     Case: 11-20681     Document: 00511978305         Page: 1     Date Filed: 09/07/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                        September 7, 2012
                                       No. 11-20681
                                                                          Lyle W. Cayce
                                                                               Clerk
SABRINA KAY TAYLOR,

                                                  Plaintiff-Appellant
v.

UNIVERSITY OF PHOENIX/APOLLO GROUP,

                                                  Defendant-Appellee



                  Appeals from the United States District Court
                       for the Southern District of Texas
                              USDC No. 08-00878


Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        This appeal is from the denial of a motion to vacate an arbitration award.
Finding no reversible error, we AFFIRM the judgment of the district court.
Taylor also seeks to appeal the district court’s imposition of sanctions, and we
DISMISS for lack of jurisdiction that portion of the appeal.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 11-20681

      I.     BACKGROUND
      In January of 2005, Sabrina K. Taylor (“Taylor”) began working for the
University of Phoenix, Inc./Apollo Group, Inc. (“University”). On December 16,
2005, Taylor attended an employee Christmas party at work. During this party,
the employees played a game of musical chairs, and one of Taylor’s co-workers
pulled a chair out from under Taylor, who was injured when she fell to the floor.
      During the next two years, Taylor took periods of leave under workers’
compensation and the Family Medical Leave Act (“FMLA”). She also took sick
leave, personal leave, and vacation time.        On January 7, 2008, when she
reported for work, she was not allowed on the premises. Taylor’s physician
never released her to return to work a full eight-hour day. The University
maintained that because she could not work an eight-hour day (which is
undisputed), she was unable to perform an essential function of the job and that
she voluntarily resigned effective March 18, 2008.
      Meanwhile, in February of 2007, Taylor filed a complaint with the Texas
Workforce Commission Civil Rights Division and the Equal Employment
Opportunity Commission (“EEOC”), alleging that the University discriminated
against her because of her disability. She also claimed that the University
retaliated against her. She claimed that the discrimination began on June 6,
2006, and was a continuing action.           Taylor’s pleadings provide that she
ultimately received a notice of the right to file a civil action.
      Subsequently, Taylor filed an employment discrimination suit in Texas
state district court against the University. The University removed the suit to
federal district court on the basis of diversity. The parties filed a Joint Motion
to Stay and Compel Binding Arbitration, which the district court granted.
      The parties submitted the matter to arbitration. The Honorable Katie
Kennedy, a former state district judge in Harris County, Texas, held an
arbitration hearing over four days. At some point during the arbitration,

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Taylor’s counsel withdrew and Taylor proceeded pro se. On January 28, 2011,
Judge Kennedy issued a six-page Arbitration Award, finding that although
Taylor was disabled, the University did not discriminate against her because of
her disability. Further, Judge Kennedy found that Taylor had shown neither
that the University failed to provide a reasonable accommodation nor that it
retaliated against her for filing the EEOC claim. Finally, Judge Kennedy
rejected Taylor’s claims of intentional infliction of emotional distress and breach
of contract. Thus, it was ordered that Taylor was not entitled to damages.
Taylor filed several motions attempting to overturn the Award, and Judge
Kennedy denied the motions.
      On March 18, 2011, Taylor filed a motion to reinstate her claim in federal
district court. She also filed a motion to vacate the Arbitration Award. The
University filed a motion to confirm the Arbitration Award and enter final
judgment. The district court denied the motions to vacate the award and
reinstate Taylor’s claim. The court granted the University’s motion to confirm
the Arbitration Award and entered final judgment. Taylor filed a motion for
reconsideration of the denial of the motion to vacate, which the district court
denied. Taylor filed a notice of appeal from the denial of her motion for
reconsideration. Taylor subsequently filed a motion to stay the district court’s
orders. The district court denied the motion to stay and imposed sanctions in
the amount of $1,000 to reimburse the University for costs and attorney’s fees
associated with responding to Taylor’s motion to stay. Taylor is proceeding pro
se on appeal.
      II.   ANALYSIS
            A.      Standard of Review
      “Judicial review of an arbitration award is extraordinarily narrow and this
Court should defer to the arbitrator’s decision when possible.” Antwine v.
Prudential Bache Sec., Inc., 899 F.2d 410, 413 (5th Cir. 1990). This Court

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reviews “a district court’s confirmation of an award de novo, but the review of
the underlying award is exceedingly deferential.” Apache Bohai Corp. LDC v.
Texaco China BV, 480 F.3d 397, 401 (5th Cir. 2007) (citation and internal
quotation marks omitted). Under the Federal Arbitration Act, there are only
four grounds upon which we may vacate an arbitration award:
      (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.

9 U.S.C. § 10(a)(1)-(4). The party moving to vacate an arbitration award under
the FAA has the burden of proof. See Matter of Arbitration Between Trans
Chem. Ltd. and China Nat’l Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 304–06
(S.D.Tex. 1997), aff’d and adopted by, 161 F.3d 314 (5th Cir. 1998). Further, “all
doubts implicated by an award must be resolved in favor of the arbitration.”
Rain CIII Carbon, LLC v. ConocoPhillips, 674 F.3d 469, 474 (5th Cir. 2012).
            B.      Fraud and Undue Means (9 U.S.C. § 10(a)(1))
      Taylor contends that the award should be vacated because it was procured
by fraud.   “The statute does not provide for vacatur in the event of any
fraudulent conduct, but only ‘where the award was procured by corruption,
fraud, or undue means.’” Forsythe Int’l., S.A. v. Gibbs Oil Co. of Tex., 915 F.2d
1017, 1022 (5th Cir. 1990) (quoting 9 U.S. C. § 10(a)) (emphasis in opinion).


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Thus, there must be a “nexus between the alleged fraud and the basis for the
[arbitrator’s] decision.” Id.
      Taylor first points to the testimony of Jan Doyle. Taylor asserts that Doyle
testified that Taylor requested unprotected personal leave, which removed
Taylor from her protected FMLA leave status. Taylor further asserts that,
during cross-examination, Doyle authenticated the document containing her
signature that demonstrated that it was Doyle who changed Taylor’s leave
status to unprotected leave. The fact that Doyle prepared the document is not
necessarily inconsistent with the assertion that Taylor requested personal leave.
These assertions fall woefully short of demonstrating that the award was
procured by fraud.
      Similarly, Taylor asserts that the University’s witness, Christina Robinson
Grochette, testified that she was not aware of who had cancelled the order for
Taylor’s ergonomic chair; however, on cross-examination, the witness admitted
that she was the only one who had the authority to cancel the order. Taylor has
not shown that any inconsistency in Grochette’s testimony fraudulently procured
the award.1
      Taylor further points to the University’s witness, Stephanie Shearer, who
testified via teleconference.       Taylor claims that the University’s counsel
intentionally did not provide “certain documents” to Shearer, which precluded
Taylor from both (1) questioning Shearer regarding the documents and
(2) entering the documents into evidence. Even assuming arguendo that Taylor’s
assertions are true, Taylor does not explain any nexus between the missing




      1
         Additionally, Taylor accuses Cherye-Ann McNamee, a witness for the University, of
perjuriously stating that Taylor “was not at work to engage in talks regarding workplace
accommodation.” Nonetheless, Taylor concedes that after certain emails were produced,
McNamee acknowledged that “she was the one off-from-work during that time period.” Taylor
has not shown that the award was procured by fraud based on McNamee’s testimony.

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                                     No. 11-20681

documents and the award. Forsythe Int’l S.A., 915 F.2d at 1022. Thus, this
claim fails.
       Taylor next complains that the arbitrator did not compel the defense to
produce Theresa Washburn-Grant as a witness on May 25, 2010 or May 26,
2010. Thus, she claims that her case was hindered by the inability to “finish
questioning” the witness in violation of the Texas Civil Practice and Remedies
Code. “As a speedy and informal alternative to litigation, arbitration resolves
disputes without confinement to many of the procedural and evidentiary
strictures that protect the integrity of formal trials.” Forsythe Int’l S.A., 915
F.2d at 1022. “Parties to voluntary arbitration may not superimpose rigorous
procedural limitations on the very process designed to avoid such limitations.”
Id. In any event, Taylor has failed to show any nexus between the arbitrator’s
“failure” to compel the University to produce the witness and the award.
       Taylor claims that the University did not produce records that would
demonstrate that she reported to work on certain dates, including January 7,
2008, which would demonstrate that she complied with the “FMLA Return to
Work policy.” Taylor asserts that the University “implies that the claimant’s
FMLA leave ended on December 18, 2007.”                   Regardless of whether the
University failed to produce the records in question, the arbitrator expressly
found that Taylor reported for work on January 7, 2008. This claim is without
merit.2
       Taylor also accuses the University of using undue means by submitting an
inapplicable, newer Employee Handbook and Job Description to “mislead and
fraudulently procure a mandatory arbitration proceeding.” Taylor fails to allege
that the older, applicable handbook did not contain an agreement to binding



      2
          Taylor also concedes that the payroll records proved that she worked on the dates
in question.

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                                        No. 11-20681
arbitration.3 Moreover, Taylor, represented by counsel at the time, agreed to the
instant arbitration by filing a “Joint Motion to Stay and Compel Binding
Arbitration.” (emphasis added). This claim is without merit.
       Taylor claims that University employee Joanna Lacey misrepresented
Taylor’s injuries on a report which delayed Taylor’s receiving worker’s
compensation.        We will assume for purposes of this appeal that Lacey
misrepresented Taylor’s injuries. Nonetheless, because the arbitrator found that
Taylor was disabled, she cannot show a nexus between the alleged
misrepresentations and the award.
               C.     Right to a Judicial Forum
       Taylor contends that the district court erred in denying her motion to
reinstate her claim after the arbitration award was issued.                        Relying on
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), Taylor claims that
although she submitted her claim to arbitration, she did not waive her right to
be heard in a judicial forum. It is true that Gardner-Denver contains broad
language favoring the resolution of discrimination claims in a judicial forum
rather than in arbitration proceedings;4 however, in recent years, the Supreme
Court has significantly limited the holding. Specifically, the Supreme Court
explained that Gardner-Denver and its progeny did not address whether an


       3
            Even assuming arguendo that the arbitration policy had changed, “[u]nder Texas
law, it is presumed that [the employee] understood and accepted the terms” of the arbitration
policy once an employer has notified the employee of any changes in the contract and the
employee continues to work for the employer. Garrett v. Circuit City Stores, Inc., 449 F.3d 672,
675-76 n. 2 (5th Cir. 2006). The University states that Taylor signed acknowledgments of the
Dispute Resolution Policy and Procedure on March 1, 2006, January 2, 2007, and January 3,
2008. In her district court pleadings, Taylor admitted that she had to sign the
acknowledgments every year as “a contingency of her employment.”
       4
          “We think, therefore, that the federal policy favoring arbitration of labor disputes and
the federal policy against discriminatory employment practices can best be accommodated by
permitting an employee to pursue fully both his remedy under the grievance-arbitration clause
of a collective-bargaining agreement and his cause of action under Title VII.” Gardner-Denver
Co., 415 U.S. at 59-60.

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                                       No. 11-20681
agreement to arbitrate a statutory claim is enforceable. 14 Penn Plaza LLC v.
Pyett, __ U.S. __, 129 S.Ct. 1456, 1468 (2009) Instead, in that line of cases, the
employees had agreed only to arbitrate their contractual claims—not their
statutory claims. Id. The arbitrators therefore did not have the power to resolve
the employees’ statutory claims, which explains why the opinions held that the
arbitration of the contractual claims did not preclude bringing the statutory
claims in federal court. Id.
       In the case at bar, the Dispute Resolution Policy and Procedure in the
Employee Handbook expressly included arbitrating employment discrimination
claims arising under federal statutes. The Supreme Court has explained that
once a party agrees to arbitrate, “the party should be held to it unless Congress
itself has evinced an intention to preclude a waiver of judicial remedies for the
statutory rights at issue.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U.S. 614, 628 (1985). The party attempting to avoid arbitration has the
“burden to prove that Congress intended to preclude a waiver of a judicial
forum” for the statutory claim at issue. Garrett v. Circuit City Stores, Inc., 449
F.3d 672, 674 (5th Cir. 2006).5 As previously set forth, Taylor brings her
disability discrimination claims under the ADA. We have held that “Congress
did not intend to exclude the ADA from the scope of the FAA.” Miller v. Public
Storage Mgmt., Inc., 121 F.3d 215, 218 (5th Cir. 1997). In addition to the
binding arbitration policy, Taylor filed a Joint Motion to Stay and Compel
Binding Arbitration, which the district court granted.6 Taylor is precluded from


       5
          “[C]ourts have regularly held that claims by employees arising under federal and
state employment statutes are subject to the FAA and mandatory arbitration.” Garrett, 449
F.3d at 675 n.1 (string cite omitted).
       6
          Although Taylor asserts that she “has always believed she had a right to pursuit [of]
judicial relief,” the Dispute Resolution Policy and Procedure expressly states that the “parties
waive their right to a trial, with or without a jury,” and that the “decision of the Arbitrator
shall be final and binding upon the parties, except as provided” by the FAA.

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                                       No. 11-20681
showing that the district court erred in denying her motion to reinstate the suit
after arbitration.7
              D.      Partiality of Arbitrator (9 U.S.C. § 10(a)(2))
       Taylor contends that the arbitration award demonstrates that the
arbitrator engaged in evident partiality. More specifically, she argues that the
arbitrator erred in ruling that the ability to work an 8-hour shift is an essential
function of her job.8 We understand her to be arguing that the arbitrator made
a mistake of fact or mistake in applying the law. “An award may not be set aside
for a mere mistake of fact or law.” Apache Bohai Corp. LDC v. Texaco China,
480 F.3d 397, 401 (5th Cir. 2007).
       In any event, even assuming that this is a proper basis upon which to
attack the award, in view of the deference given to the arbitrator’s decision, we
do not believe she has carried her burden of demonstrating error sufficient to
overturn the award. To state a disability discrimination claim under the ADA,
the employee must be able to perform the essential functions of her job, with or
without a reasonable accommodation. 42 U.S.C. § 12111(8). Pursuant to her
physician’s orders, Taylor was only allowed to work a 6-hour shift.                        The
arbitrator found that working 8 hours was an essential function of her job.
There is precedent to support the arbitrator’s ruling. The First Circuit has held
that working more than 40 hours a week can be deemed an essential function of
a job under FMLA. Tardie v. Rehabilitation Hosp. of R.I., 168 F.3d 538, 544 (1st




       7
          Taylor’s argument that the district court erred in failing to have a status hearing is
frivolous. There was no need to hold a status hearing because it is undisputed that the
binding arbitration proceedings had been completed, and that the arbitrator had issued the
arbitration award.
       8
           Taylor also claims that this ruling exceeds the arbitrator’s power. That claim is
frivolous because that is precisely what the arbitrator was engaged to rule upon.

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                                      No. 11-20681
Cir. 1999).9 The Court further held that the employee’s request to work only 40
hours a week was a request to eliminate an essential function, and an “employer
need not accommodate a disability by foregoing an essential function of the job.”
Id. Because “all doubts implicated by an award must be resolved in favor of the
arbitration,” and there is precedent to support the ruling, Taylor is not entitled
to relief on this issue.10 Rain CIII Carbon, 674 F.3d at 474.
               E.    Attorney’s Fees
       Finally, Taylor challenges the district court’s imposition of sanctions in the
amount of $1,000 to reimburse the University for costs and attorney’s fees
incurred in preparing its response to Taylor’s motion to stay any and all orders,
determinations, and judgments rendered by the district court. On July 9, 2011,
the district court entered an order granting the motion to confirm the arbitration
award and final judgment. On July 27, Taylor filed a motion for reconsideration
of the motion to vacate the award. On September 1, the district court denied
Taylor’s motion for reconsideration. On September 15, Taylor filed a notice of
appeal from the motion for reconsideration. On September 23, Taylor filed an
amended notice of appeal from the judgments denying the motion to vacate the
order to compel arbitration and the motion to vacate the award and reinstate the
claim.      On October 3, Taylor filed a motion to stay any and all orders,
determinations, and judgments rendered by the court beyond February 13, 2009.
The University filed a response to the latest motion on October 20, 2011. On
November 11, 2011, the district court entered an order denying the motion to



      9
         The instant case involves the meaning of “essential function” in the context of the
ADA. However, this is of no moment because the regulations implementing the FMLA
incorporate by reference the ADA’s definition of the term “essential function.” 29 C.F.R.
§ 825.123(a).
       10
           We need not determine whether we would affirm this ruling by a district court
outside the context of arbitration. In other words, we are not deciding whether we would
affirm the legal ruling if we were reviewing it de novo.

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                                   No. 11-20681
stay and further imposed sanctions in the amount of $1,000 to reimburse the
University for costs and attorney’s fees incurred in preparing its response to the
motion to stay. Taylor did not file a notice of appeal from the sanctions order.
      Pursuant to Rule 3(c)(1)(B) of the Federal Rules of Appellate Procedure,
the “notice of appeal must . . . designate the judgment, order, or part thereof
being appealed . . . .” Rule 3 is jurisdictional. Gonzalez v. Thaler, __ U.S. __, 132
S.Ct. 641, 651–52 (2012). Because Taylor filed notices of appeal referencing
specified rulings but failed to file a notice of appeal referencing the sanctions
order, this Court has no jurisdiction to review the order not referenced. Warfield
v. Fidelity and Deposit Co., 904 F.2d 322, 325 (5th Cir. 1990). Indeed, Taylor
could not have intended to appeal the sanctions ruling in her notices of appeal
because the sanctions order had not yet been made at the time the notices of
appeal were filed. Id. at 326. We therefore have no jurisdiction to address the
imposition of the sanction. See Pope v. MCI Telecomm. Corp., 937 F.2d 258, 266-
67 (5th Cir. 1991) (holding that there was no jurisdiction to evaluate the award
of attorney’s fees because the notice of appeal, which was filed before the award
of attorney’s fees, did not mention the fees).
      III.   CONCLUSION
      Because we have no jurisdiction to review the district court’s imposition
of sanctions, the appeal from the district court’s imposition of sanctions is
DISMISSED. Because Taylor has failed to carry her burden of demonstrating
one of the limited bases for vacating an arbitration award, we find no reversible
error in the district court’s judgment.          The district court’s judgment is
AFFIRMED. All pending motions are DENIED.




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