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Rollins v. Waccamaw Regional Transportation Authority

United States District Court, D. South Carolina, Florence Division

November 7, 2017

MYERS ROLLINS, JR, Plaintiff,
v.
WACCAMAW REGIONAL TRANSPORTATION AUTHORITY, WACCAMAW REGIONAL TRANSPORTATION AUTHORITY BOARD OF DIRECTORS, and BERNARD SILVERMAN, Past Chair, Defendants.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge

         I.INTRODUCTION

         Plaintiff, who is proceeding pro se, alleges that Defendant terminated his employment in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.[1] Presently before the court is Defendants' Motion to Dismiss or Alternatively to Consolidate Actions (Document # 30). Because he is proceeding pro se, Plaintiff was warned pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion to dismiss could result in the motion being granted, resulting in dismissal of his claims. Plaintiff timely filed a Response (Document # 36), and Defendants filed a Reply (Document # 37). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. A hearing was scheduled for October 31, 2017, but rescheduled at the request of Plaintiff on the morning of the hearing. The hearing was rescheduled for November 7, 2017. Counsel for Defendants was present. Plaintiff did not appear. This report and recommendation is entered for review by the district judge.

         II. FACTUAL ALLEGATIONS

         Plaintiff brings this action against his previous employer, the Waccamaw Regional Transportation Authority (WRTA), the Board of Directors for the WRTA (the Board), and Bernard Silverman, the former chairperson of the Board. Plaintiff alleges that he was terminated from his position as General Manager and CEO of WRTA on April 30, 2014, a position he had held since 2004, because of his race and his age. Compl. p. 3. Plaintiff alleges that he received an “Exceptional” performance rating for each of his 9 years of employment with WRTA and never received a suspension, written reprimand, written counseling or even a verbal warning with respect to his job performance. Compl. pp. 8, 9. He alleges that in 2013 a member of the Horry County Council who had a history of criticizing Plaintiff, Gary Loftus, was appointed to the Board and Silverman became Board Chair. Compl. pp. 9-10. Plaintiff alleges that from 2013 forward, white members of the Board took various actions in an attempt to get him fired, including leaking false stories to the media, contacting Plaintiff's staff to spread rumors and complain about him, and attacking him in board meetings. Compl. p. 10. In April of 2014, Defendants appeared on local TV and disparaged Plaintiff by falsely accusing him of mismanaging projects and not being a “go getter, ” complaining that he made too much money compared to white employees, and calling for his termination. Compl. p. 11. One week later, Plaintiff was terminated in front of his staff and the media and was escorted off the premises by Deputy Sheriffs. Compl. p. 11.

         In July of 2014, Plaintiff filed a Charge of Discrimination alleging discrimination based upon race, sex, age, and retaliation. See Charge of Discrimination (Ex. to Compl.). In a letter dated September 29, 2016, the EEOC notified Plaintiff and WRTA that reasonable cause existed to believe WRTA violated Title VII and the ADEA. EEOC Letter (Ex. to Compl.). The EEOC invited the parties to participate in the conciliation process in an effort to eliminate the unlawful practice. Id. On December 2, 2016, Plaintiff was notified that the conciliation was unsuccessful and that he had a right to institute a civil action within ninety days of receipt of the notice. See Right to Sue Letter (Ex. to Compl.).

         Plaintiff filed the present action on March 3, 2017.

         III.PREVIOUS ACTION

         On June 17, 2014, prior to filing the present action, Plaintiff filed a case in the Court of Common Pleas for Horry County captioned “Myers Rollins v. Waccamaw Regional Transportation Authority; South Carolina Department of Transportation; Gary Loftus; Bernard Silverman; Katherine D'Angelo; Julie Norton-Dew; Mark Lazarus; Doug Frate, and Hart Baker, ” C.A. No. 2014-CP-26-3971. That case also arose from Plaintiff's employment with and termination from WRTA. In the state case, Plaintiff alleged causes of action for defamation, civil conspiracy, intentional infliction of emotional distress, invasion of privacy, violation of the South Carolina Payment of Wages Act (SCPWA), SC Code Ann. § 41-10-10, et seq., interference with contractual relations, and equitable relief.

         Defendants WRTA, Silverman, Loftus, D'Angelo, Lazarus, and Norton-Dew[2] moved to dismiss and compel to arbitration the claims pending against them. On October 15, 2015, the state court entered an order granting the motion and compelling arbitration pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq. See Order (Ex. A to Def. Motion). The court made its ruling based upon an arbitration agreement contained within an employment contract between Plaintiff and WRTA entitled “Amended and Restated Employment Agreement Between the Waccamaw Regional Transportation Authority and Myers Rollins, Jr., General Manager and Chief Executive Officer.” Id. at 2. The agreement included a section titled “Legal Claims and Dispute Resolution, ” (the Contract) which provided in relevant part

In the event of any controversy or claim arising out of or relating to this Agreement, the Employee's employment with the Authority, or the breach, termination or validity of this Agreement, including this arbitration provision, the Parties will attempt in good faith to resolve such controversy or claim. If the matter has not been resolved within sixty (60) days of the commencement of such discussions (which period may be extended by mutual agreement), then the Parties hereby agree to immediately submit the controversy to binding arbitration, and the Parties agree to waive their right to a jury trial.

Id. (citing the Contract at 7)). The state court found that the claims against defendants WRTA, Silverman, Loftus, D'Angelo, and Norton-Dew were all subject to arbitration. Id. at 6. The state court acknowledged that the contract containing the arbitration agreement was between Plaintiff and WRTA only, but found that the non-signatory defendants could compel arbitration based on equitable estoppel principles as set forth in Goer v. Jasco Indus., Inc., 395 F.Supp.2d 308 (D.S.C. 2005). See Order at 5-6.

         The court also noted,

Finally, Plaintiff raised at the hearing that he has an unasserted claim pending before the EEOC. While Plaintiff has not yet been authorized by the EEOC to pursue that claim in court, once that authorization occurs it too must be pursued in arbitration. In light of the fact that the evidence relating to Plaintiff's claim before the EEOC will likely overlap with the claims asserted in the instant action, the court finds that ...

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