United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge
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. 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
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.
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.
filed the present action on March 3, 2017.
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.
WRTA, Silverman, Loftus, D'Angelo, Lazarus, and
Norton-Dew 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.
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 ...