Ludema Cruz Dorward v. Macy's Inc. , 588 F. App'x 951 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14783
Non-Argument Calendar
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D.C. Docket No. 2:10-cv-00669-JES-DNF
LUDEMA CRUZ DORWARD,
Plaintiff-Appellant,
versus
MACY'S INC,
d.b.a. Macy's Florida Stores, LLC,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 21, 2014)
Before WILLIAM PRYOR, MARTIN, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Ludema Cruz Dorward (a Filipino citizen), proceeding pro se, appeals the
district court’s denial of her motion to vacate and/or modify an arbitration award
that denied her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000, et seq. (“Title VII”), and related claims, against Macy’s, Inc. (“Macy’s”),
her former employer. With a reasoned and full opinion, the district court
determined that Dorward failed to establish any of the exclusive grounds for
vacatur or modification in 9 U.S.C. §§ 10 and 11. We see no reversible error.
On appeal, Dorward recites all of the grounds for vacatur and modification
in 9 U.S.C. §§ 10 and 11. She, however, argues only that the award was procured
through corruption, fraud, or undue means, as the arbitrator allegedly refused to
accept some of her evidence and witnesses: she says the arbitrator failed to address
in the opinion and award all relevant evidence. In addition, Dorward maintains
that the following errors occurred during the arbitration proceedings: Macy’s
failed to provide her with Volume I of the arbitration hearing transcript; Macy’s
should provide her with representation; Macy’s failed to make timely
counterclaims; and the arbitrator extended by 30 days Macy’s time to file its
answer (which Macy’s filed one day after the extended time). Dorward also lists
as an issue in her brief that the district court erred in denying her motion to vacate
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and/or modify the arbitration award, as she had established a prima facie case of
discrimination; she offers no arguments in support of this issue.
In reviewing a district court’s denial of a motion to vacate an arbitration
award, we review the district court’s factual findings for clear error and its legal
conclusions de novo. Frazier v. CitiFinancial Corp., LLC, 604 F.3d 1313, 1321
(11th Cir. 2010).
Section 10(a) of the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”),
provides:
In any of the following cases the United States court in and for the
district wherein [an arbitration award] was made may make an order
vacating the award upon the application of any party to the
arbitration –
(1) where the award was procured by corruption, fraud, or undue
means;
(2) where there was evident partiality or corruption in the
arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to
postpone the hearing, upon sufficient cause shown, or in
refusing to hear evidence pertinent and material to the
controversy; or of any other misbehavior by which the rights of
any party have been prejudiced; or
(4) where 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.
9 U.S.C. § 10(a).
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Section 11 of the FAA provides:
In either of the following cases the United States court in and for the
district wherein the award was made may make an order modifying or
correcting the award upon the application of any party to the
arbitration –
(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, unless it is a matter not affecting the merits
of the decision upon the matter submitted.
(c) Where the award is imperfect in matter of form not affecting
the merits of the controversy.
The order may modify and correct the award, so as to effect the intent
thereof and promote justice between the parties.
9 U.S.C. § 11.
In Hall Street Associates, L.L.C., v. Mattel, Inc., the Supreme Court said that
§§ 10 and 11 provide the FAA’s exclusive grounds for vacatur and modification of
arbitration awards. 552 U.S. 576, 583, 128 S. Ct. 1396, 1403, 170 L. Ed. 2d 254
(2008). Applying Hall Street, we have concluded that the judicially-created,
arbitrary and capricious ground for vacatur of arbitration awards is no longer valid.
See Frazier, 604 F.3d at 1322-24.
We have said that the district court’s review under §§ 10 and 11 is limited:
“arbitrators do not act as junior varsity trial courts where subsequent appellate
review is readily available to the losing party.” Cat Charter, LLC, v.
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Schurtenberger, 646 F.3d 836, 842-43 (11th Cir. 2011) (quotation omitted). We
have explained that “[t]here is a presumption under the FAA that arbitration
awards will be confirmed, and federal courts should defer to an arbitrator’s
decision whenever possible.” Frazier, 604 F.3d at 1321 (quotation omitted). As
such, “a court’s confirmation of an arbitration award is usually routine or
summary.” Cat Charter, 646 F.3d at 842.
In reviewing claims for vacatur of an arbitration award on grounds of fraud,
we have applied a three-part test. See Bonar v. Dean Witter Reynolds, Inc., 835
F.2d 1378, 1383 (11th Cir. 1988). “First, the movant must establish the fraud by
clear and convincing evidence.” Id. “Second, the fraud must not have been
discoverable upon the exercise of due diligence prior to or during the arbitration.”
Id. Third, the fraud must be “materially related to an issue in the arbitration.” Id.
We have stressed that “the basic policy behind arbitration . . . is to permit
parties to resolve their disputes in an expeditious manner without all the formalities
and procedures [of] full fledged litigation.” Scott v. Prudential Sec., Inc., 141 F.3d
1007, 1016 (11th Cir. 1998) overruled on other grounds by Hall Street Assocs.,
LLC, 552 U.S. 576, 128 S. Ct. 1396. Accordingly, to vacate on the ground of
arbitrator misconduct, pursuant to § 10(a)(3), a mere difference of opinion between
the arbitrator and the moving party about the correct resolution of a procedural
problem is insufficient. See id. We have further stressed that “the FAA permits
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arbitration to proceed with only a summary hearing and with restricted inquiry into
factual issues,” and “[t]he arbitrator need only give each party the opportunity to
present its arguments and evidence.” Id. at 1017 (quotations and alterations
omitted) (emphasis in original). In addition, we have said that an arbitrator may
reject evidence that is cumulative or irrelevant. Id.
To vacate on the ground that the arbitrator exceeded the arbitrator’s powers,
pursuant to § 10(a)(4), the party seeking relief bears a heavy burden. Oxford
Health Plans LLC, v. Sutter, 133 S. Ct. 2064, 2068, 186 L. Ed. 2d 113 (2013). “It is
not enough to show that the arbitrator committed an error – or even a serious
error.” Id. (quotations and alterations omitted). “Only if the arbitrator acts outside
the scope of his contractually delegated authority – issuing an award that simply
reflects his own notions of economic justice rather than drawing its essence from
the contract – may a court overturn his determination.” Id. (quotations and
alterations omitted).
In general, we will not review issues, particularly fact-bound issues, not
presented to the district court: issues on which the district court did not have an
opportunity to make factual findings. See Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331-32 (11th Cir. 2004). This policy applies even to pro se
pleadings, which are held to a less strict standard than pleadings drafted by
attorneys and are construed liberally. See Tannenbaum v. United States, 148 F.3d
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1262, 1263 (11th Cir. 1998). Besides, where a party makes only a passing
reference to an issue in a brief and does not offer arguments and cite authorities in
support of it, we will treat the issue as waived. See Hamilton v. Southland
Christian Sch., 680 F.3d 1316, 1319 (11th Cir. 2012).
Dorward’s challenge on appeal actually focuses on her disagreements with
the arbitrator’s fact finding. Dorward fails to point to concrete facts that support
any of the statutory grounds for vacatur or modification in 9 U.S.C. §§ 10 and 11.
We decline to consider her arguments that the arbitrator wrongfully accepted
Macy’s untimely answer, that Macy’s should provide her with legal representation,
and that Macy’s failed to raise timely counterclaims: these arguments were
presented for the first time on appeal. In addition, Dorward has waived her
contention that the district court erred in denying her motion to vacate and/or
modify the arbitration award because she established a prima facie case of
discrimination: she failed to offer arguments or cite law in support of this
contention. Moreover, these claims do not fall under any of the statutory grounds
for modification or vacatur.
Accordingly, the district court’s denial of Dorward’s motion to vacate and/or
modify the arbitration award is
AFFIRMED.
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