NEWMAN v. AMBRY GENETICS CORPORATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION Wayne Newman, ) ) Plaintiff, ) ) Civil Action No. 2:24-cv-00887-BHH-MGB v. ) ) Opinion and Order Ambry Genetics Corporation, Joe ) Bedell, and Jack Shandley, ) ) Defendants. ) ________________________________ ) This case was removed to this Court on February 21, 2024, based on federal question jurisdiction. (ECF No. 1.) Plaintiff Wayne Newman’s (“Plaintiff”) first amended complaint (“FAC”) asserts the following the claims: (1) retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 et seq.; (2) defamation (implied malice); (3) defamation (actual malice, common law malice); (4) negligent supervision; (5) tortious interference with contract; and (6) civil conspiracy. (ECF No. 1-1 at 3-22.) Pursuant to the provisions of Title 28, United States Code § 636(b)(1)(A), and the Local Rules, this matter was referred to a United States Magistrate Judge for consideration.

Now before the Court is Defendants Ambry Genetics Corporation’s, Joe Bedell’s, and Jack Shandley’s (collectively, “Defendants”) motion to compel arbitration. (ECF No. 7.) Plaintiff Wayne Newman filed a response in opposition, arguing that the arbitration agreement is subject to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”).1 (ECF No. 8.) Defendants filed a reply, (ECF No. 9), and Plaintiff filed a sur-reply. (ECF No. 12.)

On April 26, 2024, Magistrate Judge Mary Gordon Baker filed her Report and Recommendation (“Report”), recommending that this Court grant Defendants’ motion to compel arbitration and dismiss the action without prejudice.2 (ECF No. 13.) Plaintiff filed timely objections to the Report. (ECF No. 14.) Defendants filed a reply to Plaintiff’s objections, (ECF No. 15), and then Plaintiff filed a response in support of his objections. (ECF No. 17.)

Standard of Review The magistrate makes only a recommendation to this Court. The recommendation has no presumptive weight, and responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and this Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1).

This Court may also “receive further evidence or recommit the matter to the magistrate with instructions.” Id. In the absence of specific objections to the Report, this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).

Discussion Upon review, the Court finds that Plaintiff’s first objection is non-specific and is merely a reiteration of her arguments contained in her response to Defendants’ motion to compel arbitration. (See ECF No. 14 at II A. & B. (arguing that the FAC alleges a cognizable sexual harassment dispute or claim related to sexual harassment and retaliation such that this Court should find this case falls within the purview of the EFAA).)

The Report fully addressed these arguments and found them without merit. (See ECF No. 13 at Section II, Analysis.) Regardless of whether the Court applies a clear error or de novo standard of review, the Court finds that the EFAA does not encompass Plaintiff’s claims.

Plaintiff then makes three specific objections to the Report, all of which he contends supports that he did plead “facts to warrant a plausible sexual harassment claim.” (ECF No. 14 at 7.)3 He contends that the Magistrate Judge: 1. “failed to consider that Plaintiffs’ FAC alleges that Bedell made comments about a subordinate being ‘on her period’ and that he openly degraded, humiliated, and ridiculed other female employees as well”; 2. “overlook[ed] that Bedell was a high-ranking officer and that he had the power to take tangible employment action against Jane Doe, as well as the individuals in the car”; and 3. “overlook[ed] that Plaintiff’s FAC alleges that Bedell sexually harassed other women.”

Plaintiff’s fourth specific objection is that the Magistrate Judge’s conclusion – that no factfinder “will ever have to decide whether sexual harassment occurred in this case” (ECF No. 13 at 8) – “overlooks the fact that Courts have extended EFAA to retaliation claims.” (ECF No. 14 at 9.) However, upon review, the Magistrate Judge’s Report noted that courts have found a retaliation claim covered by the EFAA, and it went on to explain why the cases cited by Plaintiff fail to support a finding that Plaintiff’s retaliation claim is covered by the EFAA. (See ECF No. 13 at 10 (noting that “courts have done so only where the victim of retaliation was also the victim and/or reporter of the allege sexual harassment”).) Notably, Plaintiff cites to the same case law4 in his objections that he cited to in his response in opposition to Defendant’s motion to compel. The Court finds that the Magistrate Judge examined the current legal landscape surrounding the EFAA and properly concluded that Plaintiff’s retaliation claim falls outside the purview of the EFAA.

Thus, after a de novo review, the Court finds this objection without merit.

Plaintiff’s fifth and final specific objection is that the Magistrate Judge’s finding – that extending the EFAA’s protection to a plaintiff who did not personally experience or report sexual assault or harassment is not supported by the stated legislative purpose of the statute – contradicts with the holding of Betancourt v. Rivian Auto., LLC, No. 22-1299- JES-JEH, 2023 WL 5352892, at *2 (C.D. Ill. Aug. 21, 2023). (ECF No. 14 at 11-12.) The Court disagrees. The issue before the Betancourt court was the “accrual date of Plaintiff’s hostile work environment claim,” as the parties disputed whether the EFAA applied to plaintiff’s claims based on its March 3, 2022, enactment date and the dates of the alleged harassment of the plaintiff. Id. at *3. The court ultimately held that plaintiff “has pled that she was subjected to sexual harassment and a hostile work environment,” and that the continuing violation doctrine applied to her claims which were, therefore, “ongoing on the date the EFAA was enacted with the result that the Arbitration Agreement” is unenforceable. Id. at *5 (emphasis added.) Thus, a close review reveals that the holding in Betancourt in no way contradicts the Report’s finding here – that affording Plaintiff the protection of the EFAA is not supported by the underlying purpose of the statute.

Interestingly, in support of this objection, Plaintiff cites to the Betancourt court’s discussion of the statute’s legislative history discussing “end[ing] the days of silencing survivors” and “prevent[ing] victims from sharing their story.” (ECF No. 14 at 12 (citing Betancourt, 2023 WL 5352892 at *2) (internal citations omitted)) (emphasis added).)

Plaintiff, however, is not a survivor or victim of sexual assault or harassment. The Court finds that the Magistrate Judge’s Report properly determined that a finding that the EFAA applies to Plaintiff’s claims is not supported by the stated purpose of the statute.5 Thus, after a de novo review, the Court finds this objection without merit.

Plaintiff raises one new, specific objection in his response in support of his objections. (ECF No. 17.) Plaintiff contends that the Magistrate Judge “erred by relying on the Defendants’ exhibits to hold that Plaintiff did not sufficiently allege a sexual harassment dispute.” (Id. at 5-9.) Specifically, Plaintiff claims the Magistrate Judge failed to take the “allegations in the FAC as true and in the light most favorable to Plaintiff” and “viewed the Defendants’ exhibits6 in the light most favorable to the Defendants.” (Id. at 5.) The Court disagrees.

In her Report, the Magistrate Judge set forth the relevant allegations from the FAC and, as noted above, properly determined that the EFAA does not apply because “Plaintiff does not and cannot bring a sexual harassment claim that survives under Federal Rule of Civil Procedure 12(b)(6).” (ECF No. 13 at 8.) This finding was based solely on the Further, the Court is not persuaded that a contrary finding is warranted because the “EFAA does not state that a person must experience a sexual assault or sexual harassment to avail themselves of the protection of the Act.” (ECF No. 17 at 9-10.) The Magistrate Judge examined the statute as a whole and correctly concluded that the statute’s language, even interpreted broadly, coupled with the statute’s purpose as gleaned from the legislative history, supports the conclusion that the EFAA was not enacted to protect the claims asserted by Plaintiff in this case.

Conclusion In conclusion, after reviewing the record, the Court finds no merit to Plaintiff’s objections and that the Report properly considered Plaintiff’s allegations in a light most favorable to him and correctly determined that the EFAA does not prohibit arbitration of Plaintiff’s claims. Therefore, the Court adopts and specifically incorporates the Magistrate Judge’s Report with the exception of recommending dismissal without prejudice (ECF No. 13); overrules Plaintiff’s objections (ECF Nos. 14, 17); and grants Defendants’ motion to compel arbitration. (ECF No. 7.) Therefore, the parties are hereby ORDERED to arbitration, and this case is STAYED pending completion of same. (See supra note 2.)

IT IS SO ORDERED. /s/ Bruce Howe Hendricks United States District Judge August 14, 2024 Charleston, South Carolina