Case: 13-14783   Date Filed: 10/21/2014   Page: 1 of 7




                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-14783
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 2:10-cv-00669-JES-DNF



LUDEMA CRUZ DORWARD,

                                                        Plaintiff-Appellant,

                                     versus

MACY'S INC,
d.b.a. Macy's Florida Stores, LLC,

                                                        Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                               (October 21, 2014)



Before WILLIAM PRYOR, MARTIN, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Ludema Cruz Dorward (a Filipino citizen), proceeding pro se, appeals the

district court’s denial of her motion to vacate and/or modify an arbitration award

that denied her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000, et seq. (“Title VII”), and related claims, against Macy’s, Inc. (“Macy’s”),

her former employer. With a reasoned and full opinion, the district court

determined that Dorward failed to establish any of the exclusive grounds for

vacatur or modification in 9 U.S.C. §§ 10 and 11. We see no reversible error.

      On appeal, Dorward recites all of the grounds for vacatur and modification

in 9 U.S.C. §§ 10 and 11. She, however, argues only that the award was procured

through corruption, fraud, or undue means, as the arbitrator allegedly refused to

accept some of her evidence and witnesses: she says the arbitrator failed to address

in the opinion and award all relevant evidence. In addition, Dorward maintains

that the following errors occurred during the arbitration proceedings: Macy’s

failed to provide her with Volume I of the arbitration hearing transcript; Macy’s

should provide her with representation; Macy’s failed to make timely

counterclaims; and the arbitrator extended by 30 days Macy’s time to file its

answer (which Macy’s filed one day after the extended time). Dorward also lists

as an issue in her brief that the district court erred in denying her motion to vacate


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and/or modify the arbitration award, as she had established a prima facie case of

discrimination; she offers no arguments in support of this issue.

      In reviewing a district court’s denial of a motion to vacate an arbitration

award, we review the district court’s factual findings for clear error and its legal

conclusions de novo. Frazier v. CitiFinancial Corp., LLC, 

, 1321

(11th Cir. 2010).

      Section 10(a) of the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”),

provides:

      In any of the following cases the United States court in and for the
      district wherein [an arbitration award] was made may make an order
      vacating the award upon the application of any party to the
      arbitration –

      (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.

9 U.S.C. § 10(a).



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      Section 11 of the FAA provides:

      In either of the following cases the United States court in and for the
      district wherein the award was made may make an order modifying or
      correcting the award upon the application of any party to the
      arbitration –

      (a)    Where there was an evident material miscalculation of figures
             or an evident material mistake in the description of any person,
             thing, or property referred to in the award.

      (b)    Where the arbitrators have awarded upon a matter not
             submitted to them, unless it is a matter not affecting the merits
             of the decision upon the matter submitted.

      (c)    Where the award is imperfect in matter of form not affecting
             the merits of the controversy.

      The order may modify and correct the award, so as to effect the intent
      thereof and promote justice between the parties.

9 U.S.C. § 11.

      In Hall Street Associates, L.L.C., v. Mattel, Inc., the Supreme Court said that

§§ 10 and 11 provide the FAA’s exclusive grounds for vacatur and modification of

arbitration awards. 

, 583, 

, 1403, 

(2008). Applying Hall Street, we have concluded that the judicially-created,

arbitrary and capricious ground for vacatur of arbitration awards is no longer valid.

See 

.

      We have said that the district court’s review under §§ 10 and 11 is limited:

“arbitrators do not act as junior varsity trial courts where subsequent appellate

review is readily available to the losing party.” Cat Charter, LLC, v.
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Schurtenberger, 

, 842-43 (11th Cir. 2011) (quotation omitted). We

have explained that “[t]here is a presumption under the FAA that arbitration

awards will be confirmed, and federal courts should defer to an arbitrator’s

decision whenever possible.” 

(quotation omitted). As

such, “a court’s confirmation of an arbitration award is usually routine or

summary.” Cat 

.

      In reviewing claims for vacatur of an arbitration award on grounds of fraud,

we have applied a three-part test. See Bonar v. Dean Witter Reynolds, Inc., 

, 1383 (11th Cir. 1988). “First, the movant must establish the fraud by

clear and convincing evidence.” 

fraud must not have been

discoverable upon the exercise of due diligence prior to or during the arbitration.”

fraud must be “materially related to an issue in the arbitration.” 

stressed that “the basic policy behind arbitration . . . is to permit

parties to resolve their disputes in an expeditious manner without all the formalities

and procedures [of] full fledged litigation.” Scott v. Prudential Sec., Inc., 

, 1016 (11th Cir. 1998) overruled on other grounds by Hall Street Assocs.,

LLC, 

, 

. Accordingly, to vacate on the ground of

arbitrator misconduct, pursuant to § 10(a)(3), a mere difference of opinion between

the arbitrator and the moving party about the correct resolution of a procedural

problem is insufficient. See 

further stressed that “the FAA permits


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arbitration to proceed with only a summary hearing and with restricted inquiry into

factual issues,” and “[t]he arbitrator need only give each party the opportunity to

present its arguments and evidence.” 

(quotations and alterations

omitted) (emphasis in original). In addition, we have said that an arbitrator may

reject evidence that is cumulative or irrelevant. 

on the ground that the arbitrator exceeded the arbitrator’s powers,

pursuant to § 10(a)(4), the party seeking relief bears a heavy burden. Oxford

Health Plans LLC, v. Sutter, 

, 2068, 

(2013). “It is

not enough to show that the arbitrator committed an error – or even a serious

error.” 

alterations omitted). “Only if the arbitrator acts outside

the scope of his contractually delegated authority – issuing an award that simply

reflects his own notions of economic justice rather than drawing its essence from

the contract – may a court overturn his determination.” 

alterations omitted).

      In general, we will not review issues, particularly fact-bound issues, not

presented to the district court: issues on which the district court did not have an

opportunity to make factual findings. See Access Now, Inc. v. Sw. Airlines Co.,

, 1331-32 (11th Cir. 2004). This policy applies even to pro se

pleadings, which are held to a less strict standard than pleadings drafted by

attorneys and are construed liberally. See Tannenbaum v. United States, 

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1262, 1263 (11th Cir. 1998). Besides, where a party makes only a passing

reference to an issue in a brief and does not offer arguments and cite authorities in

support of it, we will treat the issue as waived. See Hamilton v. Southland

Christian Sch., 

, 1319 (11th Cir. 2012).

      Dorward’s challenge on appeal actually focuses on her disagreements with

the arbitrator’s fact finding. Dorward fails to point to concrete facts that support

any of the statutory grounds for vacatur or modification in 9 U.S.C. §§ 10 and 11.

We decline to consider her arguments that the arbitrator wrongfully accepted

Macy’s untimely answer, that Macy’s should provide her with legal representation,

and that Macy’s failed to raise timely counterclaims: these arguments were

presented for the first time on appeal. In addition, Dorward has waived her

contention that the district court erred in denying her motion to vacate and/or

modify the arbitration award because she established a prima facie case of

discrimination: she failed to offer arguments or cite law in support of this

contention. Moreover, these claims do not fall under any of the statutory grounds

for modification or vacatur.

      Accordingly, the district court’s denial of Dorward’s motion to vacate and/or

modify the arbitration award is

      AFFIRMED.




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