning of section 304(b)(3) was not based on substantial

evidence The Court finds t0 the contraiy that the ALJ s deteimination was based on substantial

evidence V1 Code Ann tit 24, § 304(b)(3) disqualifies an insured worker from receiving

waiting week credit or benefits for any week ofemployment it she was discharged for misconduct

connected with [her] most recent work An employee will not be denied unemployment

compensation benefits unless the employee was discharged due to misconduct defined as

an act of wanton 0r willful disregard of an employer 5 interest a deliberate Violation

of the employer 5 rules a disregard for the standards of behavior which an employer

has the right to expect from an employee or negligence indicating an intentional

disregard of the employer's interest of the employee 8 duties and obligations to the

employer

Jackman v Heyllgei 20 V I at 537

11 23 ‘Misconduct” is a question of law reviewable by this Court Where an employee

appeals an agency decision denying compensation benefits, the Court must decide whether the

agency’s decision that Petitionei engaged in disqualifying misconduct” is supported by

substantial evidence Id In determining whether there is substantial evidence to support the

agency 5 findings, the Court must examine the testimony in the light most favorable to the

prevailing party [J FL] giving that party the benefit of any inference, which can be drawn logically

and reasonably from the evidence See HH Tne & Battery v Croake, 2005 V I LEXIS 44, at *5

(VI Super Ct Aug 10 2005)

11 24 Substantial evidence is ‘such relevant evidence as a leasonabie mind might accept

as adequate to support a conclusion ’ Virgin Islands Coalltzon 0f CIIIZQI’LS wzth Dzsabllztzes Inc /St

Thamas v Gov I 0fthe Vligll’l Islands 47 VI 315 320 21 (VI Super Ct 2005) (quoting Black s
Marsha Jag? up v Juan F L109 Hospital & Medical (@1116) and Dept 0fLab0r SX 2016 CV 00068

Memorandum Opinion and OrdeI

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Law Dictionary (8th ed 1999)) If ‘ no reasonable fact finder could make [a particular] finding on

the administrative record, then an administrative record is not based on substantial evidence D20

v Ashmoft 353 F 3d 228 249 (3d Cir 2003) Furthermore simply because the Court could reach

a different conclusion based on the factual record before it does not mean that the record is

unsupported by substantial evidence Consolo v Federal Marzlzme Cammzsszon, 383 U S 607, 619

(1966) That is, substantial evidence allows for the possibility of drawing two inconsistent

conclusions ” V1 6001111017 0f Citizens wzth Dlsabzlltles 47 VI at 320 Accordingly, if an

administrative decision is supported by substantial evidence it is not subject to reversal simply

because it might also support a contradictory finding P011N01m Exp Co Inc v I C C 697 F 2d

497 (3d Cir 1982) (citing 60115010 v FMC 383 U S at 620)

ll 25 When the Court applies the substantial evidence test, it is required to conside1 the

whole record La Vallee Northszde CIVIC Ass n v Vngm Islands 80’ 0fLand Use Appeals, 30 V1

9 16 (V1 Terr Ct 1994) (citing Unnersal Carmela Corp v NLRB 340 U S 474 (1951)) In other

words the Court must do more than simply find a justification for the agency”s decision, it must

also determine whether the agency’s ruling was reasonable in light of all the evidence presented

Id “The substantiality of the evidence must take into account whatever in the record fairly detracts

from its weight ” Govt of the Virgin Islands v Public Employee Relafzom Board, 22 V1 12, 23

(VI Terr Ct 1986) Finally, when the Court reviews an agency record for lack of substantial

evidence, it must be conscious of the AL] 5 opportunity to appraise the credibility and consider the

weight of the evidence in the fist instance S'ee Marte De Velez v V. 1 Dept ofLabor, 2018 VI

LEXIS 166 at *5 (VI Super Ct July 25 2018)

11 26 Here the AL] heard and considered the testimony of five individuals Petitioner

Jagrup, JFL patient Patxick Pipe1 who testified on behalf of Jagrup as well as Abednego,

Encarnacion, and Williams who testified on behalf of JFL The transc1ipt of the hearing clearly

demonstrates that the AL] kept the proceeding focused on the issues at hand For example; she

stopped counsel for Petitioner from going down the line of questioning concerning the cremation

of Thomas challenging its relevance and stating in relevant part the issue is whether or not

Miss Jagrup engaged in misconduct I respectfully unde1 stand that you re attempting to lay a

foundation a connection a nexus between Miss Jagrup 3 relationship with Mr Thomas ’ but
Marsha Jag? up v Juan F Lu” Hospltal & Medical Lento) and Dept of Labm SX 2016 CV 00068

Memorandum Opinion and Older

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the ALJ cerrectly noted the hearing 3 focus we have to keep the scope of the facts relevant to

my findings as to whether or not she [Jagrup] engaged in misconduct ” Tr at 42 43

fit 27 In addition the AL] considered the relevant sections of the Employee Manual that

JFL accused Jagrup of Violating, including the prohibition against accepting gifts above a certain

value or placing one’s personal or financial interests ahead of those of JFL The ALJ further

considered the Employee Acknowledgment Statement signed by Jagrup indicating that she

agreed to comply with the standards contained in the policies and procedures of the Employee

Manual

H 28 Furthermore, the ALJ considered patient Piper s testimony rightly noting the high

quality and ‘praiseworthy ’ nursing care Jagrup had provided to Thomas However, the ALJ also

took notice of Jagrup s testimony and her contradictory actions after the death of Thomas Jagrup

claimed that she had no intention to carry out the teims of the Living Will and that she had merely

written it to calm the patient and to put him at ease Yet she failed to disclose to her employer her

involvement in writing Thomas 5 Living Will and she traveled to Thomas’s home to look for his

house keys The ALJ found such conduct demonstrative 0f Jagrup’s intent to implement the terms

of the Living Will conduct that was contrary to the inteiests and expectations of her employer

The ALJ found that these actions constituted misconduct under § 304(b)(3) The testimony and

documentary evidence considered by the ALJ, coupled with the ALJ’s conoboration 0f the facts

during direct examination of the parties at the hearing, supports the ALJ’s conclusion, and a

reasonable person could reach the same conclusion if presented with the same evidence

1T 29 In her brief Jagrup quotes swaths of dialogue from the hearing transcript without

analysis supporting her claim that the AL] 3 finding was not based on substantial evidence

Ultimately Jagrup asserts that (1) she provided her patients with good care, (2) sought advice from

her supervisors when confronted with the issue of Thomas s intent to bequeath to her his property

and that (3) she only accepted the Living Will to appease Thomas but never took any action to

gain ownership of his property after his death

fl 30 Jagrup was not accused of misconduct concelning the quality of professional care

she provided as a nurse to her patients JFL never laised the issue of Jagrup’s work performance
Maisha Jag} up v Juan F Luzs Hospital & Medical Cenlei and Dept ()fLabm SX 2016 CV 00068

Memorandum Opinion and Order

Page 9 0f10 2024 VI SUPER 8U

In fact the ALJ made a finding, based on the evidence in the record that Jagrup provided her

patients, including Thomas, with excellent care

1t 31 The Court finds there is substantial evidentiary support for the ALJ s conclusion

that Jagrup’s assertions that she sought advice from her supeivisors regaiding the Living Will and

that she only wrote and accepted it in order to appease patient Thomas were disingenuous Perhaps

the most appropriate response to these assertions is summarized by the following query Why

would Jagrup seek advice from her supervisors regarding the execution of the will it Jagrup had

no intention of executing the will in the first instance? The ALJ found no reasonable explanation

to this question in Jagrup s testimony nor anywhere else in the record before her and neither does

this Court on review

1] 32 Thus when Jagrup accepted Thomas s invitation to assist him in writing out his

Living Will and then tried to execute its terms she was putting her interests in direct conflict with

those of her employer JFL and its duty of care to decedent Thomas Such a conflict of interest

even if initiated by Thomas out of a well meaning but misinformed desire to help a caring nurse,

was the inevitable result of Jagrup s actions in clear violation of JFL 5 policies to which Jagrup

had previously agreed to adhere and abide by TherefOIe the Court finds Jagrup s assertions to be

baseless and unpei suasive and finds the ALJ’s conclusion that Jagrup engaged in misconduct under

section 304(b)(3) to be supported by substantial evidence in the record

B Jagrup's contention that the ALJ’s Decision is contrary to the public policy set

forth in 24 V I C § 301 is meritless

1] 33 Finally, Jagrup contends that the ALJ 3 Decision is contrary to the public policy set

forth in 24 VI C § 301 Specifically Jagrup argues that since 24 VI C § 301 sets forth a public

policy of protecting citizens from the economic insecurity attending unemployment, and because

Jagrup was an unemployed parent of three children when she came before the ALJ at her

unemployment benefits hearing the ALJ s decision to deny Jagiup benefits violated the law The

Court finds Jagrup s contention meritless

1] 34 The stated purpose of the Virgin Islands Unemployment Insurance Act ( UTA”)

which includes Section 304(b)(3) is to establish a general unemployment fund to help “sustain the
Marsha Jag? up v Juan F Luis Hospital & Medical Centu and Dept of Labor SX 2016 CV 00068

Memorandum Opinion and Order

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morale and conserve the skills and standards of living of those who became unemployed, by

enabling them to meet their essential expenses ’ 24 V I C § 301

fl 35 Title 24 section 306 of the Virgin Islands Code which authorizes administrative

appeals of initial determinations of unemployment insurance eligibility provides that after a

hearing, ‘a hearing examinei shall make findings and conclusions promptly and on the basis

thereof affirm modify, or reveise the Commissioner's determination or redetermination ’ 24 VI C

§ 306(6) The statutory conditions for receipt of benefits are set forth in Section 304, and these

conditions along with the case law which has interpreted them are what the ALJ uses to guide her

determinations regarding a worker s unemployment benefits eligibility

11 36 In the instant case, if the Court were to follow Petitioner Jagrup s logic then any

insured worker who finds themself unemployed irrespective of how they came to be unemployed

would be eligible for unemployment insurance benefits Unemployment insurance benefits

eligibility would thus be a foregone conclusion for anyone and everyone who finds themselves

newly unemployed and any ruling denying benefits would be Violative of the statutory scheme

However, it is this very same statutory scheme of the UIA, which Jagrup contends was violated by

the AL] s Decision, that contains the relevant conditions under Section 304 for receiving

unemployment insurance benefits Jagrup failed to meet the conditions under Section 304 of the

UIA and was therefore disqualified from receiving unemployment benefits Accordingly, this

claim of error also fails In light of the foregoing, it is hereby

ORDERED that the decision in the matter MARSHA JAGRUP v JFLH (V I App No

003 02 2016) is AFFIRMED It is further

ORDERED that Petitioner 5 Petition is DISMISSED WITH PREJUIDCE It is further

ORDERED that this case is CLOSED

DATED Februaryié 2024

DOUGLAS A BRADY JUiiGE

ATTEST TAMARA CHARLES

Clerk of the C y

By é?/ {Zak

Court Cler upervisor
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

District of St. Croix

MARSHA JAGRUP,

 Petitioner,

v.

JUAN F. LUIS HOSPITAL & MEDICAL 

CENTER, et al.,

 Respondents. 

 

 Case Number: SX-2016-CV-00068

 Action: Writ of Review

NOTICE of ENTRY

of

JUDGMENT/ORDER

To: Trudy Fenster, Esq.

 Michael R. Francisco, Esq., AAG

Please take notice that on February 22, 2024

a(n) MEMORANDUM OPINION AND ORDER

dated February 21, 2024 was/were entered

by the Clerk in the above-titled matter.

Dated: February 22, 2024 Tamara Charles

Clerk of the Court

By:

Cheryl Parris

Court Clerk III