Cox v. Dex Media

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 3, 2022
• Docket: 21-1156
• Status: Unpublished

Opinion

Appellate Case: 21-1156 Document: 010110719631 Date Filed: 08/03/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 3, 2022 _________________________________ Christopher M. Wolpert Clerk of Court MARY JANE COX,

Plaintiff - Appellee,

v. No. 21-1156 (D.C. No. 1:18-CV-01817-KLM) DEX MEDIA, INC., a Delaware (D. Colo.) corporation,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, KELLY, and CARSON, Circuit Judges. _________________________________

The Federal Arbitration Act (FAA) provides parties the opportunity to avoid

the expense and delay of litigation. Mindful of this, we uphold arbitration awards so

long as the substance of the decision honors the parties’ arbitration agreement and

follows the law. Here, the parties agreed to arbitrate an employment dispute. The

losing party now challenges the arbitration award. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm the district court’s confirmation of the award.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-1156 Document: 010110719631 Date Filed: 08/03/2022 Page: 2

I.

Plaintiff Mary Jane Cox, who is in her 60s, worked for Defendant Dex Media

(and its predecessor entities) for fourteen years until she resigned after Defendant

demoted her from a sales director to a sales representative. Plaintiff sued Defendant

under the Age Discrimination in Employment Act (ADEA) and the Americans with

Disabilities Act (ADA), alleging that Defendant constructively discharged her

because of her age and disability.1 She alleged that the company recently voiced a

preference for hiring younger employees and did not demote younger sales directors

even though she outperformed them.

The parties previously agreed to arbitrate employment disputes. So they

jointly moved to close the civil action and begin arbitration. Their agreement

provided that “the arbitrator shall have no authority to add to, detract from, change,

amend, or modify existing law.” It also required the arbitrator to put her award in

writing, including the “essential findings and conclusions.”

The arbitrator found in Plaintiff’s favor on her ADEA claim. The arbitrator

noted that although she “considered all the evidence,” she did not “specifically

reference[ ]” the “majority of the evidence” in her analysis. She then found that

Plaintiff established a prima facie case of age discrimination that Defendant failed to

1 Plaintiff suffered a heart attack during the time she worked for Defendant and claims that once she returned to work, Defendant and its employees treated her differently. But the arbitrator found Plaintiff did not present enough evidence to prove her ADA claim. Because the arbitrator found in Plaintiff’s favor only on her ADEA claim, we will focus on this claim throughout our discussion and analysis. 2 Appellate Case: 21-1156 Document: 010110719631 Date Filed: 08/03/2022 Page: 3

refute with a legitimate, nondiscriminatory reason for demoting her. The arbitrator

also rejected Defendant’s argument that Plaintiff “must show age discrimination was

the ‘but for’ factor” for Defendant’s action, finding the argument “not correct and

misleading.”

In some ways, the arbitrator let the facts speak for themselves. She described

Defendant’s transition to recruiting younger, more digitally savvy employees. She

detailed Plaintiff’s successful career with Defendant, even after Defendant removed

all of Plaintiff’s highest performing sale representatives from her team. And then she

chronicled how Defendant demoted Plaintiff despite her stellar performance. Finally,

she explained how Defendant claimed to have selected Plaintiff for demotion.

But the arbitrator sprinkled in some analysis along the way. For example, she

determined based on the company’s “new direction” that the “message was clear: If

you are an older worker, you were no longer valued or wanted.” And she reasoned

that Plaintiff’s age and medical issues presented the “opportunity to bring

[leadership]’s vision of a youthful company to fruition.” The arbitrator also

explained why she did not buy Defendant’s reason for demoting Plaintiff, finding that

Defendant manipulated the data in its sales-director assessment to disfavor Plaintiff

and invented a reason to “move out an aged employee.” In the end, the arbitrator

characterized Plaintiff’s demotion as “inadequate, offensive[,] and discriminatory,”

and ruled in Plaintiff’s favor on her age-discrimination claim.

Plaintiff then moved to confirm the award in the district court, while

Defendant moved to vacate it. The court confirmed the award, finding that the

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arbitrator’s findings reflected the applicable standard and even if the arbitrator did

not “specifically state” all of her findings, the “totality of the opinion” evidenced

them. It also rejected Defendant’s argument that the arbitrator exceeded her powers

by ignoring the agreement’s requirement to detail essential findings and conclusions.

Defendant appeals the court’s confirmation of the award.

II. “We review de novo a district court’s order vacating or enforcing an

arbitration award.” U.S. Energy Corp. v. Nukem, Inc., 400 F.3d 822, 830 (10th Cir.

2005) (citation omitted). But we give great deference to the arbitrator’s decision so

that we enforce “the strong federal policy favoring arbitration.” See THI at Vida

Encantada, LLC v. Lovato, 864 F.3d 1080, 1084 (10th Cir. 2017) (citations and

internal quotation marks omitted). And we require Defendant to prove a statutory

basis or “judicially created exception” for setting aside the arbitration award. Id.

(citations omitted). Otherwise, § 9 of the FAA demands courts confirm arbitration

awards. Id. (citation omitted).

Defendant relies on § 10(a)(4) of the FAA to challenge the arbitration award.

That provision allows a district court to vacate an arbitration award when the

arbitrator “exceeded [his or her] powers, or so imperfectly executed them that a

mutual, final, and definite award upon the subject matter was not made.” 9 U.S.C.

§ 10(a)(4). “A party seeking relief under § 10(a)(4) ‘bears a heavy burden.’”

Lovato, 864 F.3d at 1084 (quoting Oxford Health Plans LLC v. Sutter, 569 U.S. 564,

569 (2013)). “Thus, in considering whether the arbitrator exceeded [her] powers, we

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consider one question: whether the arbitrator arguably interpreted the parties’

contract, regardless of whether that interpretation was correct.” Id. (citing Oxford,

569 U.S. at 571–72 (“[Section 10(a)(4)] permits courts to vacate an arbitral decision

only when the arbitrator strayed from [her] delegated task of interpreting a contract,

not when [s]he performed that task poorly.”)).

Defendant also challenges the award based on a judicially created exception.

This exception allows us to vacate an arbitration award that evinces a “manifest

disregard of the law,” by showing “willful inattentiveness to the governing law.”

Dominion Video Satellite, Inc. v. Echostar Satellite L.L.C., 430 F.3d 1269, 1275

(10th Cir. 2005) (citation and internal quotation marks omitted). Such a finding

“means the record will show the arbitrator[ ] knew the law and explicitly disregarded

it.” Bowen v. Amoco Pipeline Co., 254 F.3d 925, 932 (10th Cir. 2001) (citation

omitted).

So even if we find the arbitrator committed serious error, we will not overturn

the decision so long as the arbitrator “arguably” construed or applied the contract and

acted within the scope of her authority. Lovato, 864 F.3d at 1083 (quoting United

Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987)) (citing

Oxford, 569 U.S. at 569). In other words, only extraordinary circumstances warrant

vacating an arbitration award. Id. (citation omitted). “[T]his highly deferential

standard has been described as ‘among the narrowest known to the law.’” Bowen,

254 F.3d at 932 (quoting ARW Expl. Corp. v. Aguirre, 45 F.3d 1455, 1462 (10th Cir.

1995)). To sum up, then, we will not enforce an arbitration award “only when the

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arbitrator strays from interpretation and application of the agreement and effectively

‘dispenses [her] own brand of industrial justice.’” Major League Baseball Players

Ass’n v. Garvey, 532 U.S. 504, 509 (2001) (per curiam) (brackets omitted) (quoting

United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960)).

III. Defendant quarrels with the arbitrator’s decision in two ways. First, it accuses

the arbitrator of violating the parties’ arbitration agreement by disregarding the

causation standard Plaintiff needed to prove to win on her claims even though the

agreement required her to follow settled law.2 Second, it argues the arbitrator

exceeded her powers by insufficiently explaining her findings and conclusions as the

agreement instructed. According to Defendant, both alleged mistakes require us to

vacate the arbitration award. We address each in turn.

A.

The ADEA prohibits employers from discriminating against employees

because of their age. See 29 U.S.C. § 623(a)(1). To prove a prima facie case of age

discrimination, a plaintiff must show: (1) she belongs to the class protected by the

ADEA; (2) she suffered an adverse employment action; (3) she was qualified for the

position at issue; and (4) her employer treated her less favorably than others not in

2 Defendant argues the but-for standard discussed throughout this appeal should also apply to Plaintiff’s ADA claim based on the weight of authority by other courts. We have yet to consider whether that standard applies to ADA claims, Doe v. Bd. of Cnty. Comm’rs of Payne Cnty., 613 F. App’x 743, 747 n.3 (10th Cir. 2015) (unpublished) (citation omitted), and find no reason to do so here given that question does not affect this case’s result. 6 Appellate Case: 21-1156 Document: 010110719631 Date Filed: 08/03/2022 Page: 7

the protected class. See Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1279 (10th

Cir. 2010) (citation omitted).

When a plaintiff supports her ADEA claim with circumstantial evidence, the

McDonnell Douglas “burden-shifting framework” applies. Garrett v. Hewlett-

Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002) (citing McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973)). This framework requires the defendant to offer a

“legitimate, nondiscriminatory reason” for its adverse action after the plaintiff

presents her prima facie case. Id. If the defendant does so, the plaintiff has two

options: she “must either show that h[er] race, age, gender, or other illegal

consideration was a determinative factor in the defendant’s employment decision, or

show that the defendant’s explanation for its action was merely pretext.” Id.

(citation omitted).

The Supreme Court has established a but-for causation standard that a plaintiff

must prove to succeed on an ADEA discrimination claim. Gross v. FBL Fin. Servs.,

Inc., 557 U.S. 167, 176 (2009) (citations omitted). Evidence of but-for causation

requires “more than mere speculation, conjecture, or surmise.” Ward v. Jewell, 772

F.3d 1199, 1203 (10th Cir. 2014) (citation and internal quotation marks omitted).

But this does not mean a plaintiff must show that “age was the sole motivating factor

in the employment decision.” Jones, 617 F.3d at 1277 (citation omitted). Instead, we

clarified after Gross that “an employer may be held liable under the ADEA if other

factors contributed to its taking an adverse action, as long as age was the factor that

made a difference.” Id. (citations and internal quotation marks omitted).

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The arbitrator called Defendant’s “argument that [Plaintiff] must show age

discrimination was the ‘but for’ factor” for her age-discrimination claim “not correct

and misleading.” Defendant claims that this proves she manifestly disregarded

Gross, requiring us to vacate the arbitration award. But even if the arbitrator used

inartful language that could reasonably be construed as disregarding Gross, her

analysis shows that she applied the correct standard. Throughout her decision, the

arbitrator discussed Defendant’s goal to get rid of older employees, Plaintiff’s age,

and Defendant’s inability to offer a legitimate, nondiscriminatory reason to demote

Plaintiff given her successful career as a sales director. The arbitrator applied the

Gross standard to find in Plaintiff’s favor on her age-discrimination claim, without

saying so. Because the substance of her decision obeys Gross, she did not manifestly

disregard the law.

Defendant also argues that the arbitrator’s failure to recognize the

“impossibility” of Plaintiff succeeding on both her ADEA and ADA claims proves

she manifestly disregarded the but-for standard. The argument goes that if both

claims require but-for causation, the two cancel each other out because two “but-for”

reasons cannot exist for Defendant demoting her. First, as we noted earlier, we have

not established that the Gross but-for standard applies to ADA claims. See supra n.2.

But, more importantly, Defendant never brought this issue to the district court’s

attention. And we generally will not consider an issue on appeal that a party did not

present below. See MacArthur v. San Juan Cnty., 309 F.3d 1216, 1225 (10th Cir.

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2002) (citation omitted). Defendant did not respond to this point in its reply brief,

providing us no reason to shirk the usual rule. So we will not consider this argument.

B.

Defendant finally argues that the arbitrator exceeded her powers by not

complying with the agreement, which required her to put her award in writing,

including the “essential findings and conclusions.” Defendant claims that the

arbitrator’s findings and conclusions were so thin that she purposefully made her

decision unreviewable. According to Defendant, the arbitrator’s analysis leaves us to

guess her thought process in finding Plaintiff proved her ADEA claim.

But we need not guess. While her findings and conclusions may appear

sparse, the arbitrator included all the analysis necessary to find Plaintiff successful on

her ADEA claim. She first explained how Plaintiff presented a prima facie case of

age discrimination. Appellee’s Supp. App. at 24–25 (“She is a member of the class

protected by the ADEA. She suffered an adverse employment action[,] and she was

qualified for the position from which she was constructively discharged.”). Then she

walked through why she found Defendant failed to articulate a legitimate,

nondiscriminatory reason for the demotion and constructive discharge: because

despite Defendant claiming it used “objective nationwide criteria” to select sales

directors for demotion, a subjective leadership assessment comprised 25% of that

criteria and allowed Defendant to manipulate the data to justify demoting an older

employee. Id. at 29–30 (“Interestingly, [Plaintiff]’s ‘leadership assessment’ was

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lowered after a revision to her score. Thus, the assessment was manipulated to favor

others and disfavor [Plaintiff].”).

In short, Defendant ignores the key wording of the agreement; it only required

the arbitrator to make essential findings and conclusions. The arbitrator did just that.

We thus will not vacate the award.

AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge