United States District Court, W.D. Arkansas, El Dorado Division
DASHUNDA R. JOHNSON PLAINTIFF
PIZZA HUT DEFENDANT
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
the Court is Plaintiff's Motion and Amended Motion to
Vacate, Modify or Correct Arbitration Award. ECF No. 34, 38.
Defendant has filed a response to this Motion. ECF No. 41.
to the provisions of 28 U.S.C. § 636(b)(1) and (3)
(2009), the Honorable Susan O. Hickey referred these Motions
to this Court for the purpose of making a report and
recommendation. In accordance with that referral, this Court
enters the following report and recommendation.
who is proceeding pro se, filed her lawsuit on
October 26, 2016. ECF No. 1. On March 21, 2017,
Plaintiff's claims were referred to arbitration. ECF No.
23. The matter was stayed and administratively terminated
pursuant to 9 U.S.C. § 3, without prejudice to the right
of the parties to reopen the proceedings to enforce the
arbitrator's decision. Id. The parties then
engaged in arbitration before the American Arbitration
Association (“AAA”) and selected arbitrator John
C. Holstein to preside over the proceedings. ECF No. 41-2. On
October 17, 2018, Arbitrator Holstein entered his Award of
Arbitrator and found Plaintiff failed to establish any of her
claims by a preponderance of the evidence. Id.
this Motion, Plaintiff claims the Arbitration Award should be
vacated because (1) Arbitrator Holstein erred by not
requiring witness Shalanna Thornton to appear in person to
testify, (2) Arbitrator Holstein awarded attorney's fees
to NPC, and (3) Plaintiff has discovered “new
evidence” ECF No. 38.
response, Defendant claims the Plaintiff's Motion should
be denied because there is no basis to disturb the
Arbitration Award. ECF No. 41.
district court's review of an arbitration award is
extremely limited. See Major League Baseball Players
Ass'n v. Garvey, 532 U.S. 504 (2001). The underlying
award is entitled to an "extraordinary level of
deference." Schoch v. Infousa, Inc., 341 F.3d
785, 788 (8th Cir. 2003) (internal citations omitted).
According to this narrow and deferential standard, a district
court may not set aside an arbitration award even if the
court may "have interpreted the agreement differently or
because the arbitrator erred in interpreting the law or in
determining the facts." Hoffman v. Cargill,
Inc., 236 F.3d 458, 462 (8th Cir. 2001). So long as the
arbitrator is even arguably construing the underlying
contract and acting within his scope of authority, the award
should be confirmed. Schoch, 341 F.3d at 788.
arbitrator's broad authority is constrained by the
Federal Arbitration Act (“FAA”). See 9
U.S.C. § 1 et seq. A district court may vacate an award
if it evidences a manifest disregard for the law or if it is
completely irrational. See 9 U.S.C. § 10(a)(4),
Hoffman, 236 F.3d at 461. An award may also be
vacated if the arbitrator is guilty of misconduct.
See 9 U.S.C. § 10(a)(3).
first claims the Arbitration Award should be vacated because
Arbitrator Holstein erred by not requiring witness Shalanna
Thornton to appear in person to testify. ECF No. 38, Pgs.
3-4. Upon review, the Court finds this as no basis for
vacating the Arbitration Award.
shown by the transcript of the arbitration proceeding,
Plaintiff objected to Ms. Thornton's testimony being
offered telephonically. ECF No. 41-1, Pgs. 40-41.
Following this, NPC rested its case in chief and declined to
call Ms. Thornton to testify. Id. NPC was not
required to call any witness and Plaintiff could have
subpoenaed Ms. Thornton to testify in her case in chief.
Additionally, there is no indication Plaintiff requested she
be allowed to reopen her case to call Ms. Thornton as a
next argues it was error to award attorney's fees to NPC.
ECF No. 38, Pgs. 5-7. However, there was no award of
attorney's fees in this matter. ECF No. 41-2. The
Arbitration Award did find NPC would be responsible for
payment of administrative fees and expenses ...