Obadiah Fontaine v. Sport City Toyota , 544 F. App'x 529 ( 2013 )

Case: 13-10304 Document: 00512432504 Page: 1 Date Filed: 11/06/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-10304 November 6, 2013
Summary Calendar
Lyle W. Cayce
Clerk
OBADIAH LEVI FONTAINE,
Plaintiff-Appellant
v.
SPORT CITY TOYOTA,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:11-CV-2400
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Obadiah Levi Fontaine filed a Title VII civil rights complaint alleging
that the defendant wrongfully terminated him for expressing his Christian
beliefs. Fontaine’s complaint was arbitrated pursuant to the Federal
Arbitration Act, and the arbitrator determined that Fontaine had not
demonstrated that the defendant’s nondiscriminatory reason for his
termination was pretextual. The district court denied Fontaine’s motion to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10304
vacate the award under 9 U.S.C. § 10(a)(2), rejecting Fontaine’s claim that
there was evident partiality on the part of the arbitrator. Fontaine now moves
for leave to proceed in forma pauperis (IFP) on appeal to challenge the district
court’s denial of his motion to vacate the award.
When, as in this case, a district court certifies that an appeal is not taken
in good faith, the appellant may either pay the filing fee or challenge the court’s
certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Our inquiry into an appellant’s good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citation omitted). If we uphold the district court’s certification that the
appeal is not taken in good faith, the appellant must pay the filing fee or,
alternatively, we may dismiss the appeal sua sponte under 5th Circuit Rule
42.2 if it is frivolous. Baugh, 117 F.3d at 202 & n.24.
For the first time on appeal, Fontaine argues that the district court erred
in denying his motion to vacate the arbitration award because the arbitrator
was guilty of misconduct, see § 10(a)(3), and had exceeded her authority, see
§ 10(a)(4). We will not consider these newly raised issues. See Alford v. Dean
Witter Reynolds, Inc., 975 F.2d 1161, 1163 (5th Cir. 1992).
Fontaine reiterates his claim that the award should have been vacated
under § 10(a)(2) because the arbitrator was not impartial. He contends that
he provided the district court with 66 pages of “irrefutable documented
evidence” of the arbitrator’s bias. Fontaine’s evidence, however, related to the
merits of his claim, not the arbitrator’s bias. His belief that the weight of his
evidence established the arbitrator’s bias fails to satisfy his “onerous burden”
of demonstrating evident partiality. Householder Group v. Caughran, 354
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No. 13-10304
F. App’x 848, 852 (5th Cir. 2009); see also Positive Software Solutions, Inc. v.
New Century Mortg. Corp., 476 F.3d 278, 281-83 (5th Cir. 2007) (en banc).
Because Fontaine has failed to raise a nonfrivolous issue for appeal, see
Howard, 707 F.2d at 220, we DENY his motion for leave to proceed IFP on
appeal and DISMISS his appeal as frivolous, see Baugh, 117 F.3d at 202 n.24;
5th Cir. R. 42.2.
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