United States District Court, D. South Carolina, Columbia Division
Courtney L. Brockington, Plaintiff,
Mr. Kim Stenson, Director; Emergency Management Division, Defendants.
OPINION AND ORDER
Margaret B. Seymour, Senior United States District Court
Courtney L. Brockington (“Plaintiff”), proceeding
pro se, brought the underlying action against her
former employer, Defendant South Carolina Emergency
Management Division (“EMD”), and her former
supervisor, Defendant Director, Kim Stevenson
“Defendants”), asserting wrongful termination
based on race discrimination in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000(e) et seq. ECF No. 1. In
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02,
D.S.C., this matter was referred to the United States
Magistrate Judge Paige J. Gossett for pretrial handling. This
matter is now before the court on two pending Magistrate
Judge's Report and Recommendation filed on February 23,
2017, ECF No. 18, and November 15, 2017, respectively, as
well as the appeal of the Magistrate Judge's Order
granting EMD attorney's fees. ECF No. 100.
REVELANT FACTS AND PROCEDURAL HISTORY
17, 2015, Plaintiff, who is black, was hired to work as a
Personnel Liaison with EMD. ECF No. 21 at 2. As a Personnel
Liaison, Plaintiff was responsible for all employees'
files and received training on various workplace policies and
February 23, 2016, Plaintiff was indicted by a federal grand
jury on four counts of fraud. As a condition of her bond,
Plaintiff was ordered to notify her employer of the federal
charges. (Order Setting Conditions of Release, Criminal
Docket ECF No. 13). After EMD received notification of the
criminal charges on or about April 1, 2016, Plaintiff alleges
she was called into a meeting to discuss the criminal charge
with Defendant Stenson and two other employees. ECF No. 21 at
1. At the meeting, Plaintiff claimed an agreement was reached
that gave Plaintiff two days off with pay and made some
adjustments to her job description. Id. Plaintiff
alleges that Stenson refused to carry out the agreement,
however, and terminated her employment. Id.
December 28, 2016, Plaintiff filed the present lawsuit
against Defendants for wrongful termination and race
discrimination. ECF No. 1. Plaintiff alleges she was
“never convicted of a crime and was treated as [if she]
was convicted by the court or Judge.” Id. at
5. Plaintiff further claims that Defendants terminated her
employment on the basis of race, because white male employees
who had been arrested returned to work without being
disciplined or fired, as opposed to black female employees.
Id. at 3; ECF No. 21 at 3. Plaintiff also alleges no
workplace policies existed that allowed termination due to
criminal charges. ECF No. 21 at 4.
Magistrate Judge reviewed Plaintiff's complaint and
issued a Report and Recommendation on February 23, 2017,
recommending that Defendant Stenson be summarily dismissed
without prejudice and without issuance and service of
process. ECF No. 18. The Magistrate Judge recommended that
Stenson be dismissed as a Defendant on the grounds that
claims brought under Title VII do not provide for individual
liability. ECF No. 18 at 3 (citing Lissau v. S. Food
Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998) (holding
that supervisors are not liable in their individual
capacities for Title VII violations). Plaintiff filed
objections to the Report on March 10, 2017, ECF No. 21, to
which EMD filed a reply on March 20, 2017. ECF No. 23.
31, 2017, EMD filed a motion to dismiss for failure to state
a claim. ECF No. 57. EMD contends that Plaintiff's
complaint should be dismissed because: (1) Plaintiff has not
alleged that she is a member of a protected class; (2)
Plaintiff has not alleged that she was qualified for the job
or that her work was satisfactory; and (3) Plaintiff has not
alleged facts that would show she was treated differently
from white employees who were not members of the protected
class. ECF No. 57-1. Further, EMD argues that “none of
[Plaintiff's] allegations are analogous to her claims, as
none involved an employee being accused of a crime.”
August 1, 2017, pursuant to Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the
dismissal procedures and the possible consequences if she
failed to respond properly. ECF No. 58. On September 1, 2017,
Plaintiff filed a response in opposition to EMD's motion
to dismiss. ECF No. 66. Plaintiff argues she was treated
differently from white employees as they committed the
following acts: (1) left work early every day; (2) took two
hour lunches; (3) drove the company car to the beach while
intoxicated and were stopped by police without any subsequent
reprimands by EMD; and (4) unlawfully used leave from the
State of South Carolina. ECF No. 66 at 5. EMD filed a reply
on September 8, 2017. ECF No. 69.
EMD filed a motion to compel, seeking supplemental responses
to EMD's First Interrogatories and to First Request for
Production. ECF No. 60. Plaintiff filed a response in
opposition to EMD's motion to compel. ECF No. 65.
Plaintiff argues that Plaintiff's First Interrogatories
responses were delivered to EMD on July 24, 2017. ECF No. 65
at 1. Plaintiff objects to additional supplemental responses
or the production of documents as such “communication
may damage the Plaintiff's case.” ECF No. 65 at 1.
Plaintiff further claims that EMD refused to communicate with
Plaintiff with respect to the submitted responses and
requested the court deny EMD any attorney's fees. ECF No.
65 at 2.
September 25, 2017, the Magistrate Judge granted EMD's
motion to compel and ordered Plaintiff to fully respond to
EMD's discovery requests by October 6, 2017. ECF No. 76.
The Magistrate Judge ordered EMD to file an affidavit of fees
and costs associated with its motion to compel. Id.
On October 6, 2017, EMD filed an affidavit of attorney's
fees, which itemized 7.25 hours spent working on the motion
to compel for a total fee of $797.50. ECF No. 85 at 2. Plaintiff
filed a motion to deny EMD's affidavit on the grounds
that (1) Plaintiff is pro se; (2) Plaintiff provided
EMD with the requested discovery on July 24, 2017; (3) EMD
attorney's fees are exaggerated according to unnamed
legal advisors; and (4) Plaintiff is financially unable to
pay any attorney's fees. ECF No. 87 at 1. EMD filed a
reply on October 26, 2017, contending that Plaintiff has
failed to comply with the requested discovery and that
Plaintiff's assertions regarding unnamed legal advisors
are without merit. ECF No. 93 at 3-4.
November 15, 2017, the Magistrate Judge issued an Order
awarding EMD attorney's fees in the amount of $467.50.
ECF No. 99. The Magistrate Judge reduced EMD attorney's
fees based on the finding that two time expenditures appear
to have been incurred prior to the filing of the motion to
compel. ECF No. 99. The Magistrate Judge considered
Plaintiff's objections, but concluded that EMD's
attorney's fees are reasonable based on the factors
adopted by the Fourth Circuit in Barber v.
Kimbrell's, Inc., 577 F.2d 216 (4th Cir. 1978), for
calculations of attorney's fees. ECF No. 99 at 2.
same day, the Magistrate Judge filed a second Report and
Recommendation, recommending that EMD's motion to dismiss
for failure to state a claim be granted and that
Plaintiff's remaining motions be terminated as
moot. ECF No. 100. Pursuant to Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th
Cir. 2005), Plaintiff was advised of the right to file
objections to the Report and Recommendation and the possible
consequences if she failed to timely file written objections
to the Report and Recommendation. ECF No. 100 at 7. Plaintiff
filed objections to the Report and to the Order awarding
attorney's fees on November 29, 2017. ECF No. 103, 104.
EMD filed a reply to Plaintiff's objections on December
13, 2017. ECF No. 105. Plaintiff filed a reply to EMD's
response to Plaintiff's objections on January 9, 2018.
ECF No. 107.
STANDARD OF REVIEW
Magistrate Judge's Findings in Report ...