Butler v. Munsch, Hardt, Kopf & Harr, P.C. , 145 F. App'x 475 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2005
Charles R. Fulbruge III
Clerk
No. 04-11488
Summary Calendar
JACQUELINE E. BUTLER,
Plaintiff-Appellant,
versus
MUNSCH, HARDT, KOPF & HARR, P.C., MARC A. HUBBARD, AND WEI WEI
JEANG,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-01811
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Jacqueline Butler appeals the district court’s order denying
her motion to vacate the arbitrator’s award and granting
defendant’s application for order confirming the arbitration
award issued in her employment discrimination action. In the
arbitration, Butler alleged that the Munsch, Hardt, Kopf & Harr,
P.C. (“Munsch Hardt”) denied her promotion from a secretarial job
to either an IP Specialist or IP Paralegal position because of
*
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this opinion should not be published and is not precedent except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.
No. 03-40636
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her race. The arbitrator decided in favor of her employer and
the district court confirmed the award.
Our review of arbitration awards is exceedingly deferential
and we can order vacatur of an arbitration award only on very
narrow grounds. Brabham v. A.G. Edwards & Sons, Inc., 376 F.3d
377, 380 (5th Cir. 2004). Four statutory grounds are provided by
Section 10 of the Federal Arbitration Act:
(1) where the award was procured by corruption, fraud,
or undue means;
(2) where there was evident partiality or corruption in
the arbitrators, or either of them;
(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.
Id. at 380-381. This court also recognizes two non-statutory
grounds for vacating an arbitration award: (1) if the award is
clearly contrary to an explicit, well-defined and dominant public
policy, or (2) if the arbitrator manifestly disregarded the law.
Prestige Ford v. Ford Dealer Computer Servs., 324 F.3d 391, 395-
96 (5th Cir. 2003).
Butler, who appears pro se, complains that she was not
allowed to present certain evidence or call certain witnesses
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that were “pertinent and material to the controversy.” The
excluded evidence was a transcript Butler prepared of a tape-
recorded conversation she had with defendant Wei Wei Jeang. The
arbitrator properly excluded the transcript because the source
tape was not authenticated and offered into evidence. Fountain
v. United States, 384 F.2d 624, 632 (5th Cir. 1967). In
addition, both Butler and Jeang testified about the substance of
the conversation recorded on the tape, making the transcript
cumulative evidence. Gateway Technologies v. MCI
Telecommunications Corp., 64 F.3d 993, 997, n.4 (5th Cir. 1995).
Butler also complains that two witnesses she wished to call were
not allowed to testify or were limited in the substance of their
testimony. The arbitrator did not err in limiting the testimony
of these witnesses who had different supervisors or worked in
different parts of the firm than Butler. Wyvill v. United Cos.
Life Ins. Co., 212 F.3d 296, 302 (5th Cir. 2000). Neither of
these evidentiary complaints can serve as a basis for vacating
the award.
Butler also raises issues regarding the merits of the
arbitrator’s decision. As stated above, in order to succeed, she
must show that the arbitrator’s decision “manifestly disregarded
the law.” Prestige Ford, 324 F.3d at 395-96. Butler cannot meet
that standard. Butler failed to establish a prima facie case of
employment discrimination by failing to establish that she was
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qualified for the promotion she claims she was denied based on
her race. Celestine v. Petroleos de Venez. SA, 266 F.3d 343,
354-44 (5th Cir. 2001). In addition, the defendants have put
forth a non-discriminatory reason for failing to promote her.
The other candidates were more qualified. Id. at 357.
Accordingly, the arbitrator did not manifestly disregard the law
in rejecting her failure to promote claims. Her claims of
retaliation and intentional infliction of emotion distress were
also properly dismissed for failure of proof.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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