McKenzie v. SETA Corporation ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANGELA G. MCKENZIE, 
Plaintiff-Appellant,
v.  No. 99-1576
SETA CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-97-1038)
Argued: November 3, 2000
Decided: December 8, 2000
Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
ARGUED: Wendu Mekbib, LAW OFFICES OF WENDU MEKBIB,
Vienna, Virginia, for Appellant. Richard Mark Dare, REED, SMITH,
HAZEL & THOMAS, L.L.P., Falls Church, Virginia, for Appellee.
ON BRIEF: Michael C. Montavon, MICHAEL C. MONTAVON,
P.C., Fairfax, Virginia, for Appellee.
2 MCKENZIE v. SETA CORPORATION
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
After Angela McKenzie was discharged from her job by SETA
Corporation (SETA), she sued her former employer asserting Title
VII sex discrimination and several state law claims. The district court
granted SETA’s motion to compel arbitration as provided for in Mc-
Kenzie’s employment application. After the arbitrator dismissed all of
McKenzie’s claims, McKenzie twice moved the district court to
vacate the arbitral award. The district court denied McKenzie’s
motions to vacate and granted SETA’s motion to confirm the award.
McKenzie appealed the district court’s orders compelling arbitration
and denying her motions to vacate. We previously dismissed for lack
of jurisdiction that portion of McKenzie’s appeal challenging the
orders denying her motions to vacate. The remaining portion of Mc-
Kenzie’s appeal, which challenges the district court’s order compel-
ling arbitration, must also be dismissed for lack of jurisdiction.
I.
On February 20, 1995, McKenzie began working for SETA in
McLean, Virginia. SETA provides information technology systems
and services to federal government agencies and other clients. SETA
hired McKenzie as an executive secretary and later promoted her to
the proposal production staff. In February 1995 McKenzie became
pregnant, but she suffered a miscarriage soon thereafter. SETA
allowed her to be absent from work for several days for recuperation.
In December 1995 McKenzie became pregnant again. Because this
pregnancy was plagued with complications, she missed many days of
work. McKenzie explained the reasons for her absences to her super-
visors. After several months, on April 12, 1996, when McKenzie was
absent from work due to illness, SETA discharged her, stating that a
"reduction in the proposal staff" was the reason.
MCKENZIE v. SETA CORPORATION 3
On October 2, 1996, McKenzie filed a formal charge with the Fair-
fax County Human Rights Commission, alleging sex and pregnancy
discrimination in SETA’s decision to terminate her. The Human
Rights Commission issued her a notice of right to sue. McKenzie sub-
sequently filed this action in federal court, alleging sex discrimination
in violation of Title VII of the Civil Rights Act of 1964, wrongful dis-
charge, intentional infliction of emotional distress, and breach of con-
tract. SETA moved to compel arbitration on the ground that Mc-
Kenzie had signed an employment application that included an arbi-
tration clause. The application provided:
I understand and agree to the following:
....
. . . I understand that all controversies, claims, and/or dis-
putes arising out of the termination of my employment with
SETA Corporation shall be settled exclusively through bind-
ing arbitration.
The district court granted SETA’s motion and stayed the case pending
the completion of arbitration. The parties proceeded with arbitration,
and on January 6, 1999, the arbitrator dismissed all of McKenzie’s
claims against SETA. In particular, the arbitrator concluded that Mc-
Kenzie had not proven that SETA terminated her because of her preg-
nancy. SETA was required to pay the arbitrator’s compensation and
the other expenses of arbitration.
At this point, the procedural history of this action becomes impor-
tant because the timing and nature of certain motions and orders in
district court affect whether we have jurisdiction to hear this appeal.
On March 8, 1999, McKenzie filed a motion to vacate the arbitral
award, arguing that SETA fraudulently induced her to sign the
employment application by concealing its (SETA’s) knowledge that
nonlawyers do not understand arbitration clauses. The district court
denied the motion on March 29, 1999, reasoning that SETA’s conduct
did not rise to the level of fraud. On April 6, 1999, McKenzie filed
a second motion to vacate the arbitral award, claiming that the arbitra-
tor displayed partiality and a manifest disregard for the law by requir-
ing direct evidence of SETA’s discriminatory intent. On April 21,
4 MCKENZIE v. SETA CORPORATION
1999, before the district court ruled on the second motion to vacate,
SETA moved to confirm the arbitral award. On April 28, 1999, Mc-
Kenzie noted an appeal from the district court’s March 29, 1999,
order denying her first motion to vacate and from the court’s August
22, 1997, order compelling arbitration. On April 30, 1999, the district
court denied McKenzie’s second motion to vacate, concluding that
she had failed to show actual bias on the part of the arbitrator and that
the arbitrator’s misapplication of the law is not a ground for vacating
his award. On May 5, 1999, before the district court ruled on SETA’s
motion to confirm, McKenzie filed an amended notice of appeal, not-
ing an appeal from the order denying her second motion to vacate.
Two days later, on May 7, the district court entered an order confirm-
ing the arbitral award. McKenzie did not take an appeal from the con-
firmation order.
After McKenzie filed her briefs in our court, SETA moved to dis-
miss, for lack of jurisdiction, McKenzie’s appeal insofar as it chal-
lenged the orders denying the motions to vacate. SETA argued that
these orders are not appealable under the Federal Arbitration Act
(FAA), 9 U.S.C. §§ 1-16. The FAA provides that an appeal may be
taken from, among other things, an order "confirming or denying con-
firmation of an award or partial award," an order "modifying, correct-
ing, or vacating an award," and "a final decision." 9 U.S.C. § 16(a).
A final decision is one that "‘ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.’" Stedor
Enters., Ltd. v. Armtex, Inc., 947 F.2d 727, 731 (4th Cir. 1991) (quot-
ing Catlin v. United States, 324 U.S. 229, 233 (1945)). SETA argued
that the orders denying the motions to vacate do not fall into any of
the enumerated categories, nor are they final decisions because the lit-
igation here continued and the district court still had something to do,
that is, confirm the arbitral award. Therefore, according to SETA, the
district court’s "final decision" was rendered on May 7, 1999, when
it confirmed the arbitral award. The confirmation order was an
appealable order, but McKenzie failed to take an appeal from that
order. We accepted SETA’s argument and dismissed McKenzie’s
appeal with respect to the two orders denying the motions to vacate.
See McKenzie v. SETA Corp., No. 99-1576 (CA-97-1038) (4th Cir.
Feb. 23, 2000). Accordingly, all that remains in the present appeal is
McKenzie’s challenge to the district court’s order compelling arbitra-
tion.
MCKENZIE v. SETA CORPORATION 5
II.
McKenzie asserts that she is entitled to a trial by jury and that the
district court should not have ordered the parties to resolve their dis-
pute through arbitration. She first argues that the arbitration clause
only said that she "understands" that all disputes are to be settled by
arbitration, but the clause did not say that she "agrees" to such arbitra-
tion. Second, McKenzie claims that SETA fraudulently induced her
to sign the employment application by hiding from her the company’s
knowledge that nonlawyers do not understand the meaning of arbitra-
tion. SETA responds on the merits, but it also argues that McKenzie’s
appeal should be dismissed because she failed to appeal from the con-
firmation order, the only appealable order in this case.
In an earlier order we dismissed McKenzie’s appeal from the
orders denying her motions to vacate the arbitration award. Those
orders are not designated as appealable under the FAA, nor do they
represent a "final decision" under the Act. See 9 U.S.C. § 16(a). We
also have no choice except to dismiss the remaining portion of Mc-
Kenzie’s appeal. The one remaining order that McKenzie seeks to
challenge, the interlocutory order granting the motion to compel arbi-
tration, is not by itself an appealable order. See id. § 16(b)(3). In order
to challenge it, McKenzie must have noted an appeal from a final
decision or from an order designated as appealable under the FAA.
See F.C. Schaffer & Assocs. v. Demech Contractors, Ltd., 101 F.3d
40, 42-43 (5th Cir. 1996) ("[T]his court lacks jurisdiction to review
the district court’s decision regarding the arbitrability of the parties’
dispute until there is an appealable, i.e. final, order."). Because there
is no appealable order before us, we are without jurisdiction.
We would have jurisdiction if McKenzie had appealed from the
confirmation order. At the time she filed her amended notice of
appeal on May 5, 1999, she knew that SETA’s motion to confirm the
arbitral award was pending. Nevertheless, she chose to proceed with
her appeal at that time. Two days after McKenzie filed her amended
appeal, the district court issued its final decision, an order confirming
the award. Because McKenzie did not note an appeal from that order,
we must dismiss the remainder of this appeal for lack of jurisdiction.
DISMISSED