United States District Court, D. South Carolina
Fredrica M. Brailsford, Plaintiff,
Wateree Community Action, Inc.; James L. Coleman, Jr.; Ernestine Lowery; LaShonna Meagley; Joseph Davis; and Laurey Carpenter, in their professional and individual capacities, Defendants
[Copyrighted Material Omitted]
Fredrica M Brailsford, Plaintiff: James Lewis Cromer, LEAD
ATTORNEY, J Lewis Cromer and Associates, Columbia, SC; Ryan
Kyle Hicks, LEAD ATTORNEY, Cromer and Mabry, Columbia, SC;
William Michael Hemlepp, Jr, LEAD ATTORNEY, Law Offices of W.
Michael Hemllepp, Jr., Columbia, SC.
Wateree Community Action, Inc., in their professional and
individual capacities, James L Coleman, Jr, in their
professional and individual capacities, Ernestine Lowery, in
their professional and individual capacities, LaShonna
Meagley, in their professional and individual capacities,
Joseph Davis, in their professional and individual
capacities, Laurey Carpenter, in their professional and
individual capacities, Defendants: D L Dirk Aydlette, III,
Robert Hayne Hodges, III, LEAD ATTORNEYS, Gignilliat Savitz
and Bettis, Columbia, SC.
D. West, United States Magistrate Judge.
Report and Recommendation
Fredrica Brailsford (" Brailsford" or "
Plaintiff" ), filed this action against her former
employer, Wateree Community Action, Inc. ("
Wateree" or " Defendant" ); James L. Coleman,
Jr.; Ernestine Lowery; LaShonna Meagley; Joseph Davis; and
Laurey Carpenter, in their professional and individual
capacities on November 14, 2013. ECF No. 1. The operative
Second Amended Complaint includes the following claims
against Wateree: (1) sex discrimination in violation of Title
VII of the Civil Rights Act; (2) Title VII Retaliation; (3)
age discrimination; (4) violation of South Carolina
Whistleblower Law; and (5) defamation. Plaintiff also brings
a claim of civil conspiracy against the Individual
Defendants. 2d Am. Compl., ECF No. 6. Jurisdiction over the
federal claims is based on 28 U.S.C. § 1331.
Jurisdiction over the state-law claims is based on the
court's supplemental jurisdiction,
28 U.S.C. § 1367. This matter is before the court
pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.) for a Report and Recommendation on
Defendants' Motion for Summary Judgment. ECF No. 33.
considered the Motion; Plaintiff's Response, ECF No. 49;
Defendants' Reply, ECF No. 53; and applicable law, the
undersigned recommends that Defendants' Motion for
Summary Judgment be granted and this matter be
Plaintiff's Federal and S.C. Whistleblower Act
response to Defendants' Motion, Plaintiff, through
counsel, does not contest entry of summary judgment as to her
claims for sex discrimination, age discrimination,
retaliation, or violation of South Carolina's
Whistleblower Law. See Pl.'s Resp. 7 (Title VII
sex discrimination), 7-8 (retaliation), 8 (age
discrimination), 9 (S.C. Whistleblower Act). Accordingly, it
is recommended that summary judgment be granted as
to Plaintiff's claims of sex discrimination, retaliation,
age discrimination, and Violation of South Carolina
Whistleblower Act (Causes of Action One through Four).
Diversity jurisdiction does not exist. See 2d Am.
Compl. ¶ ¶ 1-7 (indicating all parties reside in
South Carolina). If this portion of the Report and
Recommendation is adopted, all claims within the court's
original jurisdiction will be ended.
court must then determine whether it should exercise
supplemental jurisdiction under 28 U.S.C. § 1367(a).
" The district courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a)
if- . . . (3) the district court has dismissed all claims
over which it has original jurisdiction; or (4) in
exceptional circumstances, there are other compelling reasons
for declining jurisdiction." 28 U.S.C. §
1367(c)(3). As noted by the Fourth Circuit Court of Appeals,
" Once a district court has dismissed the federal claims
in an action, it maintains 'wide discretion' to
dismiss the supplemental state law claims over which it
properly has supplemental jurisdiction." Yashenko v.
Harrah's N.C. Casino Co., LLC, 446 F.3d 541, 553 n.4
(4th Cir. 2006) (citing Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 353-54, 108 S.Ct. 614, 98 L.Ed.2d
720 (1988)). In exercising this discretion, a district court
must consider " convenience and fairness to the parties,
the existence of any underlying issues of federal policy,
comity, and considerations of judicial economy."
Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.
1995) (citing Cohill, 484 U.S. at 350 n.7). In the
event a court declines to exercise supplemental jurisdiction,
the " period of limitations" for remaining claims
" shall be tolled while the claim is pending [in federal
court] and for a period of 30 days after it is dismissed
unless State law provides for a longer tolling period."
42 U.S.C. § 1367(d).
substantively responds to Defendants' summary-judgment
arguments regarding her claims of defamation (against
Wateree) and civil conspiracy (against the Individual
Defendants). Id. at 9-17. She then "
respectfully requests" that, " [a]ssuming the Court
agrees with the arguments set forth by the Defendants in
regards to Plaintiff's federal claims," the court
decline to exercise its supplemental jurisdiction over the
remaining state-law claims of defamation and civil conspiracy
and that they be " transferred to South Carolina State
Court, Court of Common Pleas, for final resolution."
Id. at 18. Plaintiff submits that there is an
interest in having the state-law claims adjudicated in state
court. Id. at 19.
reply, Defendants disagree. Defs.' Reply 4-6. Defendants
correctly note that, as this matter was not filed in state
court initially, the matter could not be remanded (or "
transferred" ) to state court. They also submit that
factors informing the decision regarding whether to exercise
supplemental jurisdiction weigh in favor of this matter
proceeding in this court. Id. Defendants note that
Plaintiff chose the federal forum when she filed her
employment case. Further, Defendants submit that the "
substantial resources" they have devoted to litigating
this case in federal court--including completed documentary
discovery, depositions, and multiple subpoenas--would need to
be duplicated in state court, at additional costs to the
litigants. Id. at 4-5. Defendants further submit
that " [j]udicial economy would not be served if
Plaintiff were to begin anew in state court."
Id. at 5. Defendants submit that federal courts
" routinely decide" defamation and civil conspiracy
claims, particularly when the law is not disputed by the
parties. Finally, Defendants submit declination of
supplemental jurisdiction at this juncture would be
especially prejudicial to the Individual Defendants.
Id. at 6.
undersigned recommends the court retain jurisdiction over
Plaintiff's defamation and civil conspiracy claims.
Continuing the case in federal court is both fair and
convenient to both parties, as neither side would incur
additional expenses or travel difficulties. Additionally,
Plaintiff is now proceeding pro se. If the court declined
supplemental jurisdiction, Plaintiff would be required to
refile in state court, and adjudication in state court would
likely take longer than in this court, where proceedings are
already underway. As such, issues of fairness and convenience
to the parties suggest retaining jurisdiction over these
of federal policy and considerations of comity do not weigh
against retaining supplemental jurisdiction over the state
claims, which require straightforward application of defined
case law. As such, issues of comity do not dictate against
retaining jurisdiction. Accordingly, the undersigned now
considers Defendants' Motion for Summary Judgment as to
Plaintiff's defamation and civil conspiracy claims.
Standard of Review
court shall grant summary judgment " if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(a). The movant bears the initial
burden of demonstrating that summary judgment is appropriate;
if the movant carries its burden, then the burden shifts to
the non-movant to set forth specific facts showing that there
is a genuine issue for trial. See Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). If a movant asserts that a fact cannot be
disputed, it must support that assertion either by "
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; "
or " showing . . . that an adverse party cannot produce
admissible evidence to support the fact." Fed.R.Civ.P.
considering a motion for summary judgment, the evidence of
party is to be believed and all justifiable inferences must
be drawn in favor of the non-moving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, " [o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted." Id. at 248.
All that is required is that " sufficient evidence
supporting the claimed factual dispute be shown to require a
jury or judge to resolve the parties' differing versions
of the truth at trial." Anderson, 477 U.S. at
249. " Mere unsupported speculation . . . is not enough
to defeat a summary judgment motion." Ennis v.
Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d
55, 62 (4th Cir. 1995). A party cannot create a genuine issue
of material fact solely with conclusions in his or her own
affidavit or deposition that are not based on personal
knowledge. See Latif v. The Cmty. Coll. of
Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009)
(affirming district court's grant of summary judgment,
noting plaintiff's affidavit, which offered conclusions
not based on his own knowledge, did not create genuine issues
of material fact). The court cannot make credibility
determinations or weigh the evidence, but the court should
examine uncontradicted and unimpeached evidence offered by
the moving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105
in the light most favorable to Plaintiff as supported in the
record, the court considers the following facts:
worked for Wateree from September 1986 until she was
terminated effective August 6, 2012. Pl.'s Dep.
30-31. Wateree is a non-profit organization
that aims to assist low-income and indigent individuals in
Clarendon, Lee, Kershaw, Richland, and Sumter counties to
better their living conditions. Id. at 33-35.
Wateree is governed by a Board of Directors and a management
team consisting of an executive director, finance director,
head start director, weatherization director, and a community
services and energy (" CSE" ) director. Pl.'s
Dep. 35. Prior to her termination, Plaintiff served as the
CSE Director, managing the Community Services Block Grant
(" CSBG" ) and the Low Income Home Energy
Assistance Program (" LIHEAP" ) programs. The CSBG
and LIHEAP programs were overseen largely by the South
Carolina Office of Economic Opportunity (" OEO" ).
Id. at 43-45. Wateree is funded primarily through
block grants from federal programs that are allocated through
the OEO to community action agencies based on poverty data
for each county. Id. at 41; Dep. of Wateree
Executive Director (and Defendant) Coleman 159, ECF No. 49-4.
The OEO monitors the expenditure of funds to ensure they are
spent according to the policies, guidelines, regulations, and
grant agreements. Coleman Dep. 159, Pl.'s Dep. 45. The
OEO sends a grant agreement at the beginning of each fiscal
year and conducts regular audits to ensure compliance by the
community action agencies. Coleman Dep. 160. If the OEO
determines funds are not being spent pursuant to the
regulations and agreements, the OEO could require the money
be refunded and, ultimately, defund the agency. Id.
provided Plaintiff with an updated handbook in January 2012
(" Handbook" ). ECF No. 33-5 (handbook),
see Pl.'s Dep. 31. Plaintiff signed a Notice and
Disclaimer upon receipt of the Handbook acknowledging that
she was an at-will employee and her understanding that the
" agency or the employee may terminate the employment
relationship at any time with or without cause or
notice." ECF No. 33-6. The Handbook included an Equal
Employment Opportunity and Harassment policy stating Wateree
does not discriminate in any aspect of employment and
directing employees to report any violations of policy to
their supervisors, any other member of management, human
resources, or the Chief Executive Officer (" CEO"
Plaintiff's job description states that she "
assumes full responsibility for directing, supervising,
planning and managing [CSBG] and [LIHEAP] projects to benefit
the low income [individuals] of Clarendon, Kershaw, Lee,
Richland and Sumter Counties." ECF Nos. 33-7, 33-8;
Pl.'s Dep. 43. Plaintiff was responsible for coordinating
the OEO audits of the CSBG and LIHEAP programs. ECF Nos.
33-7, 33-8; Pl.'s Dep. 45.
3, 1993, Rubye J. Johnson, Wateree's then-Executive
Director, wrote a letter to Plaintiff expressing concern
regarding Plaintiff's lack of planning and attention to
detail. ECF No. 33-9. Johnson noted that over the previous
two years, she had observed a lack of " planning and
priority setting" by Plaintiff and " again
warn[ed]" her that, unless improvements were made,
Wateree could lose grant funds. Id. at 1. Johnson
particularly counseled Plaintiff that " [i]mprovements
[were] needed in time-charted planning, narrative writing and
organization skills, grammar, spelling and research and
evaluation recordation." Id. Johnson also noted
Plaintiff was treating her monthly reporting responsibilities
with " little importance." Id. Johnson
instructed Plaintiff that, " [t]o help prevent a
reoccurrence of last minute rushing," Johnson was
requiring that Plaintiff plan to submit " tasks" to
her " far in advance of the required date they are due
to a funding agency. In this way, we can avoid errors, stress
and interference with my schedule." Id. at 2.
Plaintiff had discussions with Johnson on at least a
quarterly basis to discuss, inter alia,
Plaintiff's performance. Pl.'s Dep. 60.
November 2, 2005, as she was concluding her term as Executive
Director, Johnson provided Plaintiff with a memorandum titled
" Important Words of Wisdom," which set out several
issues that persisted with Plaintiff's job performance.
ECF No. 33-10. In part, the memorandum provides:
There is deep concern that I have regarding the quality and
efficiency reflected in work going out from your office to
one of our major funding agencies, the State O.E.O.
The funding agency should not have to discover errors to
point up to us over and over again when we have well-paid
professional staff hired to prevent that, to produce
efficiency plus (sic) and to teach subordinate[s] how to be
efficient and error-conscious.
Case in point are the two documents enclosed. The memorandum
to Ms. Lancaster, the State O.E.O. Director, as brief as it
is, has two gross grammatical errors. It shows a deficiency
in knowledge about subject-verb agreement, which is literally
elementary education. This is ...