                          STATE OF MICHIGAN

                            COURT OF APPEALS


ANDRE HUNTER,                                                        UNPUBLISHED
                                                                     January 3, 2019
               Plaintiff-Appellant,

v                                                                    No. 339138
                                                                     Wayne Circuit Court
DTE ENERGY CORPORATE SERVICES, LLC,                                  LC No. 16-013718-CD

               Defendant-Appellee.


Before: STEPHENS, P.J., and K. F. KELLY and TUKEL, JJ.

PER CURIAM.

        In this case involving claims under the Elliot Larson Civil Rights Act (ELCRA), MCL
37.2101 et seq., plaintiff appeals as of right the circuit court’s opinion and order denying his
motion to vacate the arbitrator’s award and granting defendant’s motion to affirm the award. We
affirm.

                                       I. BACKGROUND

        Defendant hired plaintiff, who is African-American, in August 1999 and terminated his
employment in March 2015. Defendant was on a “last chance agreement,” meaning that his
employer would terminate his employment for the violation of any rule or policy, when he
installed a “403 meter” inside a customer’s home improperly and failed to attach a vent line,
resulting in a potentially hazardous gas leak within the home. Following that event, defendant
terminated plaintiff’s employment. Plaintiff, who had previously complained that defendant’s
workplace was a racially hostile environment, believed his termination was motivated by racial
discrimination and was in retaliation for protected activity under the ELCRA.

        In pursuit of these claims, plaintiff entered into an Arbitration Agreement (Agreement)
with defendant. After discovery and a four-day arbitration hearing, the arbitrator entered an
award in favor of defendant. In essence, the arbitrator found that plaintiff had failed to establish
that he was treated differently than similarly situated white employees and that plaintiff had also
failed to establish a causal connection between his protected activity and his termination.

       The circuit court, on plaintiff’s motion to vacate the award and defendant’s counter-
motion to affirm it, ultimately affirmed the arbitrator’s decision. The circuit court opined that
the arbitrator did not commit any errors of law and did not act outside the authority the

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Agreement vested in him. The court further stated that the standard of review prohibited it from
considering the arbitrator’s factual findings.

                                  II. STANDARD OF REVIEW

        Our role in reviewing a motion to vacate an arbitration award is extremely limited.
Indeed, “[a]rbitration, by its very nature, restricts meaningful legal review in the traditional
sense.” Detroit Auto Inter-Insurance Exchange v Gavin, 416 Mich 407, 429; 331 NW2d 418
(1982). When a party claims that an arbitrator exceeded the scope of his authority, as plaintiff
claims on appeal, our review is de novo and is restricted to whether it can fairly be said that the
arbitrator acted “beyond the material terms of the contract from which [he] primarily [drew] [his]
authority or in contravention of controlling principles of law.” Miller v Miller, 474 Mich 27, 30;
707 NW2d 341 (2005). An error of law that invites judicial intervention “must be error so
material or so substantial as to have governed the award, and but for which the award would
have been substantially otherwise.” Gavin, 416 Mich at 443. The arbitrator’s findings of fact,
however, are not reviewable. Id. at 429.

                                          III. ANALYSIS

         Plaintiff first argues that the arbitrator failed to make any specific findings of fact and to
provide any legal citations in contravention of the terms of the Agreement. Plaintiff asserts that
an arbitrator’s factual findings must be made at a level of specificity to apprise a reviewing court
of the arbitrator’s choice between competing factual premises that lead to the ultimate conclusion
of fact, and that the arbitrator failed to do so here.

        MCR 3.602(J) governs the vacating of arbitration awards and provides that a court shall
vacate such an award when the award was obtained through corruption, fraud, or other undue
means; the arbitrator’s apparent partiality affected a party’s rights; the arbitrator exceeded his or
her authority; or the arbitrator conducted the hearing in a manner that substantially affected a
party’s rights.

        Because an arbitration agreement defines a party’s rights and duties and confers upon the
arbitrator the authority to act, arbitrators are bound by the materials terms of the contract from
which they draw their authority. Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 496;
475 NW2d 704 (1991). “Thus, the proper role of the Court here is to examine whether the
arbitrator[] ha[s] rendered an award which comports with the terms of the . . . contract.” Id. An
“error, if any, must be evident from the face of the award and so material or so substantial as to
have governed the award, and but for which the award would have been substantially otherwise.”
Id. at 497 (quotation marks and citation omitted). Further, Michigan law requires that “arbitral
awards must be in writing and contain findings of fact and conclusions of law.” Rembert v
Ryan’s Family Steak Houses, Inc, 235 Mich App 118, 165; 596 NW2d 208 (1999). Generally,
however, there are no requirements concerning the scope or specificity of such findings of fact or
conclusions of law. Gavin, 416 Mich at 429.




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       Paragraph 2.5 of the Agreement, on which plaintiff relies, provides:

       The award shall be in writing, signed by the Arbitrator, and contain specific
       findings of facts and conclusions of law and final amount of damages, if any,
       together with any equitable relief awarded to . . . Claimant. The Arbitrator’s
       Award shall be final and binding, but will be subject to limited judicial review in
       accordance with the Michigan Uniform Arbitration Act.

By its plain language and consistent with Michigan law, ¶ 2.5 required the arbitrator to issue a
written and signed opinion that would “contain specific findings of facts and conclusions of
law.”

        At the outset, plaintiff’s claim that the arbitrator exceeded his authority by failing to
provide legal citations is plainly not supported by the text of ¶ 2.5 of the Agreement. Plaintiff
points to no other language in the Agreement requiring the arbitrator to include such citations.
Moreover, plaintiff also has not cited any Michigan law requiring an arbitrator to provide
citations to authority. Consequently, we cannot agree with plaintiff that the arbitrator exceeded
his authority by failing to provide citations to caselaw.

         Likewise without merit is plaintiff’s attempt to characterize the award as bereft of factual
findings. Indeed, our review of the 11-page award shows that the arbitrator made sufficiently
specific factual findings relevant to his legal conclusions. With respect to the racial
discrimination claim based on disparate treatment, the arbitrator found that the record lacked any
evidence that plaintiff was treated differently than a similarly situated employee of another race.
The arbitrator addressed what he viewed to be plaintiff’s only relevant evidence remotely related
to this inquiry and specifically found that the allegedly comparable white employee was not, in
fact, similarly situated to plaintiff. As to plaintiff’s retaliation claim, the arbitrator pointed to
specific evidence on the record showing that plaintiff’s termination was not causally related to
the protected activity he engaged in; there was evidence showing that plaintiff was terminated for
failing to follow safety policies and procedures, that plaintiff’s version of events lacked
credibility, and that plaintiff had otherwise failed to proffer any evidence that the manager who
demonstrated racial animus had any influence over the decision to terminate plaintiff’s
employment. Plaintiff’s assertion that the arbitrator failed to make specific findings is without
support in the record.1




1
  Plaintiff asserts that these findings fail to pass the legal test governing whether findings are
sufficiently specific, citing Ray v Mason Co Drain Comm’r, 393 Mich 294; 224 NW2d 883
(1975). Ray, however, did not involve arbitration, and the parties to the Agreement did not
integrate the test from Ray. Moreover, the test fashioned in Ray was formulated to allow a
reviewing court to test the validity of the evidence supporting an ultimate conclusion. Id.at 302.
A reviewing court does not test an arbitrator’s factual findings in this manner, as such findings
are unreviewable. See Gavin, 416 Mich at 429. Accordingly, Ray is inapposite.



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        Plaintiff next claims on appeal that the award should be vacated because the arbitrator
made “glaring” legal errors. Plaintiff explains that the arbitrator erred when he failed to tailor
the McDonnel-Douglas2 test to the facts of his case, considering the facts as a whole, per the
directive in Hazle v Ford Motor Co, 464 Mich 456; 628 NW2d 515 (2001). While relying on
Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586; 886 NW2d 135 (2016), plaintiff also
argues that the arbitrator committed legal error when he failed to recognize that there are more
than two ways a plaintiff can prove discrimination. In particular, plaintiff asserts that the
arbitrator should have considered a “similarly situated plus additional acts of discrimination”
theory.

        As an initial matter, we note that our review of the record reveals that the legal tests the
arbitrator applied were based on theories of recovery that plaintiff advanced during the
arbitration proceedings. In fact, the quoted law in the award is the same as that quoted in
plaintiff’s post-arbitration hearing brief. To conclude that the arbitrator committed legal error on
either of these bases, then, would allow plaintiff to prevail on an alleged error that he deemed
proper during the arbitration proceedings. We will not allow a party to harbor error as an
appellate parachute. See Clohset v No Name Corp, 302 Mich App 550, 555; 840 NW2d 375
(2013).

        Moreover, even assuming arguendo that plaintiff had not contributed to the alleged error
he complains of on appeal, plaintiff has nonetheless failed to identify a legal error that is “so
material or so substantial as to have governed the award, and but for which the award would
have been substantially otherwise.” Gorden Sel-Way, 438 Mich at 497. First, to adopt plaintiff’s
argument that the arbitrator should have analyzed his claims under an additional theory of
relief—similarly situated plus additional acts of discrimination—would put the onus on the
arbitrator to create new theories of recovery on a party’s behalf when that party did not raise
them. As plaintiff notes, Hecht recognized that multiple theories of recovery are available to a
civil rights claimant. Hecht, 499 Mich at 607-608. However, nowhere does Hecht require a
court to sua sponte advocate on a party’s behalf by considering additional theories of recovery.
Indeed, the Agreement limits the arbitrator’s authority in this regard, dictating that the arbitrator
will resolve all claims raised by the claimant and requiring the claimant to submit to the
arbitrator a complaint including all claims.

        Plaintiff also asserts that the arbitrator ran afoul of Hazle because nowhere in the award is
there any indication that the arbitrator tailored the elements of the McDonnell-Douglas test to the
facts of his case, as directed in Hazle, 464 Mich at 463 n 6. “The McDonnell Douglas approach
allows a plaintiff to present a rebuttable prima facie case on the basis of proofs from which a
factfinder could infer that the plaintiff was the victim of unlawful discrimination.” Hazle, 464
Mich at 462 (quotation marks and citation omitted). Generally, to offer a prima facie case of
discrimination under this test, a plaintiff must “present evidence that (1) [the plaintiff] belongs to
a protected class, (2) [the plaintiff] suffered an adverse employment action, (3) [the plaintiff] was
qualified for the position, and (4) the job was given to another person under circumstances giving


2
    McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).


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rise to an inference of unlawful discrimination.” Id. at 463. Once a plaintiff establishes a prima
facie case of discrimination, the defendant may rebut that presumption with a legitimate non-
discriminatory reason for the employment decision. Id. at 464. As the Court noted in Hazle,
however, this burden-shifting test should be tailored to fit the facts of each case; the Court stated:

       [T]he facts will necessarily vary in discrimination cases. Thus, the elements of
       the McDonnell Douglas prima facie case should be tailored to fit the factual
       situation at hand. [Id. at 463 n 6.]

        On its face, there is no indication that the arbitrator ran afoul of this principle. In
particular, the award set out the McDonnell-Douglas test consistently with the evidence plaintiff
presented at the arbitration hearing (that white employees were favored over black employees)
and plaintiff’s theory of discrimination (that he was treated differently than similarly situated
employees outside the protected group); the award provided:

       In order to prevail on his claim, [plaintiff] must establish: 1) that he is a member
       of a protected class; 2) that he was subject to an adverse employment action; 3)
       that he was qualified for the job he held; 4) that he was treated differently than
       similarly situated employee(s) outside the protected group for the same or similar
       conduct.

Plaintiff does not elucidate—beyond conclusorily stating that the award lacks any indication that
the arbitrator tailored the test to the “abundant facts” of his case—how the arbitrator should have
altered the McDonnell-Douglas test to fit the facts of this case or even which facts should have
been considered so as to alter the legal framework. Plaintiff also does not allege that the award
would “have been substantially otherwise,” i.e., different, had this supposed modified version of
the burden-shifting framework been applied. Without further explanation, we consider this claim
abandoned. See Lee v Smith, 310 Mich App 507, 513 n 3; 871 NW2d 873 (2015) (indicating that
a claim may be considered abandoned when a plaintiff provides no explanation in support of an
argument). In sum, plaintiff has failed to demonstrate a legal error on the face of the award that
would justify our intervention.

        Finally, plaintiff asserts that he met his evidentiary burden of establishing both his racial
discrimination and retaliation claims. However, consideration of the substantive merits of
plaintiff’s arguments in these regards would require us to consider whether the evidence
presented at the arbitration proceedings supported the arbitrator’s factual findings. As we have
noted, the applicable standard of review prohibits such an undertaking when reviewing an
arbitrator’s opinion. See Gavin, 416 Mich at 429. When a party asserts that an arbitrator
exceeded his authority, we may only consider whether the arbitrator acted within the terms of the




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parties’ contract or committed an error of law. Id. at 434. We, therefore, decline to review the
substantive merits of plaintiff’s claims.

       Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219.



                                                           /s/ Cynthia Diane Stephens
                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Jonathan Tukel




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