Brent Lindsey v. Travelers Commercial Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENT LINDSEY,
Plaintiff-Appellee,
v.
TRAVELERS COMMERCIAL
INSURANCE COMPANY, ET AL.
Defendants-Appellants.
No. 22-16795
D.C. No. 2:19-cv-01855-KJM-CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted December 5, 2023
San Francisco, California
Before: S.R. THOMAS and BRESS, Circuit Judges, and EZRA,** District Judge.
Dissent by Judge BRESS.
Travelers Commercial Insurance Company appeals the district court’s
decision to vacate an arbitration award pursuant to Section 10(a)(3) of the Federal
Arbitration Act (“FAA”). We review vacatur of arbitration awards like “any other
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
FILED
DEC 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
district court decision . . . accepting findings of fact that are not ‘clearly erroneous’
but deciding questions of law de novo.” First Options, Inc. v. Kaplan, 514 U.S.
938, 948 (1995); Aspic Eng’g & Constr. Co. v. ECC Centcom Constructors LLC,
913 F.3d 1162, 1166 (9th Cir. 2019) (reviewing vacatur of arbitration award). We
have jurisdiction under 28 U.S.C. § 1291. We AFFIRM.
Because arbitration is an encouraged method of dispute resolution, a federal
court’s “[r]eview of an arbitration award is both limited and highly deferential.”
Aspic Eng’g & Constr. Co., 913 F.3d at 1166 (internal quotations and citation
omitted). This deference is not without limits. Where the arbitrator refuses to hear
evidence pertinent and material to the controversy, that is misconduct. 9 U.SC.
§ 10(a)(3). A party seeking the vacatur of an arbitration award must also establish
that the misconduct was prejudicial. U.S. Life Ins. Co. v. Superior Nat’l Ins. Co.,
591 F.3d 1167, 1176 (9th Cir. 2010).
The district court properly vacated the arbitration award because it was
fundamentally unfair for the arbitrator to deny Brent Lindsey the very evidence
that the arbitrator later faulted Lindsey for not producing. The evidence at issue—
data on the salaries of other employees with Lindsey’s position—was pertinent and
material. It is well established that reliable statistical data is relevant to disparate
treatment claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804–05
(1973); Gay v. Waiters’ & Dairy Lunchmen’s Union, 694 F.2d 531, 550 (9th Cir.

-- 2 of 4 --

3
1982). The procedural error made by the arbitrator in denying the discovery
request was prejudicial because without the pay data, Lindsey lacked the statistical
support to prove his disparate treatment claim. The arbitrator then concluded on
summary judgement that Lindsey failed to present evidence that race was ever a
factor in his compensation. In faulting Lindsey for not offering the exact evidence
he kept Lindsey from producing, the arbitrator provided a fundamentally unfair
proceeding.
Therefore, we conclude that the district court properly vacated the
arbitrator’s award.
AFFIRMED.

-- 3 of 4 --

1
Lindsey v. Travelers Commercial Insurance Co., et al., 22-16795
BRESS, J., dissenting,
The arbitrator may have erred in denying Lindsey access to Travelers pay data,
but I am not sure this error deprived Lindsey of a “fundamentally fair hearing,”
Move, Inc. v. Citigroup Global Markets, Inc., 840 F.3d 1152, 1158 (9th Cir. 2016),
which is the high showing required to vacate the arbitration decision. Even though
Lindsey did not receive the pay data, he was seemingly afforded other opportunities
to develop his disparate treatment theory, including the ability to ask Travelers’
corporate representative witness about topics related to his pay relative to that of his
coworkers. Because the record is incomplete on the discovery Lindsey did take or
was able to take in the arbitration proceedings, I would have instead remanded this
matter to the district court for it to consider whether Lindsey had other opportunities
to build his theory in discovery. If that were the case, as seems likely, I do not think
the denial of access to the pay data would warrant vacating the arbitration decision,
given the highly deferential standard of review.
FILED
DEC 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 4 of 4 --