United States District Court, D. South Carolina, Greenville Division
C. Coggins, Jr., 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.
8, 10. 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 Kevin F. McDonald for
pre-trial proceedings and a Report and Recommendation
(“Report”). On March 13, 2018, the Magistrate
Judge issued a Report recommending that the Motion be
granted. ECF No. 14. 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 his 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.
first objects to the Magistrate Judge's conclusion that
the Brookdale Dispute Resolution Agreement (“the 2014
Agreement”) is controlling in the present action. ECF
No. 15 at 1-2. Plaintiff asserts that Defendant referred to a
2016 arbitration agreement in their Reply to the Motion,
which was not discussed by Judge McDonald or provided to
Plaintiff. Id. Plaintiff also argues that this
missing arbitration agreement demonstrates that the 2014
Agreement is illusory because it can be revoked at any time.
The Court disagrees.
initial matter, it appears that the reference to a 2016
arbitration agreement was a scrivener's error. In its
Reply to the Motion, Defendant states in relevant part, On
October 17, 2011, Plaintiff signed the Employment Binding
Arbitration Agreement. (See Plaintiff's signed
Employment Binding Arbitration Agreement, dated February 1,
2016, attached hereto as Exhibit A.) Subsequently, Plaintiff
signed the Dispute Resolution Agreement (“the
Agreement”) with Brookdale on December 17, 2016.
10 at 3. The referenced attachment is entitled
“Employment Binding Arbitration Agreement” and
appears to have been signed and dated by Plaintiff on October
17, 2011. ECF No.10-1. With respect to the second 2016
reference by Defendant, Plaintiff signed and dated the 2014
Agreement on December 17, 2014. ECF No. 5-2 at 3; see
also ECF No. 16 at 3 (Defendant's Reply to the
objections stating that the reference to a 2016 arbitration
agreement was a “typographical error” and
reiterating that it has only referenced the 2014 Agreement in
its pleadings). Accordingly, it does not appear that there
are more undisclosed arbitration agreements, and the Court
overrules this objection.
next argues that the Magistrate Judge erred in his analysis
regarding whether Plaintiff's employment with Defendant
had a sufficient relationship with interstate commerce such
that this action comes under the Federal Arbitration Act
(“FAA”). ECF No. 15 at 2-4. Plaintiff contends
that the 2014 Agreement 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 2014 Agreement
and Plaintiff's position with Defendant do not implicate
interstate commerce, the Court finds that the Magistrate
Judge properly considered these issues. 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 suggest that because she
was a housekeeper, 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 2014 Agreement. ECF
No. 15 at 4-5. Plaintiff contends that the 2014
Agreement'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 2014 Agreement 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 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.