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Court Confirms Arbitration Award Despite Plaintiff’s Claims of Database Tampering

Posted on April 10th, 2017

White v. Four Seasons Hotel and Resorts, Case No. 13-1399 (District of Columbia, Mar. 23, 2017) is a race discrimination and sex discrimination case. Plaintiff, a black woman who was pregnant at the time of the charge, was an esthetician employed by DefendanDatabase tamperingt on a part time basis who then moved into full time status in 2008. She filed a charge with the EEOC in August 2012 alleging that Defendant had discriminated against her on the basis of her race and pregnancy by denying her bookings and promotion opportunities and by creating a hostile work environment. The EEOC issued a Right to Sue letter, and she filed suit in August 2013. During arbitration, the parties took discovery. Plaintiff took 11 depositions during that time, and thousands of pages of documents were exchanged. Ultimately, the arbitrator issued an award in Defendant’s favor, and Plaintiff filed a Motion to Vacate the award on the grounds that the arbitrator refused to her certain evidence with respect to her disparate treatment claim. Defendant cross-moved to affirm the award.

Plaintiff’s objection surrounded a software program called SpaSoft, which the spa in the Defendant hotel used to manage its appointments. Plaintiff argued that the software records were crucial to her disparate treatment claims. When making appointments with her clients, she alleged, the spa’s management would routinely violate the spa’s policy that full time estheticians were given three hours of bookings during a shift before giving an hour to a part time employee. She alleged she was deprived of up to three bookings per month to the benefit of her white coworkers. Plaintiff sought the SpaSoft records, and Defendant delayed in producing them. The records ultimately produced were incomplete, inaccurate or in the incorrect format. Plaintiff argued that the arbitrator failed to respond to the spoliation allegations and deprived her of a fundamentally fair hearing.

During the discovery phase, the parties disagreed about the production of the software, and the arbitrator ordered that Defendant produce the data in a “digitally indexed form.” Defendant produced Excel spreadsheets with the four sample months chosen by the arbitrator. However, the records were not complete and did not include appointments of a certain white esthetician who could have been compared to Plaintiff. Defendant produced appointment logs to compensate for the missing data. Plaintiff sought an adverse inference; Defendant argued that the information had been deleted after the white employee had left the company, as was customary. However, an employee testified that this was not a policy, and she had seen previous employees’ records in the system before. After more back and forth, the arbitrator ruled that the appointments system was “not perfect” but was operated in a reasonable manner.

The court found that Plaintiff had not met the high threshold of showing that her hearing had been fundamentally unfair. She had the opportunity to review and use voluminous evidence of the booking procedures, and she made a good argument. The court found that it could only vacate the award if it could conclude that the arbitrator was guilty of misconduct, which it could not. The award was confirmed.

ILS – Plaintiff eDiscovery Experts

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