Antonia Lerner v. Citigroup ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-2984
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ANTONIA LERNER,
Appellant
v.
CITIGROUP
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Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-16-cv-01573)
District Judge: Hon. Kevin McNulty
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Submitted under Third Circuit L.A.R. 34.1(a)
September 15, 2020
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Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges.
(Filed: December 15, 2020)
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OPINION*
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
RESTREPO, Circuit Judge
Antonia Lerner appeals the denial of her motion to vacate the Arbitrator’s award,
which granted her former employer Citigroup Inc. (Citigroup) summary judgment and
dismissed her claims of discrimination. On appeal, Ms. Lerner argues she never
consented to arbitration and the Arbitrator committed misconduct by refusing to consider
evidence of Citigroup’s alleged retaliatory conduct. We agree with the District Court that
Ms. Lerner failed to prove her misconduct claim. Furthermore Ms. Lerner forfeited her
consent claim by raising it for the first time before this Court. We will therefore affirm
the order sustaining the award.
I.
Ms. Lerner was employed by Citigroup, a global financial services firm, as an
Apps Support Senior Analyst in Jersey City, New Jersey. She was terminated from her
position in May 2015. App. 266. Citigroup maintained that the termination was due to a
cost saving program which entailed moving her position to India. Ms. Lerner contended
the termination was motivated by discrimination and filed a complaint with the Equal
Employment Opportunity Commission (EEOC), alleging sex and disability
discrimination. App. 42. The EEOC dismissed the complaint in February 2016, stating
it was “unable to conclude” that any of the statutes enforced by the Commission had been
violated. App. 36.
In March 2016 Ms. Lerner filed a complaint in the District Court, alleging that
Citigroup failed to accommodate her disability, discriminated against her race, sex and
disability, and illegally retaliated against her for filing a complaint with the EEOC. Ms.
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Lerner asserted claims under Title VII of the Civil Rights Act, 42 U.S.C. §2000e, et seq.,
the Americans with Disabilities Act, 42 U.S.C. §12101, et seq., and the New Jersey Law
Against Discrimination (N.J. Stat. Ann. §10:5-1 et seq.) App. 27, 267.
Citigroup filed a motion to compel arbitration, which the District Court granted
after concluding that a valid arbitration agreement existed between Ms. Lerner and the
company. App. 222-24. Ms. Lerner did not object to the motion or the Court’s order;
she instead filed a demand for arbitration with the American Arbitration Association
(AAA). App. 227.
An arbitrator was selected and entered scheduling orders to govern discovery. At
the conclusion of discovery, Citigroup requested leave to file a motion for summary
judgment. In December 2017 Ms. Lerner requested and was granted a conference call,
during which the Arbitrator explained that it was her burden to provide facts and relevant
law to establish her claims. App. 275, n. 6.
In March 2018 Citigroup filed its motion for summary judgment. Ms. Lerner filed
her response along with her affidavit. App. 269. The Arbitrator granted the motion for
summary judgment, finding that Ms. Lerner failed to establish her disability and
discrimination claims and offered only speculation to support her retaliation claim. App.
275-6.
In the District Court, Ms. Lerner, proceeding pro se, moved to vacate the award,
alleging that the Arbitrator failed “to understand that being laid off twice within weeks of
each other is very traumatizing,” that there was a conflict of interest between Citigroup
and the AAA, and the Arbitrator failed to properly review facts in support of her claims.
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App. 164-66. The District Court denied the motion, finding that Ms. Lerner did not
establish grounds to vacate the award. With regard to the allegation that the Arbitrator
failed to consider relevant facts, the Court found that “Ms. Lerner does not explain what
pertinent evidence the arbitrator allegedly refused to hear.” App. 18.
On appeal, Ms. Lerner argues for the first time that she never consented to
arbitration. She also renews her assertion that the Arbitrator committed misconduct by
failing to consider evidence supporting her retaliation claim.1 Neither claim entitles Ms.
Lerner to relief and we therefore affirm the District Court’s order denying the motion to
vacate the arbitration award.
II.
The District Court had jurisdiction under 9 U.S.C. § 9, and we have appellate
jurisdiction under 9 U.S.C. § 16(a)(1)(D). We review de novo the District Court’s denial
of a motion to vacate an arbitration award. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d
Cir. 2003). Our review of the Arbitrator’s decision, however, is “extremely deferential.”
Id. at 370 (“The net result of a court’s application of this standard is generally to affirm
easily the arbitration award[.]”).
III.
Ms. Lerner asserts she never consented to the arbitration clause in Citigroup’s
employee handbook and the District Court erred by finding a valid arbitration agreement
existed. She claims for the first time on appeal that acknowledging the arbitration clause
1
Ms. Lerner filed the motion to vacate in District Court pro se but was represented by
counsel before this Court.
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in the employee handbook did not constitute a valid waiver of a judicial forum, and the
arbitration award should therefore be vacated. Appellant’s brief, 9.
Ms. Lerner did not present this non-consent argument to the District Court or at
any stage of the arbitration proceedings. The failure to do so precludes relief on appeal.
“Our Circuit adheres to a ‘well established principle that it is inappropriate for an
appellate court to consider a contention raised on appeal that was not initially presented
to the district court.’” Lloyd v. HOVENSA, LLC., 369 F.3d 263, 272-73 (3d Cir. 2004)
(quoting In re City of Phila. Litig., 158 F.3d 723, 727 (3d Cir. 1998)). Ms. Lerner’s
argument that she did not consent to arbitration does not constitute a jurisdictional matter
that can be raised at any stage of the proceeding. Whether an agreement to arbitrate
existed between the parties constitutes a contract claim that Ms. Lerner forfeited by not
raising it before the District Court. Id. at 272. Further, Ms. Lerner has not alleged any
exceptional circumstances that would warrant review of her non-consent claim. Birdman
v. Office of the Governor, 677 F.3d 167, 173 (3d Cir. 2012) (“It is axiomatic that
arguments asserted for the first time on appeal are deemed to be waived and consequently
are not susceptible to review in this Court absent exceptional circumstances.”) (internal
quotation marks omitted).
Ms. Lerner’s ability to raise the claim at this stage is further compromised by her
full engagement in the arbitration process. She did not object to Citigroup’s motion to
compel arbitration but instead filed a demand for arbitration with the AAA after the
motion was granted. She produced documents, gave depositions, and filed a response to
Citigroup’s motion for summary judgment, all without making any objection to or
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argument before the Arbitrator concerning her consent to arbitration. App. 268-69. Ms.
Lerner did not cite any opposition to arbitration in her motion to vacate. App. 164-66.
Because Ms. Lerner never indicated her alleged lack of consent to Citigroup, the
Arbitrator or the District Court, she forfeited this basis for overturning the arbitration
award.
IV.
Ms. Lerner next asserts that the Arbitrator committed misconduct by refusing to
consider evidence that Citigroup retaliated against her by blocking her access to its
internal job listings. We disagree.
The Federal Arbitration Act permits a court to vacate an arbitration award where
the Arbitrator “refus[ed] to hear evidence pertinent and material to the controversy.” 9
U.S.C. § 10(a)(3). However, “[v]acatur is appropriate only in ‘exceedingly narrow’
circumstances[.]” Metromedia Energy, Inc. v. Enserch Energy Servs., Inc., 409 F.3d 574,
578 (3d Cir. 2005) (quoting Dluhos, 321 F.3d at 370). There is a strong presumption in
the Act that favors enforcing arbitration awards, and an “award is presumed valid unless
it is affirmatively shown to be otherwise[.]” Brentwood Med. Assocs. v. United Mine
Workers of Am., 396 F.3d 237, 241 (3d Cir. 2005).
Although we are mindful of our obligation to construe pro se filings liberally, see
Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009), Ms. Lerner failed to demonstrate any
misconduct on the part of the Arbitrator. Although her motion to vacate alleged that
Citigroup blocked her “internal access” to job listings, she never attributed the alleged
blocking to an act of retaliation by her former employer. App. 164. Because Ms. Lerner
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failed to “explain what pertinent evidence the arbitrator allegedly refused to hear,” the
District Court properly dismissed her allegations of arbitrator misconduct. App. 18. On
appeal, Ms. Lerner attempts to remedy her failure by arguing the allegations of blocked
access constituted pertinent evidence of retaliation that the Arbitrator refused to consider.
We agree with Citigroup that this claim of retaliation is too speculative and attenuated to
pose a viable cause of action, rendering Ms. Lerner’s claim of Arbitrator misconduct
meritless.
V.
Having considered Ms. Lerner’s arguments and deemed them insufficient to
warrant relief, we will affirm the order dismissing the motion to vacate the arbitration
award.
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