                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 19, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-11488
                         Summary Calendar



JACQUELINE E. BUTLER,

                                                Plaintiff-Appellant,

versus

MUNSCH, HARDT, KOPF & HARR, P.C., MARC A. HUBBARD, AND WEI WEI
JEANG,

                                             Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:01-CV-01811
                      --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Jacqueline Butler appeals the district court’s order denying

her motion to vacate the arbitrator’s award and granting

defendant’s application for order confirming the arbitration

award issued in her employment discrimination action.      In the

arbitration, Butler alleged that the Munsch, Hardt, Kopf & Harr,

P.C. (“Munsch Hardt”) denied her promotion from a secretarial job

to either an IP Specialist or IP Paralegal position because of



     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 03-40636
                                 -2-

her race.   The arbitrator decided in favor of her employer and

the district court confirmed the award.

     Our review of arbitration awards is exceedingly deferential

and we can order vacatur of an arbitration award only on very

narrow grounds. Brabham v. A.G. Edwards & Sons, Inc., 376 F.3d

377, 380 (5th Cir. 2004).   Four statutory grounds are provided by

Section 10 of the Federal Arbitration Act:

     (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.

Id. at 380-381.   This court also recognizes two non-statutory

grounds for vacating an arbitration award: (1) if the award is

clearly contrary to an explicit, well-defined and dominant public

policy, or (2) if the arbitrator manifestly disregarded the law.

Prestige Ford v. Ford Dealer Computer Servs., 324 F.3d 391, 395-

96 (5th Cir. 2003).

     Butler, who appears pro se, complains that she was not

allowed to present certain evidence or call certain witnesses


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that were “pertinent and material to the controversy.”     The

excluded evidence was a transcript Butler prepared of a tape-

recorded conversation she had with defendant Wei Wei Jeang.      The

arbitrator properly excluded the transcript because the source

tape was not authenticated and offered into evidence.      Fountain

v. United States, 384 F.2d 624, 632 (5th Cir. 1967).      In

addition, both Butler and Jeang testified about the substance of

the conversation recorded on the tape, making the transcript

cumulative evidence.     Gateway Technologies v. MCI

Telecommunications Corp., 64 F.3d 993, 997, n.4 (5th Cir. 1995).

Butler also complains that two witnesses she wished to call were

not allowed to testify or were limited in the substance of their

testimony.   The arbitrator did not err in limiting the testimony

of these witnesses who had different supervisors or worked in

different parts of the firm than Butler.     Wyvill v. United Cos.

Life Ins. Co., 212 F.3d 296, 302 (5th Cir. 2000).      Neither of

these evidentiary complaints can serve as a basis for vacating

the award.

     Butler also raises issues regarding the merits of the

arbitrator’s decision.    As stated above, in order to succeed, she

must show that the arbitrator’s decision “manifestly disregarded

the law.”    Prestige Ford, 324 F.3d at 395-96. Butler cannot meet

that standard.   Butler failed to establish a prima facie case of

employment discrimination by failing to establish that she was


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                           No. 03-40636
                                -4-

qualified for the promotion she claims she was denied based on

her race.   Celestine v. Petroleos de Venez. SA, 266 F.3d 343,

354-44 (5th Cir. 2001).   In addition, the defendants have put

forth a non-discriminatory reason for failing to promote her.

The other candidates were more qualified.     Id. at 357.

Accordingly, the arbitrator did not manifestly disregard the law

in rejecting her failure to promote claims.    Her claims of

retaliation and intentional infliction of emotion distress were

also properly dismissed for failure of proof.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.




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