United States District Court, D. South Carolina, Greenville Division
C. Coggins, Jr. United States District Judge
matter is before the Court on Defendant's Motion to
Compel Arbitration or, in the Alternative, to Dismiss
(“the Motion”). ECF No. 5. Plaintiff filed a
Response in Opposition, and Defendant filed a Reply. ECF Nos.
7, 9. In accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02(B)(2) (D.S.C.), this matter was referred to
United States Magistrate Judge Jacquelyn D. Austin for
pre-trial proceedings and a Report and Recommendation
(“Report”). On March 15, 2018, the Magistrate
Judge issued a Report recommending that the Motion be
granted. ECF No. 13. Plaintiff filed objections to the
Report, and Defendant filed a Reply. ECF Nos. 15, 16.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See U.S.C. § 636(b).
The Court will review the Report only for clear error in the
absence of an objection. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (stating that “in the absence of timely filed
objection, a district court need not conduct a de
novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.” (citation omitted)).
Magistrate Judge provides a thorough recitation of the facts
of this case and the applicable law in her Report which the
Court incorporates by reference. Plaintiff brings a claim for
wrongful termination under Title VII of the Civil Rights Act
of 1964, as amended (“Title VII”). ECF No. 1-1.
The Magistrate Judge recommends that the Motion be granted
and that the case be dismissed. Plaintiff presents three
objections for the Court's review, which the Court will
discuss in turn.
contends that the Magistrate Judge erred in finding that
there exists one binding arbitration agreement between the
parties. ECF No. 15 at 1-5. Plaintiff argues that there are
three arbitration agreements that were signed on February 1,
2016; accordingly, it is impossible to determine which
agreement is controlling. Id. Plaintiff asserts that
she signed the Bookdale Dispute Resolution Agreement
(“DRA”), the Employment Binding Arbitration
Agreement (“BAA”), and the Employee Handbook
(“the Handbook”) all of which contain arbitration
provisions. Id. The DRA and the BAA have been
provided to the Court for review. ECF Nos. 5-2, 9-1.
litigant moves to compel arbitration under the Federal
Arbitration Act (“FAA”), 9 U.S.C. §§ 1
et seq., the district court determines whether a matter
should be resolved through arbitration depending on (1)
whether a valid arbitration agreements exists and, if so, (2)
whether the dispute falls within the scope of the arbitration
agreement. AT&T Tech., Inc. v. Commc'ns Workers
of Am., 475 U.S. 643, 651 (1986); see Hooters of Am.
v. Phillips, 173 F.3d 933, 938 (4th Cir. 1999). The
party seeking to enforce the agreement, bears the initial
burden of “persuading this court that the parties
entered into an enforceable arbitration agreement.”
Drake v. Mallard Creek Polymers, Inc., 2014 WL
7405762, at *1 (W.D. N.C. Dec. 30, 2014). If the defendant
makes such a showing, then “the burden shifts to the
plaintiff to show that even though there was some written
contract, [they] did not actually agree to it-because the[ir]
signature was forged, the terms of the contract were
misrepresented, or some other reason evincing lack of true
agreement.” Czopek v. TBC Retail Grp., Inc.,
2014 WL 5782794, at *4 (M.D. Fla. Nov. 6, 2014); see also
U.S. ex rel. TBI Investments, Inc. v. BrooAlexa, LLC,
119 F.Supp.3d 512 (S.D. W.Va. 2015) (applying summary
judgment standard to motion to compel arbitration and stating
that “[o]nce the moving party has met its burden, the
burden shifts to the nonmoving party to demonstrate that a
genuine issue of material fact exists for trial.”).
Court agrees that the Magistrate Judge's Report fails to
consider the implications of the BAA in conjunction with her
discussion of the DRA and the Handbook. See ECF No.
13 at 10-11. However, the Court notes that this omission does
not change the result in this case. The Court finds that
Plaintiff's signing the DRA and the BAA on the same day
evidences the clear intent to agree to arbitrate any future
dispute. Moreover, Defendant has proffered
affirmative evidence of a valid contract. It attached the
DRA, signed and dated by Plaintiff, to its demand for
arbitration sent to Plaintiff evidencing its intent to
proceed under that document. ECF No. 5-2 at 5-7. Plaintiff
argues that she signed multiple agreements; however,
Plaintiff has failed to meet her burden of raising a genuine
issue of material fact that the DRA is invalid. See
Creech v. JEM Pizza Grp., LLC, C/A 2:16-cv-3087-PMD,
2016 WL 7441029, at *3 (D.S.C. Dec. 27, 2016) (finding that
one of three arbitration agreements was a valid contract and
declining to make a determination as to the validity of the
remaining two arbitration agreements). Accordingly,
Plaintiff's objections that the Magistrate erred in
finding the DRA controls the dispute between the parties and
in finding that the terms of the arbitration agreement are
not indefinite are overruled.
next argues that the Magistrate Judge erred in her analysis
regarding whether Plaintiff's employment with Defendant
had a sufficient relationship with interstate commerce such
that this action comes under the FAA. ECF No. 15 at 5-7.
Plaintiff contends that the DRA does not implicate interstate
commerce either through services or goods to be provided.
Id. Further, Plaintiff maintains that the Magistrate
Judge erred in finding that Defendant's community
received supplies and other goods and services from all over
the country because the proper analysis should have focused
on whether the services that Plaintiff performed involved or
affected interstate commerce. Id. Finally, Plaintiff
argues that the Magistrate Judge's reliance on Dean
v. Heritage Healthcare of Ridgeway, 759 S.E.2d 727 (S.C.
2014) is misplaced. Id. The Court disagrees.
respect to Plaintiff's arguments that the DRA and
Plaintiff's position with Defendant do not implicate
interstate commerce, the Court finds that the Magistrate
Judge properly considered this issue. As an initial matter,
the Court is not confined to only look at the terms used in a
contract in determining whether the agreement involves
interstate commerce. See Allied-Bruce Terminix Companies,
Inc. v. Dobson, 513 U.S. 265, 282 (1995) (looking to
facts outside of the arbitration provision to determine if
interstate commerce was involved in the transaction).
Further, this District has found that “it is clear that
an otherwise intrastate transaction involves interstate
commerce when the parties perform their agreement using
supplies acquired through interstate commerce.”
Swane Co. v. Berkeley Cty. S.C., C/A No.
2:15-cv-02586-DCN, 2015 WL 6688072, at *3 (D.S.C. Oct. 30,
2015). Here, Plaintiff appears to argue that because she was
a resident care coordinator, her services for Defendant did
not involve interstate commerce. However, Plaintiff fails to
suggest that she did not use any supplies received through
interstate commerce in her performing her duties for
Defendant. Accordingly, this action is subject to the FAA,
and this objection is overruled.
Plaintiff objects to the Magistrate Judge's consideration
of the confidentiality provision in the DRA. ECF No. 15 at
5-7. Plaintiff contends that the DRA's confidentiality
provision undermines one of the purposes of Title VII-to
incentivize employers to change their practices by holding
them publically accountable. Id. The Court finds
that this concern is cured by the second paragraph of the DRA
that allows the covered employee to bring claims with an
administrative agency if provided for by law, including the
Equal Employment Opportunity Commission, the Department of
Labor, the National Labor Relations Board, and the Office of
Federal Contract Compliance Programs. ECF No. 5-2 at 2.
Accordingly, this objection is overruled.
the Court adopts, as modified herein, the ruling of the
Report. Defendant's Motion to Compel Arbitration is
GRANTED and this action is
DISMISSED pursuant to Choice Hotels
Int'l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d
707, 709-10 (4th Cir. 2001).