UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

EDDIE M. KELLY, 

 Plaintiff - Appellant, 

v. 

K12 INC.; OKLAHOMA VIRTUAL 

CHARTER ACADEMY; AUDRA 

PLUMMER; NICOLE ELLISON, 

 Defendants - Appellees. 

No. 20-7046 

(D.C. No. 6:17-CV-00453-RAW) 

(E.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MORITZ, BALDOCK, and KELLY, Circuit Judges. 

_________________________________ 

Plaintiff Eddie M. Kelly sued her former employer and others for 

discrimination, and the district court granted her employer’s motion to compel 

arbitration. The arbitrator granted summary judgment against Kelly, and the district 

* After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 10, 2021

Christopher M. Wolpert 

Clerk of Court
2 

court confirmed the award and dismissed Kelly’s claims against all the defendants. 

Exercising jurisdiction under 28 U.S.C. § 1291,1

 we affirm. 

I. BACKGROUND 

 Kelly was employed by K12 Inc. as a reading teacher at Oklahoma Virtual 

Charter Academy (OVCA),2

 a public charter school. K12 provided services to 

OVCA, including providing teachers like Kelly. Kelly’s employment with K12 was 

subject to an arbitration agreement that required arbitration of all disputes “arising 

from or relating to [Kelly’s] employment or the termination of [her] employment.” 

R. at 42. The agreement further provided it was governed by the Federal Arbitration 

Act (FAA) and Virginia law. 

 K12 terminated Kelly’s employment in March 2016, and she filed a lawsuit 

alleging civil rights violations against K12, OVCA, and two of Kelly’s supervisors, 

Audra Plummer and Nicole Ellison. The district court granted K12’s motion to 

compel arbitration, and Kelly proceeded to arbitration only against K12. The 

arbitrator granted summary judgment in K12’s favor and dismissed Kelly’s claims 

with prejudice. 

1

 We issued an order instructing Kelly and Defendant Oklahoma Skynet (d/b/a 

Oklahoma Virtual Charter Academy) to address whether the district court’s order was 

final as to all parties and claims. See 28 U.S.C. § 1291 (granting courts of appeal 

jurisdiction “of appeals from all final decisions”). We conclude that the order was 

final, and we therefore have jurisdiction to address this appeal. 

2

 OVCA is a trade name used by Oklahoma Skynet, which answered Kelly’s 

claims against OVCA. Because the district court used the trade name to refer to this 

defendant, we will do the same. 
3 

 K12 then moved the district court to confirm the award and dismiss Kelly’s 

lawsuit. Kelly opposed the motion, and sought to amend her claims against OVCA, 

Plummer, and Ellison. Plummer and Ellison moved to dismiss Kelly’s claims against 

them on the merits and also argued the claims against them were foreclosed by the 

arbitrator’s decision. 

 The district court found no grounds to vacate, modify, or correct the 

arbitrator’s decision, and therefore confirmed the arbitration award. The district 

court also held the arbitration agreement applied to the claims against the remaining 

defendants and dismissed them as well. This appeal followed. 

II. DISCUSSION 

A. Arbitration Award 

“Our review of the [arbitrator’s] decision under the FAA is strictly limited; 

this highly deferential standard has been described as among the narrowest known to 

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

quotation marks omitted). A court may grant a motion to vacate an arbitration award 

only under very limited circumstances, including violation of public policy. Denver 

& Rio Grande W. R.R. v. Union Pac. R.R., 119 F.3d 847, 849 (10th Cir. 1997). 

 Kelly asserts the district court erred in confirming the arbitration award for 

two reasons. First, she contends the award violated public policy based on her 

allegation that K12 uses uncertified staff, thus impacting special education students. 

It is unclear, however, how this allegation connects to the arbitrator’s grant of 

summary judgment. The public policy exception applies “where the terms of the 
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arbitration contract . . . violate public policy or where the award requires parties 

undertake some action in violation of public policy.” Bowles Fin. Group, Inc. v. 

Stifel, Nicolaus & Co., 22 F.3d 1010, 1012 n. 1 (10th Cir. 1994). Kelly makes no 

such allegation here and therefore has not shown that the public policy exception 

applies here. 

Second, Kelly claims there was no valid contract because after the arbitration 

she found a second version of the arbitration agreement, suggesting that K12 secretly 

attempted to alter the agreement. But this alleged second version was never 

presented to the district court and is not part of the record on appeal. Although Kelly 

has attempted to supplement the record pursuant to Fed. App. R. 10(e), that rule 

“does not grant a license to build a new record” by supplementing the record on 

appeal with documents that were not before the district court. United States v. 

Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000) (internal quotations marks omitted). 

The district court did not err in finding there was a valid arbitration agreement. 

 In sum, we hold the district court correctly upheld the arbitrator’s grant of 

summary judgment against Kelly. 

B. Nonsignatories to Arbitration Agreement 

 A nonsignatory to an arbitration agreement can enforce an arbitration clause 

under the doctrine of equitable estoppel. See Thomson-CSF, S.A. v. Am. Arbitration 

Ass’n, 64 F.3d 773, 778 (2d Cir. 1995). Under this theory, a signatory may be 

required to arbitrate with a nonsignatory when the signatory alleges substantially 

interdependent and concerted misconduct by both the nonsignatory and the signatory 
5 

to the contract. See, e.g., MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947-48 

(11th Cir. 1999). Here, Kelly’s claims against OVCA, Plummer, and Ellison were 

not merely interdependent, but based on the exact same operative facts as her claims 

against K12. It was therefore appropriate to require Kelly to arbitrate with the 

non-signatories to the arbitration agreement, and we affirm their dismissal on that 

ground. 

III. CONCLUSION 

 For the foregoing reasons, we affirm the judgment of the district court. We 

deny Kelly’s motion to supplement the record. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge