In a suit arising out of alleged employment discrimination, Dillard’s Inc. appealed the district court’s decision to vacate an arbitration award to the Fifth Circuit Court of Appeals. At the initial arbitration pursuant to Ms. Barahona’s employment contract, despite drawing an adverse inference against Dillard’s for its failure to produce relevant emails, the arbitrator ruled that Ms. Barahona failed to carry her burden of proof on her discrimination and retaliation claims. Upon Ms. Barahona’s motion, the district court at first remanded the dispute to the arbitrator, but after the arbitrator’s refusal to reconsider the case on jurisdictional grounds, the District Court granted Ms. Barahona’s motion to vacate the award based on Dillard’s fraudulent conduct in failing to produce the emails.

The Fifth Circuit reversed and remanded, holding that Dillard’s allegedly fraudulent conduct – failing to produce the emails – was brought to the attention of the arbitrator who addressed it by drawing an adverse inference against Dillard’s. Accordingly, Ms. Barahona could not meet her burden for vacatur under the FAA and the case should be remanded. Trinidad Suyapa Barahona v. Dillard’s Inc., Case No. 09-31142 (5th Cir. 2010).