     Case: 10-40280 Document: 00511484205 Page: 1 Date Filed: 05/20/2011




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

                                                 FILED
                                                                            May 20, 2011

                                     No. 10-40280                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



SANDRA PARKER,

                                                   Plaintiff - Appellant
v.

J C PENNEY CORPORATION, INCORPORATED,

                                                   Defendant - Appellee




                    Appeal from the United States District Court
                          of the Eastern District of Texas
                               USDC No. 4:07-CV-175


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       After being terminated, Sandra Parker (Parker) filed suit against her
employer J C Penney Corporation, Inc. (J C Penney), alleging retaliation
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–3(a).
Later, Parker filed a motion to stay her case pending arbitration, which the
district court granted. The arbitrator found in J C Penney’s favor, and the
district court confirmed the award. We AFFIRM.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                               I.
       In June 2000, J C Penney demoted Parker from her position as an
information and technology supervisor and put her under the supervision of
another J C Penney employee. Parker subsequently filed suit in Texas state
court, alleging sex and race discrimination.               The state court granted J C
Penney’s motion for summary judgment, which was upheld on appeal in
February 2005.        Three months later, Parker’s job performance was rated
unsatisfactory. She was eventually terminated on October 31, 2005.
       Through counsel, Parker filed suit against J C Penney in federal district
court, claiming retaliation. The district court later granted Parker’s motion to
stay her case pending arbitration. Subsequently, Parker’s counsel filed a motion
to withdraw his representation. The district court granted the motion, and
Parker proceeded pro se during the arbitration.1 Applying the well-established
McDonnell Douglas–Burdine framework,2 the arbitrator determined that Parker
established a prima facie case of retaliation. However, the arbitrator concluded
Parker failed to rebut J C Penney’s nondiscriminatory reasons for its decision to
terminate her. The arbitrator ultimately held that Parker take nothing. Parker
then filed a motion, asking the district court to reject the arbitrator’s award.
The district court denied Parker’s motion and confirmed the arbitrator’s award.


       1
          As the district court affirmed the magistrate judge’s recommendation, for purposes
of clarity, our references to the district court’s judgment are also references to the magistrate
judge’s report and recommendation.
       2
         Title VII unlawful retaliation cases follow the framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Texas Department of Community Affairs
v. Burdine, 450 U.S. 248 (1981). Thus, once the plaintiff establishes a prima facie case of
retaliation, the burden of production shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the employment action. Montemayor v. City of San Antonio, 276
F.3d 687, 692 (5th Cir. 2001). If the defendant introduces evidence supporting a valid,
nondiscriminatory reason for the employment decision, the presumption of retaliation raised
by the plaintiff’s prima facie case disappears. Id. The burden then shifts back to the plaintiff
to prove that the employer’s proffered reason is actually a pretext for retaliation. Id.


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Parker appealed.
                                        II.
                                        A.
      Judicial review of an arbitration award is significantly limited by the
Federal Arbitration Act (FAA), 9 U.S.C. §§ 1–16.           See Positive Software
Solutions, Inc. v. New Century Mortg. Corp., 476 F.3d 278, 280 (5th Cir. 2007).
Although we review the district court’s confirmation of an arbitration award de
novo, our review is “exceedingly deferential.” Am. Laser Vision, P.A. v. Laser
Vision Inst., L.L.C., 487 F.3d 255, 258 (5th Cir. 2007), overruled on other
grounds, 552 U.S. 576 (2008); 9 U.S.C. § 10. Thus, we will only vacate an
arbitration award for limited reasons, namely: (1) “where the award was
procured by corruption, fraud, or undue means;” (2) “where there was evident
partiality or corruption in the arbitrators;” (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). Moreover, the party moving to vacate
an arbitration award under the FAA has the burden of proof. See Trans Chem.
Ltd. v. 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).
      To this end, Federal Rule of Appellate Procedure 28(a)(9) requires that a
party’s brief contain an argument with “contentions and the reason for them,
with citations to the authorities and parts of the record on which the appellant
relies” and “for each issue, a concise statement of the applicable standard of
review.” See also Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). On appeal,
many of Parker’s arguments are indiscernible and unsupported by case law or

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specific allegations, likely because Parker is not represented by counsel.
However, we have explained that, when applying Rule 28’s principles, we
liberally construe a pro se litigant’s brief and generally apply a less stringent
standard to parties’ proceeding pro se than to parties represented by counsel.
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Against this framework, as
did the district court, we liberally construe Parker’s brief to determine whether
she has made any allegations that constitute any of the limited reasons for
vacatur listed in § 10 of the FAA.
                                      B.
      Parker argues that the arbitration award should be vacated for three
reasons. First, she argues that the award should be vacated because she was not
aware that the arbitration was binding. This argument seems to implicate a
violation of § 10(1) or (4). Assuming that Parker’s alleged lack of awareness
could be attributable to misdeeds by J C Penney or the arbitrator, Parker has
not provided sufficient evidence to support vacatur on these grounds. We have
held that, when a party agrees to submit to arbitration governed by the
procedures of the American Arbitration Association (AAA), this implies that the
arbitration award will be deemed binding and subject to entry of judgment,
unless the parties expressly agree otherwise.      See McKee v. Home Buyers
Warranty Corp. II, 45 F.3d 981, 983 (5th Cir. 1995). Our review of the record
indicates that this arbitration was governed by AAA procedures. And Parker
admits that neither the arbitrator or J C Penney acknowledged her allegation
that the district court ordered that the arbitration be non-binding. Moreover,
Parker has not provided nor can we find an order from the district court stating
that the arbitration would be non-binding. Thus, we conclude that Parker has
not established that her alleged lack of awareness, regarding the binding nature
of the arbitration, is grounds to vacate the arbitration award.



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      Parker also argues that she was prejudiced because she was not
represented by counsel during the arbitration proceedings. This argument is
unpersuasive. To begin, the Sixth Amendment right to counsel does not apply
to civil proceedings, such as the arbitration of Parker’s Title VII retaliation
claim. See generally Williams v. Wynne, 533 F.3d 360, 369 (5th Cir. 2008)
(acknowledging that “the Sixth Amendment right to effective assistance of
counsel is a criminal concept with no relevance to administrative or civil
proceedings”). Moreover, as previously explained, courts are limited by the
statutory grounds for vacatur articulated in § 10 of the FAA. Parker cites no
authority and makes no arguments to support her allegation that her lack of
counsel during the arbitration is grounds for vacatur. Therefore, this argument
does not establish that the arbitrator’s award should be vacated.
      Finally, Parker claims that the arbitrator did not require J C Penney to
produce certain documents that would allow her to establish her case. Liberally
construing Parker’s brief, it appears that she alleges that the award should be
vacated under § 10(a)(3) because the arbitrator “refus[ed] to hear evidence
pertinent and material to the controversy.” “A]rbitrators have broad discretion
to make evidentiary decisions.” Int’l Chem. Workers Union, Local 683C v.
Columbian Chems. Co., 331 F.3d 491, 497 (5th Cir. 2003).          And this court
typically does not review the adequacy of an arbitrator’s evidentiary rulings.
Amalgamated Meat Cutters & Butcher Workmen v. Neuhoff Bros., 481 F.2d 817,
820 (5th Cir. 1973) (explaining that “the arbitrator has great flexibility and the
courts should not review the legal adequacy of his evidentiary rulings”). Parker
has not explained why we should overlook this precedent and disturb the
arbitrator’s determination. Furthermore, the arbitrator found in J C Penney’s
favor because he concluded that Parker failed to rebut J C Penney’s
nondiscriminatory reasons for its decision to terminate her. Parker does not
articulate why the particular documents, allegedly in J C Penney’s possession,

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were material to the arbitrator’s decision. Accordingly, Parker has not met her
burden of establishing that the arbitrator’s evidentiary decision rises to the level
of misconduct described in § 10(a)(3) or any other ground for vacatur listed in
§ 10.
        In sum, after carefully reviewing the record, we conclude that Parker has
not made any allegations that constitute any of the limited reasons for vacating
an arbitration award.
                                        III.
        For the foregoing reasons, we AFFIRM the district court’s judgment.




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