                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               AUG 16 1999
                            FOR THE TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

    RAYMOND F. MENDEZ,

                Plaintiff-Appellant,

    v.                                                     No. 98-2323
                                                    (D.C. No. CIV-98-358-MV)
    COMMERCIAL CREDIT                                       (D. N.M.)
    CORPORATION,

                Defendant-Appellee.




                             ORDER AND JUDGMENT              *




Before PORFILIO , BARRETT , and HENRY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
       This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited
under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Raymond F. Mendez, proceeding pro se, appeals the district

court’s order denying his request to set aside the arbitration award entered in

favor of defendant Commercial Credit Corporation on his claims of age

discrimination and retaliation. Plaintiff filed his action to set aside the arbitration

award in a New Mexico state court. Defendant removed the action to the United

States District Court for the District of New Mexico. We have jurisdiction over

this diversity action under 28 U.S.C. §§ 1332(a), 1291 and we affirm.

       Following the termination of his employment with defendant, plaintiff filed

suit claiming he was discharged unlawfully on the basis of age in violation of the

Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (ADEA). He

also alleged defendant retaliated against him for exercising his rights under the

ADEA. Plaintiff then dismissed his lawsuit and the parties proceeded before

a three-member arbitration panel pursuant to defendant’s written employment

arbitration policy.   See R. doc. 22, ex. A. At the conclusion of the arbitration

hearing, at which both parties were represented by counsel, the arbitrators issued

their award denying plaintiff’s claims.   See, e.g. , id. , doc. 1, ex. C. Dissatisfied

with that outcome, plaintiff sought to vacate the arbitration award. The district

court granted summary judgment in favor of defendant.

       “Our review of the district court’s ruling is plenary, and we utilize the same

standard that the district court was required to apply.” NCR Corp., E & M-


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Wichita v. International Ass’n of Machinists & Aerospace Workers, Dist. Lodge

No. 70, 906 F.2d 1499, 1500 (10th Cir. 1990). Although we do not defer to the

district court’s decision to deny a motion to vacate an award, “maximum

deference is owed to the arbitrator[s’] decision.”    ARW Exploration Corp. v.

Aguirre , 45 F.3d 1455, 1462 (10th Cir. 1995). The courts must “give

considerable leeway to the arbitrator[s], setting aside [their] decision only in

certain narrow circumstances.”      First Options of Chicago, Inc. v. Kaplan   , 514

U.S. 938, 943 (1995). The arbitrators’ decision may be set aside only for reasons

stated in the Federal Arbitration Act, 9 U.S.C. § 10, or for a small number of

reasons created by the courts, including awards which violate public policy,

awards based on a manifest disregard of the law, or where the arbitrators failed to

conduct a fundamentally fair hearing.      See Denver & Rio Grande W. R.R. Co. v.

Union Pac. R.R. Co. , 119 F.3d 847, 849 (10th Cir. 1997) (collecting cases). The

Federal Arbitration Act provides that an award may be set aside if the “award was

procured by corruption, fraud, or undue means[,] . . . there was evident partiality

or corruption in the arbitrators[,] . . . the arbitrators were guilty of misconduct in

refusing to postpone the hearing . . . or in refusing to hear [pertinent and material]

evidence[,]” or for other misbehavior that prejudiced any party. 9 U.S.C. § 10(a).

Unless these limited circumstances are present, the arbitration award must be




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affirmed, even if the arbitrators erred in their factual findings or interpretation of

the law. See Denver & Rio Grande W. R.R. Co. , 119 F.3d at 849.

       On appeal, plaintiff argues that the arbitrators’ decision must be set aside

because Jerry Gildea, one of defendant’s witnesses, lied about whether a

performance evaluation was performed for Bill Stroupe and about the length of

time Wanda Shockey was on disability leave; defendant forged a personnel

evaluation showing “needs improvement” for Kathy Smith; plaintiff was not

allowed to state his case to the arbitrators; and the arbitrators refused to consider

signed statements from four of plaintiff’s witnesses. Plaintiff makes additional

arguments addressed to the underlying age discrimination and retaliation claims,

but we are concerned only with whether there are grounds to set aside the

arbitration award, so we do not consider the merits of the underlying claims.     See

W.R. Grace & Co. v. Local Union No. 759       , 461 U.S. 757, 764 (1983) (“[A]

federal court may not overrule an arbitrator’s decision simply because the court

believes its own interpretation of the contract would be the better one.”).

       A review of the record on appeal confirms that none of the statutory or

judicially created grounds to vacate the arbitration award are present. The

evidence regarding other employees and their evaluations was available to

plaintiff at the time of the arbitration. His decision not to present the evidence,

or the arbitrators’ decision not to credit it, does not demonstrate any of the


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grounds to set aside the award.    Cf. Foster v. Turley , 808 F.2d 38, 42 (10th Cir.

1986) (party alleging fraud “must show that due diligence could not have resulted

in discovery of the fraud prior to arbitration”).

       Plaintiff’s claim that he was not allowed to state his case to the arbitrators

is based on his own attorney’s instruction to answer questions “yes” or “no” after

he became upset at the hearing. Plaintiff does not allege that the arbitrators or

defendant prevented him from presenting his case. Accordingly, he has failed to

demonstrate corruption, fraud, undue means, or that the arbitrators exceeded their

powers. See 9 U.S.C. § 10(a).

       Plaintiff also asserts that the arbitrators refused to consider sworn

statements, even though the arbitration policy permitted them. The policy

provided that the arbitrators “may receive and consider the evidence of witnesses

by affidavit, but shall give it only such weight as [they] deem[] it entitled to after

consideration of any objection made to its admission.” R. doc. 22, ex. A, at 6.

Defendant objected to the sworn statements because it had not had an opportunity

to cross-examine the witnesses. Plaintiff did not subpoena the witnesses or

request a continuance to obtain their presence at the arbitration hearing. The

arbitrators’ decision not to receive the sworn statements was within the terms of

the arbitration agreement and will not be disturbed.    See Bowles Fin. Group, Inc.




                                            -5-
v. Stifel, Nicolaus & Co. , 22 F.3d 1010, 1013 (10th Cir. 1994) (evidentiary

rulings within the arbitration proceedings governed by arbitration agreement).

      Plaintiff also alleges that defendant intimidated witnesses and hid or

destroyed documents. Those conclusory allegations are not supported by evidence

and therefore are insufficient to resist summary judgment.    See Kidd v. Taos Ski

Valley, Inc. , 88 F.3d 848, 853 (10th Cir. 1996).

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED. The mandate shall issue forthwith.



                                                       Entered for the Court



                                                       John C. Porfilio
                                                       Circuit Judge




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