USVI Public Records

Document text

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN DESTIN THOMPSON Plaintiff CASE NO. ST-08-CV-0000512 ACTION FOR: BREACH OF CONTRACT - CIVIL VS AHMAD M. ALKATIB WORLD FRESH MARKET, LLC D/B/A PUEBLO SUPERMARKET wee? we? ee ee ee ee ee ee Defendant NOTICE OF ENTRY OF MEMORANDUM OPINION AND ORDER TO: CLIVE RIVERS, ESQUIRE MICHAEL L. SHEESLEY, ESQUIRE JUDGES & MAGISTRATES, SUPERIOR COURT LIBRARIAN DIVISION ORDER BOOK Please take notice that on July 18, 2011 a(n) MEMORANDUM OPINION AND ORDER dated July 15, 2011 was entered by the Clerk in the above-entitled matter. Dated: July 18, 2011 Venetia H. Velazquez, Esq. Clerk of the Co NGL f f a DIANE MATTHEW-TURNBULL COURT CLERK II IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN RkekekRKKKEK DESTIN THOMPSON, ) CIVIL NO. ST-08-CV-512 ) Plaintiff, ) ACTION FOR BREACH OF ) CONTRACT, TORTIOUS vs. ) INTERFERENCE WITH ) CONTRACT, NEGLIGENCE AND ) DAMAGES WORLD FRESH MARKET, LLC, d/b/a ) PUEBLO SUPERMARKET and AHMAD M._ +) JURY TRIAL DEMANDED ALKATIB, ) ) Defendants. ) ) MEMORANDUM OPINION Plaintiff Destin Thompson has filed his Petition for Review Motion to Vacate, Modify or Correct Arbitration Award Complainant's Motion requesting that this court vacate, modify or correct an arbitration award.! Although Thompson alleges that the terms of the arbitration award are completely irrational, the Court finds that Thompson has asserted facts insufficient for a vacatur, modification or correction under the grounds enumerated in the Federal Arbitration Act as to his claims for breach of contract, wrongful termination and intentional infliction of emotional distress. Thus, the Court will deny in the part the Petition for Review as to those claims. The Court will, however, remand this matter to the arbitrator for clarification on whether Thompson is entitled to compensation under the Employment Contract. BACKGROUND The arbitration in this matter arose from an employment contract between Thompson and Defendant World Fresh Market, LLC, d/b/a Pueblo Supermarket. The Employment Contract was subject to a written No-Harassment Policy and Standards of Conduct for Employees of World Fresh Market. On or about July 5, 2008, Darlene Rabsatt, a female employee of World Fresh Market was assigned the task of typing and printing signs for store in the manager’s office. After typing and printing the signs, Rasbatt left the office to place the signs around the store at which time she realized that she had left her cellular phone in the manager’s office. Rabsatt retrieved her phone approximately 15 minutes later and she found a new message on her phone notifying her of a charge for the last transaction. Because Rabsatt had not made any transactions, she searched her phone and determined that a picture of her, semi-nude, had been sent from her ' Plaintiff Destin Thompson is represented by Clive Rivers, Esq., of the Law Offices of Clive Rivers. Defendants World Fresh Markets, LLC, d/b/a Pueblo Supermarket and Ahmad M. Alkhatib are represented by Michael L. Sheesley, Esq., of Kevin F. D’Amour, P.C. Thompson v. World Fresh Market, LLC, et al. Civil No. ST-08-CV-512 Order phone to a number that she did not recognize. When Rabsatt called the number to which the picture message had been transmitted, Thompson answered the call. At the end of her shift, Rabsatt went home and told her parents. Rabsatt’s father called Thompson regarding the incident and Rabsatt’s parents filed a report with the Virgin Islands Police Department. A police officer summoned Thompson to the station to respond to the allegation. Thompson denied sending Rabsatt’s photograph to his phone. On July 7, 2008, World Fresh Market held a meeting concerning the incident. At the meeting, Rabsatt showed a representative of World Fresh Market a copy of the photograph that had been transmitted, and a printout of her billing and call history. No written report was made of the meeting between World Fresh Market’s representative and Rabsatt. The following day, July 8, 2008, World Fresh Market’s representative held a meeting with Thompson and asked Thompson for his version of the events surrounding the incident. At the conclusion of the meeting, World Fresh Market issued a Letter of Suspension which notified Thompson of his suspension until further notice because of the alleged misconduct. On October 29, 2008, Thompson filed his Complaint alleging breach of contract for wrongful discharge, tortious interference of contract and intentional infliction of emotional distress. Shortly after receipt of the Complaint, World Fresh Market moved for submission of this matter to arbitration pursuant to clause 12 of the Employment Contract. After an evidentiary hearing before an arbitrator, on August 8, 2010, the arbitrator rendered his decision in the matter. Specifically, the arbitrator struck Thompson’s claim for intentional infliction of emotional distress, dismissed the claims for breach of contract, wrongful discharge and tortious interference with contract, and found just cause for Thompson’s termination. Further, the arbitrator entered an award in Thompson’s favor of $5,000.00, representing a portion of the contractual signing bonus due. On September 8, 2010, Thompson filed his Petition for Review. DISCUSSION I. THOMPSON TIMELY FILED HIS PETITION FOR REVIEW. Before the Court examines Plaintiffs arguments in his Petition for Review, the Court will assess the timeliness of the Petition. World Fresh Market and Defendant Ahmad M. Alkatib, in reliance on an Order dated September 2, 2010, contend that the Petition for Review is untimely because it was not filed by September 7, 2010. The September 2, 2010 Order stated that “the arbitrator’s decision will become final on or about September 7, 2010, should neither party challenge it.” In turn, Plaintiff alleges that because the Employment Contract is governed by the Federal Arbitration Act (“FAA”)’, the Court should look to section 12 of the FAA? which provides a three-month period to file a petition to review, vacate, modify or correct. 2 9 U.S.C. §§ 1-16 (2006). 3 Id. § 12. Thompson v. World Fresh Market, LLC. et al. Civil No. ST-08-CV-512 Order During a status conference held on September 1, 2010, Clive Rivers, Esq., counsel for Thompson represented to the Court that the arbitrator’s decision would be final thirty days after its issuance.* The September 2, 2010 Order merely summarized the conference and embodied the Court’s oral orders. The Court notes that the 30 day period generally applies to writs of review which provides this Court with jurisdiction to review decisions of government actors only, and not private actors.*® Here, the arbitrator is a private actor and thus, the Court must look to the FAA for the time period to file a motion to vacate, modify or correct an arbitration award. Upon examination of the applicable provisions of the FAA, the Court determines that the three-month period applies to Plaintiff's Petition for Review. Specifically, section 12 of the FAA states that “[nJotice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered.” Therefore, the three-month period applies and Thompson’s Petition for Review is timely. IL. STANDARD OF REVIEW. The terms of the Employment Contract state that the arbitration shall be governed by the FAA. When reviewing an arbitrator’s decision, “the court will set that decision aside only in very unusual circumstances.”” Generally, a court is extremely deferential to arbitration awards and vacatur of such awards is only appropriate in “exceedingly narrow” circumstances,’ Section 10 of the FAA provides the grounds for vacatur of an arbitration award “[w]here the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.”!!+!? Accordingly, a court may set aside an arbitrator’s award only in the “rare instance[ ]” when the award does not “‘draw its essence from the contract and. . . simply reflect[s] the arbitrator’s own notions of industrial justice.””'? As long as an “arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, [the fact] that a court is convinced he committed serious error does not suffice to overturn his decision.”'“ “[O]nly where there is a manifest disregard of the agreement, totally unsupported by the principles of contract construction and the law of the shop, may a reviewing court disturb the award.” * (R. Proceedings, Sept. 1, 2010). > V1. CODE ANN. tit. 5, §§ 1421-23 (1997). ° Gov't of the V1. v. United Indus. Workers, 38 V.1. 170, 176 (D.V.I. App. Div. 1997). 7 9US.C. § 12. ® Id. §§ 1-16. ° First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995). '° Dluhos v. Strasberg, 321 F.3d 365, 370 (3d Cir. 2003). " 9 U.S.C. § 10(a) (4). "2 The Court is aware that this is merely one of the several grounds for vacating an arbitration award. Thompson, however, has directed the Court’s attention to subsection 4 of Section 10 of the FAA. "°F Associated Coal Corp. v. United Mine Workers of Am., 531 U.S. 57, 62 (2000). '* United Paperworkers Intern. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987). 'S Exxon Shipping Co. v. Exxon Seamen's Union, 73 F.3d 1287, 1295 (3d Cir.1996). Thompson v. World Fresh Market, LLC, et al. Civil No. ST-08-CV-512 Order In addition, section 11 of the FAA provides the Court with additional grounds to modify or correct an award. Those grounds include: “(a) where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award; (b) where the arbitrators have awarded upon a matter not submitted to them; and (c) where the award is imperfect in matter of form not affecting the merits of the controversy.”'® II. ARBITRATOR Dip Not Exceep His Powers Nor EXHIBIT MANIFEST DISREGARD OF THE LAW AS TO THOMPSON’S CLAIMS. Under the deferential standard of review, the Court finds that Thompson has not alleged facts that meet the grounds for vacatur, modification or correction under the FAA. The arbitrator considered all of Thompson’s claims and the arbitrator’s decision was rational under the circumstances. However, because the award is ambiguous as to Thompson’s entitlement to compensation under the Employment Contract, the Court will remand this matter to the arbitrator. A. THOMPSON’S CLAIMS FOR BREACH OF CONTRACT, WRONGFUL DISCHARGE, TORTIOUS INTERFERENCE OF CONTRACT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. Thompson moves for vacatur, or in the alternative, modification of the arbitration award on the grounds that the arbitrator exceeded his powers by failing to consider the issues submitted in the Complaint. Specifically, Thompson’s complaint alleges that World Fresh Market breached the Employment Contract when it suspended Thompson without pay, pending an investigation into the alleged misconduct. Further, Thompson asserts that his suspension was a pretext to effect his wrongful termination. Thompson posits that the arbitrator failed to understand the essence of the parties’ agreement in the Employment Contract because the arbitrator did not consider or resolve the issues presented in the Complaint.'” In the award, the arbitrator considered Thompson’s contention that his termination was pretextual and that World Fresh Market terminated him to “avoid the obligation to pay” the bonus as outlined in the Employment Contract.'® The arbitrator concluded that Thompson presented no evidence at the hearing and no argument in support of Count II’s claim for intentional interference with contract and Count III’s claim for tortious infliction of emotional distress. Further, the arbitrator granted World Fresh Market’s Motion to Strike Count II. The arbitrator specifically stated that “[t]here is no basis in the record for any finding of liability of [World Fresh Market] for intentional infliction of emotional distress as that tort is set out in the Restatement (Second) of Torts, [section] 46, and no relief is available to [Thompson] pursuant to © OULS.C. § 11(a)-(c). The Court notes that, in their opposition, Defendants merely state that the Petition for Review is untimely and do not address the merits of the Petition for Review. '§ Pet. Review, Supp. Docs. Opinion and Award Case No. 32 166 00884 04,6 & 7 (“Complainant testified that he believes that his termination was pretextual.”). Thompson v. World Fresh Market, LLC, et al. Civil No. ST-08-CV-512 Order Count III of his Complaint.”'? In addition, fhe arbitrator found Thompson’s argument that his termination was pretextual “unpersuasive.””° The arbitrator analyzed the specific terms of the Employment Contract which permitted termination of employment for “material breach or just cause,” including “improper or disorderly conduct” or “for the failure to comply with World Fresh Market’s rules, policies .. .”*! In addition, the arbitrator examined the No-Harassment Policy which proscribed sexual harassment, including “verbal or physical conduct of a sexual nature which has the purpose or effect of . . . creating an intimidating, hostile or offensive work environment.” According to the No-Harassment Policy, World Fresh Market upon notice of the proscribed actions would conduct a full investigation into the matter. Thompson claimed that World Fresh Market breached the Employment Contract by failing to conduct a thorough investigation. The arbitrator opined that it is reasonable to suggest that a thorough investigation would include a written report of the findings, but found that World Fresh Market had sufficient information to make its preliminary determination that Thompson had violated World Fresh Market’s Standards of Conduct and No-Harassment Policy, thereby breaching his obligations under the Employment Contract and providing just cause for termination.” Although Thompson posits that there was no evidence to confirm that he was the person who accessed the phone to send the picture to himself, the Court finds that the arbitrator’s decision was rationally based on the evidence presented. Further, the Court notes that the arbitrator’s conclusion implicitly addressed Thompson’s claim for wrongful termination since termination based on these facts is supported by the Wrongful Discharge Act.* In addition, the arbitrator found Thompson’s claim of pretextual termination unpersuasive. This Court concludes that the arbitrator had a rational basis in rendering his decision. Similarly, the Court finds that the arbitrator considered all of Thompson’s claims. B. ARBITRATION AWARD AS RELATED TO THOMPSON’S ENTITLEMENT TO COMPENSATION. Thompson asserts that the arbitrator failed to make a legitimate award because it does not acknowledge the express terms of the employment contract. Specifically, clause 6(c) of the Employment Contract states that “[i]f World Fresh [Market] should terminate the Employment Contract for . . . just cause . . . [Thompson] will be entitled to be paid the Base Annual Salary otherwise payable to Employee . . . through the Date of Termination.” However, the arbitrator ° Id. 8. 20 ld. 2! (Compl. Ex. A., p. 3). . Pet. Review, Supp. Docs. Opinion and Award Case No. 32 166 00884 04, R. Ex. 1. Id. 10. 4 Specifically, the Wrongful Discharge Act provides enumerated grounds for termination including that an employer may dismiss any employee “who willfully and intentionally disobeys reasonable and lawful rules, orders, and instructions of the employer.” V.1. CODE ANN. tit. 24, § 76(a)(4) (1997). Thompson v. World Fresh Market, LLC, et al. Civil No. ST-08-CV-512 Order awarded the sum of $5,000.00 representing the portion of the contractual signing due under the Employment Contract. The Court agrees with Thompson’s position. Indeed, if the arbitrator found that Thompson was terminated for just cause, it would seem that Thompson would be entitled to compensation as outlined in clause 6(c) of the Employment Contract. Thus, the Court is unclear as to the reason the arbitrator had not addressed such compensation in the award.” Moreover, the arbitrator found it unnecessary to determine a precise termination date, but found that such termination date was a reasonable time after the issuance of the suspension letter and before Thompson filed this action. Although, the Court may not substitute its judgment for that of the arbitrator,”® the Court may remand this matter back to the arbitrator to clarify the award because of the ambiguity in the award.’ CONCLUSION Finding a rational basis for the arbitration award and that the grounds for vacatur, modification or correction as enumerated in the FAA have not been met, the Court will deny in part Thompson’s Petition for Review regarding his claims for breach of contract, wrongful termination and infliction of emotional distress. Finding that the arbitration award is ambiguous as to whether or not Thompson is entitled to compensation pursuant to the Employment Contract, the Court will remand this matter to the arbitrator forflarification. 7 DATED: July [$, 2011 JAMES S. CARROLL III Judge of the Superior Court of the. Virgin Islands CERNFIED ATRUE COPY j Date: av [ Ad . NVehetia H2 Velazquez, Eso. LORI BOWNES-TYSON 1 5, Hf = Clerkofthe Court Court Clérk Supervisor A Jt he -y i - > Court Clerk 75 See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jaros, 70 F.3d 418, 421 (6th Cir. 1995) (“Where . . . the arbitrators decline to explain their resolution of certain questions of law, a party seeking to have the award set aside faces a tremendous obstacle.”). * See Brentwood Med. Assoc. v. United Mine Workers of Am., 396 F.3d 237 (3d Cir. 2005) (stating that “(The Court] will not disturb an arbitration award even if [the Court] finds the basis for it to be ambiguous or disagree{ ] with [the arbitrator’s] conclusions under the law.”). ” See, e.g., Hermandad Independiente De Empleados Telefonicos v. Puerto Rico Telephone Co., 498 F. Supp. 2d 454 (D.P.R. 2004) (stating that ambiguities and uncertainties of arbitration awards should not be resolved by court, but rather the court should resubmit the award to its author for clarification.); Am. Postal Workers Union v. U.S. Postal Service, 254 F. Supp. 2d 12 (D.D.C. 2003) (remanding an ambiguous arbitration award to arbitration for clarification). ; ae wee “ye oe : - . fa Pa ue, te ie . oy oe on +: } i ae te cy - . tye oe Aa) we ts toa os ty te n 4 a3 An a ue i%. *e na wee on ve ‘ : at oa te t- ta a oa . . = as te “ ne ve ae , ne cy oe Py jae oa ot tyes «a ' te - se . ; 1 a ot ao Tr Li 't a Sorry cw. be, > : ~N” ml os = = 6 Pa a aed é aa — oo _— s os @ a" 7 -- 7 » om _: . oN —-s oe mS. . oo ae ma eee Men SS ~G eenawaeet* ras oy ~ ws “S. ws “ “ a Ps ast ww oe -- os = wee ae , oF ot oo Se oh te + ‘ , st , tay tay wa = see : + . Pa le vy <n te ve it 1 re na se wo we : Wm IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN Rk kK KKK DESTIN THOMPSON, ) CIVIL NO. ST-08-CV-512 ) Plaintiff, ) ACTION FOR BREACH OF ) CONTRACT, TORTIOUS vs. ) INTERFERENCE WITH ) CONTRACT, NEGLIGENCE AND ) DAMAGES WORLD FRESH MARKET, LLC, d/b/a ) PUEBLO SUPERMARKET and AHMAD M. _ ) JURY TRIAL DEMANDED ALKATIB, ) ) Defendants. ) ) ORDER AND NOW pursuant to the Memorandum Opinion date of today’s date, it is hereby ORDERED that Plaintiff Destin Thompson’s Petition for Review Motion to Vacate, Modify or Correct Arbitration Award Complainant’s Motion is DENIED in part as to the claims for breach of contract, tortious interference with contract, intentional infliction of emotional distress and GRANTED in part as to compensation under the Employment Contract; and it is further ORDERED that this above-captioned matter is REMANDED to the arbitrator, Douglas A. Brady, Esq., of the American Arbitration Association, for further proceedings on Plaintiff Destin Thompson’s compensation under the Employment Contract; and it is further ORDERED that a copy of this Order shall be directed to cgunsel of record JAMES S. CARROLL III iM Judge of the Superior Court of the Virgin Islands ATTESLVENEIJA H. VELAZQUEZ, ESQ: -- Clerk of the Court CERTIRIEDAT, UE COPY by. "7 ae: AL EL UL Ve chetia # Nelazquez, Esq. IAB LL ,. Lexa Court ; ~ > “Cauet Clerk DATED: July [4 , 2011 TOSS . ve oe . ws Ls vi aa os oe iw a . + aa a tet ord pte oy + oe re te oe A - on a -+ at . : : "t . f. a *e se fu - Le i oe yt F 4 :4 ’ ad ae ant ai fe tre ses a ” ‘ a ee a) fe “ ot weit -. “4 ' Bele Y + tts on . oy fe as an ve tye "s ote ue ‘e ' ay oa os ve on ae -- oe Le Ve - we oa Ye - a on - “Step, we “ofr iy vee . art "ty seen, ae G ah: yy, sw *, . “hr a we ie =: oP a ‘_ “= 2 SF ~~ one Le - a 2 ITN an ttle oa “, Pay 3 a ea eK le er oN a hy nw OS™ we or “N crf Seem eese ww = ras “~~ aa