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Smallish v. Meijer, Inc.

United States District Court, E.D. Michigan, Southern Division

May 8, 2017

MEIJER, INC., Defendant.


          Victoria A. Roberts United States District Judge.


         Jacquelyn 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 against Smallish.

         On 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.

         For the reasons below, Smallish's motion to vacate [Doc. 27] is DENIED.


         After 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.

         On 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.

         Meijer 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.

         Under 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 remains.

         Meijer 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.

         Once 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.

         On September 23, 2016, Arbitrator Gasiorek issued an Opinion and Order granting Meijer's motion, finding that Smallish's claims were untimely.

         One 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 Meijer's motion:

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 ...

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