1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LISA WHITE, Plaintiff, v. Civil Action No. 13-1399 (JEB) FOUR SEASONS HOTEL AND RESORTS,
Defendant.

MEMORANDUM OPINION Plaintiff Lisa White is an esthetician who believes that her f ormer employer, Defendant Four Seasons Hotel and Resorts , discriminated against her on th e basis of her race and pregnancy. After White filed suit and Four Seasons successfull y moved to compel arbitration, an Arbitrator selected by the partie s held an eleven-day hearing and decided in favor of Defendant. White now moves to vacate the arbi tration award pursuant to the Federal Arbitration Act, 9 U.S.C. § 10(a)(3), arguing that th e Arbitrator improperly allow ed Four Seasons both to withhold relevant information and to provide incomplete and inaccurate e vidence. As a result, Plaintiff contends that the hearing was rendered fundamentally unfair to her. Not surprisingly, Defendant disagrees and asks the Court to confirm the award. The Hotel’s position carries the day, as the Court concludes th at the Arbitrator’s discovery-related decisions di d not amount to misconduct such that White was denied a fundamentally fair hearing. Becau se she cannot meet the very d emanding standard for vacatur, the Court will deny her Motion to Vacate the Arbitration Award and grant Defendant’s Motion to Confirm the Award.2 I. Background Lisa White is a black woman who worked as an esthetician in th e spa at the Four Seasons Hotel here in Washington fro m September 2007 to August 2012. S ee ECF No. 42-1, Exh. K (Award) at 2. Initially hired for part-time work, she became a full-time employee in July 2008. Id. In August 2012, she filed a charge of discrimination again st Four Seasons with the Equal Employment Opportunity Commissi on and the D.C. Office of Human Rights. Id. at 3; Pl. Mot. at 4. White alleged that the Hotel had discriminated against h er on the basis of race and pregnancy by depriving her of client bookings and opportunities for promotion, subjecting her to a hostile work environment, and r etaliating again st her for voi cing her concerns. See Award at 1; Pl. Mot. at 3. She accordingly a sserted violations of Title VI I of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq ., Section 1977 of the Civil R ights Act of 1866, 42 U.S.C. § 19 81, and the D.C. Human Rights Act of 1977, D.C. Code § 2-14. See Award at 1. After the EEOC issued White a N otice of Right to Sue, she broug ht this action in the Superior Court for the Distr ict of Columbia in August 2013. Se e ECF No. 1-1. Four Seasons then removed the case to federal court and moved to compel arbi tration. See ECF Nos. 1, 5. This Court granted the motion i n November 2013 and stayed the c ase pending arbitration, which lasted for almost three years . White v. Four Seasons Hotels & Resorts, 999 F. Supp. 2d 250 (D.D.C. 2013). As provided for in White’s employment contract, Four Seasons be gan the process by filing a request for arbitrati on with the American Arbitration Association. See Def. Mot. at 2-3. The parties received names of possi ble arbitrators and selected Patricia Horan Latham, an individual with more than 30 years of experience as an arbitrat or/mediator and more than 40 years of experience as an atto rney. Id.; ECF No. 43-1 (Résumé of Patricia Horan Latham) at 1.3 After selecting the Arbitrator, the parties engaged in written discovery, document production, and the taking of depositions. This was no simple task. In fact, they produced 10,912 pages of documents, Four Seasons responded to 67 Interro gatories and took two depositions, and White took eleve n depositions. See Def. Mot. at 3. Among those individuals deposed were: Brian Simon, White’s manager at the Spa; Julia Bo eminghaus, who succeeded White as Spa manager; Laura Hatal a, a white esthetician at the Spa; Christian Clerc, President of Hotel Operations for Europe, the Middle East, an d Africa; Carol ina Baldi, Spa Supervisor; Stacey Coppel, Human Resources Dir ector; Craig Statham, Regiona l Director of Information Technology; and Ella Stimpson, the Spa’s expert witness on spa operations. See ECF No. 42-1, Exhs. A, B, D, F, L, P, W, KK. The arbitration hearing took place over the course of eleven no n-consecutive days, beginning on February 29 and ending on August 18, 2016. See EC F No. 42-1, Exh. AA (Tr. Arbitration Hearing, Day 1, F eb. 29, 2016); id., Exh. II (Tr. A rbitration Hearing, Aug. 18, 2016). “Eleven witnesses testified during the hearing, resulting in a record consisting of 3,035 pages of testimony and 1,166 pages of exhib its.” Def. Mot. at 1. The p arties then submitted post-hearing briefs. See ECF No. 42-1, Exhs . C, GG. On October 19, 2016, t he Arbitrator issued an award in favor of Defendant. See Award. Aft er discussing some of White ’s claims — including that she was unfairly denied appointm ents and promotion opportunities, h arassed by her co-workers and supervisors, and subjected to surveillance because of her compl aints — and finding them to be without sufficient support, the A rbitrator concluded that Four Seasons had not engaged in discrimination and denied all of her claims. Id. at 3-9. Plaintiff then timely filed the instant Motion, seeking to vaca te the award on the ground that the Arbitrator “refus[ed] to hear evidence pertinent and m aterial to the controversy.” 94 U.S.C. § 10(a)(3). This purporte d misconduct relates only to h er disparate-treatment claim; she asserts no arguments as to the remainder of her unsuccessful co unts. Defendant, in turn, filed an Opposition and Cross-Motion to Confirm the Award. Those Motion s are now ripe. II. Legal Standard In enacting the Federal A rbitration Act, 9 U.S.C. § 1 et seq. , Congress “replace[d] judicial indisposition to arbitr ation with a ‘ national policy f avoring [it] and plac[ ing] arbitration agreements on equal footing with a ll other contracts.” Hall St . Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 578 (2008). The FAA “establish[es] an alternativ e to the complications of litigation,” Revere Copper & Br ass Inc. v. Overseas Private Inv . Corp., 628 F.2d 81, 83 (D.C. Cir. 1980), and provides for “expedi ted judicial review to conf irm, vacate, or modify arbitration awards.” Hall St. Assocs., 552 U.S. at 578. As the D.C. Circuit has repeated ly emphasized, “[ J]udicial revi ew of arbitral awards is extremely limited.” Kanuth v. Presc ott, Ball & Turben, Inc., 9 49 F.2d 1175, 1178 (D.C. Cir. 1991). “Courts thus do not sit to he ar claims of factual or le gal error by an arbitrator as an appellate court does in revie wing decisions of lower courts.” Id. (quoting United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987)); see also K urke v. Oscar Gruss & Son, Inc., 454 F.3d 350, 354 (D.C. Cir. 2006). Consequently, a party seek ing to challenge an arbitrator’s award under any of the FAA’s four limited grounds, see 9 U.S.C. § 10(a), “must clear a high hurdle.” Stolt-Nielsen S.A. v. A nimalFeeds Int’l Corp., 559 U. S. 662, 671 (2010). Even a serious legal or factual error on t he part of the arbitrator wi ll not, standing alone, justify vacatur of an award. Id. Here, Plaintiff invokes 9 U.S.C . § 10(a)(3), which authorizes v acatur of an award “where the arbitrator[ was] guilty of misconduct . . . in refusing to hear evidence pertinent and material5 to the controversy.” “The sc ope of review under this provision is narrow.” Howard Univ. v. Metro. Campus Police Officer’s Union, 512 F.3d 716, 721 (D.C. C ir. 2008). This is because, “in making evidentiary determinations ,” arbitrators “need not follo w all the niceties observed by the federal courts.” Id. (quoting L essin v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 481 F.3d 813, 816 (D.C. Cir. 2007)). In submitting to arbitration, liti gants lose, for example, the right to the extensive discovery afford ed by the courts. See Shearson/A m. Exp., Inc. v. McMahon, 482 U.S. 220, 259 n.18 (1987). An arbitrator may determine whether or not certain evidence would prove relevant to her determination. See Lessin, 481 F.3d at 817. She thus has substantial leeway to admit any evidence th at she finds useful — even hears ay evidence. See Barker v. Gov’t Emps. Ins. Co., 339 F. Supp. 1064, 1067 (D.D.C. 1972). A n arbitrator may likewise opt to expedite a proceeding by excluding evidence and testimony that she finds irrelevant or duplicative. See Lessin, 481 F .3d at 817; Fairchild & Co. v. R ichmond, Fredericksburg & Potomac Ry. Co., 516 F. Supp. 1305, 1314-15 (D.D.C. 1981). In certain circumstances, an arbitrator may even have the f reedom to limit or bypass oral ar gument altogether. See, e.g., In re Arbitration between InterCar bon Bermuda, Lt. & Caltex Trading & Transp. Corp., 146 F.R.D. 64, 72-73 (S.D.N.Y. 1993); Cearfoss Const. Corp. v. Sabre Const . Corp., No. 89-1223, 1989 WL 516375, at *3-4 (D.D.C. Aug. 14, 1989). It is thus generally not enough f or the party seeking vacatur t o complain that the arbitrator made procedural mi ssteps; “[e]very failure of an arb itrator to receive relevant evidence does not constitute misconduct re quiring vacatur of an arbitrat or’s award.” Lessin, 481 F.3d at 818 (quoting Hoteles Condado Beach, La Concha & Convention Ctr. v. Union De Tronquistas Local 901, 763 F.2d 34, 40 (1st Cir. 1985)). Ultimately, all that is required is that the arbitrator “grant the parties a fundamen tally fair hearing.” Id. at 816 ( quoting Bell Aero space Co. Div. of6 Textron v. Local 516, 500 F.2d 921, 923 (2d Cir. 1974)). “[A] fundamentally fair hearing requires only notice, opportunity to be heard and to present re levant and material evidence and argument before the decision mak ers, and that the decision make rs are not infected with bias.” Howard Univ. v. Metro Campus Police Officer’s Union, 519 F. Sup p. 2d 27, 39 (D.D.C. 2007), aff’d, 512 F.3d 716 (D.C. Cir. 2008) ( quoting Bowles Fin. Grp., Inc. v. Stifel, Nicolaus & Co., Inc., 22 F.3d 1010, 1013 (10th Cir. 1994)). III. Analysis Before proceeding to the analys is of White’s 9 U.S.C. § 10(a)(3 ) argument, the Court notes that she also obliquely i nvokes a non-statutory, common-l aw ground for vacatur: that the Arbitrator manifestly disregard ed the law in reaching her final decision. See Pl. Mot. at 20 n.16. She does so only in a footnote , however, and never affirmativel y argues that “manifest disregard” is still a proper ground for vacatur in light of rec ent Supreme Court decisions. Id.; see also ARMA, S.R.O. v. BAE Sys . Overseas, Inc., 961 F. Supp. 2d 2 45, 268 (D.D.C. 2013) (discussing Supreme Court’s equi vocation in Hall Street Associa tes, 552 U.S. at 585, on whether manifest disregard of law can be ba sis for vacatur of arbitral award). The Court thus considers the issue forfeited. Huntingt on v. Dep’t of Commerce, 2017 WL 211301, at *4 (D.D.C. Jan. 18, 2017); Gold Reserve Inc. v. Boliv arian Republic of Venezuela, 1 46 F. Supp. 3d 112, 126-27 (D.D.C. 2015) (holding “obliquely ” raising issue in footnote in sufficient to surmount waiver threshold); see Hutchins v. District of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) ( en banc ) (explaining courts “need not con sider cursory arguments made only in a footnote”); Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (“[P ]erfunctory and underdeveloped arguments, and arguments that ar e unsupported by pertinent auth ority, are deemed waived.”).7 Turning now to White’s contenti on regarding § 10( a)(3), the Cou rt must decide whether, given the extremely narrow standa rd of review described above, the Arbitrator’s actions deprived her of a fundamentally fair hear ing. The heart of Plaintiff’s objection to the Ar bitrator’s conduct centers around rulings relating t o records from a database prog ram called SpaSoft, which the Spa used to manage appointment scheduling. White believes those re cords are crucial to her disparate-treatment arguments. See Pl. Mot. at 4-8. Specifically, White contends that when it came to scheduling he r for appointments with clients, Spa management, partic ularly Brian Simon, routinely vi olated the Spa’s policy that fulltime estheticians like White gene rally were to be given three h ours of bookings during a particular shift before a part- time colleague assigned to the s ame shift would be given her first hour of booking. See Pl. Mot. at 2 (citing ECF No. 42-1, Exh. B at 36:10-22). She alleges that she was improperly deprived of up to three bookings per month, to the benefit of her white parttime colleagues, and that her wh ite full-time co lleagues experi enced no such problems. Id. at 1- 3. As further evidence that Simon targeted her because of her race, White asserts that he twice deprived her of the opportunity t o apply for promotions at the Spa, once by failing to pass along a promotion application to Hum an Resources, and later by discus sing with White a promotion for a position that did not exist. Id. at 3 (citing ECF No. 42 -1, Exh. F at 58:18-59:7, 103:2-22). Four Seasons, in response, offers several non-discriminatory re asons the 3:1 guideline was not always adhered to, including guest cancellations, last-minute a ppointment additions, and specific-provider request s. See Def. Mot. at 6-7. To substantiate her disparate-tr eatment claims, White sought va rious SpaSoft records. As detailed below, Four Seasons de layed in producing the requested records, and those it ultimately produced were at times incomplete, inaccurate, or not in the fo rmat White desired. Plaintiff now8 argues that the Arbitrator know ingly failed to respond to Defen dant’s “bad-faith spoliation and withholding of key evidence” a nd, in so doing, “‘refus[ed] to h ear evidence pertinent and material to the controversy’” su ch that she “was deprived of a fundamentally fair hearing.” Pl. Reply at 1 (quoting 9 U.S.C. § 10(a)(3)). The Court first revi ews the nature of the discovery dispute and then assesses wheth er White in fact received less than a fair hearing.
A. Discovery Dispute In White’s first request for document production during the arb itration’s discovery phase, she rather broadly asked for “ weekly schedules . . . for every employee, past and present, parttime or full-time,” at the Spa “from August 2007 through presen t.” ECF No. 42-1, Exh. N at 8. Defendant proposed providing PDF s creen shots of the Visual Boo k — the SpaSoft calendar that showed all appointments — for each of the appointments schedule d during White’s tenure at the Spa. See ECF No. 42-1, Exh. R (Lette r from Vincent McKnight to Patricia Horan-Latham, Nov. 20, 2015) at 2. In a letter to the A rbitrator, White objected to the use of screen shots, arguing that they were not the format i n which the data was kept in the regular course of business and were “not searchable,” could not “be manipulated,” and were not able “to be sorted or compared.” Id. Explaining that he r claims “rest[ed] in part o n whether or not Four Seasons engaged in discriminatory booki ng practices by giving preferenc e to white estheticians over Ms. White, as well as crediting white e mployees with sales attribut able to Ms. White,” Plaintiff requested the following data: [I]n digital format, for the period of her tenure: all esthetic ian appointments scheduled; the date and time the appointments were scheduled; the name of the person who scheduled the appointment ; whether Lisa White was available when appointments were scheduled; all appointment cance llations or modifications, as w ell as the time and date of the cancellation or modification; a rec ord of whether a client requested a specific esthetician; for each appointment scheduled, a record of the esthetician’s seniority;9 profits associated with each booking; comparative data showing income produced between estheticians; payment to esthetician associated with each booking; any data showing the implementati on of preferences for full-time estheticians over time, and; any d ata showing the frequency of supervis or review and modification of the schedule. Id. (footnote omitted). Four Seasons protested that “th e SpaSoft data” had “no probati ve value whatsoever.” ECF No. 43-5 (Letter from Paul Wa gner to Patricia Horna-Latham, Jan. 19, 2016) at 2. It explained: “[M]ultiple factors continually affected the booking s,” “numerous people in different departments were involved in mak ing the appointments,” and “the 3-1 ratio . . . was merely a booking guideline, not a guarantee of compensation or a promise that the total number of appointments would ultimately fa ll within that ratio.” Id. Co nsequently, the Hotel reasoned, the data could not prove that White was denied bookings “due to her race or for any other reason, because the variables that determined how bookings were made or changed on any given day cannot be recreated . . . with any c ertainty,” and, in any case , “White’s earnings were approximately the same for each f ull year that she worked at th e spa,” if one accounted for medical leave. Id. Defendant furth er argued that the informat ion requested was burdensome to produce digitally and explained t hat it had “already created PD F files with documentary records of the schedules on days that Li sa White worked.” Id. at 1. Reaching a compromise solution, the Arbitrator ordered the Hote l to produce the data “in digitally indexed form” for four sample months that she — not t he parties — had randomly selected. See ECF No. 42-1, Exh. T ( Arbitrator’s Order, Jan. 2 6, 2016) at 1. She also stated that if additional production was needed during the course of the he aring, she would order it and schedule additional hearing days. Id.10 In February 2016, Defendant produc ed Excel-formatted Visual Bo ok records for the four sample months. See Pl. Mot. at 6. Those Excel records and the previously produced PDF screen shots of SpaSoft records during White’s employment at the Spa, however, were not complete. Among other omissions and inconsis tencies, they did not include the appointments of Joanne Fleming, a white, part-time esth etician whom White had indicate d she was likely to invoke as a comparator. See Pl. Mot. at 6- 7; ECF No. 42-1, Exh. Q (Declara tion of Vincent McKnight, Feb. 23, 2016), ¶¶ 30-33. To compensate for the missing data, Four Seasons produced appointment logs for January 2008 to May 2010 — t he period during which Fle ming worked part time and White worked full time — that co ntained all esth eticians’ appoi ntment records. See ECF No. 43-9 (Letter from Paul Wagner t o Patricia Horan-Latham, Feb. 11 , 2016) at 1. White subsequently moved for the Arbitrator to draw an adverse inference against Four Seasons. See ECF No. 42-1, Exh. O . She recounted her allegati ons of discrimination, id. at 3-5, and argued that Defendant had aduty to preserve pertinent docu ments since December 2009 but had nonetheless “lost or destroyed relevant evidence” — i.e. , the SpaSoft records. Id. at 11-14. She explained that comparator evi dence is often considered impo rtant in discrimination cases and contended that the deficien cies in the data produced render ed her unable to determine the number of times Fleming had rece ived a scheduling preference ov er her. Id. at 8-10, 14-15. In response, Defendant argued, inter alia , that although Fleming’s data w as missing from the Visual Book PDF and Excel productions, it was available in the appoint ment logs. See ECF No. 42-1, Exh. X at 1, 10. The Hotel also r ebutted the notion that it ha d deliberately destroyed Fleming’s SpaSoft records. Craig Statham , Regional Director of Informati on Technology for the Hotel, explained that Fleming’s information “most likely . . . was del eted shortly after the termination of her employment, as it is cus tomary to delete other accounts when employees leave, such as11 email accounts.” ECF No. 42-1, Exh. Z, ¶ 3. The Arbitrator de nied White’s motion. See ECF No. 42-1, Exh. AA (Tr. Arbitra tion Hearing, Day 1, Feb. 29, 201 6) at 11:5-9. After the arbitration hearing c ommenced, White deposed two Rul e 30(b)(6) witnesses designated by Four Seasons to tes tify about the Hotel’s use of SpaSoft between 2004 and 2015: Statham and the Spa’s Director , Julia Boeminghaus. See Def. Mo t. at 19. Days later, White moved for default judgment, argui ng that “the full extent of [D efendant’s] misconduct came into focus” at the depositions. See ECF No. 42-1, Exh. V (Letter Mo tion for Default Judgment, June 18, 2016) at 1. In the motion, White identified what she belie ved to be two misrepresentations: First, although Statham had previo usly stated that Fleming’s in formation likely was deleted upon her termination, Boeminghaus t estified that she had seen in Vis ual Book the appointment logs of previous employees and that t here was no protocol to delete pro viders from the system after they left and she had never he ard of anyone doing so. Id. at 304. Both she and Statham — despite his previous comments — testified th at had a provider been deleted from SpaSoft, it would have prevented them from being assi gned bookings moving forward but left their historical data intact. Id. at 4-5. From these statements, White surmised that Four Se asons may have “falsified or manipulated, perhaps inadverten tly,” the Visual Book records it produced. Id. at 11. Second, Statham testified that Four S easons sent a full backup of its S paSoft data to an off-site storage location every month between 2006 and 2015. Id. at 5. White t hus concluded that, although the archive on which Defendant relie d to produce the four sample mo nths’ data may have been corrupted, it easily could have accessed another non-corrupted backup that included Fleming’s data. Id. The Arbitrator denied the moti on for default judgment on June 2 0, 2016. See ECF No. 45 (Tr. Arbitration Hearing, D ay 6, June 20, 2016) at 7:2-8. T he parties then engaged in an12 extended discussion with the Arbit rator about whether Defendant should be ordered to obtain backup tapes that might include Fleming’s information. Id. at 7:16-20:22. The Hotel had not done so, it explained, because of the associated costs. Id. at 12:19-16:5. White’s counsel eventually agreed to p ay for three months of backup tapes, id. at 21:1-4, at a cost of $1,500 per tape. Id. at 15:19-20. Two and a half weeks later, White asked the Arbitrator to compe l production of “complete SpaSoft visual book records (1) for all dates on whic h [White] worked in [Defendant’s] spa, (2) in Micr osoft Excel format, and (3) with all metadata existing at the time of retrieval intact.” ECF No. 42- 1, Exh. EE (Letter from Vincent McKnight to Patricia HoranLatham, July 8, 2016) at 1. The motion recapped the Hotel’s hi story of incomplete and inaccurate data production, argued that its “refusal to provide complete visual book data in a usable format violates [Federa l Rule of Civil Procedure] 34,” a nd maintained that the PDF screen shots previously produced were t oo degraded to be usable. Id. at 2-4. Four days after that, Defendant emailed Plaintiff the backup fi le for which she had paid

— i.e. , Excel-formatted Visual Book data for May 2009, October 2009, and April 2010. See ECF No. 42-1, Exh. FF (Email from P aul Wagner to Vincent McKnig ht, et al ., July 12, 2016). It then responded to White’s motion to compel, arguing that it had produced four sample months of data as required by the Arbitrato r, as well as screen shots, ap pointment logs, and the backup tapes White paid for, and that none of those thousands of pages revealed evidence of discrimination. See ECF No. 43-18 (Letter from Paul Wagner to Patricia Horan-Latham, July 13, 2016) at 2-3. Four Seasons asked t he Arbitrator to “enter[ ] an order prohibiting further such motions and/or awarding [Defenda nt] its fees and costs for resp onding to them.” Id. at 4 (emphasis omitted). The Arbitrator denied White’s motion to co mpel, but did not expressly13 prohibit further motions or award Four Seasons fees. See ECF N o. 43-20 (Arbitrator’s Ruling, July 13, 2016) at 1-2. In so ruling, she recapped the document s that Four Seasons had produced and noted that numerous witnesse s had testified about SpaSoft a nd the appointment-scheduling process. Id. at 2. The next month, the Arbitrator held the final day of the hearin g. See ECF No. 42-1, Exh. II (Tr. Arbitration Hear ing, Day 11, Aug. 18, 2016). At the ou tset, she made decisions regarding exhibits newly presented for admi ssion. She admitted three Vis ual Book exhibits — the backup data most recently supplied to Plaintiff — but declined to admi t several appointment-log exhibits because Plaintiff had delayed in introducing them for several m onths absent any good reason and witnesses would not have had an oppor tunity to testify regardin g them. Id. at 5:3-12:11. The Arbitrator ultimately issu ed her decision in favor of Defen dant in October 2016. See Award. She therein addressed White ’s specific claims, includin g, as relevant here, the alleged booking-policy violations. Id. at 3- 5. After summarizing the 3:1 guideline and its exceptions, she observed that “[t]he appoint ments system was not perfect bu t overall was operated in a reasonable manner.” Id. at 4. White, she noted, “received suf ficient assignments” to move from a part-time to full-time pos ition in 2008 and “to remain full-t ime and to earn substantial income” until 2012, and “was the top wage earner . . . in esthetics” wh ile full time. Id. (citation omitted). At the end of the day, the Arbitr ator concluded, “There is not support for a finding that either the software or the adjustments made by management were intended to discriminate against [White] on the basis of race or had a disparate impact based upon race. ” Id. at 5.
B. Fundamentally Fair Hearing In moving to vacate the arbitral award, White argues that the Arbitrator’s discoveryrelated decisions described above constituted misconduct as def ined in the Federal Arbitration14 Act. Specifically, she assert s that, by “fail[ing] to address [Defendant’s] production of clearly incomplete and inaccurate records” and “[p]ermitting such misco nduct — amounting to spoliation of evidence — to go unche cked,” the Arbitrator “fail ed to sustain an arbitral forum wherein evidence could be prope rly exchanged and examined,” “re fused to hear the evidence that was never produced,” and “de prived [White] of a hearing th at even approached fundamental fairness.” Pl. Mot. at 19. She f urther explains in her Reply that, because “a party’s spoliation or withholding of evidence preven ts the opposing party from presen ting any arguments concerning the pertinence and materiality of the evidence, and prevents th e arbitrator from considering any aspect of the evidence,” the F AA’s evidentiary-misconduct test is satisfied when an arbitrator permits such action to continue unchecked. See Pl. Reply at 1 (citing 9 U.S.C. § 10(a)(3)). The Court does not concur, as itbelieves that White has not c leared the high threshold of showing fundamental unfairness. O n the contrary, the record re veals that she was able, on several occasions, to present de tailed arguments about the pert inence and materiality of the booking records, and that the Arbitr ator considered aspects of that evidence in reaching her final decision. Although Plaintiff may di sagree with the outcome, th e Court cannot find that it resulted from any vacatur-worthy d eficiency in the proceedings. To begin, the Arbitrator entertain ed several motions from Whit e in which she articulated her position concerning the relev ance and significance of the a ppointments evidence. See, e.g., ECF No. 42-1, Exh. O (Pl. Mot. for A dverse Inference) at 6 (“Wi th a racist comparator and a manager who had workplace issues with only minorities, discovery in this matter is essential to prove the priority booking rule wa s misapplied in a discriminat ory fashion.”); id. at 8 (“[T]he number of times that Ms. Flemi ng, a part-time worker, received a scheduling preference over the full-time Ms. White . . . is rele vant to both liability and dam ages.”); id. at 14-15 (explaining how15 “[t]he lost or destroyed SpaSoftrecords were clearly relevant to Ms. White’s claim”); id., Exh. V (Pl. Mot. for Default Judgment) at 8-9 (arguing Defendant’s fai lure to produce the requested SpaSoft records “severely hampered [White’s] ability to presenther case”). In those same motions, White argued vigorouslythat the Hotel had engaged in bad-faith spoliation of evidence. See Pl. Mot. for Adverse Inference at 11-14; Pl. Mot. for Defau lt Judgment at 2; Pl. Mot. to Compel at 2-4. By considering a nd deciding White’s discovery-r elated motions, the Arbitrator exercised her “full authority t o determine whether or not certa in evidence would prove relevant to [her] determination.” ARMA, 961 F. Supp. 2d at 264. Again, “district courts are not empowered to second-guess suc h decisions — procedural or substa ntive — even if there is evidence that the arbitrator erred.” Id. More importantly, White was able to use the booking-policy evi dence she obtained — the Excel-formatted data from the four sample months (including the backups), the PDF screen shots, some of the appointmentlogs, and the many depositions — to fully expand upon the merits of her discrimination claim at the lengthy hearing. Dur ing closing arguments, for example, White’s counsel, relying o n a “review[ of] all of the visual books,” told the Arbitrator, “Brian Simon violated the three to one policy with respect to M s. White on 37 occasions.” ECF No. 42-1, Exh. II (Tr. Arbitration Hearing, Aug. 18, 2016) at 9 7:24-98:8. After a Human Resources Director began investig ating White’s complaints again st Simon, counsel stated, the violations decreased f rom a rate of “1.6 to t wo violations” per month to “point six per month.” Id. at 100:13-23. Based on that da ta, counsel argued, “[T]he o nly way we can explain that spike [in violations] in the 23 months t hat Brian Simon was supervisi ng Ms. White before the intervention of [Human Resources ] is that there was an intentio nal conduct.” I d. at 102:10-14.16 White likewise marshaled booking-policy evidence to make simil ar arguments in her post-hearing submissions. Acco rding to Plaintiff’s briefing, s he “presented extensive data of (1) specific incidents when [she] w as inappropriately deprived of appointments to which she was entitled under the Policy, . . . and ( 2) data showing rates of misbooking over time.” Pl. Mot. at 14 (citing ECF No. 42-1, Exh. M. (Appendix of 3:1 Policy Violat ions) at 1-2). Indeed, White devoted six pages to documenti ng booking-policy violations and six more to arguing that those violations constituted disparate treatment. See ECF No. 42-1, Exh. C (Post-Hearing Mem.) at 7- 12, 30-35. Notably, she explained t hat she notified Simon of m ore than 100 policy violations in less than two years, whereas her white predecessor had raised b ooking issues only once per month, all of which were re solved. Id. at 7, 33 & n.142. She appended SpaSoft records that she alleged showed at least 58 viola tions during the period she worked full time under Simon and contended that, based on shifts wh en White worked full time and Hatala, a white esthetician, worked part time, policy viola tions occurred 22% of the time. Id. at 8; Exh. M at 1. White also argued, again based on appended evidence, that the Spa could ha ve enforced the 3:1 booking policy had it wanted to, given t hat the rate of policy violatio ns per shift dropped from 22% to 12% after she complained to the H otel’s Human Resources Directo r and to 10% after Simon was forced to resign. See Post-Hear ing Mem. at 10-11, 33; see also Exh. M at 2; Exh. H (Letter to Brian Simon, May 10, 2010). In addition to relying on the vari ous SpaSoft records to make her disparate-treatment argument, White utilized testimon y from several of the individu als deposed during the discovery period. Although she could not rel y on the appointment logs to compare her bookings with Fleming’s — as the Arbitrator h eld she had unduly delayed intro ducing them — she made a comparator argument another wa y. In particular, she referenced Hatala’s deposition to contend17 that, whereas Hatala had not e xperienced many violations when s he worked full time at the Spa, “numerous policy violations persis ted” when White worked full t ime under Simon, including when Hatala had received appoint ments that should have gone to White. See Post-Hearing Mem. at 7 n.38, 8 & n.44. She also cited the deposition of the Hotel’s Regional Human Resources Director — Stacey Coppel — and asserted that Coppel h ad admitted that White suffered numerous violations. Id. at 8 & n.43. In the final analysis, then, a lthough White may be frustrated b y the delays in production and the omissions in some versions of the SpaSoft records, the Arbitrator oversaw a thorough and extended discovery process a nd an eleven-day hearing during which White received and was able to introduce into the reco rd significant evidence — includ ing scheduling data and witness testimony — related to the al leged booking-policy violations. Armed with that evidence, White was able to present the Arbitr ator with a well-developed, if ul timately unconvincing, argument that she had been denied clientappointments on the basis of he r race. Plaintiff may have wanted more or differently formatted docu ments, but the Court may vaca te the award only if it can conclude that the Arbitrator w as guilty of misconduct in presid ing over the proceeding. On this record, it simply cannot do so. White had a full opportunity t o be heard and to present relevant and material evidence and argument, and she offers no basis on which the Court could conclude that the Arbitrator was biase d against her. See Howard Univ., 519 F. Supp. 2d at 39. The Arbitrator’s decisions not to com pel further production, draw a n adverse inference, or order default judgment thus did not depr ive White of a fundamentally fair hearing.18 IV. Conclusion For the foregoing reasons, the Court will deny Plaintiff’s Moti on to Vacate the Arbitration Award and grant Defe ndant’s Motion to Confirm the A rbitration Award. A contemporaneous Order so stating will issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: March 23, 2017