Level Playing Field

Arbitrator's evident partiality

Short of next week’s scheduled hearing, today, an Arbitrator has ruled summary judgment against my wife on a case she filed on her previous employer regarding, Title VII Discrimination and Retaliation. The Arbitrator’s decision was extremely disappointing but necessary, in that, it confirms our suspicion of his bias which he had throughout the litigation. I’ll explain what I mean below, but want to first address how we got to this situation and the conclusion of the Arbitrator’s conduct regarding “evident partiality”.

To work for this particular corporation, you must first sign an agreement to an arbitration in case such an event of illegal activity or any dispute were to occur at the place of work and you wanted to sue them for being big jerks. No one ever thinks, while skimming through their crispy new “Welcome Package” and sipping coffee from the mug bearing the company’s logo, like, “yup, I can’t wait to sue the drywall off this place.” So we do like most people who look forward to their first paycheck and sign the arbitration agreement.

Work is going great. In fact, a couple of years of excellent service and accommodations attributed to the fact that she was just simply killing it at work. In comes, a new boss, with a welcome package of discrimination and a coffee mug of retaliation. A couple of months go by (actually 2 months and 3 days…) and out the door my wife goes.

We find ourselves sorting through several list of “neutral, impartial, factfinder” (yeah sure thing) with AAA rules. After much dispute with the opposing party on who should run the show, we finally come down to an agreement on one. The Arbitrator fills out a “General Arbitrator Oath Form” which basically says they don’t know any of the parties or worked with anyone or ever had any kind of connection with anyone whatsoever. He fills it out and under oath, swears he doesn’t know anyone. Perfect, right? …

The problem is, he later amends his answer regarding the oath and states that he used to be a shareholder in the firm’s operation. But then state’s, that was years ago … no biggie, right?

Our suspicion of the Arbitrator’s partiality grew soon after the defendant’s “corporate firm” switched up the “rookie” council for an experienced one. One experienced enough to personally know the Arbitrator. In fact, the Arbitrator has a powerful friendship with him and he failed to disclose this with us.

This “experienced council” soon was comfortable enough to conduct in serious ethical violations during “discovery” and throughout. These acts were clearly grounds for sanctions, although, so seldomly are motions for sanctions granted by judges in my district, those who were, could have gotten away with murder if this Arbitrator ran their show.

We had several motions, one including spoliation which went unopposed and quietly denied by the Arbitrator in a hearing (no warnings or reprimands). Anyway, we met every deadline, followed every rule and even stripped the rights to have EEOC investigate this company by requesting a RTS… by his order… (I know you must be thinking about the administrative defense and all … but this is a binding arbitration and the rules are specifically design to disrupt the timely to file a claim and Florida … is an employer friendly state. So much for sunshine…)

Anyway, this last motion sealed the deal for us and we plan to file a motion to vacate once this Arbitrator completes “preparing his order”.

We have what we believe to complete the “prongs” in beating this but could use some help. Our fight needs to be petitioned outside of arbitration but pro se’s are frowned upon. Even savvy ones.

(Disclosure, I’m not an attorney but I work for the same corporation my wife did and have my wife’s permission to discuss the matter above)

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Thanks for sharing your story!

Did the arbitrator amend his oath after appointment?

I agree that it would seem the arbitrator should have at least recused himself when a new attorney was appointed. You are given the option to object to an arbitrator in advance of assignment. Defense counsel should not be allowed to play tricks against a non-attorney pro se litigant.

Are you going to file in court? During my case, I subscribed to FastCase to do my case law research. It was relatively affordable compared to say WestLaw. It really helped me. (In case you don’t already have access to such a service.)

Thanks Dan! The arbitrator did amend his oath a few days after the appointment but it was a generic acknowledgement to working for the firm years prior. I just filed as Forma Pauperis with the court last week and waiting to hear back on the status. The clerk said it may take 48hrs. for a response and hopefully they get back today. (I believe the time to file a certificate of services expires today.)

Drafting this “Petition to Vacate Arbitration Award” was the most challenging and hopefully compelling. I didn’t realize how narrow of a circumstance one must be in, in order to prevail. I’m thankful for you pointing me out to FastCase. I’m using it as an app and combining my research with CaseMine and Google Scholar. Wish me luck!

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Yeah, it is tough. You need to focus on the Federal Arbitration Act. Specifically these parts:

You can find some successful cases and law journal articles related to them pretty easily.

Good luck! Let us know how it goes.

EDIT: There’s also some case law around giving the benefit of the doubt to a non-expert pro se litigant compared to counsel or an arbitrator. I’ll share it if I can find it. My thinking is: they would try to argue that you should’ve made a bigger stink about arbitrator conflicts during the proceeding and if you didn’t, it’s too late. A counter to that is that you’re pro se and you naturally deferred to the expertise and authority of the arbitrator and AAA. You did not expect them to do something unethical. You can file bar ethics complaints against the defense counsel and arbitrator too.

So this is a thread to pull on:

“Since most pro se plaintiffs lack familiarity with the formalities of pleading requirements, we must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency than we would when reviewing a complaint submitted by counsel.” See, e.g., Hughes v. Rowe, 449 U.S. 5, 9 10 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 21 (1972) (per curiam). Lerman and D'Angelo v. Bd. Elections City of NY, 232 F.3d 135 (2nd Cir., 2000).

I know it specifically mentions pleadings but if you go through those cases on FastCase, they may lead to some useful case law.

Thank you so much! We’ve filed and are waiting for their answer. This process has been so intense lately … to say the least. Will certainly follow up once we hear back.