UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THIAN LOK TIO et al. , : : Petitioners, : Civil Action No.: 08-0626 (RMU) : v. : Re Document No.: 1 : WASHINGTON HOSPITAL CENTER et al. , : : Respondents. :

MEMORANDUM OPINION

D ENYING THE P ETITION TO V ACATE A RBITRATION A WARD I. INTRODUCTION This matter arises from an employment di spute between the petitioners, a physician and his spouse, and the physician’s former employer, respondent Washington Hospital Center (“the Hospital”). On November 5, 2004, in a prior acti on before this court, the court dismissed the petitioners’ claims against the Hospital and it s fellow respondents on the grounds that those claims were subject to a mandatory arbitrati on provision in the subjec t employment contract. The petitioners subsequently submitted their clai ms to arbitration and a final arbitration award was entered in favor of the respondents. Dissa tisfied with the result of the arbitration proceedings, the petitioners initiated this acti on seeking vacatur of th e arbitration award. Because the petitioners have not demonstrated that vacatur is appropriate, the court denies their petition to vacate th e arbitration award.2 II. FACTUAL & PROCEDURAL BACKGROUND Petitioner Thian Lok Tio, M.D. (“Dr. Tio” ) is a former employee of the Hospital, 1 where he held the position of Director of Endos copy in the Section of Gastroenterology. Tio v. Wash. Hosp. Ctr. , 2004 WL 2663149, at *1 (D.D.C. Nov. 5, 2004). 2 Prior to commencing his employment at the Hospital, Dr. Tio and the Hospital entered into a written employment agreement (the “Agreement”). See id. ; Respts’ Opp’n to Petrs’ Mot. to Vacate (“Respts’ Opp’n”) at 2. The Agreement contained an arb itration clause, which provided, in relevant part, that “any controversy, dispute or disagreement arisi ng out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration.” Compl., Ex. 1 ¶ 12, Tio v. Wash. Hosp.

Ctr. , No. 04-701 (D.D.C. Apr. 28, 2004). The Agreemen t provided for the costs of arbitration to be divided equally between the parties. See id. On April 18, 2003, the Hospital terminated Dr. Tio’s employment. Tio , 2004 WL 2663149, at *1

. Dr. Tio and his wife, petitioner Ting S ong S. Tio (“Mrs. Tio”), subsequently filed suit against the respondents in the D.C. Superior Court, a lleging: (1) tortious breach of contract; (2) tortious in terference with an employment cont ract; (3) denial of common-law good faith and fair dealing; (4) tor tious interference with third-part y physician-patient contracts; (5) defamation/slander; (6) inte ntional infliction of emotional dist ress (“IIED”); (7) fraud/misrepresentation; (8) anti trust violations; (9) wrongful te rmination; and (10) loss of

1 Respondent Medstar Health, Inc. is the corpor ate parent of respondent Washington Hospital Center Corporation. Pet. ¶ 2.

2 The parties in this action were previously before this court in a separate action involving the same underlying claims. See generally Compl., Tio v. Wash. Hosp. Ctr. , No. 04-701 (D.D.C. Apr. 28, 2004). The court draws the background facts of this case, in part, from the description of relevant facts set forth in its November 5, 2004 memorandum opinion in the prior case.3 consortium. 3 Id. After removing the action to this court, the defenda nts moved to dismiss the complaint and compel submission of the claims to arbitration. Id. On November 5, 2004, the court granted the defendants’ motion. Id. at *7. In reaching its decision, the court held that the Agreement, including the arbitrati on provision, was valid and

enforceable. Id. at *6. The court also concluded that the arbitration provision encompassed all of the claims asserted by Dr. Tio and that Mr s. Tio’s claims were en tirely derivative of and dependent on Dr. Tio’s claims and therefore subject to mandatory arbitration as well. Id. at *7. The petitioners subsequently initiated an arbitration proceeding before Judicial Arbitration & Mediation Services, Inc. (“JAMS”), asserting all of the claims raised in their complaint. Pet. ¶ 13; Respts’ Opp’n at 3. Du ring a preliminary hearing, and without objection, the arbitrator narrowed the partie s to those within the scope of the Agreement between Dr. Tio and the Hospital. Respts’ Opp’n, Ex. E (“Fi nal Award”) at 2. On January 25, 2007, after briefing and oral argument, the arbitrator gran ted in part the Hospital’s motion for summary judgment and dismissed all of the claims except Dr. Tio’s claims for breach of contract and wrongful termination on the basis of discrimination. Id. Beginning in late August 2007, the arbitrator conducted a hearing that spanned eight days. Id. at 3. At the hearing, the parties presented “diametrica lly opposed” versions of the

events at issue. Id. at 3 n.1. After considering the cumula tive weight of all admissible evidence, including testimony adduced during the hearings, id. , the arbitrator summ arized his factual

3 In the petitioners’ initial action, Dr. Tio’s wife was identified as Ting Soan S. Tio. Compl. at 1, Tio , 2004 WL 2663149. The defendants in that ac tion were the Hospital, Medstar Health, Inc., and nine employees and officers of the Hospital (hereinafter referred to collectively as “the defendants”). See generally id.4 findings, in relevant part, as follows: At some time in 2001, [Dr. Tio] initiated an employment application process at the Cedars-Sinai Hospital in California . . . [and continued] to pursue outside employment opportunities throughout 2002. In addition to seeking alternative employment, [Dr. Tio] curtailed his work at [the Hospital]. He began to travel extensively, attending conferences, speaking at engageme nts, and taking international trips and vacations. [Dr. Ti o’s] productivity, measured in terms of patient revenues and respons iveness to operati onal needs, plummeted. On or about April 23, 2003, [the Hospital] . . . te rminated [Dr. Tio’s] employment for cause, citing primarily [Dr. Tio’s] lack of leadership, decreased attention to his duties, and decline in productivity.

Id. at 4. According to the arbitrator, Dr. Tio establishe d at the hearing that he is a member of a protected class and that he suffered an adverse employment action when he was terminated from the hospital. Id . Nonetheless, the arbitrat or held that to prevail on his claim of discrimination,

which formed the basis of Dr. Tio’s breach of contract and wrongful termination claims, 4 Dr. Tio

also needed to establish that he was treated di sparately from other employees on the basis of his race and national origin. Id. at 5. Although Dr. Tio identified various instances in which he believed he had been treated disp arately from other physicians at the Hospital, the arbitrator ultimately concluded that there was insufficient evidence to establish disparate treatment. See id. at 5-6. Because the Hospital proffered evidence that Dr. Tio’s employment had been terminated

for cause and because Dr. Tio failed to establish th at he suffered discrimina tion in the course of his employment with and termination from the Hosp ital, the arbitrator entered a final arbitration award in favor of the Hospital with re spect to all claims and allegations. Id. at 5-7. Following the arbitrator’s ruling, the petitioners filed this petition to vacate the arbitration

4 The crux of Dr. Tio’s breach of contract claim appears to have been that his termination was without cause and motivated by discriminatory animus. See generally Compl., Tio , No. 04-701.5 award. See generally Pet. The petitioners c ontend that the arbitrati on award should be vacated because their claims were not subject to the Agreement’s mandatory arbitration clause, the arbitrator displayed bias and acted in manifest disregard of the law and the fee-splitting provision of the Agreement’s arbitration clause violates public policy. See generally id. ; Petrs’ Mem. in Support of Pet. (“Petrs’ Mem.”). The respondents maintain that the petitioners have presented no valid justification for vacati ng the final arbitration award. See generally Respts’ Opp’n. With this matter ripe for disposition, th e court turns to the a pplicable legal standa rds and the parties’ arguments.

III. ANALYSIS

A. The Petitioners’ Claims Fell Within the Scope of the Arbitration Agreement

Despite this court’s November 5, 2004 ruling, the petitioners conte nd that their claims

should not have been submitted to arbitration because (1) the Agreement involves foreign or interstate commerce and is therefore exempt from the provisions of the Federal Arbitration Act (“FAA”) under 9 U.S.C. § 1, (2) Dr. Tio’s claim of tortious interference with third-party physician-patient contracts falls outside the scope of the Agreement as the claim arose after the termination of his employment w ith the Hospital and (3) the Hosp ital waived its right to invoke the arbitration clause of the Agreement as it di d not seek to arbitrate this dispute prior to terminating Dr. Tio’s employment. Pet. ¶¶ 5, 9-10. The petitioners ra ised each of these arguments in the prior proceedings before this co urt in response to the respondents’ motion to6 dismiss and compel arbitration. 5 See Pls.’ Opp’n to Defs.’ Mot. Dismiss & Compel Arbitration,

Tio , 2004 WL 2663149. In ruling on the respondents’ mo tion to dismiss, the court considered and rejected each of these arguments. See Tio , 2004 WL 2663149, at *6-7. Accordingly, for the

reasons set forth in this court’s Memorandum Opinion dated November 5, 2004, the court holds that the claims at issue in the arbitration procee dings were within the scope of the arbitration provision of the Agreement and properly submitt ed to the arbitrator for determination. The court notes that the petitioners di d not challenge the November 5, 2004 order dismissing their claims or the court’s ruling co ncerning the scope of th e arbitration provision. Under the FAA, “[a]n appeal may be taken from a final decision with respect to an arbitration that is subject to this title.” 9 U.S.C.S. § 16(a)(3). A “final d ecision” is a decisi on “that ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.” Green Tree Fin. Corp.-Alabama v. Randolph , 531 U.S. 79, 86 (2000) (internal quotations omitted). The court’s November 5, 2004 order gr anting the Hospital’s motion to dismiss and referring the petitioner’s claims to arbitration under the arbitration clause of the Agreement constituted a final appealable decision. Id. at 89 (holding that distri ct court order dismissing claims and directing arbitration is final within the meaning of 9 U.S.C. § 16(a)(3), and therefore

5 Although the petitioners did not specifically argue th at the tortious interference claim was outside the scope of the arbitration agreement, they did contest the scope of the agreement generally and the court concluded that each claim, including Dr . Tio’s tortious interference claim, was within the scope of the Agreement. See Tio , 2004 WL 2663149, at *6. Nonetheless, Dr. Tio’s tortious interference claim seems to hinge entirely on wh ether the respondents interfered with his ability to take his “book of business” with him after the termination of his employment at the Hospital, see Pet. ¶ 10, and it therefore is within the scope of the arbitration provision because it relates to the Agreement and arose in connection w ith the termination of the agreement, see P&P Indus., Inc. v. Sutter Corp. , 179 F.3d 861, 871 (10th Cir. 1999) (concluding that a claim for tortious interference with third-party contracts fell within the scope of an “arising out of or relating to” arbitration clause when the claim arose in conn ection with the termination of the parties’ contract).7 appealable). Therefore, to the extent the peti tioners disagree with the court’s prior ruling, they failed to timely raise th eir objections on appeal. 6 See F ED

. R. A PP

. P. 4(a)(1)(A) (stating that a notice of appeal of a final order must be filed within thirty da ys after the judgment or order appealed from is entered).

B. Vacatur of the Arbitration Award Is Not Warranted 1. Legal Standard for Vacatur of an Arbitration Award

Judicial review of arbitrati on awards is extremely limited. Kurke v. Oscar Gruss & Son,

Inc. , 454 F.3d 350, 354 (D.C. Cir. 2006). The court “do[es ] not sit to hear claims of factual or legal error by an arbitrator” in the manner that an appeals court would review a decision of a

lower court. Teamsters Local Union No. 61 v. United Parcel Serv., Inc. , 272 F.3d 600, 604 (D.C. Cir. 2001) (quoting Kanuth v. Prescott, Ball & Turben, Inc. , 949 F.2d 1175, 1178 (D.C. Cir. 1991)). Rather, under the FAA, a cour t may only vacate an arbitration award (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corr uption in the arbitrators, or either of them;

6 A party may also seek relief from a final judgmen t under Federal Rule of Civil Procedure 60(b). Rule 60(b)(6) provides that a court may grant relief from a final judgment for any reason that justifies relief if such relief is re quested within a reasonable time. See F ED

. R. C IV

. P. 60(b)-(c). Such relief is justified only in excepti onal or extraordinary circumstances. Ackermann v. United States , 340 U.S. 193, 199-202 (1950) . “What constitutes a ‘reasona ble time’ depends upon the facts of each case, taking into consideration the inte rests of finality, the reasons for the delay, the practicability of the litigant to learn earlier of the grounds relied upon, and prejudice to the other parties.” Bowie v. Maddox , 677 F. Supp. 2d 276, 278 (D.D.C. 2010) (quoting Osborne v. Homeside Lending, Inc. , 379 F.3d 277, 283 (5th Cir. 2004)). Although the petitioners did not expressly request relief from the final judgment that was entered on November 5, 2004, the court notes the circumstances of this case are neither ex ceptional nor extraordinar y and thus would not justify relief from the final judgment. Moreove r, the petitioners’ are attempting to relitigate issues that were previously resolved by the cour t forty-one months after entry of a final judgment disposing of their claims. It is apparent that the petitioners have only raised these issues again because they are dissatisfied with the result of the arbitration. The court therefore concludes that the petitioners’ delay was not reasonable.8 (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. 9 U.S.C. § 10(a). The party challenging an ar bitration award bears the burden of demonstrating that one of the statutory grounds set forth in the FAA exists. See Al-Haribi v. Citibank, N.A. , 85 F.3d 680, 682 (D.C. Cir. 1996). In addition to the statutory grounds for vacatur, th is Circuit has also stated that vacatur of an arbitration award is permitted if the arbitrat or acted in “manifest disregard of the law,” 7 Al Haribi v. Citibank, N.A. , 85 F.3d 680, 682 (D.C. Cir. 1996) (quoting Kanuth , 949 F.2d at 1178), or if the award is “contrary to ‘some explicit publ ic policy’ that is ‘we ll defined and dominant’ and ascertained ‘by reference to the laws or legal precedents,’” LaPrade v. Kidder, Peabody &

Co. , 246 F.3d 702, 706 (D.C. Cir. 2001) (quoting Cole v. Burns Int’l Sec. Servs. , 105 F.3d 1465, 1486 (D.C. Cir. 1997)). To vacate an arbitration aw ard on the basis of an arbitrator’s manifest

7 The Supreme Court recently held that the provisions set forth in 9 U.S.C. § 10 “provide the FAA’s exclusive grounds for expedited vacatur.” Hall Street Assocs. v. Mattel, Inc. , 552 U.S. 576, 582 (2008). In light of this ruling, it is unclear whether the “manif est disregard” standard remains a viable basis for relief. Compare, e.g. , Citigroup Global Mkts., Inc. v. Bacon , 562 F.3d 349, 358 (5th Cir. 2009) (recognizing that manifest disregard of the law is no longer an “independent, nonstatutory ground” for setting aside an arbitration award) with Comedy Club, Inc. v. Improv West Assocs. , 553 F.3d 1277, 1281 (9th Cir. 2009) (concluding that manifest disregard of the law “remains a valid ground for vacatur of an arbitration award under § 10(a)(4) of the Federal Arbitration Act”). Neither the S upreme Court nor this Circuit has resolved this issue. See Stolt-Nielson S.A. v. AnimalFeeds Int’l Corp. , 130 S. Ct. 1758, 1768 n.3 (2010) (declining to decide whether the “manifest di sregard” doctrine continues to survive as an independent ground for judicial re view of an arbitration award); Regnery Publ’g Inc. v. Miniter , 368 F. App’x 148 (D.C. Cir. 2010) (assuming without deciding that the “manifest disregard” doctrine survives Hall Street ). Because the petitioners in this case have not established the arbitrator’s “manifest disregard,” see infra Part III.B.3, the court need not decide the viability of the “manifest disregard” standard to resolve this case.9 disregard of the law, the court “must find that (1) the arbitrator[] kne w of a governing legal principle yet refused to apply it or ignored it alto gether and (2) the law ig nored by the arbitrator[] was well defined, explicit, and clea rly applicable to the case.” Id. (quoting DiRussa v. Dean Witter Reynolds, Inc ., 121 F.3d 818, 821 (2d Cir. 1997)). 2. The Petitioners Have Not Established a Statutory Basis for Vacating the Arbitration Award The petitioners argue that vacatur is a ppropriate under the FAA on two grounds: evident partiality and misconduct. 8 Specifically, the petitioners conten d that the arbitrator demonstrated partiality by making various rulings that were ad verse to their claims and that the arbitrator committed misconduct by excluding certain te stimony during the arbitration hearing. See generally Pet.; Petrs’ Mem. at 25-26. The respondent s contend that the co urt should reject the petitioners’ assertion of eviden t partiality because they have not produced any evidence to support their contentions, the purported instances of partiality are belied by the record and the conduct complained of, even if true, does not rise to the level of evident partiality. See Respts’ Opp’n at 12-15. The respondents further contend th at the petitioners have failed to demonstrate misconduct, as they have not shown that the excl uded testimony was material and pertinent or that they were denied a fair and full heari ng as a result of the arbitrator’s conduct. See id. at 15-

17. The court turns first to the petitioners’ claim of evident partiality. A party challenging an

8 The petitioners also seem to argue that vacatur is appropriate under 9 U.S.C. § 10(a)(4) on the ground that the arbitrator exceeded his authority, but this argument appears to be grounded in the petitioners’ contention that some of their claims were outside the scope of the arbitration provision of the Agreement. Pet. ¶¶ 9-10; Petrs’ Mem. at 22-23. As previously discussed, however, the court already concluded in its Nove mber 5, 2004 ruling that all of the petitioners’ claims were subject to the arbitration provision. See supra Part III.A. Therefore, the arbitrator did not exceed his authority by resolv ing all of the petitioners’ claims.10 arbitration award because of evid ent partiality bears a “heavy” bur den to establish “specific facts that indicate improper motives on the part of an arbitrator.” Al-Haribi , 85 F.3d at 683 (quoting Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co. , 991 F.2d 141, 146 (4th Cir. 1993)). “The alleged partiality must be direct, definite, a nd capable of demonstrati on rather than remote, uncertain or speculative.” Id. (quoting Peoples Sec. Life Ins. , 991 F.2d at 146). “[A] mere appearance of bias is insufficient to demonstrate evident partiality.” Alston v. UBS Fin. Servs.,

Inc. , 2006 WL 20516, at *3 (D.D.C. Jan. 2, 2006). The petitioners contend that the arbitrator exhibited evident partiality in numerous procedural, substantive and evidentiary rulings du ring the course of the arbitration proceedings. See generally Pet. But rather than identifying specifi c facts that indicate improper motives on the part of the arbitrator, the petitioners rely primarily on speculative a nd conclusory allegations to support their claim. The petitioners do not sup port their asserti on of evident partiality with a single citation to the record of the arbitration proceedings or a ny other evidence setting forth the specific facts necessary to support their position. See generally Pet.; Petrs’ Mem. Indeed, the petitioners’ claim of evident partiality rests al most exclusively on their dissatisfaction with the arbitrator’s rulings that “eliminate[d] and rest rict[ed] the claims, the parties, the number of witness [sic], [and] the timing and order of presenta tion of Petitioner’s case in chief.” Pet. ¶ 15. These rulings, however, do not demonstrate evident partiality. 9 See Alston , 2006 WL 20516, at *3-4 (rejecting the petitioners’ contention that un favorable procedural and evidentiary rulings by

9 At any rate, on the record before the court, there does not seem to be anything unusual or inappropriate about the arbitrator’s rulings on these issues. See Fairchild & Co. v. Richmond, F. & P. R. Co. , 516 F. Supp. 1305, 1313 (D.D.C. 1981) (recognizing that “since the advantages of arbitration are speed and informality, an arbitrat or should be expected to act affirmatively to simplify and expedite the proceedings before him”).11 an arbitrator amounted to evident partiality). Although a series of unf avorable rulings by the arbitrator may produce an appearance of bias in the eyes of the unsuccessful party, it does not justify vacating the arbitration award. The petitioners also contend th at the arbitrator’s ultimate conclusion and decision to enter

the final arbitration award in favor of the res pondents demonstrates his evident partiality. See Pet. ¶ 12; Petrs’ Mem. at 24-25. It would appear that the petitioners base this contention on their

belief that the arbitrator ina ppropriately credited the testimon y of witnesses offered by the respondents, even though “[t]hey we re contradicted on cross-examination.” Petrs’ Mem. at 25. The petitioners, however, have not identified specific testimony that they believe was unworthy of credence and point to no speci fic facts that indicate improper motives on the part of the arbitrator in concluding that the weight of the evidence favored the defendant. See generally Pet.; Petrs’ Mem. Indeed, the ar bitrator specifically noted in th e final arbitration award that the parties had offered conflicting vers ions of the circumstances. Fina l Award at 3. The arbitrator further observed that “[w]hile the credibility of witnesses was taken into account . . . a finding that does not comport with a particular party’ s testimony should not necessarily be deemed a finding that the party lacked cr edibility. All findings were based upon the cumulative weight of

all admissible evidence.” Id . At any rate, the court is “not aut horized to reconsider the merits of an award even though the parties may allege th at the award rests on errors of fact.” Teamsters

Local Union No. 61 , 272 F.3d at 604 (quoting United Paperworkers Int’ l Union, AFL-CIO v. Misco, Inc. , 484 U.S. 29, 36 (1987)). The court will not second-guess the arbitrator’s award simply because the petitioners disa gree with his factual conclusions. Equally unavailing is the pe titioners’ argument that the arbitration award should be vacated because the arbitrator was guilty of mi sconduct in failing to hear certain evidence. See12 Pet. ¶ 14; Petrs’ Mem. at 25-26. An arbitrator has the broad discre tion to control the evidence in an arbitration proceeding, including the authority to refuse to hear evidence that is cumulative or

of little relevance. Lessin v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 481 F.3d 813, 817-18 (D.C. Cir. 2007); see also Fairchild , 516 F. Supp. at 1314 (noting th at “arbitrators are charged with the duty of determining what evidence is re levant and what is irre levant”). To justify vacatur on the ground of misconduct, the petition ers must demonstrate that the excluded evidence was pertinent and material to the c ontroversy, 9 U.S.C. § 10(a)(3), and that the exclusion of the evidence deprived the pe titioners of a fundamentally fair hearing, Lessin , 481 F.3d at 816; see also Fairchild , 516 F. Supp. at 1314 (recognizing that evidentiary mistakes do not provide grounds for vacating an arbitrati on award unless they undermine the fundamental fairness of the proceedings). Thus, “every fa ilure to receive relevant evidence does not constitute misconduct under the [FAA] so as to require vacation of the award.” Fairchild , 516 F. Supp. at 1314

. The “pertinent and material” evidence th at the petitioners contend was erroneously excluded includes testimony by the wife of a hospitalized pa tient, testimony of “other patients . . . to show total revenue gene rated due to high income for sp ecialized procedures,” “testimony of other physicians and fellows as to Dr. Tio’s leadership in running the unit, ” and “rebuttal testimony of witness to refute te stimony of respondents[’] witnesses. ” Pet. ¶ 14. It is not clear what value this testimony would have added to the proceeding and the petitioners have not attempted to explain how this tes timony is pertinent and material to Dr. Tio’s claims of breach of

contract and discrimination. See generally Pet.; Petrs’ Mem. But assuming arguendo that this testimony would have been relevant to the clai ms at issue in the h earing, the petitioners’ argument fails because they have not established th at the excluded evidence was critical to their13 case or that the exclusion of the testimony depr ived them of a fundame ntally fair hearing. See Howard Univ. v. Metro. Campus Police Officer's Union , 512 F.3d 716 (D.C. Cir. 2008) (deferring to the arbitrator’s discretion in making evidentiary rulings and noting that the

excluded evidence was not critical to the proponent’s case). Accordingly, although the petiti oners have demonstrated th eir dissatisfaction with the result of the arbitration proceeding, they have not established that vacatur is appropriate under 9 U.S.C. § 10(a). Because the petitioners failed to meet their burden, the c ourt declines to vacate the arbitration award on statutory grounds.

3. The Petitioners Have Not Shown the Arbi trator’s Manifest Di sregard of the Law As an alternate ground for vacatur, the petiti oners contend that the arbitrator acted in manifest disregard of the law. Pet. ¶ 14; Petrs’ Mem. at 20-21. Although the petitioners’ arguments are not entirely clear, their primary contention appears to be that the arbitrator demonstrated manifest disregard of the la w by denying the respondent s’ motion for summary judgment as to the breach of contract claim, but granting the motion as to Dr. Tio’s claims of tortious interference, IIED and discrimination. 10 Petrs’ Mem. at 21. According to the petitioners, these claims are “so inextricably linke d” with the breach of co ntract claim that it was

error to dismiss them. Id. In addition, the petitioners cont end that the arbitrator acted in manifest disregard of the law when he grante d in part the respondents’ motion for summary judgment and dismissed “nearly all [of the] pe titioners’ major claims and all key individual

10 As discussed more fully below, contrary to the petitioners’ contention, the arbitrator did not grant the respondents’ motion for summary judgment on Dr. Tio’s discrimination claim. See infra Part III.B.3.14 parties, without oral ar gument or other hearing,” 11 Pet. ¶ 14, and by failing to set forth his ruling in a detailed written opinion, id. The respondents contend that their motion for summary judgment was “amply supported by record evidence demonstrating that [they we re] entitled to summar y judgment,” Respts’ Opp’n at 21, and have identified portions of the record indicati ng that the arbitrator made a reasoned and deliberate ruling on th e motion for summary judgment, id. at 21-22; see also PreHearing Order No. 1 (setting forth the arbitrat or’s ruling on the Hospital’s motion for summary judgment and noting that the ruling was made “[ o]n the basis of the written motions and all responses filed thereto, as well as oral argument”); H’rg Tr. at 81:2-3 (stati ng that the basis of his ruling on the Hospital’s motion for summary j udgment “is in Responde nt’ s 43-page brief [where] they thoroughly br iefed these issues”).

To demonstrate that the arbitrator acted in ma nifest disregard of the law, the petitioners must show that the arbitrator knew of a governing legal principle, yet refused to apply it in ruling

on their claims. LaPrade , 246 F.3d at 706. Because the parties briefed and argued the matters at issue in the respondents’ motion for summary judgment, the court assumes arguendo that the arbitrator knew the legal prin ciples that govern the petitione rs’ substantive claims. The

11 To the extent the petitioners take issue with the di smissal of individual parties and the arbitrator’s alleged failure to hold a hearing, Pet. ¶ 14, their contentions are refuted by the record. The record indicates that “the arbitrator narrowed the parti es to those who were within the scope of the operable agreement to arbitrate contained in [the Agreement].” Final Award at 2. This ruling occurred, without objection by Dr. Tio or the Hospital, during the preliminary hearing. Id. Moreover, the arbitrator indicated during the arb itration proceedings that his summary judgment order “was made on the basis of written motions, all the responses filed thereto, and oral arguments .” Respts’ Opp’n, Ex. K (“Heari ng Tr.”) at 29:5-7 (emphasis added); see also Respts’ Opp’n, Ex. I (“Pre-Hearing Order No. 1”) (noting that the arbitrator’s ruling concerning the motion for summary judgment was made “[o]n th e basis of the written motions and all responses filed thereto, as well as oral argument made by the parties”). Thus, the record clearly indicates that the arbitrator did conduct a hearing.15 petitioners, however, still must demonstrate that the arbitrator refused to apply these governing legal principles to their claims when he rule d on the respondents’ moti on for summary judgment. The petitioners suggest that because there was a genuine issue of mate rial fact related to their breach of contract claim, th ere must have also been a genuine issue of material fact related

to their other claims. Petrs’ Mem. at 21. This argument assumes that th e petitioners’ claims are comprised of overlapping or identical elements , such that they must all survive summary judgment or all be dismissed. Such an assumpti on is not justified. Indeed, it should be selfevident that the elements of a claim of IIED or tortious interf erence with a business relationship

are not the same as the elements of a claim for breach of contract. Compare, e.g. , Pitt v. Dist. of

Columbia , 491 F.3d 494, 505-06 (D.C. Cir. 2007) (setting forth the elements of an IIED claim under District of Columbia law) with Sturdza v. United Arab Emirates , 281 F.3d 1287, 1305 (D.C. Cir. 2002) (setting forth the elements of a tortious interference claim under District of Columbia law) and Ihebereme v. Capital One, N.A. , 2010 WL 3118815, at *3 (D.D.C. Aug. 9, 2010) (setting forth the elements of a breach of contract claim). Because the petitioners have

offered no evidence to demonstrate that the arbi trator refused to appl y or ignored the legal principles governing claims of to rtious interference or IIED or any other claim at issue in the proceedings, they have not demonstrated that the arbitrator acted in manifest disregard of the law by granting in part and denying in part the respondents’ motion for summary judgment. See generally Pet.; Petrs’ Mem. The petitioners also contend th at the arbitrator acted in ma nifest disregard of the law by granting the respondents’ motion for summary j udgment on Dr. Tio’s di scrimination claim. See Pet. ¶ 14 (contending that “this partial finding [on the motion for summary judgment] is wrong with regard to claims of discrimination where the breach of contract could be based on such16 grounds”); Petrs’ Mem. at 27 (arguing that the “Petitioners’ discrimination claims should not have been cut off by way of Summary Judgment granted to the Respondents”). The record plainly indicates, however, that the arbitrator denied the re spondents’ motion for summary judgment on this claim. See Pre-Hearing Order No. 1 (granting summary judgment to the Hospital and dismissing all claims except Dr. Tio’s claims of breach of contract and wrongful termination of employment on the basis of disc rimination) (emphasis added); Final Award at 2 (stating that “the claims remaini ng to be heard were Claimant’s al legations that Respondent . . . illegally terminated his employment on the basis of discrimination ”) (emphasis added); id. at 4-6 (analyzing the merits of Dr. Tio’s discrimination claim). Instead, the arbitrator conducted an evidentiary hearing spanning eigh t days and concluded, based on the evidence presented during the hearing, that the petitioner had not proven his claim of disc rimination. Final Award at 6 (stating that the “matter was noteworthy for the co mplete absence of any ev idence of racial bias or other impermissible intent to discriminate against [Dr. Tio]”). The petitioners also suggest that the arbitrat or acted in manifest disregard of the law by ruling on the respondents’ motion for summary judg ment “with a single sentence.” Pet. ¶ 14. Although the arbitrator did not re nder a detailed opinion as to the basis of his rulings on the motion for summary judgment, he was under no obligation to do so. See Sargent v. Paine Webber Jackson & Curtis, Inc. , 882 F.2d 529, 532 (D.C. Cir. 1989) ( holding that arbitrators are not required to explain th e basis for their awards); cf. Kurke , 454 F.3d at 354-55 (noting that “[e]ven where an explanation for an award is defi cient or non-existent, [t he court] will confirm it if a justifiable ground for the decision can be inferred from the facts of the case” (quoting Duferco Int'l Steel Trading v. T. Klaveness Shipping A/S , 333 F.3d 383, 390 (2d Cir. 2003))). In this case, the arbitrator indicated during th e hearing that the basi s of his ruling was the17 Hospital’s forty-three page summary judgment brief. Hearing Tr. at 81:1-7. In their motion for summary judgment, the respondents set forth the material facts as to which there was no genuine dispute and produced deposition testimony and docume ntary evidence to establish those facts. See generally Respts’ Opp’n, Ex. Q. For each of the petitioners’ claims, the respondents addressed the governing legal standard and identified essential elements that they believed to be unsupported by the record. Id. In contrast, the petitioners’ opposition to the respondents’ motion for summary judgment consisted primarily of conclusory arguments about why summary judgment was not appropriate. See generally Respts’ Opp’n, Ex. M. The only evidence offered in support of the petitioners’ opposi tion was an affidavit of Dr. Tio. Id. This record amply justifies the arbitrator’s decisi on to grant summary judgment to the respondents on some of the petitioners claims, and vacatur is not appropriate simply because the arbitrator ruled on the Hospital’s motion for summary judg ment without providing a detaile d explanation for his ruling. In sum, even after a liberal reading of the pe titioners’ arguments, it is clear they have not

established that the arbitrator acted in manifest disregard of the law by refusing to apply governing legal principles to their claims. A ccordingly, the court declines to vacate the arbitrator’s ruling on this basis. 4. The Parties’ Agreement to Split Arbi tration Costs Does Not Justify Vacatur The petitioners also argue that the arbitr ation award should be vacated because it is against public policy to require a claimant who is advancing a discrimination claim in an18 arbitration proceeding to pay half the cost of the arbitration. 12 Pet. ¶ 14. Noting that the petitioners seem to be challenging whether th e discrimination claim was properly submitted to arbitration in light of the fee- splitting provision, the respondents contend that the petitioners waived any arguments they may have had conc erning the fee-splitting provision by failing to

raise the issue until this late stage in the proceedings. See Respts’ Opp’n at 9. In an action to vindicate a public right, this Circuit disfa vors placing the financial burden of arbitral proceedings on the party pursuing a claim. See Cole , 105 F.3d at 1485 (holding that employee could not be required to arbitrate discrimination claim as a condition of employment “if the arbitration agreement required him to pa y all or part of the arbitrator’s fees and expenses”). Nonetheless, a fee-splitting prov ision does not impede the remedial and deterrent functions of the statutory right “so long as the prospective litigant effectively may vindicate his or her statutory cause of acti on in the arbitral forum.” Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 28 (1991) (altera tion in original) (citing Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc. , 473 U.S. 614, 637 (1985)). The petitioners have no basis to challenge the fee-splitting requirement at this stage in the proceeding because there is no evidence that the requirement limited their ability to effectively vindicate Dr. Tio’s statutory cause of action. LaPrade , 246 F.3d at 708 (rejecting an employee’s challenge to a fee-splitting provision in an ar bitration agreement because the employee did not claim “that the possibility of a large assessment ar ising from arbitration of her claims prevented

12 In addition to challenging the fee-splitting provisi on on public policy grounds, the petitioners also contend that it was against public policy for th e arbitrator to grant the Hospital’s motion for summary judgment as to Dr. Tio’s discrimination claim. See Petrs’ Mem. at 26-27. This argument lacks merit because, as explained above, the arbitrator did not grant summary judgment on Dr. Tio’s discrimination claim. See supra Part III.B.3.19 her from attempting to vindicate he r rights” or that “the arbitra tion panel failed to consider the

evidence that she submitted to show she was fina ncially unable to pay any assessment”). Indeed, there is nothing in the record to suggest that the petitioners objected to sharing the burden of the

arbitration costs until after the arbitrator entered a final arb itration award in favor of the respondents. 13 Because the petitioners have not demons trated that the fee-splitting requirement set forth in the arbitration provisi on of the Agreement violates public policy, their effort to have

the arbitration award va cated on this ground fails.

IV. CONCLUSION For the foregoing reasons, the court denies the petition to vacate the arbitration award. An Order consistent with this Memorandum Opini on is separately and contemporaneously issued this 30th day of November, 2010.

RICARDO M. URBINA United States District Judge

13 The petitioners had an opportunity to challenge the fee-splitting provision when their claims were before this court in 2004, yet th ey failed to object to enforcement of the arbitration provision on this ground. See generally Pls.’ Opp’n to Defs.’ Mot. Dismiss & Compel Arbitration, Tio , 2004 WL 2663149. In addition, the pe titioners have not argued that they unsuccessfully challenged the fee-splitting provision during the course of the arbitration proceedings. See generally Pet.; Petrs’ Mem.