WHITE v. FOUR SEASONS HOTELS AND RESORTS

Filing 52

MEMORANDUM OPINION re 51 Order on 42 Plaintiff's Motion to Vacate the Arbitration Award and 44 Defendant's Motion to Confirm the Arbitration Award. Signed by Judge James E. Boasberg on 3/23/2017. (lcjeb3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LISA WHITE,
Plaintiff,
v.

Civil Action No. 13-1399 (JEB)

FOUR SEASONS HOTEL AND
RESORTS,
Defendant.

MEMORANDUM OPINION
Plaintiff Lisa White is an esthetician who believes that her former employer, Defendant
Four Seasons Hotel and Resorts, discriminated against her on the basis of her race and
pregnancy. After White filed suit and Four Seasons successfully moved to compel arbitration, an
Arbitrator selected by the parties held an eleven-day hearing and decided in favor of Defendant.
White now moves to vacate the arbitration award pursuant to the Federal Arbitration Act, 9
U.S.C. § 10(a)(3), arguing that the Arbitrator improperly allowed Four Seasons both to withhold
relevant information and to provide incomplete and inaccurate evidence. As a result, Plaintiff
contends that the hearing was rendered fundamentally unfair to her. Not surprisingly, Defendant
disagrees and asks the Court to confirm the award.
The Hotel’s position carries the day, as the Court concludes that the Arbitrator’s
discovery-related decisions did not amount to misconduct such that White was denied a
fundamentally fair hearing. Because she cannot meet the very demanding standard for vacatur,
the Court will deny her Motion to Vacate the Arbitration Award and grant Defendant’s Motion
to Confirm the Award.

1

I.

Background
Lisa White is a black woman who worked as an esthetician in the spa at the Four Seasons

Hotel here in Washington from September 2007 to August 2012. See ECF No. 42-1, Exh. K
(Award) at 2. Initially hired for part-time work, she became a full-time employee in July 2008.
Id. In August 2012, she filed a charge of discrimination against Four Seasons with the Equal
Employment Opportunity Commission and the D.C. Office of Human Rights. Id. at 3; Pl. Mot.
at 4. White alleged that the Hotel had discriminated against her on the basis of race and
pregnancy by depriving her of client bookings and opportunities for promotion, subjecting her to
a hostile work environment, and retaliating against her for voicing her concerns. See Award at 1;
Pl. Mot. at 3. She accordingly asserted violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., Section 1977 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the
D.C. Human Rights Act of 1977, D.C. Code § 2-14. See Award at 1.
After the EEOC issued White a Notice of Right to Sue, she brought this action in the
Superior Court for the District of Columbia in August 2013. See ECF No. 1-1. Four Seasons
then removed the case to federal court and moved to compel arbitration. See ECF Nos. 1, 5.
This Court granted the motion in November 2013 and stayed the case pending arbitration, which
lasted for almost three years. White v. Four Seasons Hotels & Resorts, 999 F. Supp. 2d 250
(D.D.C. 2013).
As provided for in White’s employment contract, Four Seasons began the process by
filing a request for arbitration with the American Arbitration Association. See Def. Mot. at 2-3.
The parties received names of possible arbitrators and selected Patricia Horan Latham, an
individual with more than 30 years of experience as an arbitrator/mediator and more than 40
years of experience as an attorney. Id.; ECF No. 43-1 (Résumé of Patricia Horan Latham) at 1.

2

After selecting the Arbitrator, the parties engaged in written discovery, document
production, and the taking of depositions. This was no simple task. In fact, they produced
10,912 pages of documents, Four Seasons responded to 67 Interrogatories and took two
depositions, and White took eleven depositions. See Def. Mot. at 3. Among those individuals
deposed were: Brian Simon, White’s manager at the Spa; Julia Boeminghaus, who succeeded
White as Spa manager; Laura Hatala, a white esthetician at the Spa; Christian Clerc, President of
Hotel Operations for Europe, the Middle East, and Africa; Carolina Baldi, Spa Supervisor;
Stacey Coppel, Human Resources Director; Craig Statham, Regional Director of Information
Technology; and Ella Stimpson, the Spa’s expert witness on spa operations. See ECF No. 42-1,
Exhs. A, B, D, F, L, P, W, KK.
The arbitration hearing took place over the course of eleven non-consecutive days,
beginning on February 29 and ending on August 18, 2016. See ECF No. 42-1, Exh. AA (Tr.
Arbitration Hearing, Day 1, Feb. 29, 2016); id., Exh. II (Tr. Arbitration Hearing, Aug. 18, 2016).
“Eleven witnesses testified during the hearing, resulting in a record consisting of 3,035 pages of
testimony and 1,166 pages of exhibits.” Def. Mot. at 1. The parties then submitted post-hearing
briefs. See ECF No. 42-1, Exhs. C, GG. On October 19, 2016, the Arbitrator issued an award in
favor of Defendant. See Award. After discussing some of White’s claims — including that she
was unfairly denied appointments and promotion opportunities, harassed by her co-workers and
supervisors, and subjected to surveillance because of her complaints — and finding them to be
without sufficient support, the Arbitrator concluded that Four Seasons had not engaged in
discrimination and denied all of her claims. Id. at 3-9.
Plaintiff then timely filed the instant Motion, seeking to vacate the award on the ground
that the Arbitrator “refus[ed] to hear evidence pertinent and material to the controversy.” 9

3

U.S.C. § 10(a)(3). This purported misconduct relates only to her disparate-treatment claim; she
asserts no arguments as to the remainder of her unsuccessful counts. Defendant, in turn, filed an
Opposition and Cross-Motion to Confirm the Award. Those Motions are now ripe.
II.

Legal Standard
In enacting the Federal Arbitration Act, 9 U.S.C. § 1 et seq., Congress “replace[d]

judicial indisposition to arbitration with a ‘national policy favoring [it] and plac[ing] arbitration
agreements on equal footing with all other contracts.” Hall St. Assocs., L.L.C. v. Mattel, Inc.,
552 U.S. 576, 578 (2008). The FAA “establish[es] an alternative to the complications of
litigation,” Revere Copper & Brass Inc. v. Overseas Private Inv. Corp., 628 F.2d 81, 83 (D.C.
Cir. 1980), and provides for “expedited judicial review to confirm, vacate, or modify arbitration
awards.” Hall St. Assocs., 552 U.S. at 578.
As the D.C. Circuit has repeatedly emphasized, “[J]udicial review of arbitral awards is
extremely limited.” Kanuth v. Prescott, Ball & Turben, Inc., 949 F.2d 1175, 1178 (D.C. Cir.
1991). “Courts thus do not sit to hear claims of factual or legal error by an arbitrator as an
appellate court does in reviewing decisions of lower courts.” Id. (quoting United Paperworkers
Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987)); see also Kurke v. Oscar Gruss & Son, Inc.,
454 F.3d 350, 354 (D.C. Cir. 2006). Consequently, a party seeking to challenge an arbitrator’s
award under any of the FAA’s four limited grounds, see 9 U.S.C. § 10(a), “must clear a high
hurdle.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 671 (2010). Even a
serious legal or factual error on the part of the arbitrator will not, standing alone, justify vacatur
of an award. Id.
Here, Plaintiff invokes 9 U.S.C. § 10(a)(3), which authorizes vacatur of an award “where
the arbitrator[ was] guilty of misconduct . . . in refusing to hear evidence pertinent and material

4

to the controversy.” “The scope of review under this provision is narrow.” Howard Univ. v.
Metro. Campus Police Officer’s Union, 512 F.3d 716, 721 (D.C. Cir. 2008). This is because, “in
making evidentiary determinations,” arbitrators “need not follow all the niceties observed by the
federal courts.” Id. (quoting Lessin v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 481 F.3d
813, 816 (D.C. Cir. 2007)). In submitting to arbitration, litigants lose, for example, the right to
the extensive discovery afforded by the courts. See Shearson/Am. Exp., Inc. v. McMahon, 482
U.S. 220, 259 n.18 (1987). An arbitrator may determine whether or not certain evidence would
prove relevant to her determination. See Lessin, 481 F.3d at 817. She thus has substantial
leeway to admit any evidence that she finds useful — even hearsay evidence. See Barker v.
Gov’t Emps. Ins. Co., 339 F. Supp. 1064, 1067 (D.D.C. 1972). An arbitrator may likewise opt to
expedite a proceeding by excluding evidence and testimony that she finds irrelevant or
duplicative. See Lessin, 481 F.3d at 817; Fairchild & Co. v. Richmond, Fredericksburg &
Potomac Ry. Co., 516 F. Supp. 1305, 1314-15 (D.D.C. 1981). In certain circumstances, an
arbitrator may even have the freedom to limit or bypass oral argument altogether. See, e.g., In re
Arbitration between InterCarbon Bermuda, Lt. & Caltex Trading & Transp. Corp., 146 F.R.D.
64, 72-73 (S.D.N.Y. 1993); Cearfoss Const. Corp. v. Sabre Const. Corp., No. 89-1223, 1989 WL
516375, at *3-4 (D.D.C. Aug. 14, 1989).
It is thus generally not enough for the party seeking vacatur to complain that the
arbitrator made procedural missteps; “[e]very failure of an arbitrator to receive relevant evidence
does not constitute misconduct requiring vacatur of an arbitrator’s award.” Lessin, 481 F.3d at
818 (quoting Hoteles Condado Beach, La Concha & Convention Ctr. v. Union De Tronquistas
Local 901, 763 F.2d 34, 40 (1st Cir. 1985)). Ultimately, all that is required is that the arbitrator
“grant the parties a fundamentally fair hearing.” Id. at 816 (quoting Bell Aerospace Co. Div. of

5

Textron v. Local 516, 500 F.2d 921, 923 (2d Cir. 1974)). “[A] fundamentally fair hearing
requires only notice, opportunity to be heard and to present relevant and material evidence and
argument before the decision makers, and that the decision makers are not infected with bias.”
Howard Univ. v. Metro Campus Police Officer’s Union, 519 F. Supp. 2d 27, 39 (D.D.C. 2007),
aff’d, 512 F.3d 716 (D.C. Cir. 2008) (quoting Bowles Fin. Grp., Inc. v. Stifel, Nicolaus & Co.,
Inc., 22 F.3d 1010, 1013 (10th Cir. 1994)).
III.

Analysis
Before proceeding to the analysis of White’s 9 U.S.C. § 10(a)(3) argument, the Court

notes that she also obliquely invokes a non-statutory, common-law ground for vacatur: that the
Arbitrator manifestly disregarded the law in reaching her final decision. See Pl. Mot. at 20 n.16.
She does so only in a footnote, however, and never affirmatively argues that “manifest
disregard” is still a proper ground for vacatur in light of recent Supreme Court decisions. Id.; see
also ARMA, S.R.O. v. BAE Sys. Overseas, Inc., 961 F. Supp. 2d 245, 268 (D.D.C. 2013)
(discussing Supreme Court’s equivocation in Hall Street Associates, 552 U.S. at 585, on whether
manifest disregard of law can be basis for vacatur of arbitral award). The Court thus considers
the issue forfeited. Huntington v. Dep’t of Commerce, 2017 WL 211301, at *4 (D.D.C. Jan. 18,
2017); Gold Reserve Inc. v. Bolivarian Republic of Venezuela, 146 F. Supp. 3d 112, 126-27
(D.D.C. 2015) (holding “obliquely” raising issue in footnote insufficient to surmount waiver
threshold); see Hutchins v. District of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (en
banc) (explaining courts “need not consider cursory arguments made only in a footnote”);
Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (“[P]erfunctory and underdeveloped
arguments, and arguments that are unsupported by pertinent authority, are deemed waived.”).

6

Turning now to White’s contention regarding § 10(a)(3), the Court must decide whether,
given the extremely narrow standard of review described above, the Arbitrator’s actions deprived
her of a fundamentally fair hearing. The heart of Plaintiff’s objection to the Arbitrator’s conduct
centers around rulings relating to records from a database program called SpaSoft, which the Spa
used to manage appointment scheduling. White believes those records are crucial to her
disparate-treatment arguments. See Pl. Mot. at 4-8.
Specifically, White contends that when it came to scheduling her for appointments with
clients, Spa management, particularly Brian Simon, routinely violated the Spa’s policy that fulltime estheticians like White generally were to be given three hours of bookings during a
particular shift before a part-time colleague assigned to the same shift would be given her first
hour of booking. See Pl. Mot. at 2 (citing ECF No. 42-1, Exh. B at 36:10-22). She alleges that
she was improperly deprived of up to three bookings per month, to the benefit of her white parttime colleagues, and that her white full-time colleagues experienced no such problems. Id. at 13. As further evidence that Simon targeted her because of her race, White asserts that he twice
deprived her of the opportunity to apply for promotions at the Spa, once by failing to pass along
a promotion application to Human Resources, and later by discussing with White a promotion
for a position that did not exist. Id. at 3 (citing ECF No. 42-1, Exh. F at 58:18-59:7, 103:2-22).
Four Seasons, in response, offers several non-discriminatory reasons the 3:1 guideline was not
always adhered to, including guest cancellations, last-minute appointment additions, and
specific-provider requests. See Def. Mot. at 6-7.
To substantiate her disparate-treatment claims, White sought various SpaSoft records. As
detailed below, Four Seasons delayed in producing the requested records, and those it ultimately
produced were at times incomplete, inaccurate, or not in the format White desired. Plaintiff now

7

argues that the Arbitrator knowingly failed to respond to Defendant’s “bad-faith spoliation and
withholding of key evidence” and, in so doing, “‘refus[ed] to hear evidence pertinent and
material to the controversy’” such that she “was deprived of a fundamentally fair hearing.” Pl.
Reply at 1 (quoting 9 U.S.C. § 10(a)(3)). The Court first reviews the nature of the discovery
dispute and then assesses whether White in fact received less than a fair hearing.
A. Discovery Dispute
In White’s first request for document production during the arbitration’s discovery phase,
she rather broadly asked for “weekly schedules . . . for every employee, past and present, parttime or full-time,” at the Spa “from August 2007 through present.” ECF No. 42-1, Exh. N at 8.
Defendant proposed providing PDF screen shots of the Visual Book — the SpaSoft calendar that
showed all appointments — for each of the appointments scheduled during White’s tenure at the
Spa. See ECF No. 42-1, Exh. R (Letter from Vincent McKnight to Patricia Horan-Latham, Nov.
20, 2015) at 2. In a letter to the Arbitrator, White objected to the use of screen shots, arguing
that they were not the format in which the data was kept in the regular course of business and
were “not searchable,” could not “be manipulated,” and were not able “to be sorted or
compared.” Id. Explaining that her claims “rest[ed] in part on whether or not Four Seasons
engaged in discriminatory booking practices by giving preference to white estheticians over Ms.
White, as well as crediting white employees with sales attributable to Ms. White,” Plaintiff
requested the following data:
[I]n digital format, for the period of her tenure: all esthetician
appointments scheduled; the date and time the appointments were
scheduled; the name of the person who scheduled the appointment;
whether Lisa White was available when appointments were
scheduled; all appointment cancellations or modifications, as well
as the time and date of the cancellation or modification; a record of
whether a client requested a specific esthetician; for each
appointment scheduled, a record of the esthetician’s seniority;
8

profits associated with each booking; comparative data showing
income produced between estheticians; payment to esthetician
associated with each booking; any data showing the implementation
of preferences for full-time estheticians over time, and; any data
showing the frequency of supervisor review and modification of the
schedule.
Id. (footnote omitted).
Four Seasons protested that “the SpaSoft data” had “no probative value whatsoever.”
ECF No. 43-5 (Letter from Paul Wagner to Patricia Horna-Latham, Jan. 19, 2016) at 2. It
explained: “[M]ultiple factors continually affected the bookings,” “numerous people in different
departments were involved in making the appointments,” and “the 3-1 ratio . . . was merely a
booking guideline, not a guarantee of compensation or a promise that the total number of
appointments would ultimately fall within that ratio.” Id. Consequently, the Hotel reasoned, the
data could not prove that White was denied bookings “due to her race or for any other reason,
because the variables that determined how bookings were made or changed on any given day
cannot be recreated . . . with any certainty,” and, in any case, “White’s earnings were
approximately the same for each full year that she worked at the spa,” if one accounted for
medical leave. Id. Defendant further argued that the information requested was burdensome to
produce digitally and explained that it had “already created PDF files with documentary records
of the schedules on days that Lisa White worked.” Id. at 1.
Reaching a compromise solution, the Arbitrator ordered the Hotel to produce the data “in
digitally indexed form” for four sample months that she — not the parties — had randomly
selected. See ECF No. 42-1, Exh. T (Arbitrator’s Order, Jan. 26, 2016) at 1. She also stated that
if additional production was needed during the course of the hearing, she would order it and
schedule additional hearing days. Id.

9

In February 2016, Defendant produced Excel-formatted Visual Book records for the four
sample months. See Pl. Mot. at 6. Those Excel records and the previously produced PDF screen
shots of SpaSoft records during White’s employment at the Spa, however, were not complete.
Among other omissions and inconsistencies, they did not include the appointments of Joanne
Fleming, a white, part-time esthetician whom White had indicated she was likely to invoke as a
comparator. See Pl. Mot. at 6-7; ECF No. 42-1, Exh. Q (Declaration of Vincent McKnight, Feb.
23, 2016), ¶¶ 30-33. To compensate for the missing data, Four Seasons produced appointment
logs for January 2008 to May 2010 — the period during which Fleming worked part time and
White worked full time — that contained all estheticians’ appointment records. See ECF No.
43-9 (Letter from Paul Wagner to Patricia Horan-Latham, Feb. 11, 2016) at 1.
White subsequently moved for the Arbitrator to draw an adverse inference against Four
Seasons. See ECF No. 42-1, Exh. O. She recounted her allegations of discrimination, id. at 3-5,
and argued that Defendant had a duty to preserve pertinent documents since December 2009 but
had nonetheless “lost or destroyed relevant evidence” — i.e., the SpaSoft records. Id. at 11-14.
She explained that comparator evidence is often considered important in discrimination cases
and contended that the deficiencies in the data produced rendered her unable to determine the
number of times Fleming had received a scheduling preference over her. Id. at 8-10, 14-15. In
response, Defendant argued, inter alia, that although Fleming’s data was missing from the Visual
Book PDF and Excel productions, it was available in the appointment logs. See ECF No. 42-1,
Exh. X at 1, 10. The Hotel also rebutted the notion that it had deliberately destroyed Fleming’s
SpaSoft records. Craig Statham, Regional Director of Information Technology for the Hotel,
explained that Fleming’s information “most likely . . . was deleted shortly after the termination
of her employment, as it is customary to delete other accounts when employees leave, such as

10

email accounts.” ECF No. 42-1, Exh. Z, ¶ 3. The Arbitrator denied White’s motion. See ECF
No. 42-1, Exh. AA (Tr. Arbitration Hearing, Day 1, Feb. 29, 2016) at 11:5-9.
After the arbitration hearing commenced, White deposed two Rule 30(b)(6) witnesses
designated by Four Seasons to testify about the Hotel’s use of SpaSoft between 2004 and 2015:
Statham and the Spa’s Director, Julia Boeminghaus. See Def. Mot. at 19. Days later, White
moved for default judgment, arguing that “the full extent of [Defendant’s] misconduct came into
focus” at the depositions. See ECF No. 42-1, Exh. V (Letter Motion for Default Judgment, June
18, 2016) at 1. In the motion, White identified what she believed to be two misrepresentations:
First, although Statham had previously stated that Fleming’s information likely was deleted upon
her termination, Boeminghaus testified that she had seen in Visual Book the appointment logs of
previous employees and that there was no protocol to delete providers from the system after they
left and she had never heard of anyone doing so. Id. at 304. Both she and Statham — despite his
previous comments — testified that had a provider been deleted from SpaSoft, it would have
prevented them from being assigned bookings moving forward but left their historical data intact.
Id. at 4-5. From these statements, White surmised that Four Seasons may have “falsified or
manipulated, perhaps inadvertently,” the Visual Book records it produced. Id. at 11. Second,
Statham testified that Four Seasons sent a full backup of its SpaSoft data to an off-site storage
location every month between 2006 and 2015. Id. at 5. White thus concluded that, although the
archive on which Defendant relied to produce the four sample months’ data may have been
corrupted, it easily could have accessed another non-corrupted backup that included Fleming’s
data. Id.
The Arbitrator denied the motion for default judgment on June 20, 2016. See ECF No.
45 (Tr. Arbitration Hearing, Day 6, June 20, 2016) at 7:2-8. The parties then engaged in an

11

extended discussion with the Arbitrator about whether Defendant should be ordered to obtain
backup tapes that might include Fleming’s information. Id. at 7:16-20:22. The Hotel had not
done so, it explained, because of the associated costs. Id. at 12:19-16:5. White’s counsel
eventually agreed to pay for three months of backup tapes, id. at 21:1-4, at a cost of $1,500 per
tape. Id. at 15:19-20.
Two and a half weeks later, White asked the Arbitrator to compel production of
“complete SpaSoft visual book records (1) for all dates on which [White] worked in
[Defendant’s] spa, (2) in Microsoft Excel format, and (3) with all metadata existing at the time of
retrieval intact.” ECF No. 42-1, Exh. EE (Letter from Vincent McKnight to Patricia HoranLatham, July 8, 2016) at 1. The motion recapped the Hotel’s history of incomplete and
inaccurate data production, argued that its “refusal to provide complete visual book data in a
usable format violates [Federal Rule of Civil Procedure] 34,” and maintained that the PDF screen
shots previously produced were too degraded to be usable. Id. at 2-4.
Four days after that, Defendant emailed Plaintiff the backup file for which she had paid
— i.e., Excel-formatted Visual Book data for May 2009, October 2009, and April 2010. See
ECF No. 42-1, Exh. FF (Email from Paul Wagner to Vincent McKnight, et al., July 12, 2016). It
then responded to White’s motion to compel, arguing that it had produced four sample months of
data as required by the Arbitrator, as well as screen shots, appointment logs, and the backup
tapes White paid for, and that none of those thousands of pages revealed evidence of
discrimination. See ECF No. 43-18 (Letter from Paul Wagner to Patricia Horan-Latham, July
13, 2016) at 2-3. Four Seasons asked the Arbitrator to “enter[] an order prohibiting further such
motions and/or awarding [Defendant] its fees and costs for responding to them.” Id. at 4
(emphasis omitted). The Arbitrator denied White’s motion to compel, but did not expressly

12

prohibit further motions or award Four Seasons fees. See ECF No. 43-20 (Arbitrator’s Ruling,
July 13, 2016) at 1-2. In so ruling, she recapped the documents that Four Seasons had produced
and noted that numerous witnesses had testified about SpaSoft and the appointment-scheduling
process. Id. at 2.
The next month, the Arbitrator held the final day of the hearing. See ECF No. 42-1, Exh.
II (Tr. Arbitration Hearing, Day 11, Aug. 18, 2016). At the outset, she made decisions regarding
exhibits newly presented for admission. She admitted three Visual Book exhibits — the backup
data most recently supplied to Plaintiff — but declined to admit several appointment-log exhibits
because Plaintiff had delayed in introducing them for several months absent any good reason and
witnesses would not have had an opportunity to testify regarding them. Id. at 5:3-12:11.
The Arbitrator ultimately issued her decision in favor of Defendant in October 2016. See
Award. She therein addressed White’s specific claims, including, as relevant here, the alleged
booking-policy violations. Id. at 3-5. After summarizing the 3:1 guideline and its exceptions,
she observed that “[t]he appointments system was not perfect but overall was operated in a
reasonable manner.” Id. at 4. White, she noted, “received sufficient assignments” to move from
a part-time to full-time position in 2008 and “to remain full-time and to earn substantial income”
until 2012, and “was the top wage earner . . . in esthetics” while full time. Id. (citation omitted).
At the end of the day, the Arbitrator concluded, “There is not support for a finding that either the
software or the adjustments made by management were intended to discriminate against [White]
on the basis of race or had a disparate impact based upon race.” Id. at 5.
B. Fundamentally Fair Hearing
In moving to vacate the arbitral award, White argues that the Arbitrator’s discoveryrelated decisions described above constituted misconduct as defined in the Federal Arbitration

13

Act. Specifically, she asserts that, by “fail[ing] to address [Defendant’s] production of clearly
incomplete and inaccurate records” and “[p]ermitting such misconduct — amounting to
spoliation of evidence — to go unchecked,” the Arbitrator “failed to sustain an arbitral forum
wherein evidence could be properly exchanged and examined,” “refused to hear the evidence
that was never produced,” and “deprived [White] of a hearing that even approached fundamental
fairness.” Pl. Mot. at 19. She further explains in her Reply that, because “a party’s spoliation or
withholding of evidence prevents the opposing party from presenting any arguments concerning
the pertinence and materiality of the evidence, and prevents the arbitrator from considering any
aspect of the evidence,” the FAA’s evidentiary-misconduct test is satisfied when an arbitrator
permits such action to continue unchecked. See Pl. Reply at 1 (citing 9 U.S.C. § 10(a)(3)).
The Court does not concur, as it believes that White has not cleared the high threshold of
showing fundamental unfairness. On the contrary, the record reveals that she was able, on
several occasions, to present detailed arguments about the pertinence and materiality of the
booking records, and that the Arbitrator considered aspects of that evidence in reaching her final
decision. Although Plaintiff may disagree with the outcome, the Court cannot find that it
resulted from any vacatur-worthy deficiency in the proceedings.
To begin, the Arbitrator entertained several motions from White in which she articulated
her position concerning the relevance and significance of the appointments evidence. See, e.g.,
ECF No. 42-1, Exh. O (Pl. Mot. for Adverse Inference) at 6 (“With a racist comparator and a
manager who had workplace issues with only minorities, discovery in this matter is essential to
prove the priority booking rule was misapplied in a discriminatory fashion.”); id. at 8 (“[T]he
number of times that Ms. Fleming, a part-time worker, received a scheduling preference over the
full-time Ms. White . . . is relevant to both liability and damages.”); id. at 14-15 (explaining how

14

“[t]he lost or destroyed SpaSoft records were clearly relevant to Ms. White’s claim”); id., Exh. V
(Pl. Mot. for Default Judgment) at 8-9 (arguing Defendant’s failure to produce the requested
SpaSoft records “severely hampered [White’s] ability to present her case”). In those same
motions, White argued vigorously that the Hotel had engaged in bad-faith spoliation of evidence.
See Pl. Mot. for Adverse Inference at 11-14; Pl. Mot. for Default Judgment at 2; Pl. Mot. to
Compel at 2-4. By considering and deciding White’s discovery-related motions, the Arbitrator
exercised her “full authority to determine whether or not certain evidence would prove relevant
to [her] determination.” ARMA, 961 F. Supp. 2d at 264. Again, “district courts are not
empowered to second-guess such decisions — procedural or substantive — even if there is
evidence that the arbitrator erred.” Id.
More importantly, White was able to use the booking-policy evidence she obtained — the
Excel-formatted data from the four sample months (including the backups), the PDF screen
shots, some of the appointment logs, and the many depositions — to fully expand upon the
merits of her discrimination claim at the lengthy hearing. During closing arguments, for
example, White’s counsel, relying on a “review[ of] all of the visual books,” told the Arbitrator,
“Brian Simon violated the three to one policy with respect to Ms. White on 37 occasions.” ECF
No. 42-1, Exh. II (Tr. Arbitration Hearing, Aug. 18, 2016) at 97:24-98:8. After a Human
Resources Director began investigating White’s complaints against Simon, counsel stated, the
violations decreased from a rate of “1.6 to two violations” per month to “point six per month.”
Id. at 100:13-23. Based on that data, counsel argued, “[T]he only way we can explain that spike
[in violations] in the 23 months that Brian Simon was supervising Ms. White before the
intervention of [Human Resources] is that there was an intentional conduct.” Id. at 102:10-14.

15

White likewise marshaled booking-policy evidence to make similar arguments in her
post-hearing submissions. According to Plaintiff’s briefing, she “presented extensive data of (1)
specific incidents when [she] was inappropriately deprived of appointments to which she was
entitled under the Policy, . . . and (2) data showing rates of misbooking over time.” Pl. Mot. at
14 (citing ECF No. 42-1, Exh. M. (Appendix of 3:1 Policy Violations) at 1-2). Indeed, White
devoted six pages to documenting booking-policy violations and six more to arguing that those
violations constituted disparate treatment. See ECF No. 42-1, Exh. C (Post-Hearing Mem.) at 712, 30-35. Notably, she explained that she notified Simon of more than 100 policy violations in
less than two years, whereas her white predecessor had raised booking issues only once per
month, all of which were resolved. Id. at 7, 33 & n.142. She appended SpaSoft records that she
alleged showed at least 58 violations during the period she worked full time under Simon and
contended that, based on shifts when White worked full time and Hatala, a white esthetician,
worked part time, policy violations occurred 22% of the time. Id. at 8; Exh. M at 1. White also
argued, again based on appended evidence, that the Spa could have enforced the 3:1 booking
policy had it wanted to, given that the rate of policy violations per shift dropped from 22% to
12% after she complained to the Hotel’s Human Resources Director and to 10% after Simon was
forced to resign. See Post-Hearing Mem. at 10-11, 33; see also Exh. M at 2; Exh. H (Letter to
Brian Simon, May 10, 2010).
In addition to relying on the various SpaSoft records to make her disparate-treatment
argument, White utilized testimony from several of the individuals deposed during the discovery
period. Although she could not rely on the appointment logs to compare her bookings with
Fleming’s — as the Arbitrator held she had unduly delayed introducing them — she made a
comparator argument another way. In particular, she referenced Hatala’s deposition to contend

16

that, whereas Hatala had not experienced many violations when she worked full time at the Spa,
“numerous policy violations persisted” when White worked full time under Simon, including
when Hatala had received appointments that should have gone to White. See Post-Hearing
Mem. at 7 n.38, 8 & n.44. She also cited the deposition of the Hotel’s Regional Human
Resources Director — Stacey Coppel — and asserted that Coppel had admitted that White
suffered numerous violations. Id. at 8 & n.43.
In the final analysis, then, although White may be frustrated by the delays in production
and the omissions in some versions of the SpaSoft records, the Arbitrator oversaw a thorough
and extended discovery process and an eleven-day hearing during which White received and was
able to introduce into the record significant evidence — including scheduling data and witness
testimony — related to the alleged booking-policy violations. Armed with that evidence, White
was able to present the Arbitrator with a well-developed, if ultimately unconvincing, argument
that she had been denied client appointments on the basis of her race. Plaintiff may have wanted
more or differently formatted documents, but the Court may vacate the award only if it can
conclude that the Arbitrator was guilty of misconduct in presiding over the proceeding. On this
record, it simply cannot do so. White had a full opportunity to be heard and to present relevant
and material evidence and argument, and she offers no basis on which the Court could conclude
that the Arbitrator was biased against her. See Howard Univ., 519 F. Supp. 2d at 39. The
Arbitrator’s decisions not to compel further production, draw an adverse inference, or order
default judgment thus did not deprive White of a fundamentally fair hearing.

17

IV.

Conclusion
For the foregoing reasons, the Court will deny Plaintiff’s Motion to Vacate the

Arbitration Award and grant Defendant’s Motion to Confirm the Arbitration Award. A
contemporaneous Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: March 23, 2017

18