Marshall v. Georgetown Mem'l Hosp.

Loretta Sabrina Marshall, Individually and on behalf of all others similarly situated, Plaintiff, v. Georgetown Memorial Hospital, d/b/a Tidelands Health, Defendant.

No. 2:21-cv-02733-RMG-JDA

United States District Court, D. South Carolina, Charleston Division

July 7, 2022

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Jacquelyn D. Austin United States Magistrate Judge

This matter is before the Court on Defendant's motion to stay litigation and compel arbitration or, alternatively, to dismiss the action. [Doc. 6.] 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 submit findings and recommendations to the District Court.

Plaintiff filed this action on August 24, 2021, alleging Defendant discriminated against her in violation of the Americans with Disabilities Act (the “ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), the Rehabilitation Act of 1973, and § 510 of the Employee Retirement Income Security Act of 1974 (“ERISA”) and wrongfully discharged her in violation of public policy. [Doc. 1.] On September 16, 2021, Defendant filed a motion to stay litigation and compel arbitration or, alternatively, to dismiss the action. [Doc. 6.] On October 15, 2021, Plaintiff filed a response in opposition to Defendant's motion. [Doc. 10.] Defendant then filed a reply on November 1, 2021. [Doc. 13.]

On December 29, 2021, the undersigned filed a Report and Recommendation (the “R&R”), recommending that Defendant's motion be denied. [Doc. 15.] Thereafter, by Order dated February 14, 2022, the Honorable Richard M Gergel recommitted the matter to the undersigned, noting as follows:

On January 19, 2022, Defendant filed objections to the R&R to which Plaintiff filed a reply. In its objections, Defendant did not dispute the analysis of the Magistrate Judge as it applied to the information and arguments Defendant presented in its original motion. (Dkt. No. 18.) Rather, in its objections, Defendant attached new information-specifically the supplemental declaration of Angela Traver-which appears relevant to determining whether Defendant's motion should be granted.

Considering the new information raised in Defendant[‘s] objections, and to afford both Defendant and Plaintiff a full opportunity to dispute all pertinent issues on the merits, the Court declines to adopt as moot the R&R. The Court rerefers this matter to the Magistrate Judge such that full briefing on the issues raised in Defendant's objections may be obtained and that Defendant's motion be considered in light of such briefing.

[Doc. 22 at 1.] Accordingly, by Text Order dated February 15, 2022, the undersigned entered a briefing schedule, and the parties have since filed supplemental memoranda and exhibits. [Docs. 23; 26; 27; 28; 30.] As the parties have fully briefed the issues before the Court, Defendant's motion [Doc. 6] is now ripe for review.

BACKGROUND

This matter stems from Plaintiff's claim that Defendant engaged in discrimination related to Plaintiff's application for employment with Defendant in 2020. [Doc. 1.] The undersigned previously summarized the allegations from the Complaint in the R&R and incorporates that recitation of the factual background relevant to Plaintiff's claims herein by reference. [Doc. 15 at 2-3.] The Court will summarize the prior employment relationship between the parties, Defendant's online employment application process, and Plaintiff's multiple applications for employment with Defendant from 2016 through 2020 as the issue presently before the Court is whether Plaintiff agreed to arbitrate any dispute with Defendant related to her 2020 employment application.

Plaintiff's Prior Employment with Defendant

Plaintiff, a Registered Nurse (“RN”), worked for Defendant from 2008 to 2011. [Doc. 10-1 ¶¶ 1-2.] Plaintiff left her employment with Defendant on good terms in March 2011 to work for other hospital systems. [ Id. ¶¶ 4-5.] Shortly after leaving her employment with Defendant, Plaintiff decided she wanted to return. [Id. ¶ 6.] Plaintiff applied for numerous positions with Defendant from 2011 through 2020. [Id. ¶ 7.] Defendant's allegedly discriminatory conduct occurred following Plaintiff's 2020 employment application. [Id. ¶¶ 8-22.]

Plaintiff's 2016 Employment Application and Arbitration Agreement

In 2016, Plaintiff completed an application for employment with Defendant (the “2016 Employment Application”) through Defendant's online application system. [Docs. 6-1 at 3 ¶ 6, 6-10; 10-1 ¶¶ 24-26.] Included in the 2016 Em ployment Application was a PRE-EMPLOYMENT STATEMENT that contained an Agreement to Arbitrate (the “2016 Arbitration Agreement”), which Plaintiff electronically signed on April 12, 2016.^[1] [Doc. 6-1 at 7-10.] The 2016 Arbitration Agreement provides in pertinent part:

You and Tidelands Health recognize that differences may arise between you during the application that cannot be resolved without the assistance of an outside party. Both you and Tidelands Health agree to resolve any and all claims, disputes or controversies arising out of or relating to your application for employment and application process exclusively by arbitration to be administered by the American Arbitration Association (“AAA”) pursuant to its Rules for the resolution of employment disputes. . . Some, but not all, of the types of claims covered are: discrimination or harassment on the basis of race, sex, age, national origin, religion, disability, genetic information, or any other unlawful basis; breach of contract; unlawful retaliation; employment-related tort claims such as defamation or negligence; and claims arising under any statutes or regulations applicable to applicants. . .

[Id. at 8.] Plaintiff concedes that she signed the 2016 Arbitration Agreement as part of her 2016 Employment Application. [Doc. 10-1 ¶ 25.] Plaintiff ultimately was not hired for the RN position related to the 2016 Employment Application. [Id. ¶ 28]

Applying for a New Position via Defendant's Online Employment Application Process

Defendant has submitted the supplemental declaration from Angela Traver, its Director of Employee Relations & HR Compliance, summarizing Defendant's online employment application process. [Doc. 26-1.] Traver explains that when an applicant wishes to apply for a position, she must do so via Defendant's online application process. [Id. at 3 ¶ 3.] For an applicant like Plaintiff, who has previously applied for a position with Defendant, to apply for a new position, she “must access and update [her] prior application.” [Id. at 3 ¶ 5.] Once the applicant has accessed her prior application, she can modify any area that is highlighted in yellow on that prior application. [ Id. at 3 ¶ 6, 19-21.]

According to Traver's supplemental declaration, once the applicant modifies information in the application, including her available start date, she “must scroll to the bottom of the page, passing through the arbitration and class waiver language, and view the yellow highlighted box that indicates [she is] reapplying and re-confirming [her] original e-signature.” [Id. at 4 ¶ 6.] Thus, Traver avers that “by leaving the check mark in the box^[2]and hitting the ‘submit' button[,] . . . the applicant has agreed to the Agreement to Arbitrate.” [Id. (footnote added).] However, the screenshot attached to Traver's supplemental declaration appears to contradict this assertion because on the employment application page of Defendant's online application system, a “submit” button is located at both the bottom and the top of the page. [Id. at 19-21.] Thus, it appears that an applicant could submit the application by clicking the “submit” button on the top of the page without ever scrolling down to see the Agreement to Arbitrate language. [Id.]

Plaintiff's 2019 Employment Application

In 2019, Plaintiff completed additional applications for employment with Defendant (the “2019 Employment Applications”) through Defendant's online application system. [Docs. 6-1 at 3 ¶ 8; 10-1 ¶ 30; 26-1 at 4-5 ¶ 8, 22-33.] Plaintiff avers that she did not sign an arbitration agreement related to her 2019 Employment Applications. [Doc. 10-1 ¶ 31.] In her initial declaration, Traver asserted that, “[s]ubsequent to April 12, 2016, [Plaintiff's] application remained active, and she could update it at any time by accessing it online and making changes.” [Doc. 6-1 at 3 ¶ 8.] Thus, according to Traver, when Plaintiff applied for positions in 2019, she was actually updating the 2016 Employment Application, and her “updated application form, which included the arbitration provision containing her signature, was forwarded to the hiring manager.” [Id.] In her supplemental declaration, Traver avers that Plaintiff entered into additional agreements to arbitrate in 2019 by clicking “submit” on her 2019 Employment Applications without first unchecking the box labeled “I ACCEPT” that she had previously checked in 2016. [Doc. 26-1 at 4-5 ¶¶ 6, 8.]

Plaintiff's 2020 Employment Application

In 2020, Plaintiff again completed an application for employment with Defendant (the “2020 Employment Application”) through Defendant's online application system. [Docs. 6-1 at 3 ¶ 8; 10-1 ¶ 30; 26-1 at 4-5 ¶ 8, 34-39.] Plaintiff avers that she did not sign an arbitration agreement related to her 2020 Employment Application. [Doc. 10-1 ¶ 31.] On the other hand, Traver again initially asserted that Plaintiff's application remained active, that she merely updated it in 2020, and that her “updated application form, which included the arbitration provision containing her signature was forwarded to the hiring manager.” [Doc. 6-1 ...