Opinion
6:23-cv-5171-DCC-MGB
04-30-2024
Ellen Hibberts, PLAINTIFF, v. EmergencyMD Associates, LLC, DEFENDANT.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff, through counsel, filed the instant employment action in the Greenville County Court of Common Pleas on August 10, 2023. (Dkt. No. 1-1.) On October 16, 2023, Plaintiff filed an Amended Complaint. (Dkt. No. 1-3.) On that same day, Defendant removed the case to federal court. (Dkt. No. 1.) Currently before this Court is Defendant's Motion to Dismiss or Stay and Compel Arbitration. (Dkt. No. 4.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge. For the reasons stated herein, the undersigned recommends that the Court grant Defendant's motion and compel arbitration.
BACKGROUND
Plaintiff alleges that she began working for Defendant-an urgent care provider based in Greenville, South Carolina-on February 3, 2022. (Dkt. No. 1-3 at 3.) Plaintiff claims that Defendant hired her as a scribe, with the promise to elevate her to a physician's assistant position upon her licensing with the state. (Id.)
According to Plaintiff, she interviewed with Dr. David Brancati, Defendant's co-owner and senior manager, prior to receiving her offer of employment. (Id.) During her interview, Dr. Brancati allegedly made various comments about how good Plaintiff's body looked after recently giving birth. (Id.) Plaintiff claims that Dr. Brancati “pointed out to the entire staff how skinny Plaintiff was and openly looked her up and down.” (Id.) Plaintiff further claims that Dr. Brancati made inappropriate comments to Plaintiff about nursing and “told her a story about a previous employee who[se] ‘boobs were about to explode' due to needing to nurse her baby.” (Id.) Plaintiff alleges that Dr. Brancati continued making comments about Plaintiff nursing throughout March, April, and May of 2023. (Id. at 4.) Plaintiff also alleges that Dr. Brancati told Plaintiff he had been sued in the past and explained to her that, if she was ever sued, “her son would be ‘feeding' off her ‘titties' or ‘boobs' until he went to college.” (Id.)
In May of 2022, Plaintiff became a licensed physician's assistant. (Id.) Plaintiff started working for Defendant in that capacity after signing an employment contract (the “Engagement Agreement”) on May 13, 2022. (Id.; Dkt. No. 4-1.) Plaintiff alleges that, during the month of May 2022, Dr. Brancati made comments about the appearance of her body, touched her hair, and rubbed her shoulders. (Dkt. No. 1-3 at 4.) Plaintiff claims that Dr. Brancati also made an inappropriate joke about an erect penis when explaining the difference between the parasympathetic and sympathetic nervous system. (Id.) Plaintiff claims that, on a separate occasion, Dr. Brancati “grabbed Plaintiff's neck with his hand and began pushing until she was gagging” when explaining nausea to a medical student. (Id.)
Plaintiff asserts that she complained about Dr. Brancati's conduct on July 29, 2022. (Id.) Plaintiff states that she “sent an email to her manager reporting Brancati's sexual harassment and actions” and “reported that she was not being paid for [certain] shifts.” (Id.) Plaintiff claims that she “requested that she no longer have to work with Brancati” and “gave notice that she intended to resign due to the sexual harassment and lack [of] payment for her work.” (Id.)
According to Plaintiff, her supervisor called her the next day and threatened to “report her to the licensing board for ‘patient abandonment' if she did not continue working shifts she was not being paid for.” (Id. at 5.) Plaintiff further claims that her supervisor told her that Defendant “would ‘not go away' and would ‘follow [her] forever' if she went through with [her] resignation.” (Id.) Plaintiff states that her supervisor did not address her sexual harassment complaints. (Id.)
The Amended Complaint alleges that Defendant never took steps to address or investigate Plaintiff's sexual harassment complaints. (Id. at 5-6.) The Amended Complaint also alleges that Defendant pressured Plaintiff to continue working shifts for which she was not being paid, even when she contracted COVID-19. (Id. at 5.) Plaintiff claims that she “felt unsafe to continue working” for Defendant. (Id.) Plaintiff resigned on August 10, 2022, and filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on that same day. (Id. at 6.)
Plaintiff claims that Defendant then “falsely accused [her] of stealing [] missing drugs” and made false statements to the Drug Enforcement Agency and the South Carolina Department of Health and Environmental Control, spurring an investigation into Plaintiff's conduct. (Id. at 6-7.) Plaintiff believes that Defendant made these false accusations against her as retaliation for Plaintiff's sexual harassment complaints and EEOC charge. (Id. at 7.) Though Plaintiff was ultimately cleared of any wrongdoing, she claims she suffered “severe emotional distress and mental anguish” because of the false reports. (Id.)
Plaintiff received a Right to Sue letter from the EEOC on May 17, 2023, and filed the instant lawsuit soon after. (Id.) In her Amended Complaint, Plaintiff brings claims of sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, and defamation and defamation per se in violation of South Carolina state law. (Id. at 7-9.)
DISCUSSION
Defendant argues that “Plaintiff and Defendant mutually agreed that ‘[a]ny and all disputes arising under and/or related to the negotiation, drafting, execution, performance, and/or breach of [the Engagement Agreement] shall be submitted to binding arbitration, in lieu of litigation.'” (Dkt. No. 4 at 2.) With its Motion, Defendant submits an executed copy of the Engagement Agreement, which Plaintiff signed at the start of her employment with Defendant as a physician's assistant in May of 2022. (Dkt. No. 4-1.) Defendant argues that because Plaintiff's claims arise out of her employment with Defendant, such claims are subject to arbitration. (See generally Dkt. No. 4.) In response, Plaintiff contends that the Engagement Agreement “contains a narrowly written arbitration provision” and that “the allegations and claims brought by Plaintiff clearly fall outside of the arbitration provision.” (Dkt. No. 8 at 1.) The undersigned considers these arguments, below.
The Federal Arbitration Act (“FAA”) governs the arbitrability of this dispute. (See Dkt. No. 4-1 at 2.) Section 4 of the FAA, provides, in part, that a “party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court . . . for an order directing that such arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4. “[Q]uestions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration . . . [and] any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 25-26 (1983). “In the Fourth Circuit, a litigant can compel arbitration under the FAA if he can demonstrate ‘(1) the existence of a dispute between the parties, (2) a written agreement that includes an arbitration provision which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure, neglect or refusal of the defendant to arbitrate the dispute.'” Adkins v. Lab. Ready, Inc., 303 F.3d 496, 500-01 (4th Cir. 2002) (citing Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir. 1991)). In this instance, elements one, three, and four are undisputed. (See generally Dkt. Nos. 4, 8.) Plaintiff contends only that her claims fall outside of the arbitration provision of the Engagement Agreement and are therefore properly before this Court. (Dkt. No. 8 at 1.)
The exact phrasing of the arbitration provision of the Engagement Agreement reads:
Arbitration. Any and all disputes arising under and/or related to the negotiation, drafting, execution, performance, and/or breach of this Agreement shall be submitted to binding arbitration, in lieu of litigation.(Dkt. No. 4-1 at 11.)
Plaintiff asserts that this language does not cover her claims because her claims “are for sexual harassment that began during her interview-before any agreement was ever presented to Plaintiff to sign-in February of 2022, and continued throughout [her] time working for Defendant” and because “Plaintiff's second two causes of action, for retaliation and defamation, occurred entirely after Plaintiff's employment with Defendant ended.” (Dkt. No. 8 at 4.) According to Plaintiff, “[n]one of [her] claims arise from or are related to her contract with Defendant” and “[n]one of [her] claims rely on any term of the contract, allege any breach of the contract or have any relation to its negotiation or drafting.” (Id.) Plaintiff further argues that “her claims are also well outside the bounds of any foreseeable employment dispute that could fall under the agreement” because “[n]o employee could foresee such egregious conduct coming out of their employment.” (Id. at 5.)
By contrast, Defendant asserts that Engagement Agreement “dealt with every aspect of Plaintiff's employment with Defendant,” including performance, and that “all of Plaintiff's claims arise directly from her employment with Defendant.” (Dkt. No. 9 at 2, 4) (emphasis removed). The undersigned agrees.
As the Fourth Circuit has noted, the language “arising out of or related to” constitutes a “broad arbitration clause[] capable of an expansive reach,” and a “broad arbitration clause ‘d[oes] not limit arbitration to the literal interpretation or performance of the contract, but embrace[s] every dispute between the parties having a significant relationship to the contract regardless of the label attached to the dispute.'” Am. Recovery Corp. v. Computerized Thermal Imagining, Inc., 96 F.3d 88, 93 (4th Cir. 1996) (quoting J.J. Ryan & Sons v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 321 (4th Cir. 1988)) (emphasis in original). Here, the Amended Complaint essentially alleges that Plaintiff's superior sexually harassed her, she reported it, and Defendant retaliated against her for reporting it. (See generally Dkt. No. 1-3.) All of this conduct is related to Plaintiff's employment with Defendant. (Id.)
The eight-page Amended Complaint contains only a few paragraphs detailing harassment that occurred prior to Plaintiff signing the Engagement Agreement in May of 2022; the bulk of the Amended Complaint describes harassment that occurred throughout Plaintiff's employment with Defendant and alleged retaliatory acts that occurred after she reported such harassment. (Id.) Regardless, the harassing conduct that occurred prior to Plaintiff signing the Engagement Agreement is also related to Plaintiff's employment, as she alleges that such conduct occurred when she initially interviewed for her job. (Id.) Plaintiff's allegations that Defendant failed to compensate her and made purportedly defamatory statements about her also arise from the Engagement Agreement. (See generally Dkt. No. 4-1.) Indeed, the Engagement Agreement outlines the terms of Plaintiff's compensation, as well as expected standards of compliance with state and federal laws and regulations. (Id.) Even if certain of Plaintiff's claims do not explicitly rely on the language of the Engagement Agreement, the claims nonetheless have a “significant relationship” to the agreement because the agreement forms the basis of Plaintiff's employment with Defendant, and Plaintiff's claims relate to the circumstances of that employment. See Webb v. Oaktree Med. Ctr., P.C., No. 3:18-CV-00924-JMC, 2018 WL 3153614, at *4 (D.S.C. June 28, 2018). The undersigned therefore finds that Plaintiff's claims are covered by the Engagement Agreement and subject to arbitration. As such, the undersigned RECOMMENDS that the Defendant's Motion be GRANTED.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that the Court GRANT Defendant's Motion to Dismiss or Stay and Compel Arbitration (Dkt. No. 4). The undersigned RECOMMENDS that the parties be compelled to arbitrate and that this case be dismissed in full.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a 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.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).