Mamouzette v. Jerome
| Decision Date | 10 March 2021 |
| Docket Number | Civil Action No. 2013-0117 |
| Parties | MOISE MAMOUZETTE, Plaintiff, UNITED INDUSTRIAL WORKERS-SEAFARERS INTERNATIONAL UNION, Intervenor-Plaintiff, v. MARC A. JEROME, Individually and in his official capacity as the Territorial Medical Director; RONALD ANDERS, Individually and in his official capacity as Chief of Obstetrics and Gynecology at Governor Juan F. Luis Hospital; DARICE PLASKETT, Individually and in her official capacity as the Commissioner of the Department of Health; THE VIRGIN ISLANDS BOARD OF MEDICAL EXAMINERS; THE GOVERNMENT OF THE VIRGIN ISLANDS; and DOES 1-5, Defendants. |
| Court | U.S. District Court — Virgin Islands |
Attorneys:
Yohana M. Manning, Esq.,
St. Croix, U.S.V.I.
For Plaintiff
John J. Merchant, Esq.,
St. Croix, U.S.V.I.
For Intervenor-Plaintiff
Erika M. Scott, Esq.,
St. Croix, U.S.V.I.
For Defendants
Zuleyma M. Chapman, Esq.,
St. Croix, U.S.V.I.
For Defendant Darice Plaskett for the Limited
Purpose of the Arbitration Proceeding
THIS MATTER comes before the Court on Plaintiff-Intervenor United Industrial Workers-Seafarers International Union's ("Union") "Motion for Order to Show Cause" on behalf of Plaintiff Moise Mamouzette, MD ("Dr. Mamouzette") (Dkt. No. 100) and Defendant Darice Plaskett's ("Plaskett") Opposition thereto (Dkt. No. 104).1 Also before the Court are the Union's "Submission of Requested Documentation and Briefing of the Court" (Dkt. No. 121), Plaskett's Response thereto (Dkt. Nos. 126, 131), the Union's Reply (Dkt. No. 134), and Plaskett's Sur-Reply (Dkt. No. 137); and Dr. Mamouzette's "Analysis of Arbitration Award, in Support of Reinstatement" (Dkt. No. 123) and Plaskett's Response thereto (Dkt. No. 127).2
For the reasons that follow, the Court will deny the Union's Motion for Order to Show Cause (Dkt. No. 100).
Dr. Mamouzette was employed by Defendant Government of the Virgin Islands through the Virgin Islands Department of Health ("DOH"). (Dkt. No. 48 at 2). After practicing medicine in the Territory for four years, Dr. Mamouzette was suspended from his government employment in December 2013—and ultimately terminated—allegedly due to issues involving his certification and qualification for employment with DOH. Id. In response, the Union filed a grievance challenging the Government's actions. Id. Dr. Mamouzette subsequently filed the instant action—in which the Union intervened—alleging constitutional and other violations stemming from his suspension and termination from employment with DOH, the revocation of his Special Unrestricted License ("SUL") to practice medicine, and attendant circumstances. (Dkt. Nos. 1, 47). Together with the Complaint, Dr. Mamouzette filed a Motion for a Temporary Restraining Order ("TRO") seeking to prohibit Defendants from terminating his employment and revoking his SUL to practice medicine. (Dkt. No. 1).3
In addressing the Motion for a TRO, the Court found that "[t]he propriety of [Dr. Mamouzette's] termination . . . falls squarely into the category of disputes arising under the [Collective Bargaining Agreement ("CBA")] for which the grievance procedure is the sole avenue for resolution." Mamouzette v. Jerome, 2014 WL 211402, at *4 (D.V.I. Jan. 19, 2014). Accordingly, the Court denied Dr. Mamouzette's request for a TRO, finding that he was required to first exhaust his administrative remedies as set forth in the CBA. Id. at *6-7.
After going through the arbitration process, the Arbitrator issued an "Order Based on Party Briefing and Record" ("Award") on October 27, 2014. (Dkt. No. 48-1 at 19-47). In characterizing the issue before him, the Arbitrator concluded that "the matter simply boils down to what was Grievant's 'certification and/or qualification' status when DOH terminated him." Id. at 40 (emphasis in original). The Arbitrator ordered that Dr. Mamouzette be "reinstated effective with his August 25, 2014 submission of certification/qualification supporting documentation to the DOH, specifically: a showing of passing the [American Board of Obstetrics and Gynecology ("ABOG")] written examination, the ABOG's verification of his showing experience in women'shealth care, and a passing of the oral examination." Id. at 46. The Arbitrator further ordered that "[i]f that documentation was provided to the DOH in Grievant's August 25, 2014 submission[,] he is to be reinstated to full benefits and salary starting that date." Id. (emphasis added). The Arbitrator stated that this was the "equivalent of a nine month suspension but with reinstatement" because Grievant was aware that "he was not meeting the qualification/certification standard required for his employment." Id.
In response to the Arbitrator's ruling, the Union filed in this Court a "Petition to Confirm the Arbitrator's Award and Direct that Judgment Be Entered" on behalf of Dr. Mamouzette. (Dkt. No. 48).4 The Court confirmed the Award as against the Government of the Virgin Islands, but denied it as moot with respect to the individual Defendants and the Virgin Islands Board of Medical Examiners. Mamouzette v. Jerome, 2017 WL 3083628 (D.V.I. July 19, 2017).5
The Court's confirmation of the Award eventually precipitated the filing of the Motion currently before the Court. (Dkt. Nos. 100, 104). In its "Motion for Order to Show Cause," the Union requests that the Court require Defendant to "honor" the Court's Order affirming the Arbitrator's Award. (Dkt. No. 100-1). In response, Plaskett argues that Dr. Mamouzette has refused to divulge "pertinent information." (Dkt. No. 104 at 2).
The Court conducted a status conference on March 26, 2018 to address issues pertaining to compliance with the Award. The Union argued that the Court should enforce the Award by ordering DOH to reinstate Dr. Mamouzette. Meanwhile, Defendants argued that, according to theAward, Dr. Mamouzette's reinstatement was conditioned on his August 25, 2014 submission of certification and qualification documents to DOH, including proof that he had passed the ABOG's written and oral examination and had obtained ABOG's verification showing his experience in treating women's health care. Defendants argued that because such documentation was not provided, Defendants were not in violation of the Award, or this Court's confirmation thereof, by not reinstating Dr. Mamouzette effective August 25, 2014.
In light of the parties' differing views as revealed during the colloquy at the status conference, the Court established deadlines for the submission of additional filings to address the parties' respective positions, including a deadline for the submission of the documents required by the Arbitrator's Award. (Dkt. No. 117). The Union did not submit any of the requisite documentation—specifically, evidence that Dr. Mamouzette had passed the ABOG written and oral exams, and that the ABOG had verified Dr. Mamouzette's experience in women's health care. (Dkt. No. 121). Instead, the Union submitted various documents related to Dr. Mamouzette's physician license renewal application, CME credits, claims made by a patient, and malpractice insurance premium payments.6
The Union requests "that the Arbitration Award be upheld subject to a supplemental inquest, or alternatively upheld in part but modified in the service of procedural justice." (Dkt. No. 121 at 17). Specifically, the Union asks that the Court disregard the submissions required by the Award and independently determine whether Dr. Mamouzette was "Board Eligible" at the time of his termination. Id. at 22-26. In response, Plaskett argues that the Union's submission should be stricken from the record for failure to comply with the Court's Order. (Dkt. No. 126 at 1-4).7 Plaskett further argues that the Union's request to modify the Award is untimely and inconsistent with the facts and law. Id. at 7-12.
Upon consideration of the oral arguments at the status conference, the parties' submissions, and the entire record, the Court will deny the Union's Motion for an Order to Show Cause.
The Union concedes that pursuant to the Arbitrator's Award, Dr. Mamouzette is to be reinstated contingent upon his submission of evidence that he had passed the ABOG written and oral examinations and that the ABOG had verified his experience in women's health care. (Dkt. No. 121 at 20-21). The Court directed the Union to submit this documentation by Order entered on April 4, 2018. (Dkt. No. 117). The Union did not submit the required documentation. Instead, the Union asks the Court to supplement or modify the Award by conducting a hearing to determine the "Board Eligible" status of Dr. Mamouzette. Id. at 29. The Court will deny the Union's request—and its Motion for Order to Show Cause—because the Union waived the arguments it is currently presenting to the Court and its request to modify the Award is untimely. Further, even if the Union had not waived its arguments and its request to modify the Award was timely, the Courtwould not have the authority to supplement or modify the Award. In addition, the Court will exercise its discretion to invoke the doctrine of judicial estoppel to prevent the Union from succeeding here on arguments that are based on a changed position concerning the Award.
The Union argues that a modification of the Arbitrator's Award is warranted because the Arbitrator made "a material mistake of inference concerning what constitutes a licensee being 'Board Eligible' . . . which infects his final [A]ward and fails to give a basis for relief to Dr. Mamouzette . . . ." (Dkt. No. 121 at 23). The Court finds that the Union has waived this argument. "[T]he failure to pose an available argument to the arbitrator waives that argument in collateral proceedings . . . ." Ganton Techs., Inc. v. Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 358 F.3d 459, 462 (7th Cir. 2004) (emphasis added); see also United Steel, Paper & Forestry, Rubber, Mfg., Energy, ...
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