United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PLAINTIFF'S MOTION TO
VACATE ARBITRATION AWARD [DOC. 27]
Victoria A. Roberts United States District Judge.
Smallish (“Smallish”) filed this employment
discrimination case in March 2012 against Meijer, Inc.
Shortly after Meijer appeared, the case was dismissed without
prejudice based on a binding arbitration agreement. The case
later proceeded to arbitration, resulting in a final award
October 20, 2016, Smallish moved to vacate the arbitration
award pursuant to 9 U.S.C. § 10 of the Federal
Arbitration Act. [Doc. 27]. This motion is before the Court.
reasons below, Smallish's motion to vacate [Doc. 27] is
appearing in this case, Meijer moved to compel arbitration
based on its Dispute Resolution Policy (“DRP”),
which covered Smallish and required that all employment
disputes be submitted to binding arbitration. On September
17, 2012, the Court granted Meijer's motion to compel
arbitration and dismissed the case without prejudice.
September 19, 2012, Meijer sent Smallish a letter setting
forth the procedure for selecting an arbitrator. Smallish did
not respond to the letter or attempt to initiate arbitration
until over three years later, in March 2016, when her
attorney mailed Meijer a letter incorporating the claims in
the March 2012 complaint and demanding arbitration.
initially refused Smallish's arbitration demand, arguing
her claims were time barred. However, on April 6, 2016,
Meijer sent Smallish a letter agreeing to arbitration and
acknowledging that its statute of limitations defense would
be resolved in that forum. Meijer also informed Smallish that
the next step was to select the arbitrator.
Meijer's DRP, Meijer provides a claimant with a list of
approved arbitrators. If the claimant rejects Meijer's
list, the American Arbitration Association (the
“AAA”) will provide a panel of arbitrators from
its Employment Dispute Resolution Roster. Regardless of the
list used, the arbitrator is selected by the parties
alternately striking arbitrators until only one arbitrator
attached a list of proposed arbitrators to its April 6
letter. That list included Donald Gasiorek
(“Gasiorek”), a partner at the firm Gasiorek,
Morgan, Greco, McCauley & Kotzian, P.C.
(“GMGMK”). On April 14, 2016, Smallish's
counsel responded, “I shall review your proposed
arbitrators with my client and advise.” [Doc. 29-2,
PgID 461]. Smallish rejected the list provided by Meijer; the
AAA provided a panel of arbitrators. However, after reviewing
that list of arbitrators, Smallish's counsel informed
Meijer that he would stipulate to Gasiorek from the original
list. Meijer agreed with Smallish's request. The parties
proceeded with Gasiorek as the arbitrator without using the
AAA strike process.
arbitration was underway, Arbitrator Gasiorek held an initial
scheduling conference with the parties. During the
conference, Meijer raised its statute of limitations defense,
and the parties agreed to a briefing schedule. Meijer filed
its motion for summary judgment - arguing Smallish's
claims were time barred - on June 3, 2016. Arbitrator
Gasiorek held a hearing on the motion on August 2, during
which Smallish sought and received 30 days to submit a brief
on a matter raised during the hearing.
September 23, 2016, Arbitrator Gasiorek issued an Opinion and
Order granting Meijer's motion, finding that
Smallish's claims were untimely.
week later, on September 30, Smallish's counsel sent
Gasiorek a letter alleging he had a conflict of interest and
requesting that he vacate the opinion and order granting
After you rendered your opinion, I forwarded the same to Ms.
Smallish. She and her husband performed a research task
related to you. I regret to inform you that I have discovered
that you and other personnel in your office were in contact
with Ms. Smallish regarding this case in 2011. I have
attached the three (3) emails which I have received dated
December 20, 2011, and December 21, 2011, which clearly
demonstrate that you and your office had discussions and
information regarding the case at that time.
I request that you search your email system to obtain any
other communications you may have had regarding this matter
during December 2011 and January 2012. It appears that any
proceedings you may have instituted to perform a conflicts
check prior to ...