Petition for Writ of Certiorari — Yufan Zhang, Petitioner v. UnitedHealth Group, et al.

APPENDIX

App. 1

United States Court of Appeals

For the Eighth Circuit

No. 21-2056

Yufan Zhang

Plaintiff - Appellant

v.

UnitedHealth Group; Sujatha Duraimanickam

Defendants — Appellees

Appeal from United States District Court for

the District of Minnesota

Submitted: December 23, 2021

Filed: December 29, 2021

[Unpublished]

Before BENTON, KELLY, and KOBES, Circuit

Judges.

App. 2

PER CURIAM.

In this employment discrimination action,

Yufan Zhang appeals the district court’s1 denial of his

motion to vacate an arbitration award. After careful

review of the record and the parties’ arguments on

appeal, we find no basis for reversal. See Ploetz for

Laudine L. Ploetz. 1985 Tr. v. Morgan Stanley Smith

Barney. LLC. 894 F.3d 894, 897 (8th Cir. 2018)

(standard of review). Accordingly we affirm.

See 8th Cir. R.47B.

pending motions.

We also deny Zhang’s

1 The Honorable Michael J. Davis, United States District

Judge for the District of Minnesota.

App. 3

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Yufan Zhang,

Plaintiff,

v.

UnitedHealth Group and

Sujatha Duraimanickam,

Defendants.

MEMORANDUM OPINION

AND ORDER

Civil No. 18-1454 (MJD/KMM)

Plaintiff, pro se.

Sandra L. Jezierski and Sarah B. Riskin,

Nilan Johnson Lewis PA, Counsel for Defendants.

This matter is before the Court on Plaintiffs

motion to vacate the Arbitrator’s Decision. [Doc. No.

42]

I.

Background

A.

Plaintiffs Claims

Plaintiff was an employee of Defendant

(“UnitedHealth”)

from

UnitedHealth

Group

December 2014 through November 14, 2016.

App. 4

(Amended Complaint HU 3, 11.) In the Amended

Complaint, Plaintiff asserted claims of age

discrimination under the ADEA and the MHRA and

a claim of defamation.

B.

Arbitration

By Order dated February 14, 2019, this Court

granted Defendants’ motion to compel arbitration and

stayed this case pending arbitration. The parties

then proceeded to litigate Plaintiffs claims according

to the Rules of the American Arbitration Association

(“AAA”), as modified by the Policy. (Jezierski Decl. U

2.) The parties were each entitled to serve up to 25

Requests for Production of Documents and conduct

two eight-hour days of fact witness depositions. (Id.,

Ex. A, HI 14.b and 14.c.) Plaintiff was represented by

counsel throughout the arbitration proceedings. (See

Doc. No. 36 (Memorandum in Support of Motion to

Withdraw as Counsel for Plaintiff).)

Former Magistrate Judge Jeffrey Keyes served

as the Arbitrator and heard evidence over a four-day

period on August 4, 5, 18 and 19, 2020. (Id. U 5.) The

parties also submitted post-hearing briefs.

On October 5, 2020, the Arbitrator issued his

decision in favor of Defendants on all counts. (Id. U

10, Ex. D.) First, the Arbitrator found that Plaintiff

had failed to prove that age discrimination was the

cause of his termination. (Id. at 4.) Second, the

Arbitrator found that the alleged defamatory

statements concerning his poor performance in his

performance review were subject to a qualified

privilege and could not lead to liability absent a

App. 5

finding of actual malice. (Id. at 5.) The Arbitrator

noted that Plaintiffs argument as to actual malice

was premised on his age discrimination claim, and

because Plaintiff had failed to prove his age

discrimination claim, there was no showing of actual

malice or improper motive to overcome the qualified

privilege afforded the alleged defamatory statements

in the performance reviews. (Id.) The Arbitrator also

rejected Plaintiffs additional argument that his

supervisor, Duraimanickam, was acting in bad faith

by building a file of false statements about Plaintiff,

as evidence was submitted to show there were

reasonable grounds to support the alleged

statements.

Plaintiff is now pro se and has filed a motion to

vacate the Arbitrator’s decision.

II.

Motion to Vacate Arbitration Award

A.

Standard

The Federal Arbitration Act (“FAA”) provides

that any agreement to settle a controversy by

arbitration “shall be valid, irrevocable, and

enforceable, save upon such grounds that exist in law

or equity for the revocation of any contract.”

9 U.S.C. § 2. The FAA further instructs, in relevant

part:

If any suit or proceeding be brought in any of

the courts of the United States upon any issue

referable to arbitration under an agreement in

writing for such arbitration, the court in which suit is

pending, upon being satisfied that the issue involved

App. 6

in such suit or proceeding is referable to arbitration

under such an agreement, shall on application of one

of the parties stay the trial of the action until such

arbitration has been had in accordance with the terms

of the agreement...

9 U.S.C. § 3.

Once an arbitrator issues a decision, the FAA

provides four grounds for which a court may vacate

that award upon application of any party to the

arbitration. Those grounds are:

where the award was procured by

(1)

corruption, fraud, or undue means;

where there was evident partiality or

(2)

corruption in the arbitrators, or either of them;

where the arbitrators were guilty of

(3)

misconduct in refusing to postpone the hearing, upon

sufficient cause shown, or in refusing to hear evidence

pertinent and material to the controversy; or of any

other misbehavior by which the rights of any party

have been prejudiced; or

where the arbitrators exceeded their

(4)

powers, or so imperfectly executed them that a

mutual, final, and definite award upon the subject

matter submitted was not made.

9 U.S.C. § 10(a)(l)-(4).

“Judicial review of the arbitrator’s ultimate

decision is very deferential and should not be

disturbed ‘as long as the arbitrator is even arguably

App. 7

construing or applying the contract and acting within

the scope of his authority.”’ N. States Power Co. v.

Int’l Broth, of Elec. Workers, Local 160, 711 F.3d 900,

902 (8th Cir. 2013) (quoting United Paperworkers

Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987)).

B.

Arguments

Plaintiff moves to vacate the Arbitration

Award on the following bases: that the Award was

procured by fraud and that the Arbitrator engaged in

misconduct by failing to consider evidence and for

failing to postpone the hearing.

To prevail on his motion to vacate the

arbitration award based on fraud, Plaintiff must

“proveO the fraud by clear and convincing evidence,

show[] the fraud was not discoverable by due diligence

either before or after the proceeding and shown that

the fraud was materially related to an arbitration

issue.” MidAmerican Energy Co. v. Int’l Bhd. of Elec.

Workers Local 499, 345 F.3d 616, 622 (8th Cir. 2003).

“Fraud is established if the plaintiff proves that ‘the

defendant made false representations of material

fact, intended to induce plaintiff to act, the

representations were made with knowledge of, or

reckless disregard for, their falsity, and the plaintiff

justifiably relied upon those false representations to

[his] detriment.’” Goff v. Dakota, Minnesota &

Eastern R.R. Corp., 276 F.3d 992, 996 (8th Cir. 2002)

(quoting Pac. & Arctic Ry. & Navigation v. United

Transp. Union, 952 F.2d 1144, 1148 (9th Cir. 1991)).

“But given ‘the strong federal policy favoring

arbitration,’ fraud under the FAA demands a ‘greater

level of improper conduct’ than is typically required.”

App. 8

Wolfson v. Allianz Life Ins. Co. of North America.,

2015 WL 2194813, at* 6 (D. Minn. May 11, 2015)

(citing Goff, 276 F.3d at 996)).

Plaintiff argues the Award was procured by

fraud

because

his

supervisor,

Sujatha

Duraimanickam and other witnesses, lied during

their testimony before the Arbitrator, and that

Defendants failed to produce records from three

project management databases: BaseCamp, CodeHub

and service-now. As a result, Plaintiff asserts the

Arbitrator was not fully informed as to the

requirements of Plaintiffs job and prevented Plaintiff

from proving his claims.

Defendants argue that Plaintiff has failed to

demonstrate an intentional deception of material fact

or any other improper conduct by Defendants or

witnesses. Plaintiff was aware of the documents he

requested, the documents produced and the

documents identified as exhibits for the hearing.

Plaintiff did not identify missing documents and took

no steps to procure any missing documents prior to

the hearing. Further, Plaintiff could have sought

assistance from the Arbitrator to obtain any missing

documents, but he did not do so.

As to the alleged lies told by defense witnesses,

Plaintiff only makes generalized statements without

evidentiary support. This is not sufficient to meet his

burden of providing fraud by clear and convincing

evidence.

The Court finds that Plaintiff has not

demonstrated, by clear and convincing evidence, that

the Arbitration Award was procured by fraud. Other

than his own self-serving testimony as to his job

App. 9

performance, Plaintiff did not present any evidence

that any of the witnesses had lied during the

arbitration hearing.

The Arbitrator found that Duraimanickam’s

testimony was credible based on his finding that

Duraimanickam had demonstrated problems with

Plaintiffs job performance, and that she spent a great

deal of time coaching him on how to improve his

performance. (Jezierski Deck, Ex. D (Arbitration

Award at 3).) Further, the Arbitrator found that the

“issue here is not whether there was a cause to

terminate Claimant who was an at-will employee.

Rather, the issue is whether Claimant has proven

that intentional age discrimination was the cause of

his termination. What matters is that Claimant’s

poor performance in his job was the true reason for

the termination even if the decision to terminate

Claimant was unwise, unfair, or based on mistakes of

fact. ” (Id. at 4.) Ultimately, the Arbitrator found that

“Claimant’s claims under the ADEA and MHRA fail

because he did not prove that age discrimination was

the cause of his termination.” (Id.)

The Court further finds that Plaintiff has failed

to show the Arbitrator was guilty of misconduct by

failing to postpone the hearing or in refusing to hear

evidence pertinent and material to the controversy.

The record demonstrates that Plaintiff never sought

such evidence in discovery, and never raised the issue

before the Arbitrator.

Plaintiff also complains that the Arbitrator did

not give proper consideration to a compilation of

contemporaneous notes he prepared regarding his

work

performance

and

meetings

with

App. 10

Duraimanickam. As to these notes, the Arbitrator

wrote:

But Claimant’s typed compilation of notes does

not constitute reliable evidence supporting the claim.

It was not clear when Claimant created the

compilation of notes, and he did not come forward

with the original documents that he relied upon in

compiling the notes to prove that he recorded the

content of the compilation at or near the time when

Duraimanickam allegedly made the comments.

Claimant’s allegation that Duraimanickam made the

comments that showed a bias against older workers

is simply not enough to overcome the welldocumented record of poor performance that caused

Claimant’s termination.

(Id. at 3-4.)

Thus, it is clear the Arbitrator considered this

evidence, but found it did not constitute reliable

evidence supporting Plaintiffs claim.

The Court further finds that Plaintiff has not

demonstrated that he requested the Arbitrator to

postpone the hearing to obtain additional documents.

Failure to complain about alleged errors generally

See

results in a waiver of such complaints.

PaineWebber Group, Inc. v. Zinsmeyer Trusts P’ship,,

187 F.3d 988, 995 (8th Cir. 1999). Plaintiff claims he

raised these concerns in a letter to the Arbitrator, but

such letter was not provided to the Defendants, not

filed with the Court and it is unclear whether it was

delivered to the Arbitrator. (Jezierski Decl. t 14.) In

any event, the claims were not raised during the

proceeding.

App. 11

As to Plaintiffs claim that the Arbitrator

misapplied the law on qualified privilege, it is no

longer a ground to vacate an arbitration award based

on a manifest disregard of the law. Air Line Pilots

Ass’n Intern, v. Trans States Airlines, LLC, 638 F.3d

572, 578-79 (8th Cir. 2011) (finding the Supreme

Court eliminated judicially created vacatur standards

under the FAA, and finding an arbitral award may be

vacated only for the reasons enumerated in the FAA)

(citing Hall Street Assoc., LLC v. Mattel, Inc., 552

U.S. 576, 586-87 (2008)).

IT IS HEREBY ORDERED that Plaintiffs

Motion to Vacate the Arbitration Award [Doc. No. 42]

is DENIED. This matter is hereby dismissed with

prejudice.

LET

JUDGMENT

ACCORDINGLY.

BE

ENTERED

Date: April 26, 2021

s/Michael J. Davis

Michael J. Davis

United States District Court

App. 12

AMERICAN ARBITRATION ASSOCIATION .

Case Number: 01-19-0001-0069

Yufan Zhang,

Claimant,

v.

Award and Memorandum

UnitedHealth Group Inc. and

Sujatha Duraimanickam,

Respondents

Award of Arbitration

1, THE UNDERSIGNED ARBITRATOR,

having been designated in accordance with the

arbitration agreement entered into by the parties and

dated January 12, 2015, and having been duly sworn

and having duly heard the proofs and allegations at

the hearings held on August 4-5, 2020 and August

1829, 2020, hereby AWARD as follows:

JUDGMENT IS RENDERED IN FAVOR OF

RESPONDENTS ON ALL CLAIMS IN THIS

ARBITRATION.

The administrative fees of the AAA totaling

$2,950.00 are to be borne by the Respondent

UnitedHealth Group. The compensation and

expenses of the arbitrator totaling $33,810.00 are to

be borne by the Respondent UnitedHealth Group.

This award is in full settlement of all claims

submitted to this Arbitration. All claims not expressly

granted herein are expressly denied.

Dated: October 5, 2020

'Hr

Hot*. JefTrev si Keves (ret.'i

Arbitrator

App. 13

Memorandum

The arbitration agreement entered into by the

parties provides that "the arbitrator shall issue an

opinion in writing, which shall set forth in summary

form the reasons for the arbitrator's determination."

I.

Age Discrimination

Respondents' decision to terminate Claimant's

employment

was

based

on

legitimate,

nondiscriminatory reasons. Respondents showed that

Claimant was not meeting performance expectations.

Claimant failed to demonstrate that Respondents'

explanation that Claimant was terminated because of

poor performance was merely a pretext for age

discrimination. Claimant did not show that, but for

age discrimination, he would not have been

terminated or that his age actually motivated

Respondents' decision. Thus, his claims under the

ADEA and the MHRA fail.

Claimant began working as a Senior Java

Developer in January 2015 in Respondent's Software

Development and Support Services division within

Optum Technology. He worked on a team of software

developers who were responsible for developing

business solutions by creating or modifying software

applications. Claimant contends that, motivated by

age bias, Sujatha Duraimanickam, team manager,

targeted him for close scrutiny, unfair criticism, and

deliberately set him up for failure. Claimant says that

Duraimanickam created an inaccurate

and

misleading record of his performance in order to build

a case against him and to ultimately terminate his

employment. And that Duraimanickam denied him

App. 14

the necessary resources and leeway to perform his job

while favoring younger co-workers.

However, the record in this case shows that

there were numerous instances of poor performance

on Claimant's part that led to Claimant's co-workers

having to expend significant time correcting his

mistakes and redoing assigned tasks, The

documented performance problems included: missing

deadlines; failing to complete tasks thus causing

delays and rework; failing to demonstrate an

understanding of the requirements of team projects;

working on irrelevant tasks; and failing to

communicate with other team members. Although

Claimant contends that in each of these instances he

was not at fault, there was sufficient evidence to

support Duraimanickam's critique of Claimant’s

performance as fair and not simply a pretext for age

discrimination. This evidence included not only

Duraimanickam's evaluation of Claimant's poor

performance but also the evaluations of his co­

workers, including lead developer Sean Woods who

described how Claimant's delays and mistakes

adversely affected the whole team.

Throughout the period from when she took over

management of the team in March 2016 until

Claimant's

termination in November 2016,

Duraimanickam spent a great deal of time in one-onone meetings with Claimant, coaching him on how to

improve his performance. Claimant had ample notice

of the deficiencies in his performance and opportunity

to improve, not only through his one-on-one meetings

with Duraimanickam, but also through the formal

thirty day improvement plan that went into effect on

September 19, 2016, and the final thirty day plan that

App. 15

went into effect on October 24, 2016. However,

Duraimanickam showed that the performance

problems continued through to his termination in

November 2016.

Claimant claims that Duraimanickam made

comments to him that old people brought less value to

the organization, that young people learned faster,

and that Optum might not be a good place to work for

a person his age. However, Duraimanickam denies

making these statements, and the other witnesses

who worked with Claimant denied ever hearing

Duraimanickam speak in such a way. Claimant says

that he took handwritten notes at the one-on-one

meetings with Duraimanickam and that these

cotemporaneous notes prove that Duraimanickam

made these comments about age. But Claimant's

typed compilation of notes does not constitute reliable

evidence supporting the claim. It was not clear when

Claimant created the compilation of notes, and he did

not come forward with the original documents that he

relied upon in compiling the notes to prove that he

recorded the content of the compilation at or near the

time when Duraimanickam allegedly made the

allegation

that

comments.

Claimant's

Duraimanickam made the comments that showed a

bias against older workers is simply not enough to

overcome the well documented record of poor

performance that caused Claimant's termination.

The issue here is not whether there was cause

to terminate Claimant who was an at-will employee.

Rather, the issue is whether Claimant has proven

that intentional age discrimination was the cause of

his termination. What matters is that Claimant’s poor

performance in his job was the true reason for the

App. 16

termination even if the decision to terminate

Claimant was unwise, unfair, or based on mistakes of

fact. Dorsey v. Pinnacle Automation Co., 278 F.3d

830, 837 (8th Cir. 2002) ("The threshold question when

considering pretext is whether [the employer's]

reasons for its employment actions are true, not if

they are wise, fair or correct, Claimant's claims under

the ADEA and MHRA fail because he did not prove

that age discrimination was the cause of his

termination.

II.

Defamation

Claimant claims that Duraimanickam defamed

him by stating in the Corrective Action Form for the

thirty-day Corrective Action Plan, which commenced

on October 24, 2016, that Claimant was unable to

demonstrate all the competency skills necessary to

perform his job independently and timely in a

consistent fashion.

Claimant contends that

Duraimanickam communicated this allegedly false

statement to UnitedHealth Group’s Human

Resources Department.

The statement that Claimant was not meeting

the performance requirements of his position was

made as part of a performance review and thus

subject to a qualified privilege and cannot lead to

liability absent a finding of malice. Stuempges v.

Parke, Davis & Co., 297 N.W. 2d 252,256 (Minn.

1980); Bol v. Cole, 561 N.W.2d 143, 149 (Minn. 1997)

("Statements made in particular contexts or on

certain occasions should be encouraged despite the

risk that the statements might be defamatory");

Kletschka v. Abbott-Northwestern Hosp., 417 NW 2d

App. 17

752, 755 (Minn. Ct. App. 1988) (statement in

performance review privileged).

Claimant argues that because the evidence

showed that Respondents’ putative reasons for

Claimant’s termination were a pretext for age

discrimination, this proved actual malice or improper

motive, thus precluding the claim of qualified

privilege for the statements about Claimant's

performance. However, as described above, I have

found that Claimant failed to prove that the reasons

proffered by Respondents for Claimant's termination

relating to his poor performance were a pretext for

age discrimination. Claimant failed to show that his

termination was motivated by age discrimination.

Thus, there was no showing of actual malice or

improper motive to overcome the qualified privilege

afforded to Duraimanickam’s statements in the

performance reviews.

Claimant also argues that even if age

discrimination was not the impetus for his

termination, Duraimanickam was acting in bad faith

by building a file with false statements about

Claimant's performance to justify his termination.

However, the evidence in this case showed that there

were reasonable grounds to support the statements

made by Duraimanickam

about Claimant's

performance deficiencies. Thus, there was no showing

of ill will, improper motive, or malice to overcome the

qualified privilege. I find in Respondents' favor on the

defamation claim.

Date: 10/5/20 .

App. 18

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 21-2056

Yufan Zhang

Appellant

v.

UnitedHealth Group and Sujatha Duraimanickam

Appellees

Appeal from U.S. District Court for the District

of Minnesota (0:18-cv-01454-MJD)

ORDER

The petition for rehearing en banc is denied.

The petition for rehearing by the panel is also denied.

Judge Gruender did not participate in the

consideration or decision of this matter.

February 15, 2022

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/si Michael E. Gans

IN THE SUPREME COURT OF THE UNITED STATES

No. 22

YUFAN ZHANG

Petitioner,

v.

UNITEDHEALTH GROUP, AND

SUJATHA DURAIMANICKAM

Respondents

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify that the petition for a

writ of certiorari contains 8443 words, excluding the parts of the petition that are

exempted by Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

Executed on: July 08, 2022

/s/ Yufan Zhang

Yufan Zhang (Petitioner Pro Se)

166 Wilson Lake Rd.

Mooresville, NC 28117

(612)615-5610

zyufan@yahoo.com