Opinion
2:22-cv-04022-BHH-JDA
02-13-2023
Kimberly Beasenburg, Plaintiff, v. Ultragenyx Pharmaceutical Inc, Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a motion to dismiss or to compel arbitration filed by Ultragenyx Pharmaceutical Inc. (“Defendant”). [Doc. 8.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), the undersigned magistrate judge is authorized to review all pretrial proceedings in this employment discrimination case and to provide a report and recommendation to the District Court.
PROCEDURAL HISTORY
Plaintiff commenced this action by filing a Complaint in the Charleston County Court of Common Pleas at case number 2022-CP-10-4574 on September 30, 2022, alleging Defendant discriminated against her because of her religion, including by terminating her; created a hostile work environment; and retaliated against her for her complaints about religious discrimination, all in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). [Doc. 1-1.] On November 11, 2022, Defendant removed the action to this Court. [Doc. 1.]
On November 18, 2022, Defendant filed a motion to dismiss or, in the alternative, to compel arbitration [Doc. 8] and an Answer to the Complaint [Doc. 9]. Plaintiff filed a response in opposition to the motion to compel arbitration on December 12, 2022 [Doc.14], and Defendant filed a reply on December 19, 2022 [Doc. 15]. Defendant's motion is now ripe for review.
BACKGROUND
The Court provides only a summary of the allegations from the Complaint relevant to the determination of whether Plaintiff's claims are subject to arbitration. Plaintiff makes additional allegations in her Complaint regarding her claims, which are not addressed herein.
This matter stems from Defendant's alleged discrimination and retaliation against Plaintiff on the basis of her religion in the application of its employee COVID-19 vaccination and testing mandate. Plaintiff was employed by Defendant as a contract employee in the position of patient diagnosis liaison from January 24, 2020, to March 15, 2021. [Doc. 1-1 ¶ 12.] Plaintiff was sent to San Francisco for training in January 2020. [Id. ¶ 13.] After “COVID hit” in February 2020, all employees were required to work from home. [Id. ¶ 14.] In November 2020, “Defendant set forth several dictates regarding working in the field,” and Plaintiff was required to work in the state of North Carolina. [ Id. ¶¶ 15-16.]
On February 5, 2021, Plaintiff was notified that Defendant wanted to hire her full time. [Id. ¶ 17.] Plaintiff received her official offer from Defendant on February 16, 2021. [Id. ¶ 18.] Among other things, the offer letter provided that Plaintiff would be a regular, full-time employee as a patient diagnosis liaison and that the position would be completely remote. [Id.] Plaintiff then received an employee handbook, which set forth Defendant's policies and procedures, the terms of employment, workplace accommodations, employee conduct guidelines, and other important matters related to her employment. [Id. ¶ 19.] Plaintiff contends that at no point during her employment was her performance addressed and that she was considered an exemplary employee at all times and exceeded all goals set by her employer. [Id. ¶ 20.]
On March 5, 2021, Plaintiff was required to sign several documents regarding her employment, including an arbitration agreement. [Id. ¶ 23.] Plaintiff did not discuss the agreement with anyone and was not aware of the consequences of the agreement at that time. [Id.] Plaintiff's first official day as an employee of Defendant was March 16, 2021. [Id. ¶ 24.] During her employment, Plaintiff was commended for her work and even received awards. [ Id. ¶¶ 25-28.]
On June 22, 2021, Defendant issue a PowerPoint presentation regarding its return-to-work guidelines, which required employees to be fully vaccinated or to submit to weekly testing. [Id. ¶ 29.] Plaintiff's supervisor informed her that the vaccination or weekly testing requirements were mandatory. [Id.] On June 28, 2021, Plaintiff received an email from Lab Operations Consultant Shannon Joseph (“Joseph”) asking if she had received consent forms for COVID testing; Plaintiff requested the testing kits; and Plaintiff received several forms concerning the testing procedures and her consent. [Id. ¶¶ 30-32.] Plaintiff received a consent form she did not expect or agree with and, on June 29, 2021, Plaintiff sent an email to Joseph regarding the COVID testing consent forms and noting several issues regarding the mandatory COVID protocols. [Id. ¶¶ 32-33.] A number of emails were then exchanged between Plaintiff and various management-level officers of Defendant. [Id. ¶¶ 34-36.] On July 6, 2021, Plaintiff signed several forms regarding COVID testing “due to the intimidation by the Defendant's management and corporate counsel” and she began weekly testing in order to work in the field. [Id. ¶¶ 37-38.] On July 21, 2021, Plaintiff received emails “pushing vaccinations and encouraging all employees to submit their vax status.” [Id. ¶ 40.] Plaintiff constantly informed Defendant that she would not get the vaccine due to her religious beliefs. [Id.] On July 22 and 26, 2021, Plaintiff received emails encouraging vaccination and requesting her vaccination status. [ Id. ¶¶ 41-42.] On July 27, 2021, Plaintiff received documentation from Defendant stating it would not require vaccination and would only require weekly testing. [Id. ¶ 43.] Plaintiff notified Defendant that she was not comfortable or in agreement with Defendant's COVID protocols but she would cooperate. [Id. ¶ 44.] Plaintiff continued to receive various emails and/or other communications from Defendant concerning Defendant's COVID protocols, encouraging vaccinations, and requesting Plaintiff's vaccination status. [Id. ¶¶ 45-57.]
On October 26, 2021, Plaintiff completed and submitted a detailed religious exemption request form on which she included handwritten notes setting forth her contentions. [Id. ¶ 58.] Plaintiff was instructed to complete the religious exemption form electronically, as it was supposed to be completed; however, Plaintiff declined to do so. [Id.] On November 15, 2021, Plaintiff received a request from Nathan Rapp for a Zoom meeting “to brainstorm about her accommodation request and for her to respond to a couple [of] questions regarding her exemption request form.” [Id. ¶ 59.] On November 18, 2021, Plaintiff participated in a conversation with Bobbie Lenard and Nathan Rapp. [Id. ¶ 63.] Plaintiff felt uncomfortable and bullied, and she alleges that many of the questions were inappropriate and that her concerns for her religious freedoms and rights under the law were “blatantly dismissed.” [Id.] Plaintiff then exchanged a number of emails with Defendant's management team regarding her concerns, her request for accommodations and religious exemption, and Defendant's COVID policy and protocols. [ Id. ¶¶ 65-67.]
On December 16, 2021, Plaintiff was informed that “she would be transitioning [from] her employment, which is essentially terminated from her position for a failure to be vaccinated.” [Id. ¶ 68.] On January 3, 2021, Plaintiff informed Defendant “that her separation was not a mutual separation due to the fact that Defendant denied her religious exemption.” [Id. ¶ 71.] Plaintiff asserts Defendant refused to accommodate her sincerely held beliefs, failed to grant her an exemption to accommodate her religion, and terminated her from employment in retaliation for her complaints regarding discrimination. [Id. ¶¶ 74-75.]
Following Defendant's alleged conduct noted above, Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) on December 8, 2021, alleging religious discrimination and retaliation. [Id. ¶ 7.] Plaintiff filed a second charge of discrimination with the EEOC on March 10, 2022. [Id. ¶ 8.] On September 6, 2022, the EEOC issued a Notice of Right to Sue. [Id. ¶ 9.] Plaintiff then initiated this action by filing her Complaint in the state court within 90 days from the date she received the EEOC's Notice of Right to Sue. [Id. ¶ 11.]
Plaintiff asserts three causes of action in her Complaint. First, Plaintiff asserts a claim for religious discrimination in violation of Title VII. [Id. ¶¶ 78-90.] Second, Plaintiff asserts a claim for retaliation for complaints regarding religious discrimination. [Id. ¶¶ 91-103.] Third, Plaintiff asserts a claim for hostile work environment. [Id. ¶¶ 104-14.] For her relief, Plaintiff requests an award of compensatory and consequential damages to include lost wages, future lost wages, lost benefits and future lost benefits, and any other damages available to her as a result of Defendant's discriminatory conduct; attorneys' fees and costs associated with this action; and for a permanent injunction to enjoin Defendant from engaging in religious discrimination, disparate treatment, or retaliation against Plaintiff. [ Id. at 31-32.]
The Arbitration Agreement
In the Complaint, Plaintiff acknowledges that, when she was hired for a full-time position by Defendant, “she was required to sign a Mutual Agreement to Arbitrate Claims” (the “Agreement”). [Id. ¶ 5.] Defendant has submitted a copy of the Agreement, which Plaintiff electronically signed on March 5, 2021, during her onboarding with Defendant. [Doc. 8-2 at 17-19.] The Agreement provides in pertinent part:
Ultragenyx Pharmaceutical Inc. (the “Company”) and I, the undersigned employee, recognize and desire the benefits of a speedy, impartial, final and binding dispute resolution process. For these reasons, and in consideration of the mutual promises in this agreement to arbitrate (“Agreement”) and benefits of our employment relationship, the Company and I mutually consent to the resolution by arbitration of all claims or controversies (“claims”), past, present or future, whether or not arising out of my employment (or its termination), as stated below.
Arbitrable claims. Arbitrable claims are those that the Company (or its subsidiaries and affiliates) may have against me or that I (and no other party) may have against any of the following: (1) the Company, (2) its officers, directors, employees or agents in their capacity as such or otherwise, (3) its parent, subsidiary and affiliated entities, (4) benefit plans or the plans' sponsors, fiduciaries, administrators, affiliates and agents, and/or (5) all successors and assigns of any of them. The only claims that are arbitrable are those that could be brought under applicable state or federal law and which lawfully can be the subject of an agreement to arbitrate.
Arbitrable claims include, but are not limited to: claims for wages, bonuses, or other compensation due; claims for breach of any contract or covenant (express or implied); tort claims; claims for discrimination (including, but not limited to, race, sex, sexual orientation, religion, national origin, age, marital status, military or veterans status, physical or mental disability or handicap, or medical condition), harassment or retaliation; claims for benefits (except claims under an employee benefit or pension plan that either specifies that its claims procedure shall culminate in an arbitration procedure different from this one, or is underwritten by a commercial insurer which decides claims); and claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, except claims for: workers' compensation or unemployment compensation benefits; claims covered by (and defined in) the Franken Amendment, first enacted in Section 8116 of the Defense Appropriations Act of 2010, or any similar statute, regulation or executive order. Both the Company and I agree that neither of us shall initiate nor prosecute any lawsuit in any way related to any claim covered by this Agreement, other than to seek temporary equitable relief in aid of arbitration where such relief is available by law. I understand that nothing in this Agreement prohibits me from filing a complaint, charge, or other communication with any administrative or other governmental agency.[Id. at 17.]
Defendant also submitted the affidavit of Veronica Becerra, who has been employed as an ASCDIR HR Operations for Defendant since August 21, 2018. [Id. at 1-5.] According to Becerra's affidavit, Defendant is an international biopharmaceutical company focused on the development and commercialization of novel products for serious rare and ultra-rare genetic diseases. [Id. ¶ 3.] Becerra states that Defendant has its corporate headquarters in Novata, California, that it has various facilities in other cities around the country, and that its pharmaceutical therapies are sold and distributed throughout the United States. [Id.] According to Becerra, Plaintiff was hired to work as a patient diagnosis liaison in South Carolina on March 16, 2021. [Id. ¶ 4.] Becerra states that Plaintiff participated in an onboarding process on March 5, 2021, via the UKG Pro system, a secure web based platform, to complete her onboarding paperwork. [ Id. ¶¶ 5-7.] Becerra details the onboarding process via the UKG Pro system and explains the various documents that Plaintiff signed during that process. [Id. ¶¶ 8-17.] Significantly, Becerra notes as follows:
I have reviewed the available UKG Pro records for [Plaintiff] as maintained by [Defendant] in the ordinary course of business, including her Arbitration Agreement, which reveals that on March 5, 2021, the date of [Plaintiff's] onboarding in anticipation of her March 16, 2021 start date, [Plaintiff] accessed UKG Pro using the unique login ID and password she had created, and completed the process outlined above, and electronically signed the Arbitration Agreement.[Id. ¶ 16.]
APPLICABLE LAW
Motion to Compel Arbitration
Defendant moves to compel arbitration under the Federal Arbitration Act (“FAA”), which establishes a “strong federal public policy in favor of enforcing arbitration agreements” and is designed to “ensure judicial enforcement of privately made agreements to arbitrate.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217, 219 (1985). The FAA was enacted “in 1925 in order ‘to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements on the same footing as other contracts.'” Snowden v. CheckPoint Check Cashing, 290 F.3d 631, 639 (4th Cir. 2002) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991)). “Underlying this policy is Congress's view that arbitration constitutes a more efficient dispute resolution process than litigation.” Adkins v. Labor Ready, Inc., 303 F.3d 496, 500 (4th Cir. 2002) (citation omitted).
The FAA provides that arbitration clauses in contracts involving interstate commerce “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Under the FAA, a district court must compel arbitration and stay court proceedings if the parties have agreed to arbitrate their dispute. Id. §§ 2, 3. But, if the validity of the arbitration agreement is in issue, a district court must first decide if the arbitration clause is enforceable against the parties. Id. § 4. “‘[A]s a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.'” Drews Distrib., Inc. v. Silicon Gaming, Inc., 245 F.3d 347, 349 (4th Cir. 2001) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,24-25 (1983)). “A court should not deny a request to arbitrate an issue ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.'” Id. at 349-50 (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960)). Nevertheless, “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Warrior & Gulf Navigation Co., 363 U.S. at 582.
A party seeking to compel arbitration must do so by establishing the following four elements: (1) the existence of a dispute between the parties; (2) a written agreement that includes an arbitration provision purporting to cover the dispute; (3) the relationship of the transaction, as evidenced by the agreement, to interstate or foreign commerce; and (4) the failure, neglect, or refusal of a party to arbitrate the dispute. Am. Gen. Life & Accident Ins. Co. v. Wood, 429 F.3d 83, 87 (4th Cir. 2005); see also Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir.1991); Energy Absorption Sys. v. Carsonite Int'l, 377 F.Supp.2d 501, 504 (D.S.C. 2005). “[E]ven though arbitration has a favored place, there still must be an underlying agreement between the parties to arbitrate.” Adkins, 303 F.3d at 501 (internal quotations and citation omitted). “Whether a party agreed to arbitrate a particular dispute is a question of state law governing contract formation.” Id. (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). “[T]he party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 81 (2000). Thus, where a valid arbitration agreement exists and covers the claims at issue, this Court has “no choice but to grant a motion to compel arbitration.” Adkins, 303 F.3d at 500.
“In ruling on a motion to compel arbitration, the court employs the summary judgment standard.” Anderson v. S. Fin. of S.C. Inc., No. 3:21-cv-2264-MGL-PJG, 2021 WL 5403755, at *2 (D.S.C. Oct. 15, 2021), Report and Recommendation adopted by 2021 WL 5371476 (D.S.C. Nov. 18, 2021). “In applying that standard, the court is entitled to consider materials other than the complaint and its supporting documents.” Berkeley Cnty. Sch. Dist. v. Hub Int'l Ltd., 944 F.3d 225, 234 (4th Cir. 2019); see also Galloway v. Santander Consumer USA, Inc., 819 F.3d 79, 86 (4th Cir. 2016) (evaluating materials outside of complaint in assessing motion to compel arbitration).
“Defendant, as the party seeking to enforce the Agreement, bears the initial burden of ‘persuading this court that the parties entered into an enforceable arbitration agreement.'” Gordon v. TBC Retail Grp., Inc., No. 2:14-cv-03365-DCN, 2016 WL 4247738, at *5 (D.S.C. Aug. 11, 2016). “If defendant makes such a showing, then ‘the burden shifts to the plaintiff[s] 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.'” Id. (citation omitted). “‘When deciding whether the parties agreed to arbitrate a certain matter[,] courts [ ] should apply ordinary state-law principles that govern the formation of contracts.'” Webb v. Oaktree Med. Ctr., P.C., No. 3:18-cv-924-JMC-SVH, 2018 WL 4519338, at *2 (D.S.C. May 16, 2018) (alterations in original) (citation omitted), Report and Recommendation adopted by 2018 WL 3153614 (D.S.C. June 28, 2018). Because the Court must “apply the summary judgment standard in deciding whether an arbitration agreement exists, . . . [it] must ‘view the evidence presented through the prism of the substantive evidentiary burden,' . . . Thus, the question is whether the evidence in the record could support a reasonable jury finding that [Defendant] has proven by ‘clear and conclusive evidence,' . . . that an agreement to arbitrate exists between the parties.” Hill v. Emp. Res. Grp., LLC, 816 Fed.Appx. 804, 809 (4th Cir. 2020).
Motion to Stay or Dismiss
The FAA requires a court to stay “any suit or proceeding” pending arbitration of “any issue referable to arbitration under an agreement in writing for such arbitration, and “[t]his stay-of-litigation provision is mandatory.” Id.; see also 9 U.S.C. § 3. But, the Fourth Circuit has also held that if all of the claims asserted in a complaint are subject to arbitration, dismissal of the complaint is “an appropriate remedy.” Choice Hotels Int'l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4th Cir. 2001). Although the Fourth Circuit has acknowledged the inconsistency between its opinions on this issue, see Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 376 n.18 (4th Cir. 2012) (“There may be some tension between our decision . . . indicating that a stay is required when the arbitration agreement ‘covers the matter in dispute'-and Choice Hotels-sanctioning dismissal ‘when all of the issues presented . . . are arbitrable.'”), presently in this Circuit, a district court must stay an action pending arbitration of any arbitrable claims, with the exception that it may instead dismiss an action if all claims asserted are arbitrable. See Weckesser v. Knight Enters. S.E., LLC, 228 F.Supp.3d 561, 564 (D.S.C. 2017).
DISCUSSION
As noted, Defendant seeks to compel arbitration of the claims alleged in Plaintiff's Complaint pursuant to the Agreement. [Doc. 8.] Defendant also asks the Court to dismiss Plaintiff's Complaint, or in the alternative, to stay this action. [Id.] The Court will separately address each issue below.
Motion to Compel Arbitration
Defendant argues that Plaintiff's claims are subject to the terms of the Agreement, which requires mandatory arbitration. [Doc. 8-1 at 4-5.] Plaintiff, on the other hand, counters that she should not be compelled to arbitration because the Agreement is unenforceable for a number of reasons. [Doc. 14 at 1, 16-22.]
The undersigned notes that Plaintiff's arguments are cursory and not clearly set forth in her brief. Plaintiff lists numerous objections to enforcement of the Agreement, claiming that “it was not greed [sic] upon, is not an enforceable Contract, not favorable under the law, unconscionable, and unilateral”; that its terms “are procedurally and substantively unconscionable”; and that it is overly broad, “is governed by California Ethics,” does not permit meaningful discovery, is not a proper waiver, and does not relate to interstate commerce. [Doc. 14 at 15-20.] Plaintiff's explanations as to these issues are confusing and largely unsupported by citations to the record or to any law. However, the Court has carefully considered each of Plaintiff's arguments to the extent they are discernable. To the extent this Report does not specifically address any argument that Plaintiff intended to make, the undersigned finds that any such argument would also be without merit for the reasons stated herein.
The Court will evaluate each of Plaintiff's arguments and apply the elements of the four-part test to compel arbitration outlined above. As an initial matter, the undersigned notes the parties appear to agree that a dispute exists and that Plaintiff has refused to arbitrate. Accordingly, the first and fourth elements of the applicable test are met. The Court will next address the remaining two elements-(1) the existence of an agreement to arbitrate that purports to cover the dispute and (2) its relationship to interstate commerce-and also address Plaintiff's arguments that the Agreement is unenforceable.
Plaintiff contends she “did not neglect or refuse to [a]rbitrate,” arguing she “was unaware of the [Agreement] up and until her attorneys were provided the alleged agreement on May 17, 2022, after the matter had been pending with the EEOC since December of 2021.” [Doc. 14 at 19.] It is unclear to the Court whether Plaintiff intends to challenge this element of the applicable test. Regardless, any such argument is without merit as it is clear to the Court that Plaintiff has not agreed to arbitrate her claims with Defendant, and she continues to argue that she should not be required to submit to arbitration.
Existence of a Valid Agreement to Arbitrate Purporting to Cover the Dispute
Existence of a Valid Agreement to Arbitrate
The Court first considers whether a valid agreement to arbitrate exists between the parties. As noted, Defendant has submitted a copy of the Agreement with Plaintiff's electronic signature. [Doc. 8-2 at 17-19.] And, Defendant has submitted the affidavit of Veronica Becerra confirming the document was signed by Plaintiff during her onboarding process. [Id. at 1-5.] The signed Agreement clearly and unambiguously provides that the parties mutually agreed “to the resolution by arbitration of all claims or controversies (‘claims'), past, present or future, whether or not arising out of [Plaintiff's] employment (or its termination).” [Id. at 17.]
The Agreement further contains an unambiguous merger clause providing that it is the complete agreement between Plaintiff and Defendant. [Id. at 19.] “A merger clause expresses the intention of the parties to treat the writing as a complete integration of their agreement.” Wilson v. Landstrom, 315 S.E.2d 130, 134 (S.C. Ct. App.1984); see also Integration Clause, Black's Law Dictionary (10th ed. 2014) (also termed a “merger clause,” which is defined as “[a] contractual provision stating that the contract represents the parties' complete and final agreement and supersedes all informal understandings and oral agreements relating to the subject matter of the contract”).
In sum, Defendant has produced an arbitration agreement signed by Plaintiff that requires arbitration for any and all legal disputes arising from Plaintiff's employment or termination from employment. As such, Defendant has satisfied its burden to show that an agreement to arbitrate exists between the parties.
Enforceability of the Agreement
Although Plaintiff acknowledges that she was required to sign the Agreement when she was hired full time by Defendant [Doc. 1-1 ¶¶ 5, 23], she appears to challenge the validity of the Agreement on several bases [Doc. 14 at 16-22]. “As the party resisting arbitration, Plaintiff bears the burden of establishing that the Arbitration Agreement is inapplicable or invalid.” O'Bryant v. Flowers Foods, Inc., No. 2:21-cv-3501-BHH, 2022 WL 4368237, at *4 (D.S.C. Sept. 21, 2022). “With respect to Plaintiff's arguments for why she should not be bound by the terms of this arbitration agreement, when deciding whether an agreement to arbitrate is valid, courts look to general state contract law, in this case the law of South Carolina.” Swanson v. Pro. Serv. Indus., Inc., No. 2:11-cv-2880-RMG-BM, 2012 WL 1130664, at *3 (D.S.C. Jan. 4, 2012), Report and Recommendation adopted by 2012 WL 1130675 (D.S.C. Apr. 4, 2012). “In South Carolina, the formation of a valid contract requires 1) an offer, 2) acceptance of the offer, and 3) valid consideration.” Id. Further, the Supreme Court of South Carolina has held, “[t]he cardinal rule of contract interpretation is to ascertain and give legal effect to the parties' intentions as determined by the contract language.” McGill v. Moore, 672 S.E.2d 571, 574 (S.C. 2009) (citation omitted). “If the language is clear and unambiguous, the language alone determines the contract's force and effect.” United Dominion Realty Tr., Inc. v. Wal-Mart Stores, Inc., 413 S.E.2d 866, 868 (S.C. Ct. App. 1992). “When a contract is unambiguous, clear and explicit, it must be construed according to the terms the parties have used, to be taken and understood in their plain, ordinary and popular sense.” C.A.N. Enters., Inc. v. S.C. Health & Human Servs. Fin. Comm'n, 373 S.E.2d 584, 586 (S.C. 1988).
The Court will now address each of Plaintiff's challenges to the validity of the Agreement seriatim.
The Agreement was not agreed upon
To begin, Plaintiff contends that the Agreement is unenforceable because it was “not [a]greed upon.” [Doc. 14 at 15.] For example, Plaintiff argues that, even though she “did sign her offer letter and other documents during her onboarding which [she] received a copy of,” she never received a copy of the Agreement. [Id. at 19.] Plaintiff contends that Defendant does not allow an employee to download the Agreement or to review it with anyone. [Id.] She goes on to argue,
Plaintiff has submitted an affidavit in which she makes the following averment:
After I accepted [a] position with [Defendant], I received an email with a link for all onboarding paperwork which urged and pressured that I read all documents and sign “in one sitting.” Management urged me to complete my onboarding that afternoon between other zoom calls and job responsibilities so I could focus on tasks at hand. I really wasn't afforded the time to review much less by an attorney and wasn't aware I signed the arbitration agreement until I filed this complaint. It was hidden with all other paperwork.[Doc. 14-1 ¶ 16.] Courts have consistently found such unsupported arguments that a plaintiff did not have a meaningful choice when entering an arbitration agreement to be without merit. See, e.g., Kinney v. Advance Am., No. 4:07-cv-3532-TLW-TER, 2008 WL 4191944, at *14 (D.S.C. Sept. 5, 2008) (affirming arbitration agreement after evaluating “several factors to determine whether there was an absence of meaningful choice, including the nature of the injuries suffered by the plaintiff; the relative disparity in the parties' bargaining power; the parties' relative sophistication; whether there is an element of surprise in the inclusion of the contract provision; and the conspicuousness of the clause”).
Plaintiff's contention that Defendant did not provide her with a copy of the Agreement or that she was unable to download it is without merit. Defendant has provided a number of screen shots from Defendant's onboarding process, which uses the UKG Pro system. Significantly, the Agreement is a separate, unique document that Plaintiff was required to view and sign and, after signing it, Plaintiff had the option to download the signed document. [Doc. 8-2 at 10, 14.] Further, Plaintiff retained access to the UKG Pro system using her unique login ID and password and could view and download her signed Agreement at any time. [Id. at 3 ¶ 11, 4 ¶ 15.]
The one document [Plaintiff] did not receive was the arbitration agreement and it was not included in or mentioned at all in the employee handbook. [Plaintiff] was already working for [Defendant] as a contract employee when she was hired full time. [Plaintiff's] onboarding was rushed, and she was urged to sign off on the paperwork quickly. [Plaintiff] received training regarding the employee handbook and resolution of conflicts but nothing regarding the Arbitration Agreement. As if [Defendant] attempted to hide the Arbitration Agreement to ensure no protests from [Plaintiff].[ Id. at 19-20.]
This argument is without merit. As noted, it is undisputed that Plaintiff signed the Agreement, which provides mutually binding provisions as to both parties. Plaintiff's argument fails to demonstrate any valid basis for finding that she did not consent to arbitrate her claims or that she did not sign the Agreement. See O'Bryant, 2022 WL 4368237, at *4-6 (discussing factors the court may evaluate when a plaintiff asserts he lacked meaningful choice or was reluctant to enter into an arbitration agreement).
Further, Plaintiff's argument that the Agreement is unenforceable because it was offered as a condition of her employment is without merit. Such a provision does not necessarily render an arbitration agreement unconscionable. See, e.g., O'Neil v. Hilton Head Hosp., 115 F.3d 272, 276 (4th Cir. 1997) (upholding arbitration agreement presented to employee as a condition of continued employment). “[A]n adhesion contract is a standard form contract offered on a ‘take-it-or-leave-it' basis with terms that are not negotiable.” Simpson, 644 S.E.2d at 669 (citing Munoz v. Green Tree Fin. Corp., 542 S.E.2d 360, 365 (S.C. 2001)). “Adhesion contracts, however, are not per se unconscionable.” Id.; see also Towles v. United HealthCare Corp., 524 S.E.2d 839, 845-46 (S.C. Ct. App. 1999) (upholding arbitration agreement that conditioned employee's continued employment on acceptance of arbitration policy). Here, in light of applicable contract principles under South Carolina law, the Agreement is a valid contract as there was an offer, acceptance, and valid consideration, which the Court will now address.
The Agreement fails for lack of consideration
Next, Plaintiff appears to argue that the Agreement fails for lack of consideration. [See Doc. 14 at 18-19 (“Plaintiff was considered an employee at will and received no consideration for the alleged agreement that was not explained to her.”).] Plaintiff's argument is without merit. “[A]n arbitration agreement is supported by adequate consideration when the parties mutually agree to be bound by the arbitration process and the agreement does not permit the employer to ignore the results of arbitration.” Callan v. Singletary, No. 4:08-cv-1928-TLW-TER, 2009 WL 2997001, at *4 (D.S.C. Sept. 14, 2009); see also O'Neil, 115 F.3d at 274-75. Here, the Agreement contains a mutually binding arbitration clause and provides that both parties must submit any legal dispute to arbitration. [Doc. 8-2 at 17 (“For these reasons, and in consideration of the mutual promises in this agreement to arbitrate . . . and benefits of our employment relationship, [Defendant and Plaintiff] mutually consent to the resolution by arbitration . . .”).] Accordingly, the Agreement is supported by adequate consideration and is therefore valid.
The Agreement is illusory
Further, Plaintiff contends the Agreement is unenforceable because it is illusory. [Doc. 14 at 16-17.] According to Plaintiff, Defendant can amend or change the agreement at any time and has the right to enforce its policies and procedures concerning Plaintiff's employment at its own discretion in accordance with the employee handbook, thus making the Agreement illusory. [Id.] This argument is without merit. Plaintiff has not cited to any language in the Agreement-and the Court is unable to find any-that gives Defendant the unilateral right to alter, amend, modify, or revoke the Agreement at any time. Plaintiff appears to argue the Agreement should be viewed “in conjunction with the Employee handbook” to determine the illusory nature of the Agreement. [Id. at 16.] However, “the district court simply [is] not at liberty to go beyond the language of the Arbitration Agreement in determining whether the agreement contained an illusory promise.” Hill v. Peoplesoft USA, Inc., 412 F.3d 540, 544 (4th Cir. 2005). Here, the Agreement is a separate document from the employee handbook and, to the extent the employee handbook contains any modification provision, such a provision is outside of the Agreement and therefore does not apply to it. See, e.g., Ratliff v. CoStar Realty Info., Inc., No. 11-cv-0813, 2011 WL 2680585, at *4 (D. Md. July 7, 2011) (finding an arbitration agreement was not affected by the employer's “unilateral ability to change or revoke the policies set forth in its employee handbook” because the agreement was a separate document and the court “must limit its search for supporting consideration to its four corners”). As previously noted, the Agreement binds both parties and is supported by adequate consideration. Plaintiff's argument that the Agreement is illusory is simply not supported by the plain language of the Agreement and, therefore, is without merit.
Plaintiff contradicts her own argument later in her brief when she argues, “[t]he one document [she] did not receive was the arbitration agreement and it was not included in or mentioned at all in the employee handbook.” [Doc. 14 at 19 (emphasis added).] Thus, Plaintiff's own statement supports the Court's conclusion that the Agreement was a separate, standalone document, and the employee handbook has no bearing whatsoever on it.
The Agreement is overly broad
Plaintiff further argues the Agreement is overly broad because it purports to cover any claims past, present, or future, whether or not arising out of employment or its termination. [Doc. 14 at 16.] Plaintiff provides no further argument or legal support for this assertion. This argument is without merit. Courts have consistently enforced arbitration clauses containing such language. See, e.g., Green v. Rent-A-Ctr. E., Inc., No. 0:15-cv-3245-MGL-TER, 2015 WL 8907452, at *1 (D.S.C. Nov. 24, 2015) (enforcing arbitration clause which required “arbitration of all claims or controversies (‘claims'), past, present or future, including without limitation, claims arising out of my application for employment” (internal quotation marks omitted)), Report and Recommendation adopted by 2015 WL 8967318 (D.S.C. Dec. 15, 2015); Farrington v. Pep Boys-Manny, Moe & Jack, No. 1:05-cv-1064, 2006 WL 8448726, at *1 (M.D. N.C. June 12, 2006) (granting motion to compel arbitration for claims of discrimination where the arbitration agreement provided that all claims between plaintiff and employer “past, present or future, whether or not arising out of [his] assignment/employment, or the termination of [his] assignment/employment” would be resolved by arbitration). The Court is unable to discern any basis to find the Agreement in this case is overly broad.
The Agreement is governed by California ethics
Plaintiff also argues that the Agreement is unenforceable because it “is governed by California Ethics.” [Doc. 14 at 16.] According to Plaintiff,
the State of California has already determined that the arbitration Clause is unenforceable. At this time there is a heavily debated and litigated issue of employers demanding employees to sign arbitration agreements as a condition of employment. AB51 has made it illegal to require one to be signed in California where Ultragenyx is located.[Id. at 17.] Plaintiff's argument is without merit. To begin, the enforceability of the Agreement is not governed by California law, and Plaintiff provides no factual or legal support for such a contention. As noted, the FAA applies to this dispute. Further, “it is not unconscionable for an employer to demand an arbitration agreement as a condition of employment.” Waumboldt v. Callimanopulos, No. 11-cv-7416-TPG, 2012 WL 3589423, at *4 (S.D.N.Y. Aug. 20, 2012); see also Marchant v. Maxim Healthcare Servs., Inc., No. 2:18-cv-2757-RMG, 2018 WL 5793595, at *3 (D.S.C. Nov. 5, 2018) (compelling arbitration and rejecting the plaintiff's argument that “an employer may not condition employment on an individual's agreement to arbitrate all employment disputes”).
Indeed, the Agreement contains a choice of law provision electing the FAA as the governing law:
The [FAA] shall govern the interpretation, enforcement and all proceedings pursuant to this Agreement. To the extent that the [FAA] is inapplicable, or held not to equire arbitration of a particular claim or claims, the arbitration law of the state in which [Plaintiff] work[s] or last worked for [Defendant] shall apply.[Doc. 8-2 at 17.] As such, the FAA applies. And, if the FAA were not to apply for any reason, the Agreement provides that the law of South Carolina, the state in which Plaintiff last worked, should apply. Plaintiff has identified no basis whatsoever upon which to invoke California law.
The Agreement does not permit meaningful discovery
Next, Plaintiff contends the Agreement does not provide for meaningful discovery, which operates to her detriment and to the benefit of Defendant. [Doc. 14 at 15.] According to Plaintiff, the Agreement “does not allow for any Interrogatories, [and] only [permits] 25 requests to produce and 3 depositions.” [Id. at 16.]
As to discovery, the Arbitration Agreement provides as follows:
Discovery. Each party shall have the right to take depositions of three fact witnesses and any expert witness designated by another party. Each party also shall have the right to make requests for production of documents consisting of up to 25 individual categories of requested documents in total to any party, and to subpoena documents from third parties. Requests for additional depositions or discovery may be made to the Arbitrator selected pursuant to this Agreement. The Arbitrator may grant such additional discovery if the Arbitrator finds that the party has demonstrated that it needs that discovery to adequately arbitrate the claim, taking into account the parties' mutual desire to have a speedy, less-formal, and cost-effective dispute-resolution mechanism.[Doc. 8-2 at 18.]
Plaintiff's argument is without merit. “[I]t is well settled that the discovery limitations provided in arbitration agreements are not grounds for unconscionability.” GGNSC Morgantown, LLC v. Phillips, No. 1:14-cv-118, 2014 WL 5449674, at *6 (N.D. W.Va. Oct. 24, 2014). As one court has explained,
“Because limited discovery is a consequence of perhaps every agreement to arbitrate, it cannot, standing alone, be a reason to invalidate an arbitration agreement.” [In re Cotton Yarn Antitrust Litig., 505 F.3d 274, 286 (4th Cir. 2007)]. Rather, a plaintiff must show that “the restricted discovery available in arbitration would effectively prevent a plaintiff from proving his [ ] claim[.]” Id. Such a showing cannot be made simply by “listing of ways that arbitration proceedings will differ from a court proceeding, or by speculation about difficulties that might arise in arbitration.” Id. [a]t 286-87 (emphasis in original).Brown v. Brown's Md. Motors, Inc., No. JKB-22-cv-0474, 2022 WL 2117849, at *9 (D. Md. June 13, 2022). Here, Plaintiff has made no such showing. Courts have consistently held that limitations on discovery in arbitration agreements, such as those in the present case, cannot defeat the validity of an agreement. See, e.g., Amuchie v. Carmax Auto Superstores Inc., No. 6:16-cv-3074-TMC-KFM, 2017 WL 9292246, at *4 (D.S.C. May 15, 2017) (rejecting the plaintiff's argument that the limitations on discovery were unfair rendering the arbitration agreement unconscionable where the agreement only permitted 20 interrogatories and 3 depositions), Report and Recommendation adopted by 2017 WL 3124176 (D.S.C. July 24, 2017); W. Sur. Co. v. Caddell Constr. Co., No. 7:21-cv-153-FL, 2022 WL 2057725, at *8-9 (E.D. N.C. June 7, 2022) (finding the plaintiff's “suggestion that the discovery limitation here precludes arbitration is without merit” where the agreement provided “‘there shall be no discovery except for the taking of up to three (3) depositions'”); Brown v. CMH Mfg., Inc., No. 2:13-cv-31404, 2014 WL 4298332, at *8 (S.D. W.Va. Aug. 29, 2014) (noting that the discovery limitations in the arbitration agreement applied equally to plaintiffs and defendants and that “[t]he informal discovery in arbitration does not make the Arbitration Agreement unconscionable”).
The Agreement is not a proper waiver
Plaintiff contends the Agreement is not enforceable because it is “not a proper waiver under the law.” [Doc. 14 at 18.] According to Plaintiff, she “was not informed, given a copy [of the Agreement,] or given the opportunity to review it with an attorney or anyone else for that matter.” [Id.] Plaintiff contends she was not permitted to download the Agreement during onboarding. [Id. at 19.] Plaintiff contends the onboarding process “was rushed” and “she was urged to sign off on the paperwork quickly.” [Id.]
Plaintiff's argument is without merit. As noted, Defendant has submitted the affidavit of Veronica Becerra, who described in detail the new hire onboarding process using the UKG Pro system. [Doc. 8-2 at 1-4.] Becerra included numerous screen shots from the UKG Pro system showing that process. [Id. at 7-15.] As demonstrated in the Becerra affidavit and accompanying screen shots, Plaintiff had access to the Agreement during the onboarding process and continued to have access to the signed document, which she could view and download, after the onboarding process was completed. The Agreement was a separate, clearly and conspicuously marked document. Plaintiff has offered no evidence to rebut the Becerra affidavit or the screen shots other than her own unsupported assertions that she did not have access to the document, did not have a chance to review it, and was not given a copy of it.
Further, courts have repeatedly rejected arguments by parties that “they should not be held to an agreement that they signed, but did not have or take the time to read and understand.” Dieng v. Coll. Park Hyundai, No. DKC-2009-cv-0068, 2009 WL 2096076, at *5 (D. Md. July 9, 2009). “Under South Carolina law, one entering into a written contract should read it and avail himself of every reasonable opportunity to understand its contents and meaning.” Jenkins v. CitiFinancial, Inc., No. 2:05-cv-1199-PMD-GCK, 2007 WL 9753133, at *6 (D.S.C. Jan. 16, 2007). “The fact that [the plaintiffs] allegedly did not have time to read and understand the agreement does not render it invalid or non-binding.” Smalls v. Credit Acceptance Corp., No. 9:16-cv-01954-DCN, 2017 WL 11316417, at *6 (D.S.C. Sept. 25, 2017); see also Marchant, 2018 WL 5793595, at *2 (“Plaintiff has not presented any non-conclusory allegations or evidence that she did not have the opportunity to read or review the document.”).
The Agreement is unilateral
Next, Plaintiff argues that the Agreement is unilateral in that it “does not allow the Plaintiff any control.” [Doc. 14 at 20.] Plaintiff appears to offer two reasons to support her assertion. [Id.] First, Plaintiff contends she was not given the opportunity to download and review the Agreement, making it “false in its representations.” [Id.] Second, Plaintiff contends Defendant has the right to amend any policy “according to its own handbook,” making the Agreement “unilateral and illusory.” [Id.] The Court has already addressed both of these arguments; they are without merit.
Further, as noted, the Agreement provides that the parties are mutually bound to arbitrate any disputes arising from Plaintiff's employment with Defendant. And nothing in the Agreement gives Defendant the power to unilaterally alter or amend the terms of its agreement to arbitrate employment disputes with Plaintiff. See Carter v. Brookdale Senior Living Cmtys., Inc., No. 6:17-cv-02457-DCC-JDA, 2018 WL 4560581, at *7 (D.S.C. Mar. 15, 2018) (rejecting the plaintiff's argument that the agreement to arbitrate was illusory because it was subject to change based on a provision in the employee handbook and dispute resolution agreement), Report and Recommendation adopted as modified by 2018 WL 3216107 (D.S.C. July 2, 2018). Because the Agreement binds both parties and does not give Defendant any right to modify or revoke its terms, the Court concludes the Agreement is enforceable. Plaintiff has failed to meet her burden to show the Agreement is an unenforceable unilateral contract.
The Agreement is unconscionable
Finally, Plaintiff protests the Agreement as both procedurally and substantively unconscionable. [Doc. 14 at 20-22.] Specifically, Plaintiff contends
This arbitration [agreement] is riddled with procedural unfairness by failing to set forth any procedure, any culpability for payment of the arbitration or any benefit to the Plaintiff as a party to surrender her rights to a trial by jury of her peers. The Arbitration Clause i[s] further unenforceable as it fails to set forth sufficient rules to conduct the arbitration it merely recites some factors and fails to set forth what governs the procedure.
In this circumstance the agreement has pronounced substantive unfairness and a minimal degree of procedural unfairness. The Agreement significantly limits discovery, could require payment of filing fees of up to $1750.00 and limits selection of an Arbitrator.[Id. at 22 (footnote omitted).]
Plaintiff's arguments are without merit. “In South Carolina, unconscionability is defined as the absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms that are so oppressive that no reasonable person would make them and no fair and honest person would accept them.” Simpson v. MSA of Myrtle Beach, Inc., 644 S.E.2d 663, 668 (S.C. 2007). The Court has already addressed some of Plaintiff's contentions (such as the Agreement's purported limitation on discovery) and will not revisit those issues here. As to Plaintiff's remaining contentions, the Court concludes they also are unavailing.
Plaintiff's contention that the Agreement is unenforceable because “it fails to set forth sufficient rules to conduct the arbitration [and] it merely recites some factors and fails to set forth what governs the procedure” is without merit. The Agreement provides that “arbitration will be conducted through Judicial Arbitration & Mediation Services (JAMS)” and “will be conducted in accordance with the then-current” JAMS rules. [Doc. 8-2 at 17.] The Agreement further provides the arbitrator will apply the substantive law of the state in which the claim arose, federal law, or both, as applicable to the claims asserted. [Id. at 18.] And, the Agreement provides that the Federal Rules of Evidence shall apply. [Id.] The Agreement provides other similar requirements applicable to the process of arbitration. [Id. at 17-18.] Thus, the Agreement clearly sets forth the applicable rules and procedures to be followed in arbitration. Further, courts have consistently affirmed arbitration agreements as valid and enforceable that incorporate the JAMS rules and procedures. See, e.g., Stinger v. Fort Lincoln Cemetery, LLC, No. 21-1460, 2022 WL 2702424, at *1 (4th Cir. July 12, 2022) (rejecting a plaintiff's challenge to an arbitration agreement as substantively unconscionable where the agreement adopted the JAMS rules and procedures but omitted JAMS Rule 21); Hamlin v. Dollar Tree Stores, Inc., No. 2:17-cv-2648-PMD, 2017 WL 6034325, at *3 (D.S.C. Dec. 6, 2017) (discussing JAMS rules and procedures and concluding “that the arbitration agreement [was] not unconscionable”); Clark v. Goldline Int'l, Inc., No. 6:10-cv-01884-JMC, 2010 WL 4929438, at *7 (D.S.C. Nov. 30, 2010) (discussing JAMS rules and procedures with approval and rejecting the plaintiff's argument that the defendants would gain “some undue advantage because the agreement requires arbitration to be conducted by JAMS”).
Likewise, Plaintiff's contention that the Agreement is unconscionable because it “could require payment of filing fees of up to $1750.00” is without merit. [Doc. 14 at 22.] Plaintiff's sole explanation in support of this argument is her assertion that the JAMS filing fee is $1,750. [Id. at 10.] Contrary to Plaintiff's assertion, the Agreement clearly provides as follows with regard to the costs and fees of arbitration:
[Defendant] will be responsible for paying any filing fee and the fees and costs of the Arbitrator; provided, however, that if [Plaintiff is] the party initiating the claim, in the first instance, [Plaintiff] will contribute an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state in which [Plaintiff is] (or was last) employed by [Defendant], unless the JAMS rules or the Aribtrator allow [Plaintiff] to proceed without doing so based on demonstrated financial hardship.[Doc. 8-2 at 18.] The Agreement's delineation of costs and fees is not unfair so as to render the Agreement unconscionable. Plaintiff's costs to arbitrate her claims, not counting her own attorneys' fees, would be no more than if she were to pursue her claims in court. And, the Agreement provides that Plaintiff might be able to proceed without payment of her portion of the filing fee if she is able to demonstrate a financial hardship. Given the cap on the fees owed by Plaintiff and the provision to pursue a waiver of her fees on the basis of financial hardship, the Court finds Plaintiff's argument that this provision is unconscionable to be without merit.
Plaintiff also argues the Agreement is unconscionable because it limits the selection of an arbitrator. [Doc. 14 at 22.] Plaintiff does not explain her argument and simply asserts that “JAMS has no local office in the State of South Carolina,” has no local arbitrators, and has none listed at all for South Carolina. [Id. at 10.] Plaintiff's contention is without merit. The Agreement fixes the location for any arbitration as the county in which Plaintiff was last employed and provides alternative options for the selection of an arbitrator if a JAMS arbitrator is not available. [Doc. 8-2 at 17-18.] The parties mutually agreed to select a JAMS arbitrator pursuant to the JAMS rules and, if no JAMS arbitrator is available, the parties are to mutually agree as to an alternative arbitrator or resort to intervention from the court if no agreement can be reached. [Id.] As such, the arbitrator selection procedure is not one-sided and the Agreement is therefore not unconscionable on this basis. See Brown v. Green Tree Servs., LLC, 585 F.Supp.2d 770, 780 (D.S.C. 2008) (rejecting the plaintiff's argument that the arbitration clause was unconscionable because of the method for selecting the arbitrator); Hamlin, 2017 WL 6034325, at *3 (finding arbitration agreement was not unconscionable that included an arbitrator selection provision based on the JAMS rules and procedures).
In sum, Plaintiff has failed to show that the Agreement, which she signed, is invalid for any reason or should not apply to require the parties to arbitrate their dispute.
Dispute Within the Scope of the Agreement
Further, Plaintiff's claims are covered by the Agreement. Evaluation of this factor requires the Court to ask “whether the arbitration agreement is susceptible of an interpretation that covers the asserted dispute.” Mey v. DIRECTV, LLC, 971 F.3d 284, 292, 294 (4th Cir. 2020) (quotation marks and citation omitted) (reversing a district court's decision that the disputed claims fell outside the scope of the agreement and finding “[i]n light of the expansive text of the arbitration agreement, the categories of claims it specifically includes, and the parties' instruction to interpret its provisions broadly, we must conclude that it is ‘“susceptible of an interpretation”' that covers [the plaintiff's] claims.”).
Here, the undersigned concludes the Agreement is susceptible of an interpretation that covers the asserted dispute. In her Complaint, Plaintiff asserts causes of action for religious discrimination in violation of Title VII, retaliation for complaints regarding religious discrimination, and hostile work environment. [Doc. 1-1 ¶¶ 78-114.] The Agreement provides that “[a]rbitrable claims include, but are not limited to: claims for wages, bonuses, or other compensation due; claims for breach of any contract or covenant (express or implied); tort claims; claims for discrimination (including but not limited to . . . religion . . .), harassment or retaliation . . .” [Doc. 8-2 at 17.] Thus, on its face, the Agreement purports to cover the dispute at issue between the parties and requires arbitration of that dispute.
Accordingly, Defendant has satisfied the test's second element, which requires the existence of a written agreement that includes an arbitration provision that purports to cover the dispute.
Relationship to Interstate Commerce
Next, the undersigned concludes that the final element of the four-part test also is satisfied as the transaction relates to interstate commerce. Plaintiff argues that her employment with Defendant and the matters covered by the Agreement do not relate to interstate commerce. [Doc. 14 at 18-19.] The FAA defines “commerce” to include “commerce among the several States.” 9 U.S.C. § 1. “[T]he term ‘involving commerce' in the FAA [is] the functional equivalent of the more familiar term ‘affecting commerce-words of art that ordinarily signal the broadest permissible exercise of Congress' Commerce Clause power.” Citizens Bank v. Alafabco, 539 U.S. 52, 56 (2003).
Plaintiff's cursory argument as to this issue is as follows, in full:
The Parties Transactions do not Relate to Interstate Commerce. The Defendants believe that just because the agreement states it, it must be true. However, that is not how the law works. The Plaintiff was considered an employee at will and received no consideration for the alleged agreement that was not explained to her. The Defendants offer no evidence that the Plaintiff's position affected interstate commerce [but rather] only recites the agreement. The Defendants offer no affidavits or evidence that a substantial amount of goods are moved in interstate commerce or any other notable circumstance.[Doc. 14 at 18-19.] Plaintiff cites a single case to support her argument, Swane County v. Berkeley County South Carolina, No. 2:15-cv-02586, 2015 WL 6688072, at *4 (D.S.C. Oct. 30, 2015), in which the court concluded that the agreement in that case involved interstate commerce and was subject to the FAA. It is unclear to the Court why Plaintiff relies on Swane as it only lends support for Defendant's contention that the Agreement in the present case relates to interstate commerce. Further, contrary to Plaintiff's assertion, Defendant has offered argument and evidence, including an affidavit, to demonstrate that Defendant's goods and services are moved in interstate commerce. [See, e.g., Docs. 8-1 at 9 (“Defendant is engaged in interstate commerce because it conducts business operations in multiple states. Defendant is an international biopharmaceutical company focused on the development and commercialization of novel products for serious rare and ultra-rare genetic diseases.... In addition to its headquarters in Novato, California, Defendant has research and development facilities in Cambridge, Massachusetts . . . [Defendant] also maintains its Latin American operations headquarters in Miami, Florida. . . . Pharmaceutical therapies developed and commercialized by [Defendant] are sold and distributed nationally and internationally.”); 8-2 ¶ 3 (Becerra's affidavit detailing this same information).] Indeed, Plaintiff's own Complaint admits that her employment required her to work in multiple states including both North and South Carolina. [Doc. 1-1 ¶¶ 1, 13, 16.] Plaintiff's argument, without any legal or evidentiary support, is simply without merit. And, Defendant has clearly demonstrated a relationship to interstate commerce.
In her affidavit, Becerra notes that Defendant is an international biopharmaceutical company, with its corporate headquarters located in California and facilities in Massachusetts and Florida. [Doc. 8-2 at 1-2.] Becerra also notes that Defendant's pharmaceutical therapies are “sold and distributed throughout the United States and beyond” and that Defendant “employs various individuals, including Patient Diagnostic Liaisons, throughout the United States, including in South Carolina.” [Id. at 2.] Further, Plaintiff alleges in her Complaint that she performed work in both North Carolina and South Carolina and that Defendant conducts business in South Carolina. [Doc. 1-1 ¶¶ 2, 16, 22.]
For these reasons, the undersigned finds that the Agreement involves interstate commerce and is subject to the FAA.
Conclusion
In sum, Plaintiff acknowledges that she was required to sign the Agreement during her onboarding as a condition of employment with Defendant. Defendant has submitted a copy of the Agreement, signed by Plaintiff. The language of the Agreement is clear and unambiguous on its face. The terms of the Agreement are reasonable and apply mutually to both parties. The Agreement is not one-sided, nor is it oppressive to Plaintiff. Based on the clear and unambiguous language of the Agreement, the Court finds that it is enforceable and that Plaintiff's claims are expressly covered by its mandatory requirement to arbitrate. Furthermore, Defendant has demonstrated all of the required elements for compelling arbitration. Therefore, it is recommended that the District Court find that the Agreement is valid and enforceable under the general principles of contract law and grant Defendant's motion to compel arbitration. See Adkins, 303 F.3d at 500-01.
Motion to Dismiss or Stay
Having concluded that arbitration is proper in this case, the Court must now consider whether to dismiss or stay this action. Defendant has requested that the Court dismiss this case or, in the alternative, stay this case pending resolution of the disputed claims in arbitration. “When an order to arbitrate has been issued for all claims brought before a court, courts are split on whether the filed action should be dismissed or stayed pending the outcome of the arbitration.” Richard A. Bales & Melanie A. Goff, An Analysis of an Order to Compel Arbitration: To Dismiss or Stay?, 115 Penn St. L. Rev. 539, 541 (2011) (collecting cases). The FAA requires a district court, upon motion by any party, to stay judicial proceedings involving issues covered by written arbitration agreements. 9 U.S.C. § 3. However, the FAA is silent as to whether a court may dismiss a case when all issues involved are covered by the applicable arbitration agreement.
As stated, the Fourth Circuit has concluded that, although the FAA requires judges to stay a case involving issues covered by a written arbitration agreement, dismissal without prejudice is the proper remedy when all of the issues presented in a lawsuit are subject to arbitration. See Choice Hotels, 252 F.3d at 709-10 (“Notwithstanding the terms of § 3 [of the FAA], however, dismissal is a proper remedy when all of the issues presented in a lawsuit are arbitrable.”); Greenville Hosp. Sys. v. Emp. Welfare Ben. Plan for Emps. of Hazelhurst Mgmt. Co., 628 Fed.Appx. 842, 845-46 (4th Cir. 2015) (affirming dismissal and holding that when “a court determines, after applying this presumption in favor of arbitration, that all of the issues presented are arbitrable, then it may dismiss the case, as the district court did here”).
Courts in this District have routinely held that dismissal is the proper remedy when all claims asserted in a case fall within the scope of an arbitration agreement. See, e.g., Cox v. Assisted Living Concepts, Inc., No. 6:13-cv-00747-JMC, 2014 WL 1094394, at *7 (D.S.C. Mar. 18, 2014); Fleetwood Transp. Corp. v. Packaging Corp. of Am., No. 6:10-cv-1219-JMC, 2012 WL 761737, at *5 (D.S.C. Mar. 8, 2012); Thomas v. Santander Consumer USA Inc., No. 0:15-cv-04980-CMC-PJG, 2016 WL 5956279, at *4 (D.S.C. Oct. 14, 2016) (“Dismissal is appropriate when, as here, all claims fall within the scope of an enforceable arbitration provision”); Patterson v. Asbury S.C. Lex, L.L.C., No. 6:16-cv-1666-MGL, 2016 WL 7474377, at *4 (D.S.C. Dec. 29, 2016) (compelling arbitration and dismissing case where the “only issue in Plaintiff's suit is arbitrable”). Based on the foregoing, and because the Court finds that all claims in this dispute are subject to arbitration, it is recommended that the Complaint be dismissed.
CONCLUSION AND RECOMMENDATION
Accordingly, for the reasons explained above, it is recommended that Defendant's motion to compel arbitration [Doc. 8] be GRANTED and that the case be DISMISSED.
IT IS SO RECOMMENDED.