Tanya Smith v. International Business Machines Corp. ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11928
Non-Argument Calendar
____________________
TANYA SMITH,
Plaintiff-Appellant,
versus
INTERNATIONAL BUSINESS MACHINES CORP.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-03856-JPB
____________________
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2 Opinion of the Court 22-11928
Before WILSON, ROSENBAUM, and LUCK, Circuit Judges.
PER CURIAM:
Tanya Smith appeals the district court’s order confirming an
arbitration award in favor of her former employer, International
Business Machines Corp. (“IBM”), on her claim of age discrimina-
tion under the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 621. The arbitrator concluded that Smith’s arbitration
demand was sent one day too late under the plain terms of the par-
ties’ arbitration agreement, and it rejected Smith’s attempts to ex-
cuse or look past the late submission. The district court denied
Smith’s petition to vacate the award and granted IBM’s motion to
confirm it. Smith now appeals. After careful review, we affirm.
I.
After more than thirty years of employment at IBM, Smith
was terminated through a reduction in force in 2020, at the age of
54. In connection with her termination, Smith signed a separation
agreement, under which she received certain benefits in exchange
for agreeing to arbitrate individually any claims of age discrimina-
tion under the ADEA, among other things.
The separation agreement contained a provision specifying
the time limits and procedure for initiating arbitration. According
to this timing provision,
To initiate arbitration, you must submit a written de-
mand for arbitration to the IBM Arbitration
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22-11928 Opinion of the Court 3
Coordinator no later than the expiration of the statute
of limitations (deadline for filing) that the law pre-
scribes for the claim that you are making or, if the
claim is one which must first be brought before a gov-
ernment agency, no later than the deadline for the fil-
ing of such a claim. If the demand for arbitration is
not submitted in a timely manner, the claim shall be
deemed waived. The filing of a charge or complaint
with a government agency . . . shall not substitute for
or extend the time for submitting a demand for arbi-
tration.
The agreement contemplated that, once Smith submitted a written
demand to IBM, the company would then file with the designated
arbitrator, JAMS.
Because ADEA claims are “one[s] which must first be
brought before a government agency,” see 29 U.S.C. § 626(d)(1),
Smith was required to initiate arbitration within the deadline for
filing a charge of discrimination with the Equal Employment Op-
portunity Commission (“EEOC”). As relevant here, that deadline
was 180 days from when the “alleged unlawful practice occurred.”
Id. § 626(d)(1)(A).
On November 17, 2020, Smith filed an arbitration demand
directly with JAMS, raising an ADEA claim against IBM. That date
was 180 days from the date Smith received notice of her termina-
tion, May 21, 2020. See Cocke v. Merrill Lynch & Co., Inc., 817
F.2d 1559, 1561 (11th Cir. 1987) (“A final decision to terminate the
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4 Opinion of the Court 22-11928
employee, rather than actual termination, constitutes the ‘alleged
unlawful practice’ that triggers the filing period.”). But Smith did
not mail a written demand for arbitration to IBM until the next day,
November 18, 2020, at the earliest. 1 As a result, IBM moved to
dismiss the arbitration, claiming her demand was one day too late.
The arbitrator granted IBM’s motion. The arbitrator found
that the timing provision required Smith to submit a written arbi-
tration demand to IBM by the deadline of November 17, but that
she failed to do so. 2 The JAMS filing did not count, the arbitrator
explained, because the arbitration agreement plainly required the
written demand to be sent to IBM.
The arbitrator was not persuaded by Smith’s arguments that
the one-day delay in submitting the demand to IBM was a de min-
imis violation of the agreement or otherwise excused under the cir-
cumstances. Dismissing Smith’s reliance on “various exceptions to
late filings in court,” the arbitrator stated that he was “obligated to
apply the terms of the contract between the parties as written,”
1 The shipping label for the written demand was created on November 18,
2020, but it appears the item was received by the Postal Service two days later.
2 It does not appear Smith contested this deadline before the arbitrator or di-
rectly argued for a later accrual date for her ADEA claim, and she does not
properly raise this as an issue on appeal, despite some passing references. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We
have long held that an appellant abandons a claim when he either makes only
passing references to it or raises it in a perfunctory manner without supporting
arguments and authority.”).
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which made clear an untimely claim is “deemed waived,” and that
her “failure to abide by its terms is fatal to her claim.” As for the
alleged pandemic-related hurdles, the arbitrator found that “the
fact that she managed to timely file a demand with JAMS demon-
strates that pandemic restrictions were not the problem.”
The arbitrator also rejected Smith’s reliance on the “piggy-
backing” doctrine, which is a “judge made exception to the admin-
istrative exhaustion requirement.” The arbitrator noted that Smith
had not cited any authority applying piggybacking in the context of
arbitration. More importantly, according to the arbitrator, apply-
ing piggybacking would abrogate contract terms providing that the
filing of an EEOC charge did not extend the time for making a de-
mand for arbitration. The arbitrator also found that the limitation
period in the timing provision, as compared to the ordinary ADEA
limitation period, “was not shortened,” as Smith had contended,
“but matched.”
Smith filed a motion for reconsideration, and IBM re-
sponded in opposition. The arbitrator initially denied the motion
as outside his authority, but later, after the JAMS legal department
concluded that the arbitration agreement permitted such a motion,
he entered an amended order denying the motion. The arbitrator
wrote that Smith’s motion was not the place to raise “new issues
that could have been raised before” and that it was largely an at-
tempt to relitigate issues already decided against her. The arbitra-
tor denied the motion for the reasons set forth in its order granting
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6 Opinion of the Court 22-11928
the motion to dismiss and in IBM’s brief in opposition to the mo-
tion.
Smith petitioned the district court to vacate the arbitration
award. See 9 U.S.C. § 10. Her amended petition also sought, in the
alternative, a declaratory judgment that the timing provision is
“unenforceable and void.” See 28 U.S.C. § 2201. IBM, for its part,
moved to confirm the award. The district court denied Smith’s re-
quests for relief, granted IBM’s motion, and confirmed the award.
Smith now appeals.
II.
“We review confirmations of arbitration awards and denials
of motions to vacate arbitration awards under the same standard,
reviewing the district court’s findings of fact for clear error and its
legal conclusions de novo.” Frazier v. CitiFinancial Corp. LLC, 604
F.3d 1313, 1321 (11th Cir. 2010).
III.
Arbitration is a “matter of contract” under the Federal Arbi-
tration Act (“FAA”), see 9 U.S.C. §§ 1–16, and “courts must rigor-
ously enforce arbitration agreements according to their terms.”
Am. Express. Co. v. Italian Colors Rest., 570 U.S. 228, 233 (2013)
(quotation marks omitted). Those terms may include the “rules
under which th[e] arbitration will be conducted.” Id. (quotation
marks omitted).
“Because arbitration is an alternative to litigation, judicial re-
view of arbitration decisions is among the narrowest known to the
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22-11928 Opinion of the Court 7
law.” AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc.,
508 F.3d 995, 1001 (11th Cir. 2007) (quotation marks omitted). Un-
der the FAA, there is a “heavy presumption in favor of confirming
arbitration awards.” Riccard v. Prudential Ins. Co., 307 F.3d 1277,
1288 (11th Cir. 2002). Thus, “federal courts should defer to an ar-
bitrator’s decision whenever possible.” Frazier, 604 F.3d at 1321(quotation marks omitted).
Vacatur of an arbitration award is allowed “only in very un-
usual circumstances,” which are described in the FAA. Gherardi v.
Citigroup Global Markets Inc., 975 F.3d 1232, 1236 (11th Cir. 2020).
Specifically, the FAA provides for vacatur of an arbitration award
in four circumstances, two of which are relevant here:
(3) where the arbitrators were guilty of misconduct .
. . in refusing to hear evidence pertinent and material
to the controversy; . . . 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). A party seeking vacatur bears the burden to estab-
lish the existence of one of the four grounds, Riccard, 307 F.3d at
1289; see Frazier, 604 F.3d at 1323–24 (rejecting “extra-statutory
grounds for vacatur”).
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8 Opinion of the Court 22-11928
A.
Smith claims that the arbitrator was “guilty of misconduct .
. . in refusing to hear evidence pertinent and material to the con-
troversy” under § 10(a)(3). We disagree.
First, the arbitrator did not fail to consider that Smith
“timely file[d] her arbitration demand with JAMS” and then
“promptly mailed out [the demand] to IBM on the following day.”
Rather, the arbitrator found these facts simply did not amount to
timely filing, since the arbitration agreement required her to sub-
mit the written demand to IBM, not to JAMS, by the filing deadline.
While Smith disagrees with the arbitrator’s view of the timing pro-
vision, the arbitrator did not refuse to consider her evidence on this
point.
Second, the arbitrator considered and rejected Smith’s argu-
ments based on pandemic-related obstacles. Smith had argued that
the one-day delay in mailing was due to counsel working remotely
during the COVID-19 pandemic and other pandemic-related diffi-
culties. The arbitrator was not persuaded, noting that Smith “man-
aged to timely file a demand with JAMS,” which showed that “pan-
demic restrictions were not the problem.” Smith responds that the
electronic JAMS filing cannot be compared to the physical mailing
of her IBM demand, given the “logistical hurdles” particular to
mailing. But, despite those hurdles, which would have been well-
known in November 2020, Smith did not identify how she was pre-
vented from mailing the demand to IBM one day earlier, on the
same day she filed with JAMS.
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Finally, Smith fails to show the relevance of evidence that
the timing provision’s mailing requirement stands in “stark con-
trast” with the “prevailing standard for conducting business elec-
tronically.” As the arbitrator explained, he was bound by the con-
tract, which specified the terms under which Smith’s arbitration
demand would be considered timely, even if it was different from
standard business practices. See Stolt-Nielsen S.A. v. AnimalFeeds
Int’l Corp., 559 U.S. 662, 672 (2010) (“[T]he task of an arbitrator is
to interpret and enforce a contract, not to make public policy.”).
B.
Next, Smith argues that the arbitrator exceeded his author-
ity under § 10(a)(4) by refusing to entertain equitable tolling. In
Smith’s view, the arbitration agreement expressly provided for eq-
uitable tolling by (1) incorporating the ADEA limitations period
and (2) permitting the arbitrator “to award any party the full rem-
edies that would be available to such party if the Covered Claim
had been filed in a court of competent jurisdiction.”
Under § 10(a)(4), “an arbitral decision even arguably con-
struing or applying the contract must stand, regardless of a court’s
view of its (de)merits.” Oxford Health Plans LLC v. Sutter, 569
U.S. 564, 569 (2013) (quotations marks omitted). “Arbitrators do
not exceed their powers when they make errors, even a serious er-
ror.” Gherardi, 975 F.3d at 1237 (quotation marks omitted). The
test is “whether the arbitrator (even arguably) interpreted the par-
ties’ contract, not whether he got its meaning right or wrong.” Id.
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10 Opinion of the Court 22-11928
Nevertheless, an arbitrator may not disregard or modify
“clear and unambiguous contract terms.” Wiregrass Metal Trades
Council AFL-CIO v. Shaw Env’t & Infrastructure, Inc., 837 F.3d
1083, 1087 (11th Cir. 2016); see Cat Charter, LLC v. Schurten-
berger, 646 F.3d 836, 843 (11th Cir. 2011). So, “[t]he arbitrator acts
within her authority when she even arguably interprets a contract,
and she exceeds her authority when she modifies the contract’s
clear and unambiguous terms.” Wiregrass, 837 F.3d at 1087.
Here, Smith has not shown that the arbitrator “exceeded
[his] powers” within the meaning of § 10(a)(4). Nothing in the rec-
ord reflects that the arbitrator “flagrantly defied the terms of the
parties’ contract.” Gherardi, 975 F.3d at 1239.
For starters, we disagree with Smith’s premise, since the ar-
bitrator’s decision reasonably can be construed to reject Smith’s re-
quest for equitable tolling on the merits. Equitable tolling of a lim-
itations period is appropriate only “when a movant untimely files
because of extraordinary circumstances that are both beyond his
control and unavoidable even with diligence.” Dotson v. United
States, 30 F.4th 1259, 1268 (11th Cir. 2022); see Villarreal v. R.J.
Reynolds Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016) (en banc)
(applying the “general test” for equitable tolling in the ADEA con-
text). It does not extend to “garden variety claim[s] of excusable
neglect.” Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990).
As we explained above, the arbitrator considered Smith’s ev-
idence on this point and found that “pandemic restrictions were
not the problem.” In other words, the arbitrator found that Smith
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22-11928 Opinion of the Court 11
was not prevented from filing on time by circumstances outside
her control. See Dotson, 30 F.4th at 1268.
Not only that, but in denying Smith’s motion for reconsid-
eration, the arbitrator went further and adopted the reasoning of
IBM’s response in opposition, which directly argued that equitable
tolling did not apply in Smith’s circumstances. And based on the
record, the arbitrator easily could have found that Smith offered a
garden-variety claim of excusable neglect, which was insufficient
to excuse her untimely mailing. See Sandvik v. United States, 177
F.3d 1269, 1272 (11th Cir. 1999) (holding that equitable tolling did
not apply where “the problem was one that . . . counsel could have
avoided by mailing the motion earlier”). That decision was well
within the arbitrator’s authority under the arbitration agreement,
which made clear that demands filed later than the deadline were
“deemed waived.”
To the extent the arbitrator refused to consider equitable
tolling at all, that decision was based on an arguable construction
of the arbitration agreement. See Gherardi, 975 F.3d at 1239.
Smith says that, by incorporating the ADEA statute of limitations
and preserving her “full remedies” under that act, the timing pro-
vision expressly provides for equitable tolling. The term “reme-
dies,” however, generally refers to the means of preventing or re-
dressing a wrong, such as injunctive relief or monetary damages.
See, e.g., Int’l Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 49 (1979)
(noting the “usual judicial remedies of injunction and award of
damages” (cleaned up)). It does not obviously sweep in a doctrine
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12 Opinion of the Court 22-11928
that permits modification of the deadline for filing, particularly
when the agreement otherwise states strongly that missing the de-
mand deadline would result in “waive[r]” of the underlying claim,
without exception. Cf. Berklee College of Music. v. Mass. Fed’n of
Teachers Local 4412, 858 F.2d 31, 33 (1st Cir. 1988) (upholding an
arbitrator’s arguable interpretation of an agreement to permit late
filing as a de minimis violation where the language did not specify
that “missing a deadline would bar further consideration”).
Because it was “open to interpretation” whether equitable
tolling was permitted under the arbitration agreement, Gherardi,
975 F.3d at 1239, the arbitrator did not modify or disregard “clear
and unambiguous terms,” Wiregrass, 837 F.3d at 1087. Even if the
arbitrator was wrong, his decision still “must stand” because he ar-
guably construed and applied the arbitration agreement. See Sut-
ter, 569 U.S. at 569; Gherardi, 975 F.3d at 1237.
C.
Smith asserts that the arbitrator exceeded his authority by
failing to meaningfully review her motion for reconsideration,
which was expressly permitted by the arbitration agreement. Alt-
hough the arbitrator initially ignored clear language in the agree-
ment permitting the motion, he ultimately corrected the error and
denied the motion on the merits. That latter merits decision was
within the arbitrator’s authority under the agreement, even if it
was conclusory, so there is no basis to vacate the decision under §
10(a)(4). See Cat Charter, 646 F.3d at 844 (“[H]ad the parties
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22-11928 Opinion of the Court 13
wished for a greater explanation, they could have requested that
the [arbitrator] provide findings of fact and conclusions of law.”).
D.
Finally, Smith asserts that the arbitrator erred in rejecting
her reliance on the ADEA’s “piggybacking” rule. Ordinarily, an
ADEA plaintiff must exhaust administrative remedies before filing
suit in court by filing a charge of discrimination with the EEOC.
See 29 U.S.C. § 626(d)(1). A judge-made exception to this rule pro-
vides that a “plaintiff who has not filed [her] own EEOC charge
may ‘piggyback’ [her] claim onto the claim of a plaintiff who has
filed a timely charge” concerning similar discriminatory treatment
in the same time frame. Hipp v. Liberty Nat’l Life Ins. Co., 252
F.3d 1208, 1217 (11th Cir. 2001); see also Grayson v. K Mart Corp.,
79 F.3d 1086, 1101–02 (11th Cir. 1996). This exception is “grounded
in the purpose of the EEOC charge requirement that the settle-
ment of grievances be first attempted through the office of the
EEOC.” Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 450
(11th Cir. 1993) (quotation marks omitted).
In this case, the arbitrator concluded that piggybacking had
no clear application to and was inconsistent with the arbitration
agreement. Smith responds that the ADEA’s limitations period for
filing suit—including the piggybacking doctrine—is a “substantive
right” protected by the ADEA that cannot be waived by contract.
She says her claim would have been timely under the piggybacking
doctrine based on timely EEOC charges by other IBM employees,
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14 Opinion of the Court 22-11928
so enforcing the timing provision would “abridge [her] rights alto-
gether to pursue her claim under the ADEA.”
In this regard, though, it appears Smith’s argument is not
that the arbitrator “exceeded [his] powers” under § 10(a)(4) by mis-
interpreting the agreement to exclude piggybacking. If it were,
that argument would fail for the same basic reasons as her argu-
ment about equitable tolling, because the arbitrator arguably con-
strued the arbitration agreement to exclude those doctrines. In-
stead, Smith appears to seek a declaratory judgment that the timing
provision is unenforceable under the “effective-vindication” excep-
tion to the FAA.
“By agreeing to arbitrate a statutory claim, a party does not
forgo the substantive rights afforded by the statute; it only submits
to their resolution in an arbitral, rather than a judicial, forum.”
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.
614, 628 (1985). It follows that federal courts will not uphold arbi-
tration agreements that “waive . . . federally protected civil rights,”
14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 273 (2009), or “that pre-
vent the effective vindication of a federal statutory right,” Am. Ex-
press Co. v. Italian Colors Rest., 570 U.S. 228, 235 (2013). The Su-
preme Court has described the effective-vindication rule as a
“judge-made exception to the FAA.” See id.Nevertheless, the Supreme Court has been “quite specific in
holding that arbitration agreements can be enforced under the FAA
without contravening the policies of congressional enactments giv-
ing employees specific protection against discrimination prohibited
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by federal law.” 14 Penn Plaza, 556 U.S. at 266 (quotation marks
omitted). The Court has never applied the effective-vindication
rule to deny enforcement of an arbitration agreement. See Italian
Colors, 570 U.S. at 235. And it has indicated that the rule, if it re-
mains viable, is limited to preventing the “prospective waiver of a
party’s right to pursue statutory remedies.” Id. at 236 (quotation
marks omitted; emphasis in original). That would cover agree-
ments “forbidding the assertion of certain federal statutory rights”
or, perhaps, imposing fees for arbitration “so high as to make access
to the forum impracticable.” Id. But it does not cover things like
waivers of class-action procedures, even where the statute, like the
ADEA, “expressly permit[s] collective action” in court. Id. at 237.
Here, Smith has not shown that the arbitration agreement
prevented her from effectively vindicating her substantive rights
afforded by the ADEA. Piggybacking is not a substantive right pro-
tected by the ADEA. 3 See Italian Colors, 570 U.S. at 235. Rather,
the civil right protected by the ADEA is the right to “to be free from
workplace age discrimination.” 14 Penn Plaza, 556 U.S. at 266. The
piggybacking rule is an exception to the requirement to file an
EEOC charge before suing in court. See Calloway, 986 F.2d at 450.
The doctrine has no clear application in the arbitration context,
where “[p]arties are generally free to structure their arbitration
3 For that reason, any waiver of piggybacking did not trigger the protections
of 29 U.S.C. § 626(f). See 14 Penn Plaza, 556 U.S. at 259, 265–66 (stating that §
626(f) applies only to “substantive right[s]” under the ADEA)
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16 Opinion of the Court 22-11928
agreements as they see fit” and to agree on “rules under which any
arbitration will proceed.” Stolt-Neilsen, 559 U.S. at 683 (quotation
marks omitted). Smith, for example, was not required to exhaust
administratively under the arbitration agreement, so this case does
not implicate the “purpose of the EEOC charge requirement.” Cal-
loway, 986 F.2d at 450. Instead, she agreed to submit a written de-
mand to IBM no later than the deadline for filing a charge of dis-
crimination, or her claim would be “deemed waived.”
Smith makes no claim that the 180-day deadline itself made
“access to the forum impracticable.” Italian Colors, 570 U.S. at 236.
And the fact that the agreement waived piggybacking did not affect
Smith’s “right to pursue” statutory remedies for her claim by mail-
ing a written demand to IBM within that deadline. Id.Smith responds that piggybacking is necessary to protect
employees who “may not realize they have a discrimination claim
at the time of their termination.” But that’s not “the reason behind
the piggybacking rule,” as she asserts. Rather, piggybacking is pri-
marily about administrative futility. See, e.g., Tolliver v. Xerox
Corp., 918 F.2d 1052, 1057 (2d Cir. 1990) (“it serves no administra-
tive purpose to require the filing of repetitive ADEA charges”).
The scenario Smith describes is instead covered by equitable toll-
ing, which may operate to “suspend[] a limitations period until the
facts which would support a cause of action are apparent or should
be apparent to a person with a reasonably prudent regard for his
rights.” Cocke, 817 F.2d at 1561. But Smith has not made any toll-
ing argument along these lines.
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Smith also relies heavily on the Sixth Circuit’s decision in
Thompson v. Fresh Products, LLC, 985 F.3d 509, 521 (6th Cir.
2021), which held that the “limitations period[] in the . . . ADEA
give[s] rise to substantive, non-waivable rights.” But see Browning
v. AT&T Paradyne, 120 F.3d 222, 225 (11th Cir. 1997) (holding that
the “ADEA limitations period is a procedural rather than substan-
tive requirement” for purposes of retroactivity). But Thompson’s
reasoning extends only to “provisions [that] are part of the substan-
tive law of the cause of action created by the ADEA.” Thompson,
985 F.3d at 521. Because piggybacking is a judge-made exception
to the ADEA’s exhaustion requirement, not created by the ADEA
itself, Thompson does not support Smith’s claim that piggybacking
is nonwaivable.
Arguably, Thompson’s reasoning could extend to equitable
tolling, since “the remedial purposes of civil rights legislation
would be defeated if aggrieved plaintiffs were absolutely barred
from pursuing judicial remedies by reason of excusable failure to
meet the time requirement.” See Browning, 120 F.3d at 227 (quo-
tation marks omitted). To the extent equitable tolling was nonwai-
vable, though, the arbitrator had ample grounds to reject, and did
reject, Smith’s claim for equitable tolling based on pandemic-re-
lated hurdles, as we discussed above.
For these reasons, we affirm the district court’s judgment
confirming the arbitration decision in favor of IBM on Smith’s
ADEA claim.
AFFIRMED.