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Johnson v. Pizza Hut

United States District Court, W.D. Arkansas, El Dorado Division

February 7, 2019

DASHUNDA R. JOHNSON PLAINTIFF
v.
PIZZA HUT DEFENDANT

          ORDER

          Susan O. Hickey United States District Judge

         Before the Court is the Report and Recommendation filed on January 23, 2019, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 42). Judge Bryant recommends that the Court deny Plaintiff's pending motions to vacate, modify, or correct the arbitration award. (ECF Nos. 34, 38). Plaintiff filed objections. (ECF No. 43). The Court finds the matter ripe for consideration.

         I. BACKGROUND

         Plaintiff brought this employment-discrimination action against Defendant under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”). On March 21, 2017, the Court referred this matter to arbitration in accordance with the parties' arbitration agreement. In doing so, the Court ordered this matter stayed and administratively terminated without prejudice to the parties' right to reopen the proceedings to enforce the arbitrator's decision.

         On September 17, 2018, the parties underwent an arbitration hearing. (ECF No. 34, p. 24). At the beginning of the hearing, Defendant advised Plaintiff and the arbitrator that it might call Plaintiff's former supervisor, Shalanna Thornton, to testify, but that she was unavailable to appear in person that day. To that end, Defendant requested that Ms. Thornton be allowed to testify telephonically, if called. Plaintiff and the arbitrator agreed to the request. (ECF No. 41-1, p. 11:9-14). Plaintiff called one live witness and testified on her own behalf in her case in chief. She then rested her case. Defendant called one live witness, Jason Hammerlinck, as part of its case in chief. Afterwards, the day was nearing a close, so the arbitrator began discussing when to schedule Ms. Thornton's telephonic testimony. At that time, Plaintiff objected to Ms. Thornton testifying telephonically and maintained that her testimony must be offered in person. Defendant then decided that it would instead rest its case in chief and not call Ms. Thornton as a witness. The arbitrator asked each party if they had any other witnesses to call, and each side replied negatively, thereby concluding the arbitration hearing. On October 17, 2018, the arbitrator issued a written arbitration award, finding in favor of Defendant on all of Plaintiff's claims and stating that all administrative fees and arbitrator expenses shall be borne by Defendant, the respondent. (ECF No. 34, p. 86).

         On December 7, 2018, Plaintiff filed with this Court a motion to vacate, modify, or correct the arbitration award. (ECF No. 34). On December 27, 2018, Plaintiff filed an amended motion.[1] (ECF No. 38). Plaintiff argues that the arbitration award should be vacated under 9 U.S.C. § 10 or otherwise modified under 9 U.S.C. § 11 for three reasons. First, she argues that the arbitrator erred by failing to require that Ms. Thornton testify in person at a hearing. Second, she appears to argue that the arbitrator exceeded the scope of his power by assessing attorney's fees and costs against Plaintiff when no party requested the assessment of fees or costs. Third, she seems to argue that the award should be set aside because she has acquired newly discovered evidence in the form of a lengthy text message exchange between Plaintiff and Ms. Thornton-occurring after the arbitration hearing-in which Plaintiff asked various questions that were posed to Mr. Hammerlinck at the arbitration hearing, to which Ms. Thornton gave answers that differed from those of Mr. Hammerlinck.

         In response, Defendant argues that no basis exists to disturb the arbitration award. Specifically, Defendant argues that it had no obligation to call Ms. Thornton as a witness at the arbitration hearing, and that Plaintiff failed to call Ms. Thornton as a witness during her own case in chief and failed to, at any point, move to reopen her case in chief to call Ms. Thornton. Thus, Defendant argues that the arbitrator did not err by failing to require that Ms. Thornton testify in person at the arbitration hearing. Defendant also argues that the arbitration award should not be disturbed based on an assessment of attorney's fees because the arbitration award did not assess fees against Plaintiff. Defendant also argues that Plaintiff's purportedly newly discovered evidence does not suffice to vacate the award because Plaintiff could have offered the evidence at the time of the arbitration, either through live testimony or by other means.[2] Thus, Defendant concludes that Plaintiff's motion should be denied.

         The Court referred Plaintiff's motions to Judge Bryant to make a Report and Recommendation. On January 23, 2019, Judge Bryant issued the instant Report and Recommendation, recommending that the Court deny Plaintiff's motions to vacate, modify, or correct the arbitration award. Specifically, Judge Bryant found that the arbitrator did not commit error justifying vacatur of the arbitration award by failing to require Ms. Thornton's live testimony at the arbitration hearing. Judge Bryant reasoned that Defendant declined to call Ms. Thornton as a witness after Plaintiff objected to her telephonic testimony and that Plaintiff likewise failed to request that she be allowed to reopen her case to call Ms. Thornton. Judge Bryant also found no error regarding attorney's fees, reasoning that the arbitration award did not assess attorney's fees against Plaintiff and that the award instead indicated that Defendant would be responsible for the payment of administrative fees and expenses associated with the arbitration. Finally, Judge Bryant found that the arbitration award should not be vacated based on newly discovered evidence because Plaintiff failed to present the evidence to the arbitrator, either at the arbitration hearing or afterwards, and could have presented the substance of the evidence at the arbitration hearing by calling Ms. Thornton to testify as part of her own case in chief.

         On January 28, 2019, Plaintiff filed a document responding and objecting to Defendant's response brief opposing Plaintiff's motions. (ECF No. 43). Specifically, Plaintiff reiterates her arguments in favor of vacating or modifying the arbitration award and asks that several passages from Defendant's response be stricken on various grounds, including relevance and hearsay. This filing is not styled as an objection to the instant Report and Recommendation and does not mention the Report and Recommendation or its findings. Further, Plaintiff has not filed objections to the Report and Recommendation and her time to do so has passed. However, the Court will construe Plaintiff's January 28, 2019 filing as objections to the Report and Recommendation because Judge Bryant agreed with Defendant's arguments on all points at issue. Pursuant to 28 U.S.C. § 646(b)(1), the Court will conduct a de novo review of all issues related to Plaintiff's specific objections.

         II. DISCUSSION

         A federal court's review of an arbitration award is extremely limited. See Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509 (2001). An underlying arbitration award is entitled to an “extraordinary level of deference.” Boise Cascade Corp. v. Paper Allied-Indus., Chem. & Energy Workers (PACE), Local 7-0159, 309 F.3d 1075, 1080 (8th Cir. 2002). Under this narrow and deferential standard, a federal court may not set aside an arbitration award even if the reviewing 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 has even arguably construed the underlying contract and acted within her scope of authority, the award should be confirmed. Boise Cascade Corp., 309 F.3d at 1080.

         “However, an arbitrator's decision is not totally free from judicial review.” Id. Federal courts may vacate an arbitration award pursuant to 9 U.S.C. § 10 in any of the following cases:

(1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, or in refusing to hear evidence material to the controversy, or of any other misbehavior; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter was not made.

9 U.S.C. § 10(a) (footnote added); Val-U Const. Co. of S. D. v. Rosebud Sioux Tribe, 146 F.3d 573, 578-79 (8th Cir. 1998). Federal courts may not vacate an arbitration award pursuant to 9 U.S.C. § 10 for any other unenumerated reason. See Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 586-87 (2008); Med. Shoppe Int'l, Inc. v. Turner Investments, Inc., 614 F.3d 485, 489 (8th Cir. 2010) (recognizing that other previously recognized grounds for vacating an arbitration award are no longer ...


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