NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-2984 ____________ _

ANTONIA LERNER,

Appellant

v.

CITIGROUP ______________

Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-16-cv-01573) District Judge: Hon. Kevin McNulty ______________

Submitted under Third Circuit L.A.R. 34.1(a) September 15, 2020 ______________

Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges.

(Filed: December 15, 2020) ______________

OPINION* ______________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. RESTREPO, Circuit Judge

Antonia Lerner appeals the denial of her motion to vacate the Arbitrator’s award,

which granted her former employer Citigroup Inc. (Citigroup) summary judgment and

dismissed her claims of discrimination. On appeal, Ms. Lerner argues she never

consented to arbitration and the Arbitrator committed misconduct by refusing to consider

evidence of Citigroup’s alleged retaliatory conduct. We agree with the District Court that

Ms. Lerner failed to prove her misconduct claim. Furthermore Ms. Lerner forfeited her

consent claim by raising it for the first time before this Court. We will therefore affirm

the order sustaining the award.

I.

Ms. Lerner was employed by Citigroup, a global financial services firm, as an

Apps Support Senior Analyst in Jersey City, New Jersey. She was terminated from her

position in May 2015. App. 266. Citigroup maintained that the termination was due to a

cost saving program which entailed moving her position to India. Ms. Lerner contended

the termination was motivated by discrimination and filed a complaint with the Equal

Employment Opportunity Commission (EEOC), alleging sex and disability

discrimination. App. 42. The EEOC dismissed the complaint in February 2016, stating

it was “unable to conclude” that any of the statutes enforced by the Commission had been

violated. App. 36.

In March 2016 Ms. Lerner filed a complaint in the District Court, alleging that

Citigroup failed to accommodate her disability, discriminated against her race, sex and

disability, and illegally retaliated against her for filing a complaint with the EEOC. Ms.

2 Lerner asserted claims under Title VII of the Civil Rights Act, 42 U.S.C. §2000e, et seq.,

the Americans with Disabilities Act,

, et seq., and the New Jersey Law

Against Discrimination (

et seq.) App. 27, 267.

Citigroup filed a motion to compel arbitration, which the District Court granted

after concluding that a valid arbitration agreement existed between Ms. Lerner and the

company. App. 222-24. Ms. Lerner did not object to the motion or the Court’s order;

she instead filed a demand for arbitration with the American Arbitration Association

(AAA). App. 227.

An arbitrator was selected and entered scheduling orders to govern discovery. At

the conclusion of discovery, Citigroup requested leave to file a motion for summary

judgment. In December 2017 Ms. Lerner requested and was granted a conference call,

during which the Arbitrator explained that it was her burden to provide facts and relevant

law to establish her claims. App. 275, n. 6.

In March 2018 Citigroup filed its motion for summary judgment. Ms. Lerner filed

her response along with her affidavit. App. 269. The Arbitrator granted the motion for

summary judgment, finding that Ms. Lerner failed to establish her disability and

discrimination claims and offered only speculation to support her retaliation claim. App.

275-6.

In the District Court, Ms. Lerner, proceeding pro se, moved to vacate the award,

alleging that the Arbitrator failed “to understand that being laid off twice within weeks of

each other is very traumatizing,” that there was a conflict of interest between Citigroup

and the AAA, and the Arbitrator failed to properly review facts in support of her claims.

-66. The District Court denied the motion, finding that Ms. Lerner did not

establish grounds to vacate the award. With regard to the allegation that the Arbitrator

failed to consider relevant facts, the Court found that “Ms. Lerner does not explain what

pertinent evidence the arbitrator allegedly refused to hear.” App. 18.

On appeal, Ms. Lerner argues for the first time that she never consented to

arbitration. She also renews her assertion that the Arbitrator committed misconduct by

failing to consider evidence supporting her retaliation claim.1 Neither claim entitles Ms.

Lerner to relief and we therefore affirm the District Court’s order denying the motion to

vacate the arbitration award.

II.

The District Court had jurisdiction under

, and we have appellate

jurisdiction under

(a)(1)(D). We review de novo the District Court’s denial

of a motion to vacate an arbitration award. Dluhos v. Strasberg,

(3d

Cir. 2003). Our review of the Arbitrator’s decision, however, is “extremely deferential.”

(“The net result of a court’s application of this standard is generally to affirm

easily the arbitration award[.]”).

III.

Ms. Lerner asserts she never consented to the arbitration clause in Citigroup’s

employee handbook and the District Court erred by finding a valid arbitration agreement

existed. She claims for the first time on appeal that acknowledging the arbitration clause

1 Ms. Lerner filed the motion to vacate in District Court pro se but was represented by counsel before this Court.

4 in the employee handbook did not constitute a valid waiver of a judicial forum, and the

arbitration award should therefore be vacated. Appellant’s brief, 9.

Ms. Lerner did not present this non-consent argument to the District Court or at

any stage of the arbitration proceedings. The failure to do so precludes relief on appeal.

“Our Circuit adheres to a ‘well established principle that it is inappropriate for an

appellate court to consider a contention raised on appeal that was not initially presented

to the district court.’” Lloyd v. HOVENSA, LLC.,

(3d Cir. 2004)

(quoting In re City of Phila. Litig.,

(3d Cir. 1998)). Ms. Lerner’s

argument that she did not consent to arbitration does not constitute a jurisdictional matter

that can be raised at any stage of the proceeding. Whether an agreement to arbitrate

existed between the parties constitutes a contract claim that Ms. Lerner forfeited by not

raising it before the District Court. Id. at 272. Further, Ms. Lerner has not alleged any

exceptional circumstances that would warrant review of her non-consent claim. Birdman

v. Office of the Governor,

(3d Cir. 2012) (“It is axiomatic that

arguments asserted for the first time on appeal are deemed to be waived and consequently

are not susceptible to review in this Court absent exceptional circumstances.”) (internal

quotation marks omitted).

Ms. Lerner’s ability to raise the claim at this stage is further compromised by her

full engagement in the arbitration process. She did not object to Citigroup’s motion to

compel arbitration but instead filed a demand for arbitration with the AAA after the

motion was granted. She produced documents, gave depositions, and filed a response to

Citigroup’s motion for summary judgment, all without making any objection to or

5 argument before the Arbitrator concerning her consent to arbitration. App. 268-69. Ms.

Lerner did not cite any opposition to arbitration in her motion to vacate. App. 164-66.

Because Ms. Lerner never indicated her alleged lack of consent to Citigroup, the

Arbitrator or the District Court, she forfeited this basis for overturning the arbitration

award.

IV.

Ms. Lerner next asserts that the Arbitrator committed misconduct by refusing to

consider evidence that Citigroup retaliated against her by blocking her access to its

internal job listings. We disagree.

The Federal Arbitration Act permits a court to vacate an arbitration award where

the Arbitrator “refus[ed] to hear evidence pertinent and material to the controversy.”

(a)(3). However, “[v]acatur is appropriate only in ‘exceedingly narrow’

circumstances[.]” Metromedia Energy, Inc. v. Enserch Energy Servs., Inc.,

,

578 (3d Cir. 2005) (quoting Dluhos,

). There is a strong presumption in

the Act that favors enforcing arbitration awards, and an “award is presumed valid unless

it is affirmatively shown to be otherwise[.]” Brentwood Med. Assocs. v. United Mine

Workers of Am.,

(3d Cir. 2005).

Although we are mindful of our obligation to construe pro se filings liberally, see

Giles v. Kearney,

(3d Cir. 2009), Ms. Lerner failed to demonstrate any

misconduct on the part of the Arbitrator. Although her motion to vacate alleged that

Citigroup blocked her “internal access” to job listings, she never attributed the alleged

blocking to an act of retaliation by her former employer. App. 164. Because Ms. Lerner

6 failed to “explain what pertinent evidence the arbitrator allegedly refused to hear,” the

District Court properly dismissed her allegations of arbitrator misconduct. App. 18. On

appeal, Ms. Lerner attempts to remedy her failure by arguing the allegations of blocked

access constituted pertinent evidence of retaliation that the Arbitrator refused to consider.

We agree with Citigroup that this claim of retaliation is too speculative and attenuated to

pose a viable cause of action, rendering Ms. Lerner’s claim of Arbitrator misconduct

meritless.

V.

Having considered Ms. Lerner’s arguments and deemed them insufficient to

warrant relief, we will affirm the order dismissing the motion to vacate the arbitration

award.

7