                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                Submitted June 22, 2018 *
                                 Decided June 25, 2018

                                         Before

                       FRANK H. EASTERBROOK, Circuit Judge

                       AMY C. BARRETT, Circuit Judge

                       MICHAEL B. BRENNAN, Circuit Judge

No. 17-3055

DAVID HURN,                                     Appeal from the United States District
     Plaintiff-Appellant,                       Court for the Central District of Illinois.

      v.                                        No. 17-1200

MACY’S, INCORPORATED,                           Michael M. Mihm,
    Defendant-Appellee.                         Judge.



                                       ORDER

       David Hurn brought several employment-related claims in arbitration against
his former employer, Macy’s, Inc. The arbitrator entered an award for Macy’s. Hurn
challenged that award in the district court, and the district judge confirmed it. Because
nothing in the record supports a valid ground for vacating the award, we affirm.




      *
        We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17-3055                                                                         Page 2

       Hurn first complains that the arbitrator disallowed one of his questions during
the hearing. He represented himself at arbitration, and Macy’s was represented by Julie
Avins, Macy’s Vice President of Associate Relations. The arbitration agreement
stipulates that if Hurn was not represented by a lawyer, then Macy’s was not to be
represented by one either. Hurn maintains (though there is no transcript, recording, or
affidavit to confirm his allegations) that at the hearing he asked Avins if she was a
lawyer, and the arbitrator ruled that Avins need not answer the question.

       The arbitrator’s evidentiary ruling is not a reason to vacate his decision. We will
vacate an award only on the grounds stated in the Federal Arbitration Act, 9 U.S.C. § 10.
Conway Family Tr. v. CFTC, 858 F.3d 463, 464 (7th Cir. 2017). The only ground for
vacating the award that is potentially relevant to this ruling is from section 10(a)(3).
This provision authorizes a district court to vacate an award if the arbitrator is “guilty
of … 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.” But whether
Avins is a lawyer is not “pertinent and material to the controversy” because that
question does not speak to the “ultimate issue” of Hurn’s workplace claims. Flender
Corp. v. Techna-Quip Co., 953 F.2d 273, 280–81 (7th Cir. 1992). And the arbitrator’s ruling
that Avins need not say if she was an attorney was not “misbehavior” under § 10(a)(3)
because it was the kind of procedural decision about representation that arbitrators may
permissibly make. See Hyatt Franchising, L.L.C. v. Shen Zhen New World I, LLC, 876 F.3d
900, 902 (7th Cir. 2017) (arbitrator’s decision not to disqualify party’s representation
because of potential conflict was not “misbehavior”). Finally, because Hurn presented
no evidence that Avins is a lawyer (and Macy’s tells us that she is not), the ruling was
not prejudicial.

        Second, Hurn argues that vacatur is warranted because, he alleges, the arbitrator
fell asleep during the hearing and needed to be awakened to hear testimony, but these
allegations also are insufficient to vacate the award. We will ignore that Hurn has
offered no evidence of what happened at the arbitration. By his own description of the
events, Hurn waited for the arbitrator to wake up before presenting evidence. That
implies that the arbitrator was awake to hear his evidence. But even if the arbitrator
missed something, Hurn does not say what that was. Thus he again has not shown that
the arbitrator’s sleeping was prejudicial, 9 U.S.C. § 10(a)(3), or that he “so imperfectly
executed” his powers, 9 U.S.C. § 10(a)(4), that vacatur is warranted.

       Last, Hurn broadly challenges the arbitrator’s ultimate award as unjustified by
the evidence, and he accuses the arbitrator of bias. But under the Act, we may not
No. 17-3055                                                                             Page 3

engage in a plenary review of the sufficiency of evidence supporting the arbitrator’s
decision. Hyatt Franchising, 876 F.3d at 902. And to show bias, Hurn points to only an
adverse ruling, but an adverse ruling alone is not “direct, definite, and demonstrable
bias” sufficient to constitute “evident partiality.” See 9 U.S.C. § 10(a)(2); Harter v. Iowa
Grain Co., 220 F.3d 544, 556–57 (7th Cir. 2000).

       We have considered Hurn’s remaining arguments, and none has merit.

                                                                                  AFFIRMED
