                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0010n.06

                                        Case No. 14-1753

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
SHANNON MARTIS,                                       )                           Jan 07, 2015
                                                                              DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellant,                           )
                                                      )     ON APPEAL FROM THE UNITED
v.                                                    )     STATES DISTRICT COURT FOR
                                                      )     THE WESTERN DISTRICT OF
DISH NETWORK SERVICE, L.L.C.,                         )     MICHIGAN
                                                      )
       Defendant-Appellee.                            )


BEFORE: SILER, GRIFFIN, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Shannon Martis appeals the dismissal of his

state-law claims of disability discrimination and retaliation and the confirmation of an arbitration

award in favor of his former employer, Defendant Dish Network Service, L.L.C. (DISH). The

principal issue is whether federal law or Michigan law governs the district court’s review of the

arbitration award. We agree with the district court that federal law governs and AFFIRM.


                                                 I.


       DISH hired Martis in December 2006 as a Quality Assurance Specialist, which entailed

driving to and evaluating job installations by DISH employees and employees of DISH

contractors. In late 2009, DISH replaced the work van Martis had driven for several years with a

smaller pick-up truck. PID 499. In early May 2010, Martis emailed his supervisor, Jimmy
Case No. 14-1753
Martis v. Dish Network Service, L.L.C.

Turbeville,1 asking to drive the larger van because he was experiencing knee, hip, and lower

back pain resulting from the awkward position he had to assume (given his height and size, 6’5”

and 250 lbs.) to drive the smaller pick-up truck. On May 12 and June 18, 2010, the company

doctor recommended that Martis drive the larger van, diagnosing Martis with knee strain and hip

tension strain.


           In the meantime, on March 2, 2010, Martis had written a letter of recommendation for

Robert Knott, an employee of DISH subcontractor Galaxy 1, stating that Knott would be a

valuable addition to any company’s work force. PID 438, 458. In early June 2010, Robert Byrd,

the CEO of Galaxy 1, complained to DISH General Manager Glen Capra that Martis had written

a letter of recommendation for Knott and had told Galaxy 1 employees that Vision Quest was a

better place to work than Galaxy 1, and that Byrd believed Martis was working as a spy for

Vision Quest. Byrd gave a copy of Martis’s letter to Capra, which Capra turned over to DISH

Human Resources Representative LeTonya Merriweather.


           When Merriweather and Martis’s supervisor Turbeville met with Martis on June 8, 2010

regarding Byrd’s complaints, Martis admitted telling the Galaxy 1 technician that Vision Quest

was a better subcontractor to work for and writing the letter of recommendation, and

acknowledged that he should have sought Merriweather or Turbeville’s approval before writing

the letter.


           DISH suspended Martis on June 8, 2010, pending a more thorough investigation. PID

441. Merriweather then spoke with Galaxy 1 and Vision Quest representatives and summarized

her findings for Turbeville and several superiors (Jared Coleman and Senior HR Resource


1
    Martis copied General Manager Capra and Supervisor Gary Hull in his email to Turbeville.

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Martis v. Dish Network Service, L.L.C.

Managers Jeannette Alonzo and Jennifer Falbo). PID 442. These five DISH representatives held

a telephone conference on June 28, 2010, and concluded that Martis should be discharged for

violating DISH’s reference and conflict of interest policies. Turbeville authored a letter stating

that Martis was being discharged for violating company policy: “[Martis] wrote a reference

letter for Galaxy 1 employee and represented Dish Network in the letter.”                       Attached to

Turbeville’s letter were DISH’s policies on “Reference and Employment Verification” and

“Conflict of Interest.”


                                                      II.


        Martis filed a complaint and demand for arbitration with the American Arbitration

Association in June 2012, asserting state claims of height, weight, and disability discrimination,

discrimination in violation of Michigan’s Worker’s Disability Compensation Act, and retaliation.

PID 142-50.2       Thomas Barnes, a labor-and-employment-law specialist, was appointed as

arbitrator. PID 152-54.


        Following discovery, DISH moved for summary judgment. PID 92-118. The Arbitrator

dismissed all of Martis’s claims except the discrimination and retaliation claims brought under

Michigan’s Persons With Disabilities Civil Rights Act, Mich. Comp. Laws § 37.1101 et seq.

PID 157-73. After a four-day hearing and post-hearing briefing by the parties, the Arbitrator

dismissed the remaining claims, concluding as to the disability discrimination claim that Martis

presented insufficient evidence that his disability was one of the reasons that made a difference

in DISH’s determination to discharge him, and as to the retaliation claim that Martis failed to


2
 Martis’s complaint filed with the American Arbitration Association named as respondents Echostar
[Communications Corporation], L.L.C., and DISH, which is an affiliate of Echostar. The Arbitration Agreement is
on Echostar letterhead. See PID 420.


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Martis v. Dish Network Service, L.L.C.

establish a causal connection between his discharge and any protected activity. PID 186, 190;

175-191.


       Martis filed this action to vacate the arbitration award in Ingham County Circuit Court.

PID 1-5. DISH removed the action to federal court on grounds of diversity, counterclaimed, and

later moved for summary judgment, confirmation of the arbitration award, and dismissal of

Martis’s complaint to vacate the award. PID 70-74. Martis filed a cross-motion to vacate and

modify the arbitration award, PID 251-76, to which DISH responded that Martis could not

establish that the Arbitrator committed a clear error of law or otherwise exceeded his powers, as

is required for a court to vacate or modify an arbitration award. PID 388-97.


                                               III.


       The Arbitration Agreement Martis signed as part of his employment with DISH states:


       [A]ny claim, controversy and/or dispute between [Martis and DISH], arising out
       of and/or in any way related to [Martis’s] . . . employment and/or termination of
       employment, whenever and wherever brought, shall be resolved by arbitration.
       [Martis] agrees that this Agreement is governed by the Federal Arbitration Act,
       9 U.S.C. §§ 1 et seq., and is fully enforceable.
       ....
       The arbitration shall be governed by and construed in accordance with the
       substantive law of the State . . . in which the Employee last performed services
       for [DISH, i.e., Michigan] . . . . The arbitrator’s decision shall be final and
       binding, and judgment upon the arbitrator’s decision and/or award may be entered
       in any court of competent jurisdiction . . . .


PID 27 (emphasis added). Thus the Agreement provides that it is governed by both the Federal

Arbitration Act (FAA) and Michigan substantive law. As this court has observed:

               Although the FAA generally preempts inconsistent state laws and governs
       all aspects of arbitrations concerning “transaction[s] involving commerce,” parties
       may agree to abide by state rules of arbitration, and “enforcing those rules
       according to the terms of the agreement is fully consistent with the goals of the

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Martis v. Dish Network Service, L.L.C.

       FAA.” The central inquiry in this choice-of-law determination is whether the
       parties unambiguously intended to displace the FAA with state rules of
       arbitration.

Savers Prop. & Cas. Ins. Co. v. Nat’l Union Fire Ins. Co., 748 F.3d 708, 715–16 (6th Cir. 2014)

(quoting Muskegon Cent. Dispatch 911 v. Tiburon, Inc., 462 F. App’x 517, 522–23 (6th Cir.

2012)). In the instant case, the Arbitration Agreement does not unambiguously express an intent

to displace the federal standard with Michigan law because it states that it is governed by both

the FAA and Michigan’s substantive law. Ambiguities are resolved in favor of the federal

standard, thus federal law applied to the district court’s review of the arbitration award, although

Michigan law governed the Arbitrator’s substantive decision. See, e.g., Uhl v. Komatsu Forklift

Co., Ltd., 512 F.3d 294, 303 (6th Cir. 2008) (concluding that, where the parties’ choice of law

provision referenced both the FAA and Michigan law, the FAA governed); Savers Prop. & Cas.

Ins. Co., 748 F.3d at 716 (concluding that where the agreement provided that it was subject to

the laws of the State of Michigan and did not refer to the FAA or otherwise suggest that the

parties sought to invoke its provisions, the parties intended to displace federal law with Michigan

law); Tiburon, 462 F. App’x at 523 (concluding that the arbitration agreement evidenced the

parties’ unambiguous intent to apply Michigan law in any subsequent appeal of the arbitration

award where the agreement “explicitly refers to the Michigan Arbitration Act in stating that

disputes ‘shall be submitted to final and binding arbitration [. . .] pursuant to the provisions of

MCL 600.5001–600.5035.’”)

       Thus, the district court properly determined that the FAA governed its review of the

arbitration award.




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Martis v. Dish Network Service, L.L.C.

         Applying federal law, the district court concluded that because the Arbitrator’s analysis

and decision were legally plausible,3 the Arbitrator neither exceeded his authority nor manifestly

disregarded the law. PID 511. Martis concedes that under federal law interpreting the FAA, the

district court properly affirmed the arbitration award. See Appellant’s Br. at 6 (“The court below

in confirming the award deferred to the Arbitrator as he was required to do under the federal

standard applicable in cases under the Federal Arbitration Act.”). Thus, we need go no further.

                                                        IV.

         We AFFIRM the district court’s grant of summary judgment to DISH, its confirmation of

the arbitration award in DISH’s favor, and its denial of Martis’s motion to vacate or modify the

award.




3
  The district court agreed with Martis that the Arbitrator found that Martis established a prima facie case of
disability discrimination and retaliation but disagreed that the Arbitrator found that Martis had established pretext.
PID 509. Contrary to Martis’s argument, even if the Arbitrator found pretext, that would not require a finding of
unlawful discrimination or retaliation, but rather, a permissive inference of discrimination and retaliation would
arise. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146 (2000) (“The factfinder’s rejection of
the employer’s legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff.”);
Smith v. Mosaica Ed., Inc., No. 269576, 2007 WL 677755, at *5 (Mich. Ct. App., Mar. 6, 2007) (applying Reeves).
Martis still bore the burden of establishing that unlawful discrimination or retaliation actually motivated DISH to
discharge him. See Hazle v. Ford Motor Co., 628 N.W.2d 515, 522 n.8 (Mich. 2001) (“The ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.”) The district court did not err in determining that the Arbitrator properly followed Michigan law
by requiring Martis to establish the latter. PID 510.

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