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Ditkowsky v. A.G. Edwards & Sons

February 17, 2010


The opinion of the court was delivered by: Blanche M. Manning United States District Judge

Blanche M. Manning


The plaintiff, Lisa Ditkowsky, has filed a motion to vacate an arbitration award and the defendants have cross-moved to confirm the award. For the reasons stated below, the plaintiff's motion to vacate is denied and the defendants' cross-motion to confirm is granted.


The court assumes familiarity with the underlying facts of the case and discusses them only briefly. A.G. Edwards & Sons employed the plaintiff as a financial consultant in its Skokie office from December of 2004 through December of 2006. During this period, defendant Alan Dubrow was the branch manager of the Skokie office, defendant Robert Batchen was the assistant branch manager, defendants David Forlow and Gary Chesen were financial consultants, and defendant Melissa Kelpsch was a financial associate. According to A.G. Edwards, the plaintiff's inability to appropriately interact with her colleagues led to her termination.

The plaintiff obtained a right to sue letter from the EEOC and filed suit in the Circuit Court of Cook County. The plaintiff alleged that the defendants retaliated and discriminated against her in violation of Title VII of the Civil Rights Act of 1964, portrayed her in a false light and breached an alleged contract with her. The defendants removed the case to federal court and successfully moved this court to compel arbitration. On June 6, 2009, the arbitration panel rendered an award in favor of the defendants. The plaintiff now moves to vacate that award. The defendants, in turn, oppose the plaintiff's motion and move to confirm the arbitration award.

The court also notes at the outset that the plaintiff's filings are lengthy, raise numerous unrelated issues and often fail to provide record support for her assertions. The court has attempted to organize the plaintiff's claims such that they can be addressed fully and efficiently. In addition, for reasons discussed later in this order, the parties have filed documents under two different case numbers. The court has attempted to indicate which case's docket number it is referring to when citing to the record.


A. Motion to Strike

The plaintiff has filed a motion to strike the defendants' Exhibit I to their motion to confirm the arbitration award, which is a transcript of the arbitration proceeding. According to the plaintiff, the defendants (1) "doctored" certain pages of the transcript and (2) purposely left out pages 148-149 of the transcript filed with the court.

As to point (1), the plaintiff wants the defendants to re-transcribe and refile pages 147-154 of the transcript so that it is a "true and accurate" reflection of what actually happened. According to the plaintiff, the transcript filed by the defendants omitted key words and objections by her counsel.

In response, the defendants' counsel filed an affidavit of their paralegal attesting as follows:

5. Based upon [defense counsel's] instructions of which portions of the [arbitration] hearing she wanted transcribed I requested a copy of the May 2009 hearing sessions in the Arbitration. . . .

6. . . . [D]igital recordings were transmitted to me on a CD.

7. I contacted Veritext Reporting Company and asked them to transcribe the digital recordings.

8. I provided Veritext with the correct spelling of the names of the speakers and places and asked them to format their work product into separate pages for separate digital recordings. . . .

9. I did not give Veritext any other instructions.

The defendants also note that the transcript they attached as Exhibit I is certified as true and accurate by the court reporters who transcribed the digital recordings.

As an initial matter, the court notes that the plaintiff already provided a new transcript, transcribed by the court reporter of her choosing. Thus, having the defendants "re-transcribe" certain portions of the transcript would be unnecessary and duplicative. Moreover, the plaintiff has also marked up pages 147-154 of the copy of the transcript provided by the defendants. See Plaintiff's Exh. BB to her Combined Reply, Dkt. #11-32. The court has listened to the digital recording, which was provided to the court by the plaintiff, of this portion of the arbitration hearing and finds that, while the plaintiff's changes are not substantive or substantial, they more accurately reflect the statements made at this part of the hearing. Accordingly, where in dispute, the court has considered the plaintiff's marked-up version of the transcript in resolving the parties' motions to vacate and confirm.

As to point (2), the missing pages 148-149 of Exhibit I, the defendants acknowledge that these two pages were "inadvertently omitted" from Exhibit I, and attach the pages as Exhibit A to their opposition to the plaintiff's motion to strike Exhibit I. See Dkt. #18. Moreover, as noted above, the plaintiff has provided a marked-up version of these pages, which accurately reflects that portion of the arbitration hearing and which the court has considered in resolving the parties' motions to vacate and confirm.

Accordingly, the plaintiff's motion to strike the defendants' Exhibit I is denied. As for the plaintiff's request that the matter be referred to the United States Attorney's office so that it can "determine who is responsible for . . . [the] transcriber . . . deleting all of Plaintiff's former Counsel's key words and key points in Plaintiff's favor," December 11, 2009, Dkt. # 19, at 5, this request is denied as the court concludes that the omissions or mistakes in the transcript obtained by the defendants were unintentional and insubstantial.

B. Plaintiff's Motion to Vacate and Defendant's Cross-Motion to Confirm

1. Federal Arbitration Act

The Federal Arbitration Act ("FAA") governs the enforcement, validity, and interpretation of arbitration clauses in employment contracts as well as other commercial contracts. See Circuit City v. Adams, 532 U.S. 105, 109 (2001). In asking the court to vacate an arbitration award, the movant faces "a stiff burden." Certain Underwriters at Lloyd's London v. Argonaut Ins. Co., 04 C 5852, 2009 WL 3126288, at *3 (N.D. Ill. Sept. 24, 2009).

The FAA states that an award may be set aside in only four circumstances:

1. Where the award was procured by corruption, fraud, or undue means;

2. Where there was evident partiality or corruption in the ...

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