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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-31142

Summary Calendar

TRINIDAD SUYAPA BARAHONA,

Plaintiff - Appellee 

v.

DILLARD’S, INC., formerly known as Dillard Department Stores, Inc.,

Defendant - Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:05-cv-00152

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Appellant Dillard’s, Inc. (“Dillard’s”) appeals the district court’s decision

to vacate an arbitration award for fraud under the Federal Arbitration Act

(“FAA”). Dillard’s argues that the district court erred in vacating the arbitration

award. We agree. Accordingly, we reverse the judgment of the district court and

remand. 

United States Court of Appeals

Fifth Circuit

F I L E D

April 26, 2010

Lyle W. Cayce

Clerk

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No. 09-31142

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I. FACTS AND PROCEDURAL HISTORY

Dillard’s is a department store chain with locations throughout the United

States, including Houma, Louisiana. Appellee Trinidad Suyapa Barahona was

a salesperson in Dillard’s Houma store until she was terminated by Patrick

Broussard, who was the Houma store manager. Ms. Barahona believed that she

was terminated in violation of Title VII, and she brought this suit against

Dillard’s, alleging that she was terminated either because of her race or in

retaliation for her complaints of discrimination. 

Ms. Barahona’s employment contract with Dillard’s contained an

arbitration agreement, so the district court, with the parties’ consent, stayed her

case to allow the parties to arbitrate her claims. During the arbitration

proceedings, the parties conducted discovery, which included depositions and

document requests, and the parties participated in a three-day arbitration

hearing where they were given the opportunity to present their evidence and

arguments. On the third day of the hearing, Mr. Broussard appeared and

testified as a witness. Ms. Barahona’s counsel questioned Mr. Broussard on a

number of matters, including whether he ever communicated via e-mail with any

Dillard’s employee regarding Ms. Barahona. Mr. Broussard answered, “Yes.”

Dillard’s, however, had not produced Mr. Broussard’s e-mails during the

discovery phase of the arbitration. The reason for Dillard’s failure to produce the

e-mails was never elucidated, as neither party elicited any testimony as to why

the e-mails were either overlooked or intentionally not produced. 

In response to Mr. Broussard’s testimony, Dillard’s counsel moved to

continue the arbitration proceeding so that Dillard’s could produce the e-mails.

Ms. Barahona’s counsel refused to consent to Dillard’s motion, stating that he

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was objecting to the continuance “about as much as anybody can” and that he

would “have to appeal if this thing was adjourned.” The arbitrator denied

Dillard’s motion to continue. The arbitrator penalized Dillard’s by drawing an

adverse inference against Dillard’s for its failure to produce Mr. Broussard’s emails. The parties then completed the hearing and submitted the case to the

arbitrator for his determination. Despite the adverse inference, the arbitrator

ruled in favor of Dillard’s, finding that Ms. Barahona did not carry her burden

of proof on her discrimination and retaliation claims. 

After the arbitrator announced his findings, Ms. Barahona moved the

district court to vacate the arbitration award due to Dillard’s failure to produce

Mr. Broussard’s e-mails. After Ms. Barahona moved to vacate, Dillard’s

produced Mr. Broussard’s e-mails and argued that the contents of the e-mails

showed that a vacatur was unwarranted. Dillard’s also moved to have the

arbitration award confirmed. The district court initially chose not to vacate the

arbitration award and instead remanded the case back to the arbitrator for

reconsideration in light of the newly produced e-mails. The arbitrator refused

to reconsider the arbitration award, finding that he lacked jurisdiction to

reconsider it. After the arbitrator refused to reconsider the award, the district

court granted Ms. Barahona’s motion, denied Dillard’s motion to confirm, and

vacated the arbitration award, finding that the award was procured by fraud as

a result of Dillard’s failure to produce Mr. Broussard’s e-mails. This appeal

followed.

II. DISCUSSION

We review the district court’s decision to vacate an arbitration award de

novo, “deferring greatly to the [arbitrator’s] decision.” Downer v. Siegel, 489 F.3d

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623, 626 (5th Cir. 2007). Pursuant to the FAA, the district court’s ability to

vacate an arbitration award is limited to the four grounds enumerated in 9

U.S.C. § 10(a). Id. Only one of those grounds is at issue here. The district court

vacated the arbitrator’s award under § 10(a)(1), which permits a district court

to vacate an award “where the award was procured by . . . fraud.” Dillard’s

argues that the district court’s decision was erroneous. We agree. 

Under the FAA, a party who alleges that an arbitration award was

procured by fraud must demonstrate: (1) that the fraud occurred by clear and

convincing evidence; (2) that the fraud was not discoverable by due diligence

before or during the arbitration hearing; and (3) the fraud materially related to

an issue in the arbitration. Karaha Bodas Co. v. Perusahaan Pertambangan

Minyak Dan Gas Bumi Negra, 364 F.3d 274, 306 (5th Cir. 2004); Trans Chem.

Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 304-06 (S.D. Tex.

1997), aff’d and adopted by, 161 F.3d 314 (5th Cir. 1998) (“We agree with the

district court’s analysis of these issues and therefore adopt Parts I-V of its

careful and comprehensive opinion.”). A party, however, cannot meet its burden

of proof “[w]here the grounds for fraud ‘. . . is not only discoverable, but

discovered and brought to the attention of the arbitrators;’” in such a case, courts

will not give “‘a disappointed party . . . a second bite at the apple.’” Trans

Chem., 978 F. Supp. at 306 (quoting A.G. Edwards & Sons, Inc. v. McCollough,

967 F.2d 1401, 1404 (9th Cir. 1992)). Here, Dillard’s allegedly fraudulent

conduct was discovered during the arbitration hearing and brought to the

attention of the arbitrator, who addressed it by drawing an adverse inference

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 Although Ms. Barahona discovered Dillard’s alleged fraud during the arbitration 1

proceeding and presented it to the arbitrator, the district court found that Ms. Barahona was

entitled to a vacatur because she could not have discovered the extent of Dillard’s fraud until

Dillard’s produced the e-mails at issue. Ms. Barahona, however, had an opportunity to

discover the e-mails during the arbitration proceeding and chose not to do so. By refusing to

seek discovery of the e-mails, Ms. Barahona cannot now complain about Dillard’s failure to

produce the e-mails. See Trans Chem., 978 F. Supp. at 306 (finding that an arbitration award

could not be vacated for fraud when the party moving to vacate the award discovered the

fraud, brought it to the attention of the arbitrator, and had an opportunity to discover the

extent of the fraud but chose not to do so).

 As a result, we need not reach the other prongs. We note, however, the lack of any

2

proof that the non-production was intentional or otherwise “fraudulent.”

5

against Dillard’s. As a consequence, Ms. Barahona cannot meet her burden of 1

proof under the FAA on this prong. See Trans Chem., 978 F. Supp. at 306; 2

Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (rejecting a

plaintiff’s motion to vacate an arbitration award when “the fraud claim was

presented in its entirety to, and ruled upon by, the arbitrator”), modified on

other grounds, 275 F.3d 1187, 1188 (9th Cir. 2001). Accordingly, we find that the

district court erred in vacating Dillard’s arbitration award. Because the facts

concerning whether or not the alleged “non-production fraud” was discovered

during the arbitration hearing are undisputed, further development of the record

would not alter the result. Thus, it is appropriate to direct the district court to

grant the motion to confirm rather than ordering further proceedings. 

III. CONCLUSION

For the foregoing reasons, the district court’s order vacating the

arbitration award is REVERSED, and the case is REMANDED with instructions

to enter an order confirming the arbitration award. 

 

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