Opinion
C. A. 3:20-4487-MGL-KDW
07-27-2023
Jaime Susanne Misenheimer, Plaintiff, v. University of South Carolina and David W. Voros, Defendants.
REPORT AND RECOMMENDATION (MOTION FOR SUMMARY JUDGMENT BY USC, ECF NO. 69)
Kaymani D. West, United States Magistrate Judge
Plaintiff filed this litigation against her former employer, Defendant University of South Carolina (“USC”), and against David W. Voros (“Voros), her former colleague at USC's School of Visual Arts and Design (“SVAD”), where he was a tenured professor. 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 (“Report”). USC and Voros have filed separate motions for summary judgment; this Report focuses on USC's Motion for Summary Judgment, ECF No. 69, to which Plaintiff has responded, ECF No. 78, and USC has replied, ECF No. 86. Plaintiff's Amended Complaint includes the following causes of action against USC: defamation, negligent supervision and retention, race discrimination (under Title VII), sex discrimination (under Title VII and Title IX), retaliation (under Title VII and Title IX), deliberate indifference (under Title IX), and breach of contract. The parties have stipulated to the dismissal of Plaintiff's defamation and Title VII race discrimination claims against USC. See Pl. USC-Opp'n Mem. 1, ECF No. 78. Having reviewed the filings, including their numerous exhibits; and applicable law, the undersigned recommends USC's Motion for Summary Judgment, ECF No. 69, be granted as to Title VII quid pro quo and disparate treatment claims and as to all Title IX claims and denied as to other claims against USC as discussed more fully within.
I. Standard of review
The 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 (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. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving 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 (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). Further, “[i]t is well recognized that a plaintiff may not avoid summary judgment by submitting an affidavit that conflicts with earlier deposition testimony.” Alba v. Merrill Lynch & Co., 198 Fed.Appx. 288, 300 (4th Cir. 2006) (citation omitted).
To the extent supported by the record the court considers the facts in the light most favorable to Plaintiff, the nonmoving party. Plaintiff's detailed factual recitations, set out as “facts not in dispute” and “facts in dispute” as contemplated by summary-judgment jurisprudence, are used as the basis for the court's factual summary herein. As noted above, to survive a motion for summary judgment, the non-moving party must demonstrate that specific material facts exist that give rise to a genuine issue. Celotex Corp., 477 U.S. at 324. Indeed, “[w]hen a memorandum opposes a motion for summary judgment, a concise statement of the material facts in dispute shall be set forth with reference to the location in the record.” Local Civ. Rule 7.05(A)(5) (D.S.C.). To the extent appropriate, additional facts are set out in relevant portions of this Report.
A. Plaintiff began as USC student and began working at USC in Fall 2014
Plaintiff began her undergraduate studies at Defendant USC and graduated in 2009. Beginning in Fall 2014 Plaintiff worked at Defendant USC's SVAD as a lab technician and adjunct faculty member. See Voros Dep. 16, 125, ECF No. 78-1; Pl. Dep. 15, ECF No. 78-2; See Offers of Temporary Employment, ECF No. 69-2; Aug. 9, 2018 email, ECF No. 78-20 (indicating Plaintiff had completed her undergraduate work at USC in 2009). When Plaintiff was a lab technician, Voros indicates he was her supervisor “in a manner of speaking.” Voros Dep. 125. In Spring 2015, Plaintiff served as Voros' replacement while he was on sabbatical and taught some of his graduate and undergraduate classes that semester. Voros recommended her for that role. Voros Dep. 96-97.
It is undisputed that Voros had supervisory authority over Plaintiff when she was an adjunct faculty member. However, page 125 of Voros' deposition asks only about the lab technician position.
Plaintiff and Voros' then-wife, Pamela Bowers, who also worked for SVAD, had met around 2004. Bowers Dep. 31, ECF No. 78-27. Bowers noted that, at times, Plaintiff babysat her and Voros' children. Id. Voros and Bowers separated on December 5, 2016 and divorced on September 12, 2017. Voros Dep. 38. Their separation and divorce were, at least in part, because Voros had engaged in an improper sexual relationship with former SVAD student Alex Stasko. Voros Dep. 39.
A related case brought by Bowers against the same Defendants was removed to this court on the same day this matter was removed. Bowers v. Univ. of S.C. and Voros, 3:20-4486-MGL-KDW.
B. Voros' employment and control over Painting Department
Voros began his employment with USC as an assistant professor in 2000; he was promoted to assistant professor with tenure in or around 2005; and, at the time of his December 20, 2022 deposition in this and its related case, remained employed as a full professor with tenure. Voros Dep. 12-13. Voros has been the head or “coordinator” of the painting department since 2000, a position in which he served throughout Plaintiff's employment. Id. at 14-15. Voros was the “one full-time tenure track faculty member” in the painting department. Dep. of SVAD Director Peter Chametzky Dep. 29, ECF No. 78-3. Voros described himself as serving as “sort of a middle level management controller of the painting area.” Voros Dep. 67-68. Voros was responsible for ordering materials, overseeing the facilities, overseeing curriculum and curriculum compliance, managing day-to-day activities, coordinating visiting artists, coordinating the schedule, and recommending employees for temporary faculty positions. Voros Dep. 14-15; Chametzky Dep. 31. Voros had input regarding who was hired and rehired in painting area and who was assigned to each class. Chametzky Dep. 37; Dep. of SVAD Business Manager Kim Gore, 35, ECF No. 78-4.
The pending dispositive motions were filed on January 9 and 10, 2023. The court has become aware of a July 5, 2023 article that indicates Voros resigned from USC “earlier this year.” https://www.thestate.com/news/local/education/article276970268.html (last viewed July 11, 2023). Although the briefing as to the pending dispositive motion was not complete until mid-March 2023, no party to this litigation has advised the court of this change in Voros' employment status. Accordingly, this change will not be further considered herein.
C. USC received complaints regarding Voros
Information about these complaints is included in the interest of completeness. Inclusion herein should not be construed as the court's acceptance of the substance of each detail of each complaint.
In addition to the below-discussed complaints by Plaintiff, the record includes other complaints of harassment, discrimination, and/or retaliation by Defendant Voros of which USC was made aware. One of Voros' students, Allison Dunavant, filed a Title IX complaint in the summer of 2016. Generally, Dunavant complained of abusive language by Voros, unsafe living conditions, and food deprivation when in Italy for a program purportedly related to USC. Voros Dep. 103-04 (indicating he was aware of Dunavant's Title IX complaint; not speaking to the substance of the complaint); EOP Case #2015021301, Dunavant, Complainant, ECF No. 78-6 (report by USC employee Dale Moore regarding complaint by mother of Master of Fine Arts (“MFA”) student Dunavant as to concerns about conditions and harassment by Voros while studying abroad in Italy); USC Office of Equal Opportunity Programs (“EOP”) Notice of Harassment/Discrimination Complaint by Dunavant regarding Voros' treatment and retaliation while in Italy, ECF No. 78-7; May 16, 2016 email from Magdalena Gurdzinski-Hall, Ph.D., Director of USC's Study Abroad Office, ECF No. 78-5 (including detailed information from Dunavant's mother regarding Dunavant's alleged treatment by Voros). USC's faculty and staff were aware of Dunavant's complaints. Chametzky Dep. 56-57, 61 (noting that the EOP Complaint made to USC concerned complaints about living and working conditions but did not include an allegation of sexual harassment); Dep. of Art History Professor Bradford Collins 24-25, ECF No. 78-9 (noting familiarity with Dunavant matter but “little familiarity” with claims of Bowers or Plaintiff).
Dunavant previously brought an action against USC, Voros, International Center for the Arts, and former USC President Harris Pastides. Dunavant's case was resolved at mediation. Dunavant v. Univ. of S.C., 3:18-1604-MGL.
As noted by Voros in his own Motion for Summary Judgment in this matter, Dunavant's own suit brought against USC, Voros, and others included allegations of sexual harassment and assault that were not included in the complaints submitted to USC. In her deposition in her case, Dunavant, 3:18-1604-MGL, Dunavant noted her complaints relayed at the time were focused on her treatment and possible abandonment in Italy but were not focused on allegations of sexual harassment. See Voros Mot. Summ. J., ECF No. 71-1 at 5-8.
As more fully detailed in the undersigned's Report as to USC's Motion for Summary Judgment in her case, Bowers reported issues with Voros beginning in Spring 2017; she retired in May 2022. Bowers' complaints included reports to various USC officials, including SVAD Directors Chametzky and Laura Kissel, SVAD Business Manager Gore, Human Resources (“HR”) personnel, the EOP Office, and the USC Police Department. Bowers' complaints included allegations that Voros was making her uncomfortable, sexually harassing her, interfering with her work, berating her via email, and retaliating against her. ECF No. 103 in Bowers v. Univ. of S.C., 3:20-4486-MGL-KDW. See, e.g., Bowers, ECF No. 78-27 (Bowers' November 3, 2017 email recap of her October 31, 2017 meeting with Chametzky during which she reported various issues regarding Voros, included some of an allegedly sexual nature); Gore Dep. 17-21, ECF No. 78-5 in Bowers, ECF No. 78-4 in Misenheimer; Bowers, ECF No. 78-31 (Bowers' February 12, 2018 email to Laura Kissel, who took over from Chametzky as SVAD Director in January 2018); Bowers, ECF No. 78-42 (Bowers February 28, 2019 EOP Complaint).
This exemplar list is not intended as a full catalog of Bowers' complaints related to Voros.
An undergraduate art student, Lauren Chapman, also made complaints about Voros and about a male model to Kissel, Chametzky, and the USC Police Department. Chapman Dep. 10-16, ECF No. 789; Chametzky Dep. 54-55; Voros Dep. 26-27. Chametzky testified Chapman advised the complained-of conduct by Voros was not sexual in nature and Chapman did not wish to report it. Chametzky Dep. 5455. Kissel indicated Chapman told her she believed Voros was driving around her neighborhood and she feared retaliation. Kissel Dep. 38-39. To Kissel's recollection she did not do anything with the complaint because it concerned off-campus behavior. Kissel advised Chapman to contact the police if she felt unsafe; Kissel believes Chapman did contact the police. Kissel Dep. 39-40.
Former MFA student and teaching assistant, Autumn Wertz, indicated that once she learned of an affair Voros was having “he started to treat [her] differently.” Wertz Aff. ¶ 15, ECF No. 78-11. Wertz said she reported Voros to Ombudsman Dale Moore; she believed she had filed an EOP Complaint but was advised by Kissel no such complaint was filed. Id. ¶¶ 23, 28; Voros Dep. 30. Jordan Sheridan, a former SVAD student who is now a professor, reported to Moore, Kissel, and Graduate Director Graciano concerning an incident during which Voros sat uncomfortably close to her; Sheridan said Voros did not physically touch her. Sheridan also reported feeling generally uncomfortable around Voros. Sheridan Dep. 13-16, 23, ECF No. 78-12.
The copy of Wertz' affidavit filed with the court is signed but not notarized.
Former SVAD Business Manager Gore testified that she “heard rumors” from graduate students that Voros was seeking sexual favors from former SVAD student (Alex Stasko) in exchange for employment benefits. Gore suggested to the students repeating the rumors that they report to Graduate Director Graciano. Gore Dep. 25-26. Gore also said she had heard complaints that if Voros did not wish to follow departmental policy he would become angry with the person advising him of the policy. Gore Dep. 25. Gore further noted Voros was “difficult” at times and often raised his voice when angry. Id.
Susan Bon explained that one of her roles at USC was that of Faculty Civility Advocate. In that role, she was to investigate claims of bullying between faculty members. Bon Dep. 21-22, ECF No. 7813. However, if the claims were those of sexual harassment or discrimination or retaliation she referred them to USC's EOP office. Id. at 22. Bon testified that Professor Virginia Scotchie filed a police report in which she “expressed feeling intimidated by Dr. Voros because she was quoted in the newspaper” as making negative comments about Voros. Bon Dep. 64-65. Bon indicated that, when Scotchie contacted her regarding “another concern in her department” she “also mentioned that she felt there was just a lot of hostility in the department.” Bon Dep. 64. Scotchie indicated she had filed the report because she did not feel safe when Voros was on campus. Bon said Scotchie was not seeking to open a formal complaint with Bon's department regarding Voros. Id. On another occasion concerning a different non-Voros-related complaint, Scotchie again mentioned feeling unsafe around Voros and that she feared he may try to retaliate against her. Id. at 67-68; see also id. at 93-94.
As the timing of some of these incidents is unclear from the record as presented, this information is included for completeness. Other incidents concerning Scotchie that Plaintiff includes in her presentation of the facts took place in 2021, well after Plaintiff was no longer employed by USC, and are not included herein.
A male faculty member advised Kissel he felt Voros had bullied him out of a program coordinator position during a staff meeting. Kissel Dep. 33-34.
SVAD Chair Chametzky indicated Voros threatened legal action against him when Voros received a letter advising of a complaint that had been filed against him. Apr. 10, 2017 Chametzky email, ECF No. 78-14. Over the years Kissel heard various complaints from faculty who did not like working with Voros because he could be “difficult, argumentative, challenging in various ways in faculty meetings that makes people uncomfortable or feel shut down.” Kissel Dep. 53. Professor Collins indicated Voros had a temper and a strong personality. Collins Dep. 30-31.
D. Plaintiff's Complaints to USC about Voros
Plaintiff reported to then-SVAD Director Chametzky that Voros asked her to give Dunavant a bad grade. Chametzky indicated that “sounds like retaliation.” Chametzky Dep. 16-17, 52-53. Plaintiff also filed a report with EOP regarding this incident. Pl. Report given April 10, 2017, ECF No. 69-4; April 13, 2017 email from USC Deputy Title IX (EOP) Coordinator Carl Wells to Clifford Scott and Chametzky, ECF No. 78-16 (indicating USC's Office of EOP had received a complaint from Misenheimer alleging Voros “showed up in her class and stood in place attempting to intimidate her,” indicating EOP had issued a “No Contact Order to David Voros”); April 13, 2017 letter from Wells to Voros, ECF No. 78-18 (advising of a complaint of retaliation by Misenheimer and advising Voros of the No Contact Directive); April 13, 2017 No-Contact Order to Voros, ECF No. 69-6. USC's EOP Office investigated Plaintiff's allegation of retaliation and found “no cause,” indicating Voros “categorically denies [Plaintiff's] allegations” and that “by virtue of the preponderance of the evidence [] it is not ‘more likely [than] not' that [Plaintiff] was subject to retaliation.” April 22, 2017 Letter from EOP to Voros, ECF No. 69-5.
Plaintiff testified that, during her meeting with Chametzky, she made an additional report to Chametzky about an incident in February 2017 in which Voros took Plaintiff into a small closet, put his arms around her, held a model head in front of her, and whispered in her ear. Pl. Dep. 66-67, 151-52. Gore testified Plaintiff reported this incident to her. Gore Dep. 15-16. Gore instructed Plaintiff to speak to Chametzky because he was Voros' supervisor; Gore did not do anything further with the report. Gore Dep. 19-20. Chametsky denies that Plaintiff reported the closet incident to him. Chametzky Dep. 61-63. The record contains no actual documentation regarding this incident's having been reported to USC at the time.
On March 23, 2017, Chametzky prepared a document to make the new Dean of the College of Arts and Sciences aware of some of the complaints against Voros. The document, entitled “Problems in Painting” is written in the format of a play. “Problems in Painting,” ECF No. 78-15. Chametzky explained in his deposition that he prepared his summary in this format in lieu of submitting a “standard dry memo” and noting the new dean, Nina Levine, was an English professor. Chametzky Dep. 131-32. In the “Play”/memo Chametzky recounted various complaints that had been made concerning Voros, concluding that the “numerous reports . . . have attested to erratic, unprofessional behavior on the part of Voros this semester.” Problems in Painting 3. Chametzky noted that “[n]umerous students feel alternatingly intimidated or neglected,” noted Plaintiff's complaint that Voros had instructed her to give Dunavant a bad grade, Bowers' complaints of Voros' entering her classroom and office uninvited and indicated Bowers was “currently on a medical leave for 17 days, for reasons derived from this stressful situation.” Id. at 3-4.
The record includes an email chain between Plaintiff and Voros concerning Voros' communications with Plaintiff regarding her position as a lab technician in the painting department. February 7, 2017 through April 5, 2017 email chain between Plaintiff and Voros, ECF No. 78-35. Plaintiff indicates that some of the tasks Voros began assigning to her, including repairing clamps and mounting his drawings, were related to Voros' grant work and were not within the purview of her labtechnician position. Pl. Dep. 75-78. The email chain includes a “change of plan” as of February 24, 2017: Voros advised Plaintiff, “For the remainder of the semester, help Pam [Bowers] with her classes and ordering and manage the workshop as planned. Cancel the demo[]s.” February 24, 2017 email, ECF No. 78-25 at 5. Plaintiff testified that, likely after the February 2017 “closet incident” referenced above, she went to Chametzky to complain about the other duties and that Voros was “micromanag[ing]” her in her lab tech position in a way he never had before. Pl. Dep. 79; Chametzky Dep. 47-48 (noting Plaintiff's complaint about being instructed to do Voros' personal work, discussing with Voros, and being told by Voros that the work at issue was related to “teaching support,” making it within Plaintiff's job duties); see also March 5-8, 2017 email chain between Chametzky and Plaintiff, ECF No. 78-36 (in which Chametzky confirmed Plaintiff's position was intended as “instructional support, not faculty research.”) On April 5, 2017, Voros copied Chametzky and Gore on the February 7 through March 16, 2017 email chain with Plaintiff. In the April 5, 2017 email Voros complained about Plaintiff's work, indicating she had not been turning in time sheets as instructed and there “appear[ed] to have been no work done in Painting related to [her] Area Assistant position.” April 5, 2017 email, ECF No. 78-35 at 2. A few hours later Gore responded to Chametzky only noting Plaintiff “ha[d] not been able to work as the painting lab tech while she has been covering during Pam's absence.” Id.
On March 18, 2017, Plaintiff and Chapman reported concerns about Voros to the USC Police. Mar. 18, 2017 Reporting Officer Narrative, ECF No. 78-19 at 2. The report indicates Chapman, a student; and Plaintiff, an instructor who reported directly to Voros, had concerns about Voros' recent “erratic behavior.” Id. Chapman and Plaintiff noted they had submitted affidavits for Bowers in her pending divorce from Voros, and feared his retaliation “either physically or work related” when he learned they had done so. Id. They also noted Voros had been harassing Bowers by showing up at her office and walking into her classroom while teaching. Id.
Plaintiff reported to SVAD Director Kissel that she was afraid to teach in the same building as Voros and that he had made threatening remarks about her. Kissel Dep. 19-20; At the time, Kissel advised Plaintiff she need not worry because Kissel was “fairly confident” that Plaintiff and Voros would not be in the same building at the same time. Kissel Dep. 20. see also August 2018 email from Plaintiff to Kissel, ECF No. 78-20 (advising Kissel she would love to teach in Fall 2018 but was “wrestling with this because of the current situation” with Voros noting her previous complaints and reports about his “inappropriate actions [] taken against [Plaintiff] and students”).
On September 12, 2018, Plaintiff sent an email to Kissel, and copied other USC staff, expressing concerns that Voros posed a threat to her physical safety, her reputation, and her continued employment. September 2018 EOP, ECF No. 78-21. Bowers had sent Plaintiff an email informing her that Voros had made threatening statements and referred to Misenheimer as a bitch and a liar and indicating he was going to “get” Plaintiff. Id. at 5. Kissel filed an EOP report asking that someone address the situation with Defendant Voros because his behavior was causing “mental anguish and anxiety” for Plaintiff and Bowers. Id at 3. On September 28, 2018, USC's EOP Office wrote Plaintiff advising her it had reviewed her most-recent complaint concerning Voros. September 28, 2018 Letter, ECF No. 69-10. In the letter, Assistant EOP Director Carl Wells indicated EOP was “inquir[ing] about [Plaintiff's] safety and wellbeing,” and advised she should contact Campus Police or Richland County Police if she had concerns regarding her safety. Id. The letter continued, “As the reported allegations are concerning, they do not constitute a University of South Carolina EOP policy violation.” Id. EOP indicated it was closing its files related to the matter but would be “open to receipt of new information or additional details” that were “pertinent to this case and [Plaintiff's] personal safety.” Id.
On April 2, 2019, Plaintiff, Bowers, and Chapman met with USC Police and reported threatening behavior from Voros, including Voros' sending threatening emails to Bowers; accusing Plaintiff, Bowers, and Chapman of conspiring to get him in trouble with a lawsuit; hacking Bowers' social media account; making unwelcomed advances; and stalking Chapman. Plaintiff recounted the 2017 incident in which “Voros forced her into a closet and touched her[]”; she did not elaborate further on those details. April 2, 2019 Police Report, ECF No. 78-22 at 3; Bowers forwarded documents to the police. April 3, 2019 email, ECF No. 78-23. Voros entered the classroom and saw that Bowers, Misenheimer, Chapman, and the officer were meeting. Voros Dep. 86-87.
E. Plaintiff's Class Assignments
Plaintiff taught the undergraduate courses ARTS 232 (Figure Structure I) in Fall 2014, Fall 2015, and Fall 2016; and ARTS 233 (Figure Structure II) in Spring 2015. Plaintiff taught ARTS 210 (Introduction to Painting) in Fall 2015, Summer 2016, Fall 2016, Spring 2017, and Summer 2017. Misenheimer Assignment History, ECF No. 78-28. In August 2017, Chametzky told Plaintiff that she was being pulled from teaching her ARTS 210 in Fall 2017. Chametsky indicated ARTS 210 was being reassigned to Voros because his upper-level classes did not have sufficient enrollment to proceed and he, as full-time faculty, had to be reassigned courses that previously had been assigned to “tfac.” August 14, 2017 email from Chametzky to Plaintiff, ECF No. 78-29. Voros taught three sections of ARTS 210 in Fall 2017. Fall 2017 Classes, ECF No. 78-30 at 9-10. Voros also taught ARTS 210 in Fall 2018. Fall 2018 Classes, ECF No. 78-31 at 9-10. Stasko, the former SVAD student with whom Voros had an affair, taught ARTS 232 (along with ARTS 233) in Fall 2017. ECF No. 78-30 at 14. Stasko testified that Voros offered her the position of teaching ARTS 232 and 233. Stasko Dep. 40, ECF No. 78-32. Voros also asked that Stasko teach ARTS 210 in Fall 2017, which involved removing Plaintiff from the section. May 2017 email regarding ARTS 210, ECF No. 78-33 (indicating Voros had asked that an individual whose name had been redacted-apparently Stasko-become a GTA for ARTS 210 for the Fall 2017 semester, which would require that Plaintiff be moved to a “drawing (?) course”).
F. Plaintiff's employment ends in August 2019
Plaintiff resigned from her employment with USC in 2019. In an August 1, 2019 email to Kissel, with the subject line “Fall 2019 teaching,” Plaintiff indicated in pertinent part as follows:
As much as I love teaching, the environment at SVAD and USC since the Fall of 2015 has been increasingly hostile. Unfortunately it would be self destructive for me to remain there with no changes. On the advice of my health care professionals, I'm going to have to take a break from teaching, which saddens me. I don't feel safe at USC, and despite my reports, and others', nothing tangible has been done to rectify the numerous threats, retaliation, and sexual harassment that have occurred to myself and others, including students, faculty, and alumni. Voros has such a clear agenda of retaliation against me, I feel that anyone is put in danger if they respond positively to me. Since nothing has been done about his behavior, it also feels that he is protected, and I am not. It's a terrifying place to work and makes it very difficult to teach.Pl. Aug. 1, 2019 email to Kissel, ECF No. 78-34; see also Pl. Dep. 195-96, Kissel Dep. 23. Kissel responded by telling Plaintiff she was “saddened by [her] message” and she “hate[d] to think that any staff, faculty or student would feel unsafe working in the SVAD or at USC.” August 1, 2019 email from Kissel to Plaintiff, ECF No. 69-11 at 4. Kissel continued, “I hope that you have been able to report any new hostile or abusive encounter or situation you experienced in spring 2019?” Id. (question mark in original). Kissel closed by noting Plaintiff's gifts as a teacher and indicating SVAD would keep her in mind for future courses should things change and Plaintiff was able to return. Id.
G. Voros' continued employment with USC
As of the time of his December 20, 2022 deposition in this matter Voros was still employed with USC; he testified that he had never been reprimanded by USC. Voros Dep. 13, 16, 187. In April 2021, over two years after Plaintiff was no longer working with USC, students protested USC's handling of complaints, including those against Defendant Voros, on Defendant USC's campus in April 2021. October 1, 2021 Carolina News & Reporter article, ECF No. 78-24; see also Bon Dep. 11-15, 8586 (Bon indicating that, in her role as a Presidential Faculty Fellow, she attended October 2021 meeting with three students who indicated their belief that there was a sex-based hostile environment in the SVAD and they no longer felt safe on campus (although those students did not complain they personally had been discriminated against or harassed). On October 21, 2021,the Interim Dean of Arts and Sciences sent an email announcing to the College of Arts and Sciences faculty members that Voros would not be assigned any teaching responsibilities in the upcoming Spring semester and that he would be barred from campus. October 12, 2021 email from Interim Dean Joel H. Samuels, ECF No. 78-25. Voros testified he was unaware of any ban from him on campus, and that he was only told Kissel did not want him on campus for his own protection. Voros Dep. 184, 199-201. Voros went to campus to drop off materials and to collect things. Voros Dep. 180-181; March 16, 2021 email from Voros to Kissel and Jessica Velders, ECF No. 78-26. Voros was given a police escort at first for his safety, “and then after a while, Kissel didn't feel like it was necessary anymore.” Voros Dep. 174, 180-81. USC Police met with Defendant Voros about his concerns over activism on campus against him but never met with him about Plaintiff's reports filed against him. Voros Dep. 146-47. Voros remained employed by USC, working remotely in administrative functions since 2021, where he still earns his full salary. Kissel Dep. 55-56; Voros Dep. 178-180, 183. Voros was still participating in department Zoom meetings during 2021. Bowers Dep. 45-46. At the time of his December 20, 2022 deposition in this litigation Voros was still serving as the Coordinator of the SVAD's painting department. Voros Dep. 14-15.
As noted above it seems that Voros left USC's employment in early 2023. Plaintiff left USC's employment in August 2019.
Some information regarding the period following August 2019 is included for completeness and does not necessarily impact the matters being litigated herein.
III. Analysis
USC seeks summary judgment as to all of Plaintiff's claims against it. USC Mot. Summ. J., ECF No. 69. After the parties agreed to dismissal of the defamation and race-based Title VII claims against USC, the remaining claims against it are federal claims brought under both Title VII and Title IX and state-law-based claims of negligent supervision and retention and breach of contract. The court considers the federal-law-based claims first.
A. Title VII: exhaustion and timeliness arguments
Plaintiff's Amended Complaint includes Title VII causes of action for gender discrimination (including disparate treatment and a hostile work environment) and for retaliation. Am. Compl. ¶¶ 97106, 113-17. USC first argues that Plaintiff's Title VII claims are subject to dismissal because she “failed to report such actions in a timely manner pursuant to applicable statutes of limitations and failed to exhaust all administrative remedies.” ECF No. 69-1 at 11. USC appropriately notes that, prior to filing suit under Title VII, a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC. 42 U.S.C. § 2000e-5(f)(1). As the Supreme Court recently explained, “Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1851 (2019).
With respect to timing, Title VII establishes “two possible limitation periods for filing a discrimination charge with the EEOC.” Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (explaining that the basic limitations period is 180 days after the alleged unlawful employment practice, but can be extended to 300 days if state law proscribes the alleged employment practice); see also Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 439 (4th Cir. 1998). In Puryear v. County of Roanoke, 214 F.3d 514 (4th Cir. 2000), the court found a claimant was not required to begin his proceedings before the state agency (there, Virginia) so long as they were begun with the EEOC and the EEOC and state have a work-share agreement-making that state a so-called “deferral state”). South Carolina is a deferral state in which the 300-day limitations period applies in certain circumstances. A workshare agreement between the EEOC and South Carolina traditionally has been assumed by courts in this district, making the 300-day deadline applicable “by virtue of any EEOC filing.” Talent v. Comm'r of Pub. Works, No. 2:12-CV-0622 DCN, 2014 WL 971747, at *3 (D.S.C. Mar. 11, 2014). Here, USC submits that, even using the 300-day limitations period, Plaintiff's claims are untimely because “the events in [her] Amended Complaint largely took place in early 2017, specifically the closet incident[,]” but she filed her complaint with the EEOC on September 17, 2018. ECF No. 68-1 at 12 (citing Plaintiff's sworn statement, dated September 17, 2018, and captioned as her “Charge of Discrimination (Sex Discrimination, Hostile Work Environment, and Sexual Harassment) and Retaliation,” before the United States Equal Employment Opportunity Commission” (“EEOC”)). The Sworn Statement/Charge does not reference any EEOC Charge number. Three-hundred days prior to September 17, 2018, is November 21, 2017.
Plaintiff counters that she has submitted “substantial evidence of a hostile work environment created by Defendant Voros, which continued through 2019 and led to her constructive discharge in August 2019.” ECF No. 78 at 15. Plaintiff argues that she has provided evidence of “acts contributing to the hostile work environment within the 300-day period preceding the charge,” making “the entire time period of the hostile environment” appropriately considered by the court. Id. at 15. Plaintiff also indicates that she received a Right to Sue letter and timely filed this litigation, id., a point USC does not challenge.
As an initial matter, the court is puzzled by the absence of an actual “Charge” that was filed with the EEOC. Here, though, USC does not question Plaintiff's considering the September 17, 2018 Sworn Statement of Plaintiff to be her EEOC Charge or Plaintiff's assertion that she exhausted administrative remedies with the EEOC. Accordingly, considering all facts in the light most favorable to Plaintiff, the undersigned finds that all matters that took place within 300 days prior to September 17, 2018-which would be November 21, 2017-appropriately are considered to be within the 300-day window and appropriately may be considered herein. Furthermore, Plaintiff's argument that the continuing violation doctrine applies to hostile work environment claims is well-taken. ECF No. 78 at 14-15. So long as one act alleged to be part of an ongoing hostile work environment occurred within the 300-day window, other allegedly contributing acts outside that window may also be considered in evaluating a hostile work environment claim. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002) “Consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period.” Id. [I]n considering a hostile work environment claim, “[t]he ‘unlawful employment practice' . . . cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id. at 115.
USC also briefly argues summary judgment is appropriate because Plaintiff “failed to exhaust her administrative remedies by not timely filing a complaint with the EOP Office[.]” ECF No. 69-1 at 12. However, as Plaintiff correctly argues in response, Plaintiff did exhaust her administrative remedies by filing with the EEOC and receiving a Right to Sue Letter. ECF No. 78 at 15-16. Plaintiff also notes she was the “subject of complaints filed with EOP, which EOP declined to investigate.” Id. at 16. USC has offered no legal authority to support its argument that any failure to file an “official” internal EOP Complaint amounts to a Title VII failure to exhaust for which dismissal would be appropriate. Cf. Kearney v. Maryland, No. CIV.A. ELH-12-2754, 2013 WL 3964995, at *7 (D. Md. Aug. 1, 2013) (finding plaintiff failed to exhaust when she failed to file with the EEOC, although she had filed an internal complaint with defendant's EEO division).
To the extent USC seeks summary judgment as to Plaintiff's Title VII claims based on failure to exhaust administrative remedies, its motion should be denied. Based on the evidence and arguments before the court, events on or after November 21, 2017 (or earlier, should they relate to a hostile-workenvironment claim) appropriately may be considered as part of Plaintiff's Title VII claims.
B. Title VII: burden of proof
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may demonstrate a violation of Title VII through direct or circumstantial evidence or by using the burden-shifting method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A plaintiff offers direct or indirect evidence of discrimination using “ordinary principles of proof.” Burns v. AA F-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (in ADEA context) (internal quotations omitted). Under this method, a plaintiff will only survive summary judgment if he or she “produce[s] direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact.” Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001) (ADA retaliation claim) (citation and quotation omitted) (alteration in original).
When direct evidence is lacking a plaintiff may proceed under the McDonnell Douglas burdenshifting framework. Pursuant to this framework, once the plaintiff establishes a prima facie case of a violation of Title VII, the burden of production shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[], but [was] a pretext.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-47 (2000) (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Nonetheless, in considering an employee's pretext argument, there is nothing in the “McDonnell Douglas burden-shifting framework that says ‘a plaintiff must always introduce additional, independent evidence of discrimination.'” Guessous v. Fairview Py. Investments, LLC, 828 F.3d 208, 220 (4th Cir. 2016) (quoting Reeves, 530 U.S. at 149)). “To the extent that the evidence supporting a plaintiff's prima facie case also undermines the employer's non-[discriminatory] justification, that evidence may be called upon by the trier of fact in determining whether or not the proffered justification is pretextual.” Id. at 220.
These various proof schemes aside, as the Fourth Circuit has observed,
Notwithstanding the intricacies of proof schemes, the core of every Title VII case remains the same, necessitating resolution of “the ultimate question of discrimination vel non.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983). As the Supreme Court has explained, “[t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). Thus, “[c]ourts must . . . resist the temptation to become so entwined in the intricacies of the [McDonnell Douglas] proof scheme that they forget that the scheme exists solely to facilitate determination of ‘the ultimate question of discrimination vel non.'” Proudv. Stone, 945 F.2d 796, 798 (4th Cir. 1991) (citation omitted).Merritt, 601 F.3d at 294-95.
C. Title VII: gender-based discrimination claim
In her Third Cause of Action Plaintiff alleges Title VII gender discrimination, including claims of a sexually hostile work environment/sexual harassment, and disparate treatment. Am. Compl. ¶¶ 97106. In addition to its argument that Plaintiff did not administratively exhaust her Title VII claims, USC's argument focuses principally on USC's alleged lack of knowledge of any alleged discrimination or harassment of Plaintiff by Voros, arguing Plaintiff “substantially failed to advise Defendant USC or Peter Chametzky of the closet incident and withheld it was sexual harassment until years later.” ECF No. 69-1 at 12 (citing Pl. October 10, 2019 Aff. filed in Dunavant matter, ECF No. 69-14). In the October 19, 2019 Affidavit Plaintiff stated that, on an unspecified date, Voros “took [her] into a closet and physically intimidated [her].” October 19, 2019 Aff. ¶ 19. Similarly, employing no legal analysis, Defendant argues “there is no evidence in the record that Plaintiff was treated any differently or discriminated against on the basis of particularly her sex.” ECF No. 69-1 at 13.
Plaintiff counters, arguing there is substantial evidence of sex-based discrimination, including evidence of a hostile work environment, quid pro quo sexual harassment, and disparate treatment. ECF No. 78 at 16-19 (citing cases and discussing potentially relevant evidence). Although USC submitted a Reply, it includes no argument specific to Plaintiff's Title VII claims of discrimination based on a hostile work environment,quid-pro-quo harassment, or disparate treatment.
USC's reply argument that a hostile-work-environment claim may not be pursued as part of a statelaw-based negligent supervision claim, See ECF No. 86 at 2-3, is discussed in the context of that cause of action.
As an initial matter, the court notes that, while Plaintiff bears the burden of proving sex-based discrimination or harassment, the party seeking summary judgment-here USC-bears the burden of establishing the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 322-23. It is difficult to imagine how USC could satisfy this movant's burden as to Plaintiff's Title VII discrimination/harassment cause of action without specifically addressing the substance of Plaintiff's various Title VII-based claims.
1. Title VII: hostile work environment claim
“[T]o prevail on a Title VII claim that a workplace is [sexually] hostile, ‘a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's . . . [protected characteristic]; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.'” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (quoting Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011) (alteration and internal quotation marks omitted)). Because an employee's work environment is a term or condition of employment, a hostile work environment based on sex may violate Title VII. See E.E.O.C. v. Sunbelt Rentals, 521 F.3d 306, 313-15 (4th Cir. 2008). While the Fourth Circuit has held that the “primary focus in the hostile work environment analysis is on the plaintiff's experience, evidence of how others were treated in the same workplace can be relevant to a hostile work environment claim.” Perkins v. Int'l Paper Co., 936 F.3d 196, 209-10 (4th Cir. 2019) (citing several cases). In Perkins, the court noted, though, that “experiences of third parties about which a plaintiff was unaware should not be considered in evaluating a hostile work environment's severe or pervasive requirement.” Id. at 210.
“An employee is harassed or otherwise discriminated against ‘because of his or her gender if, ‘but for' the employee's gender, he or she would not have been the victim of the discrimination. Smith v. First Union Nat. Bank, 202 F.3d 234, 242 (4th Cir. 2000) (citing Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir. 1996)). As the Fourth Circuit recently summarized:
While the conduct need not be “motivated by sexual desire” or sexual intent to satisfy this element, it does need to have been conducted “in such sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). The critical question is therefore “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Id.Webster v. Chesterfield Cnty. Sch. Bd., 38 F.4th 404, 410 (4th Cir. 2022).
Whether the environment is objectively hostile or abusive is “judged from the perspective of a reasonable person in the plaintiff's position.” Oncale, 523 U.S. at 81. This may be determined by “looking at all the circumstances,” which “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris v. Forklift Systs., Inc., 510 U.S. 17, 23 (1993); see also Guessous, 828 F.3d at 226-27 (finding reversable error when district court failed to analyze consider manager's “intimidating and intrusive management” of plaintiff in relation to his characteristic-based actions, thereby failing to consider the “totality of circumstances” in determining whether atmosphere was “severe or pervasive”).
As noted above, Plaintiff may be considered to have set out a timely hostile work environment claim if one of the actions contributing to the potentially hostile environment was timely-here, if any actions took place within the statutory period that began on November 21, 2017. In Green v. Brennan, 578 U.S. 547, 556-57 (2016), the Supreme Court explained that in a constructive-discharge case (such as this one), the employee's resignation is the culmination of the intolerable discriminatory conduct of the employer, such that the relevant limitation period starts with the employee's resignation, not the last act of the employer. In considering the impact of Green's holding on the timeliness of a hostile work environment claim, the Fourth Circuit explained as follows: “even if most of the harassing conduct on which a plaintiff relies to establish her hostile work environment claim occurred outside the statutory period, the claim will be considered timely if at least one act continuing the violation occurred within the statutory period.” Guessous, 828 F.3d at 223. In Guessous, the court explained that the Green Court had recently used a constructive discharge as a part of a hostile work environment claim. Id. In Guessous, the court also found that non-time-barred discrete acts could be considered part of the “series of separate acts that collectively' create a hostile work environment[.]” Id. at 223 (quoting Morgan, 536 U.S. at 117).
Here, then, the court must consider the events alleged to be part of Plaintiff's hostile work environment claims and the timing thereof in considering whether she has set forth a timely hostile work environment that should survive summary judgment. Plaintiff argues she has shown “evidence of sexual harassment and general hostility toward females in the workplace” that was “severe, threatening, humiliating, and pervasive over several years,” “interfered with Plaintiff's ability to work,” and that USC's knowledge imputes liability on it. ECF No. 78 at 18 (generally citing various exhibits, including Pl. Dep. 66, 151-52, 177, 195-96; Gore Dep. 15-16; Kissel Dep. 23; August 2017 email from Chametzky; other emails regarding classes and job duties; August 1, 2019 Resignation email).
To be sure, Plaintiff's argument could have been more specific. However, in seeking summary judgment, USC does not specifically discuss Plaintiff's Title VII hostile work environment claim and makes no substantive argument regarding such claim. Considering USC's general arguments and the arguments and evidence as set out with more specificity by Plaintiff the undersigned is convinced that Plaintiff has submitted sufficient evidence from which a reasonable juror could determine Plaintiff was subjected to a hostile work environment.
Based on its review of the record evidence, and taking all evidence in the light most favorable to Plaintiff, the court considers the following events that specifically concerned her and those with which she was unquestionably familiar in making a recommendation on the merits of her claim of a hostile work environment:
• Plaintiff met with Chametzky in early 2017 and told him about a February 2017 incident in which Voros took her into a small closet, put his arms around her, held a model head in front of her, and whispered in her ear. Pl. Dep. 66-67, 151-52. Although Chametzky denied he received such a report Gore testified Plaintiff reported the same incident to her. Gore Dep. 15-16. Gore advised Plaintiff to report this matter to Chametzky but did nothing further with the report herself. Gore Dep. 19-20. Plaintiff indicates that, subsequent to this event, Voros' attitude toward her as his lab technician changed; he began “micro-managing” her and giving her different sorts of assignments. E.g., Emails at ECF No. 78-35; Pl. Dep. 75-79; Chametsky Dep. 47-48.
• At that same meeting Plaintiff reported to Chametzky and filed a subsequent EOP complaint when Voros asked her to give a bad grade to Dunavant [a student who had filed a Title IX complaint against Voros in 2016]. Chametzky Dep. 16-17, 52-53; April 13, 2017 email from USC Deputy Title IX Coordinator Carl Wells to Clifford Scott and Chametzky, ECF No. 78-16 (indicating USC's Office of EOP had received a complaint from Plaintiff alleging Voros “showed up in her class and stood in place attempting to intimidate her,” indicating EOP had issued a “No Contact Order to David Voros.”); April 13, 2017 letter from Wells to Voros advising of a complaint of retaliation by Misenheimer and advising Voros of the No Contact Directive).
• On March 18, 2017, Plaintiff and Chapman reported concerns about Voros to the USC Police. Mar. 18, 2017 Reporting Officer Narrative, ECF No. 78-19 at 2. The report indicates Chapman, a student, and Plaintiff, an instructor who reported directly to Voros, had concerns about Voros' recent “erratic behavior.” Id. Chapman and Plaintiff noted they had submitted affidavits for Bowers in her pending divorce from Voros, and feared his retaliation “either physically or work
related” when he learned they had done so. Id. They also noted Voros had been harassing Bowers by showing up at her office and walking into her classroom while teaching. Id.
• In August 2018, Plaintiff reported to Kissel that she was afraid to teach in the same building as Voros and that he had a “number of outbursts” recently and has made threatening remarks about her. Kissel Dep. 19-20; August 2018 email from Plaintiff to Kissel, ECF No. 78-20. Plaintiff noted, though, that she had not had personal contact with Voros since April 11, 2017, when she sent him an email regarding the lab tech position in the Painting Department. ECF No. 78-20.
• On September 12, 2018, Bowers advised Plaintiff that she had a “bizarre interaction” with Voros concerning Plaintiff. September 12, 2018 email from Bowers to Plaintiff, ECF No. 78-21 at 5. Bowers related that Voros shouted about Plaintiff, saying, “‘ I'm going to get her!'”; and “‘She's going to jail for what she's done!' and “She's a liar” and calling Plaintiff a “‘bitch' or some other offensive profanity.” Id. Plaintiff forwarded that information to Kissel, who submitted an EOC Online Complaint Form on September 13, 2018, ECF No. 78-21. [It is unclear where Voros and Bowers were located when he made these threats against Plaintiff.]
• On February 14, 2019, Bowers filed an EOP Online Complaint that listed Plaintiff as a witness. ECF No. 78-42 in Bowers, 4:20-4486-MGL. In that EOP, Bowers noted Voros had responded to her requests to respect professional boundaries with hostile, threatening, and derogatory emails, sometimes referring to Plaintiff and her female colleagues who have made complaints against Voros as “damaged women,” “slut,” “porkchop,” “whore,” “lesbians,” “cuntasaurus,” “liars,” and “bitches” in the emails. See Bowers' EOP Online Complaint Form (submitted February 28, 2019), Bowers, ECF No. 78-42 at 2.
• As discussed below, Plaintiff alleges she was constructively discharged on August 1, 2019. See August 1, 2019 email from Plaintiff to Kissel, ECF No. 78-34 (Plaintiff's indicating she is unable to return to teaching at SVAD in the Fall of 2019 because of the “increasingly hostile” environment and her concerns at the lack of action despite the “numerous treats, retaliation, and sexual harassment that have occurred to [her] and others, including students, faculty, and alumni.”).
As noted above and as detailed in Bowers' case, Bowers made numerous reports regarding Voros' behavior. See, e.g., Nov. 3, 2017 Bowers' recap email to Chametzky, Bowers, ECF No. 78-27. (In Bowers' October 31, 2017 email to Voros she stated, “Your references about my clothing and body in your office under the pretext of university business I found to be especially harassment. This has to stop.” October 31, 2017 email, Bowers, ECF No. 78-21 at 25.)
As an initial matter, because there are alleged events that took place subsequent to November 21, 2017, the continuing violation doctrine applies to make each of the alleged parts of the hostile environment appropriately considered. See Green v. Brennan, 578 U.S. 547; Guessous, 828 F.3d 208. Construing all facts and inferences in the light most favorable to Plaintiff, she has demonstrated that she subjectively felt the harassing behavior related to sex and altered her conditions of employment. She became afraid to go to work, voicing those concerns several times and ultimately resigning because of them. Construing all of the evidence in the light most favorable to Plaintiff (and considering USC's failure to even discuss the specific evidence in any detail) the undersigned is of the opinion that Plaintiff's evidence of behavior by Voros, including the alleged closet incident, threats, and gender-specific epitaphs directed toward her and other of SVAD's female employees, and complaints by other SVAD female employees are sufficient to create a jury issue as to whether the environment was “sufficiently severe or pervasive to alter the conditions of employment and to create an abusive work environment[.]” Boyer-Liberto, 786 F.3d at 277. Plaintiff has provided evidence that Voros' behavior impacted her work, including depriving her of teaching opportunities and causing her such mental anguish that she eventually resigned. See generally Smith v. First Union Nat. Bank, 202 F.3d 234, 243 (4th Cir. 2000) (reversing grant of summary judgment as to hostile work environment claim, noting employee's therapist and corporate EAP counsel had confirmed employee's inability to work around harasser and finding employee created jury issue as to whether harasser unreasonably interfered with her work). Further, in considering the severity of harassment, courts “have often focused on the ‘disparity in power between the harasser and the victim.'” E.E.O.C. v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 329 (4th Cir. 2010) (quoting Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir. 2008) and finding a jury could conclude the severity of the harassment “was exacerbated by the fact that he . . . [was plaintiff s] immediate supervisor [and] had significant authority over her on a day-to-day basis and the ability to influence the rest of her career.”)).
Plaintiff has also submitted sufficient evidence that Voros' conduct could be imputed to USC. Pryor v. United Air Lines, Inc., 791 F.3d 488, 498 (4th Cir. 2015) (noting an employer may be liable for hostile work environments created by co-workers and third parties “if it knew or should have known about the harassment and failed to take effective action to stop it . . . [by] respond[ing] with remedial action reasonably calculated to end the harassment.'” (quoting EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008) (internal quotation marks omitted) (emphasis added in Pryor)). As noted above, USC does not even address the Title VII hostile work environment claim, so it makes no specific argument as to whether Voros' conduct in this regard could be imputed so as to subject it to liability. In connection with its timeliness/exhaustion argument, USC submits “Plaintiff substantially failed to inform Defendant USC or Peter Chametzky of the closet incident and withheld that it was sexual harassment until years later.” ECF No. 69-1 at 12. Further, USC argues Plaintiff “never filed any EOP complaint regarding sexual harassment by Defendant Voros,” so that USC “didn't know and couldn't know of any sexual harassment that may have occurred between Plaintiff and Defendant Voros.” ECF No. 69-1 at 12.
To the extent this is considered an argument that the hostile work environment could not be imputed to USC, it is unavailing. Although Chametzky denies that Plaintiff reported the “closet incident,” Plaintiff testified she did report it. Further SVAD's business manager Gore recalls its having been reported, as well. Additionally, Plaintiff, Bowers, and others had complained to USC of various acts and behavior by Voros. The record contains reports to SVAD Chairs Chametzky and Kissel, the President's Office, the EOP Office, and the Faculty Civility Advocate Office. Certainly “actual or constructive” knowledge of allegedly harassing behavior is necessary for imputation. See generally Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987) (indicating employer's knowledge may be “actual or constructive”). However, the court is aware of no binding case law that requires an official internal “EOP-type” sexual-harassment complaint be lodged before the employer can be said to have such knowledge. Here, the record includes no evidence that USC undertook effective specific actions against Voros while Plaintiff was still employed by USC. Based on the evidence and argument before the court at this time, the undersigned is of the opinion Plaintiff has set out evidence sufficient to require a jury to consider imputation of liability. Freeman v. Dal-Tile Corp., 750 F.3d 413, 424 (4th Cir. 2014) (reversing grant of summary judgment as to Title VII hostile work environment claim, finding jury questions existed as to several factors, including whether the employer's placement of a three-year communication ban on the harasser would be considered “prompt remedial action reasonably calculated to end the harassment.”).
USC's Sexual Harassment Policy, EOP 1.02 [discussed more fully below] includes internal procedures for submitting sexual harassment complaints. However, EOP 1.02 also plainly states that procedures available within the policy “do not preempt or supersede any legal procedures or remedies otherwise available to a victim of sexual harassment under the University grievance process, the State employee grievance process, the State Human Affairs Law, the state or federal law, the United States Constitution, or any other applicable law.” EOP 1.02 G.9, ECF No. 78-38 at 12.
See August 2018 email from Misenheimer to Kissel, ECF No. 78-20 (regarding concerns about retaliation by Voros and noting the No Contact Order did nothing).
In sum, Plaintiff has set out evidence from which a reasonable jury could find a severe or pervasive hostile environment based on sex that altered work conditions. The record is rife with evidence of continued complaints by Plaintiff and others about Voros' allegedly harassing behavior. Those complaints took place at least as far back as early 2017 and continued. No effective action had been taken against Voros as of the time Plaintiff left USC's employ. “[W]hether the harassment was sufficiently severe or pervasive to create a hostile work environment is ‘quintessentially a question of fact' for the jury.” Conner v. Schrader Bridgeport Int'l, Inc., 227 F.3d 179, 199-200 (4th Cir. 2000) (quoting Smith v. First Union Nat. Bank, 202 F.3d 234, 243 (4th Cir. 2000)). Based on the record evidence, and in view of USC's failure to address its substance, summary judgment should be denied as to Plaintiff's Title VII hostile work environment claim.
2. Title VII: Quid pro quo
In opposing summary judgment, Plaintiff also indicates she is pursuing a claim of quid pro quo sexual harassment. ECF No. 78 at 18. This harassment claim is similar to the hostile work environment claim discussed above except that it requires Plaintiff to identify a specific act of “unwelcome sexual harassment,” the acceptance or rejection of which has a tangible effect on conditions of her employment. See Calloway v. Univ. of S.C., No. CV 7:20-726-HMH-KFM, 2022 WL 2230084, at *10 (D.S.C. June 1, 2022) (setting out elements of quid pro quo claim and recommending denial of summary judgment on issue of whether employee participated in protected activity based on her allegations that her superior “requested sexual favors for providing her with a raise and additional funding for the volleyball team”), report and recommendation adopted, No. CV 7:20-726-HMH-KFM, 2022 WL 2209917 (D.S.C. June 21, 2022). In Plaintiff's opposition memorandum, however, she has not provided detail sufficient to explain her quid pro quo claim. Rather, she summarily states that she has “provided substantial evidence that she is female; she was subjected to unwelcome sexual advances; the unwelcome conduct was based on her sex; and her reaction affected tangible aspects of her employment and led to her constructive discharge.” ECF No. 78 at 18. As discussed above, the undersigned is of the opinion Plaintiff has set out sufficient evidence to create a jury issue as to whether she was subjected to a hostile work environment. Her lack of specificity as to what the “quid” (condition) for the “quo” (benefit) is fatal to her quid pro quo harassment claim, however. USC does not specifically discuss a quid pro quo theory, other than to argue generally that Plaintiff has not presented evidence that she “was replaced due to her not engaging in sexual behavior with Defendant Voros[.]” ECF No. 68-1 at 13. Based on the arguments before the court the undersigned is of the opinion Plaintiff has not set out evidence from which a jury could find quid-pro-quo harassment.
3. Title VII: Disparate treatment
Plaintiff also argues she has set out a Title VII disparate treatment claim. ECF No. 78 at 18-19. USC gives short shrift to any Title VII disparate treatment discrimination claim, arguing briefly that there is “no evidence that Plaintiff's position was taken from her in order to give such position to a less qualified male.” ECF No. 69-1 (citing Am. Compl. ¶ 104, in which Plaintiff averred, inter alia, that she had been “removed from teaching courses for which she was qualified and replaced by less qualified, male counterparts”).
In opposing summary judgment, Plaintiff does not focus on any allegation that she was replaced by less qualified males. Rather, Plaintiff briefly lists the following claims of disparate treatment at page 19 of her memorandum:
• Voros was given classes that had already been assigned to Plaintiff (citing August 2017 email from Chametzky);
• Plaintiff's reports to the USC Police Department concerning her safety were ignored, but Voros was given a police escort for visits to campus when his safety was in question (citing March 2017, October 2018, and April 2019 reports to USC Police Department in which Plaintiff, et al., complained to USC PD; Kissel Dep. 19-21, August 2018 email (in which Kissel advised Plaintiff she need not worry about running into Voros at SVAD because they were teaching on different days); Voros Dep. 174, 180-81 (in which Voros indicated that, on undefined dates, he was advised by Kissel he should be accompanied by USC Police Department when he went to campus).
As an initial matter, any specific allegations of “discrete acts” of disparate treatment must have taken place on or after November 21, 2017, to be considered herein. Perkins, 936 F.3d at 209 n.5 (noting the continuing violation doctrine applies to hostile work environment claims but not to claims for disparate treatment and retaliation).
The discrete act of removing Plaintiff from teaching certain courses and giving them to Voros in August 2017 is not timely and will not be considered.
Plaintiff also ascribes disparate treatment to the handling of her complaints to the USC Police Department in October 2018 and April 2019 and complaints to Kissel in August 2018. These would be considered timely. However, as troubling as USC's lack of response may have seemed to Plaintiff, she has not demonstrated disparate treatment under the same or similar circumstances as is generally required for claims of disparate treatment. USC's very different approach to protecting Voros on campus took place in 2021, after the student protests and long after Plaintiff had left USC. While evidence of the different response-levels conceivably may be considered as part-and-parcel of Plaintiff's hostile work environment claim, they do not present a separate viable claim of Title VII disparate treatment.
In summary, the undersigned is of the opinion that the hostile-work-environment/sexual harassment portion of Plaintiff's Title VII discrimination claim should proceed to a jury trial. On this record, though, Plaintiff's failure to point to specific record evidence and her otherwise incomplete analysis of any quid pro quo harassment claim or disparate treatment discrimination claim are fatal to those portions of her Title VII discrimination claim.
D. Title VII: retaliation claim Both parties at least partially analyze Plaintiff's Title VII retaliation claim using the McDonnell Douglas framework. To establish a prima facie case of retaliation under the McDonnell Douglas framework, a plaintiff must show that “(1) she engaged in a protected activity, (2) the employer acted adversely against her, and (3) there was a causal connection between the protected activity and the asserted adverse action.” Walton v. Harker, 33 F.4th 165, 177 (4th Cir. 2022) (internal quotation marks omitted). If an employee establishes a prima facie case of retaliation, the burden then shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse action. Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006). A plaintiff must thereafter demonstrate that the employer's reason was a mere pretext for retaliation by showing “both that the reason was false and that discrimination was the real reason for the challenged conduct.” Jiminez v. Mary Wash. Coll., 57 F.3d 369, 378 (4th Cir. 1995) (internal quotation marks omitted). Significantly, the Supreme Court has held that the protected activity by the employee must be the but-for, direct cause of the adverse employment action. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013) (“Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”).
USC first argues Plaintiff's retaliation claim is untimely and she failed to exhaust administrative remedies. ECF No. 69-1 at 14-15. For the same reasons discussed above, USC is not entitled to summary judgment based on such grounds. Actions as of November 21, 2017 and beyond are timely as they occurred within 300 days of Plaintiff's EEOC Charge. Again, USC complains that Plaintiff did not complete an official internal EOP sexual harassment complaint but offers no legal authority to support its claim that such would amount to a failure to exhaust administrative remedies under Title VII.
If Plaintiff were considered to be bringing a claim of a retaliatory hostile work environment the continuing violations doctrine arguably would operate to permit consideration of earlier actions so long as some portion of the environment took place on or after November 21, 2017. Morgan, 536 U.S. 101. While Plaintiff has brought claims of a hostile work environment and retaliation, nothing in her Amended Complaint or in her briefing indicate she is pursuing a claim of retaliatory hostile work environment.
Next, USC argues it is entitled to summary judgment because Plaintiff has not set out a prima facie case of retaliation. USC argues Plaintiff did not participate in any protected activity because she did not report the “closet incident to USC and concealed it was sexual harassment until years later[,]” and she “never reported any incident of sexual harassment to the EOP office when it occurred.” ECF No. 69-1 at 15 (including no case law or legal analysis). Plaintiff submits she participated in protected activity by “complaining of sexual harassment and retaliation to EOP, Peter Chametzky, Laura Kissel, and other employees.” ECF No. 78 at 20. Plaintiff cites to her testimony recalling the “closet incident” and that she reported the same to Chametzky at or around the time it occurred (in February 2017). Pl. Dep. 66, 151-52. Plaintiff also notes Gore's testimony that Plaintiff reported the closet incident to her. Gore Dep. 15-16. Plaintiff also references an April 2017 EOP and an email from USC's EOP Assistant Director Wells indicating Voros had “show[] up in [Plaintiff's] class and stood in place attempting to intimidate her.” April 13, 2017 email. Plaintiff claims that, immediately after the early 2017 complaint Voros “began interfering with her employment” by way of email regarding her changing duties as his lab tech and her being removed from teaching certain courses she previously had taught. ECF No. 78 at 22 (citing ECF Nos. 78-35 (email chain regarding lab duties) and ECF No. 78-28 (course information)).
Plaintiff also references the September 12, 2018 EOP Online Complaint submitted by Kissel based on Plaintiff's report of Voros' threatening her, ECF No. 78-21, and her April 2019 report to the USC Police Department, ECF Nos. 78-22 and -23). ECF No. 78 at 21, 22. She submits these actions are causally related to her alleged constructive discharge.
As an initial matter, the undersigned agrees with USC that Plaintiff's claims of retaliation as to events and effects of those events that took place prior to November 21, 2017, would be untimely because they took place more than 300 days prior to her filing her EEOC Charge. Accordingly, Plaintiff's reporting of the February 2017 “closet incident,” her April 2017 EOP, and her purported treatment by Voros at that time, are not appropriately considered. Morgan, 536 U.S. at 113 (noting “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges”).
The analysis continues, however, as to the post-November 20, 2017 portions of Plaintiff's retaliation claim. While it is a somewhat close call, the undersigned is of the opinion Plaintiff's September 2018 EOP and her April 2, 2019 report to USC police are protected activity. While USC's EOP Office determined Plaintiff's September 2018 EOP Complaint did not concern an “EOP violation,” it is unquestionable that Plaintiff, Bowers, and others took the position that they were sexually harassed by Voros. As the Fourth Circuit noted in Boyer-Liberto, 786 F.3d at 285, a reporting employee need show only that the alleged “harassment was sufficiently severe to render reasonable her belief that a hostile environment was occurring.”
Plaintiff submits these acts are causally related to the materially adverse action of her alleged constructive discharge as of August 1, 2019. To establish constructive discharge for purposes of an adverse action in the retaliation context, a Title VII plaintiff “must show ‘something more' than the showing required for a hostile work environment claim.” Evans v. Int'l Paper Co., 936 F.3d 183, 193 (4th Cir. 2019) (quoting Pa. State Police v. Suders, 542 U.S. 129, 131 (2004)). Plaintiff must show two elements: (1) she was “discriminated against by [her] employer to the point where a reasonable person in [her] position would have felt compelled to resign” and (2) that she actually resigned. Green, 578 U.S. at 555.In considering the first element, courts assess “whether a reasonable person in the employee's position would have felt compelled to resign,' [ ] that is, whether [s]he would have had no choice but to resign.” Evans, 936 F.3d at 193 (internal quotation marks omitted) (emphasis in original). “The more continuous the conduct, the more likely it will establish the required intolerability,” and “when the conduct is isolated or infrequent, it is less likely to establish the requisite intolerability.” Id. However, “difficult or unpleasant working conditions, without more, are not so intolerable as to compel a reasonable person to resign.” Id.; see Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). See generally, Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 173 (4th Cir. 1988) (holding that coerced resignation amounts to a constructive discharge). In determining whether an employee can show she was forced to quit such that she has demonstrated constructive discharge, the court “looks to the circumstances of the resignation to determine whether the employee was denied the opportunity to make a free choice.” Id. at 173-74.
Prior to Green, the Fourth Circuit's standard for constructive discharge required a showing that the “employer deliberately ma[de] the working conditions intolerable in an effort to induce the employee to quit.” See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 186 (4th Cir. 2004) (internal quotation marks omitted) (overruled in part by Green). Under that standard, the plaintiff had to “allege and prove two elements: (1) the deliberateness of [the employer's] actions, motivated by racial bias, and (2) the objective intolerability of the working conditions.” Id. at 187. As of 2016, though, “‘deliberateness' is no longer a component of a constructive discharge claim.” See EEOC v. Consol Energy, Inc., 860 F.3d 131, 144 (4th Cir. 2017) (citing Green, 578 U.S. at 560). In other words, “[t]he Supreme Court now has clearly articulated the standard for constructive discharge, requiring objective ‘intolerability' - ‘circumstances of discrimination so intolerable that a reasonable person would resign' - but not ‘deliberateness,' or a subjective intent to force a resignation.” Id. (quoting Green, 578 U.S. at 560).
Here, Plaintiff argues “Voros sexually harassed, threatened, intimidated, and retaliated against Plaintiff,” and she “reported this behavior to numerous Defendant USC employees, but nothing was done.” ECF No. 78 at 21. “As a result,” Plaintiff submits, she was “forced to resign from employment in August 2019.” Id. Accordingly, Plaintiff claims “a reasonable jury could find that the treatment Defendant USC subjected [her] to was objectively intolerable and that Plaintiff was constructively discharged.” Id.
On Reply, USC counters that Plaintiff was not constructively discharged and USC “went to great lengths to separate Plaintiff and Defendant Voros[.]” ECF No. 86 at 5. Citing no case law, USC argues Plaintiff “cannot be constructively discharged if her employment contract ended and Plaintiff refused to renew it.” Id. The undersigned disagrees. To indicate an employee “cannot” be constructively discharged if she opts not to renew an offered contract misconstrues the legal construct of constructive discharge, which no longer includes an employer's “subjective intent” that an employee resign. See EEOC v. Consol. Energy, Inc., 860 F.3d 131, 144 (4th Cir. 2017) (citing Green, 578 U.S. at 560).
Here, the undersigned finds that whether conditions were so objectively “intolerable” that a reasonable person would be compelled to quit is a close question. Based on this record, though, and particularly considering Plaintiff's continued reporting of Voros' conduct and how it impacted her ability to continue working at SVAD, see, e.g., September 2018 email, ECF No. 78-20, the undersigned is of the opinion that a reasonable juror could determine Plaintiff was constructively discharged in August 2019.
To establish a prima facie retaliation claim Plaintiff must also show that her constructive discharge was causally related to her protected activity. This may be accomplished through relevant facts alone, or together with temporal proximity. Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 123 (4th Cir. 2021). “Establishing a ‘causal relationship' at the prima facie stage is not an onerous burden.” Strothers v. City of Laurel, 895 F.3d 317, 335 (4th Cir. 2018) (citations omitted). See id.
While her argument as to this portion of her prima facie case is scant, Plaintiff references her various reports of Voros' behavior with “no results,” including her report to the USC Police Department “[a]s late as April 2019.” ECF No. 78 at 22. She submits this is causally related to her constructive discharge, citing her August 1, 2019 resignation email. Id. In that email, Plaintiff wrote, “On the advice of my healthcare professionals, I'm going to have to take a break from teaching, which saddens me. I don't feel safe at USC, and despite my reports, and others', nothing tangible has been done to rectify the numerous threats, retaliation, and sexual harassment. . . .” 2019 Resignation email, ECF No. 78-34.
USC's argument that Plaintiff has not demonstrated a causal link is that “[t]here is no timeline that can be demonstrated to this Court as to when exactly Plaintiff was retaliated against based on her private conversations with Peter Chametzky.” ECF No. 69-1 at 16. On Reply, USC argues Plaintiff was not constructively discharged but does not otherwise discuss the particulars of Plaintiff's Title VII retaliation cause of action.
Based on this record, the undersigned finds Plaintiff has set out prima facie causation, a burden that is “not an onerous” one. Strothers, 895 F.3d at 335. Accordingly, Plaintiff has set out a prima facie case of retaliation under Title VII.
As noted above, once an employee meets her prima facie case, the burden shifts to the employer to set out a “legitimate, nonretaliatory reason” for its actions. Here, seemingly by virtue of its position that there were no such materially adverse actions, USC does not attempt to meet its burden in this regard. In discussing the causation prong of the prima facie case, USC briefly cites Voros' deposition testimony that Plaintiff “was routinely late to the classes she taught, did not follow the curriculum, and on one instance taught a class from her house, when she was not supposed to, and used a nude model, that was paid by USC, at her house while alcohol was served.” ECF No. 69-1 at 16 (citing Voros Dep. 68-71, 141). USC submits that this demonstrates “there is no causal link as there are justifiable reasons to not renew Plaintiff's semester by semester contract.” Id. This evidence is noted. However, neither party has indicated that USC had opted not to renew Plaintiff's contract or otherwise had not offered her a teaching opportunity for Fall 2019. Rather, the only evidence before the court related to Plaintiff's employment as of Fall 2019 is that, on August 1, 2019, Plaintiff advised Kissel that she would be unable to teach Fall 2019 courses. ECF No. 78-34. This point is borne out by USC's argument on reply in which it describes Plaintiff as one who “refused to renew her contract when offered her position again.” ECF No. 86 at 5.
In its factual recitation USC stated Plaintiff “worked at USC on a written temporary employment on a semester basis and was paid an hourly or a set semester pay.” ECF No. 69-1 at 1. USC's Exhibit A includes various “Offer[s] of Temporary Employment” from Summer 2014 through August 2018. ECF No. 69-2. Neither party has pointed to specific employment documents for any period of 2019; however, USC has not disputed that Plaintiff's August 1, 2019 email had the effect of her declining the opportunity to teach in the Fall 2019 semester.
USC has not set forth legitimate, nondiscriminatory reasons for its actions as relates to Plaintiff. Accordingly, the burden cannot then shift back to Plaintiff to demonstrate that the reasons given were merely pretextual. See Tucker v. Sch. Bd. of the City of Va. Beach, No. 2:13-CV-530, 2015 WL 10710926, at *8 (E.D. Va. Aug. 17, 2015) (recommending denial of summary judgment where employer offered no evidence of nondiscriminatory or nonretaliatory reasons for adverse actions, noting the court would not “assume” employer could meet its burden at that stage and, thus, not proceeding to consider pretext framework), report and recommendation adopted in part, rejected in part, No. 2:13CV530, 2015 WL 10690556 (E.D. Va. Sept. 30, 2015) (district court's opting to consider additional evidence and argument at objection stage, finding employer had met burden of establishing legitimate, nondiscriminatory reason and employee had not met burden of showing reason was not pretextual), aff'd, 633 Fed.Appx. 842 (4th Cir. 2016) (memorandum op.). Based on the record and argument before the court at this time, then, USC's Motion for Summary Judgment should be denied as to Plaintiff's Title VII retaliation cause of action.
E. Title IX: timeliness argument
Plaintiff also seeks relief pursuant to Title IX. She includes deliberate indifference, disparate treatment, and retaliation claims. Under Title IX, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). USC seeks summary judgment as to all Title IX claims. The court first considers USC's argument that Plaintiff's claims are untimely.
In considering USC's timeliness argument, the court must first determine what the applicable statute of limitations is for Plaintiff's Title IX claims brought against her former employer. As summarized last year by United States District Judge Richard M. Gergel,
“Title IX does not contain an express statute of limitations . . .” Wilmink v. Kanawha Cnty. Bd. of Educ., 214 Fed.Appx. 294, 296 n.3 (4th Cir. 2007). “Congress not infrequently fails to supply an express statute of limitations when it creates a federal cause of action.” Reed v. United Transp. Union, 488 U.S. 319, 323-24 (1989). When this occurs, the United States Supreme Court has “‘generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law.'” Wilson v. Garcia, 471 U.S. 261, 268 (1985); Wolsky v. Med. Coll. of Hampton Roads, 1 F.3d 222, 224 (4th Cir. 1993).Mooberry v. Charleston S. Univ., No. 2:20-CV-00769, 2022 WL 123005, at *5 (D.S.C. Jan. 13, 2022). Here, though, the parties disagree as to whether the most closely analogous limitations period is the one-year period derived from South Carolina's Human Affairs Law (“SCHAL”), SC Code Ann. § 1-13-80(A)(1), § 1-13-90(d)(6), or the three-year limitations period derived from South Carolina's general three-year statute of limitations for personal injury actions, SC Code Ann. § 15-3-530.
SCHAL provides in pertinent part as follows:
(A) It is an unlawful employment practice for an employer:
(1) to fail or refuse to hire, bar, discharge from employment, or otherwise discriminate against an individual with respect to the individual's compensation or terms, conditions, or privileges of employment because of the individual's race, religion, color, sex, age, national origin, or disability;S.C. Code Ann. § 1-13-80(A)(1). Relevant here, SC Code Ann. § 1-13-90(d)(6) requires action for violation of SCHAL to be “brought within one year from the date of the violation alleged[.]”
Looking to Mooberry and Moore v. Greenwood School District No. 52, 195 Fed.Appx. 140, 143 (4th Cir. 2006), USC submits the one-year SCHAL limitations period is appropriately borrowed in employment-related Title IX cases such as this one. ECF No. 69-1 at 19; see also ECF No. 86 at 5-6 (also citing Martin v. Clemson Univ., 654 F.Supp.2d 410 (D.S.C. 2009), in which the court determined the one-year limitations period applied to claims by professor against her university employer). In the unpublished case of Moore v. Greenwood School District No. 52, the Fourth Circuit considered which limitations period would apply to Title IX claims that arose in South Carolina and determined the one-year statute of limitations period found in the SCHAL was the most analogous to Moore's Title IX employment discrimination and retaliation claims asserted against her employer. The Moore court reasoned that both Title IX and the SCHAL prohibit discrimination in employment based on sex, age, national origin, or disability. S. C. Code Ann. § 1-13-80(A)(1). 195 Fed. App'x at 143.
Plaintiff counters that the three-year statute is appropriate, looking principally to Wilmink, an unpublished Fourth Circuit opinion decided a year after Moore. ECF No. 78 at 27-28 (also citing a case from the District of Maryland and the District of South Carolina case, Isioye v. Coastal Carolina Univ., No. 417CV03484RBHTER, 2018 WL 6676296, at *1 (D.S.C. Dec. 19, 2018), adopting report and recommendation, 2018 WL 6682795 (D.S.C. Nov. 30, 2018)). One year after Moore, in the unpublished case of Wilmink, the Fourth Circuit stated in a footnote that “because Title IX does not contain an express statute of limitations, ‘every circuit to consider the issue has held that Title IX also borrows the relevant state's statute of limitations for personal injury.'” Wilmink, 214 Fed.Appx. at 296 n.3 (quoting Stanley v. Trustees of Cal. St. Univ., 433 F.3d 1129, 1134 (9th Cir. 2006) (collecting decisions from Second, Third, Sixth, Eighth, and Eleventh Circuits, those citations omitted here)). Plaintiff acknowledges that Moore was decided in the employment context. However, in addition to noting Wilmink was decided a year after Moore, Plaintiff argues her case is more akin to Isioye v. Coastal Carolina Univ., No. 4:17-CV-3484-RBH-TER, 2018 WL 6682795, at *3-4 (D.S.C. Nov. 30, 2018), report and recommendation adopted, No. 417CV03484RBHTER, 2018 WL 6676296 (D.S.C. Dec. 19, 2018). Isioye involved a student's Title IX claim of sexual misconduct by a professor and subsequent retaliation when the student filed a complaint. 2018 WL 6682795, at *3-4. In considering whether the one-year or three-year limitations period applied, the court referenced Wilmink, but noted the limitations period was not at issue in that case and further noted Wilmink had not referenced Moore. Noting that courts within the Fourth Circuit often looked to the underlying facts in considering the issue, the court determined the three-year statute applied to Isioye's claims because they were claims of “sexual misconduct between a teacher and a student [that] are generally brought pursuant to state common law or the South Carolina Tort Claims Act (SCTCA) rather than the SCHAL.” 2018 WL 6682795, at *4. While acknowledging her employeestatus, Plaintiff argues her case is more akin to the claims of Isioye, in that her “chief complaints [] stem from her numerous documented instances of sexual harassment and abusive behavior” by Voros. ECF No. 78 at 28.
Having considered the parties' arguments and cases cited, the undersigned recommends a finding that SCHAL's one-year limitations period applies to Plaintiff's Title IX claims. Neither party has cited to a controlling Fourth Circuit case on this issue, nor is the undersigned aware of one. Further, as noted by Judge Gergel in Mooberry, courts within this Circuit, “tend to draw factual distinctions where appropriate.” 2022 WL 123005 at *5. As in Moore, Mooberry, and Martin, Plaintiffs Title IX claims are based on her employment with USC. Thus, the Fourth Circuit's decision in Moore is most applicable. Moore, 195 Fed. App'x at 140-43. Because Plaintiffs claims are Title IX claims brought by an employee against her employer, SCHAL's one-year statute is most analogous and should be applied.
Cf. Timpson by & through Timpson v. Anderson Cnty. Disabilities & Special Needs Bd., 31 F.4th 238, 250 (4th Cir. 2022) (finding SCHAL limitations period did not apply to non-employment-based ADA public-accommodations claim brought by former group-home resident and conservator).
Plaintiff filed her Complaint in state court on November 23, 2020. ECF No. 1-1. For purposes of the timeliness analysis then, Plaintiff must bring her Title IX claims “within one year from the date of the violation alleged[.]” S.C. Code Ann. § 1-13-90(d)(6). The most recent event related to Plaintiff's case is her August 1, 2019 resignation/constructive discharge. Accordingly, because it and prior events took place before November 23, 2019, her Title IX claims are barred by the statute of limitations. USC is entitled to summary judgment as to all of Plaintiff's Title IX claims.
F. State-law-based claims
1. Negligent supervision and retention
In her second cause of action Plaintiff alleges USC was negligent in its supervision and retention of Voros. Am. Compl. ¶¶ 89-96. Plaintiff alleges USC was “grossly negligent in supervising Defendant Voros, allowing him to intentionally harm Plaintiff through sexual harassment and create a hostile environment in which no reasonable individual could feel safe while acting as an agent of Defendant Uof S.C. where Defendant Voros was an employee.” Id. ¶ 91. She attributes resulting damages including “dignitary losses, such as reputational loss, loss of goodwill, pain and suffering, shock, humiliation, and economic losses such as, back pay, front pay, back benefits, front benefits, and loss of earning capacity.” Id. ¶ 96.
a. Issues raised only on reply
USC seeks summary judgment as to this cause of action based on several grounds. As an initial matter, the undersigned finds it inappropriate to consider the additional grounds for summary judgment as to this cause of action that USC raises for the first time on reply. On reply only, USC argues the South Carolina Tort Claims Act (“SCTCA”) includes an exception to the waiver of immunity that is applicable herein: S.C. Code Ann. § 15-78-60(17) provides immunity for negligent supervision claims here because the complained-of acts fell outside of the scope of Voros' official duty.USC also submits that the tort of negligent supervision is aimed toward protecting harm to third parties, which it argues would not include employees. Reply, ECF No. 86 at 1-3. These reply-raised arguments offer little, if any, legal analysis to support them. As there is no reason USC could not have raised these arguments in its principal brief, and as Plaintiff had no opportunity to respond to these separate arguments, the court finds it inappropriate to consider them herein. Generally, “new arguments cannot be raised in a reply brief” before the district court. United States v. Smalls, 720 F.3d 193, 197 (4th Cir. 2013). A rule to the contrary runs the risk of depriving a nonmovant an opportunity to respond. De Simone v. VSL Pharms., Inc., 36 F.4th 518, 531 (4th Cir. 2022) (citing Mt. Hebron Dist. Missionary Baptist Ass'n. of AL v. Sentinel Ins. Co., No. 16-cv-658, 2018 WL 6822621, at *1 (M.D. Ala. Oct. 24, 2018) (“[T]his rule is designed to prevent any prejudice that might result when a party is deprived of the opportunity to respond to new arguments.”)); Toney v. Ability Ins. Co., No. 3:10-CV-2311-CMC, 2011 WL 2532414, at *2 (D.S.C. June 22, 2011) (declining to consider new basis for summary judgment that could have been raised in principal brief but was not raised until reply). Although a court may, in its discretion, excuse the rule against considering arguments first raised on reply, De Simone, 36 F. 4th at 531, the undersigned finds it inappropriate to exercise such discretion here.
In relevant part, the SCTCA provides that a governmental entity (such as USC) “is not liable for a loss resulting from” several enumerated exceptions, including:
(17) employee conduct outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude;S.C. Code Ann. § 15-78-60.
In the event the district court choses to consider these reply-raised arguments on their relative merits, the undersigned is of the opinion that, absent a stipulation by Plaintiff that all of Voros' complained-of acts took place outside of the scope of his official duty, that issue creates a jury question. Issues relating to scope of employment are generally for the jury. Fredrich v. Dolgencorp, LLC, No. 3:13-CV-01072-JFA, 2014 WL 5393033, at *3 (D.S.C. Oct. 23, 2014) (citing several South Carolina cases, including Murphy v. Jefferson Pilot Commc'ns Co., 613 S.E.2d 808, 813 (S.C. Ct. App. 2005) and finding summary judgment inappropriate where record undeveloped as to whether certain statements were made within scope of employment). As to whether the tort of negligent supervision is restricted to harms to non-employee third parties, at least one court in this district has found it is not. Secka v. Florence Cnty. Sch. Dist. Three, No. 4-20-CV-03342-JD-TER, 2021 WL 1608772, at *3 (D.S.C. Apr. 26, 2021) (denying motion to dismiss negligent supervision claim brought by employee against employer, and finding South Carolina law “does not appear to be narrowly tailored to third parties”).
b. Analysis of negligent supervision and retention claim
In its principal brief, USC seeks summary judgment on the merits of Plaintiff's negligent supervision and retention cause of action arguing Plaintiff has not shown USC had the requisite knowledge of a need to exercise control over Voros sufficient to impose liability for negligent supervision/retention. USC also submits Plaintiff's claims of damages from a “hostile work environment” are not cognizable under this cause of action. Finally, USC argues any available claim is barred by the applicable two-year statute of limitations. ECF No. 69-1 at 8-11. Plaintiff counters that she has submitted evidence sufficient to create jury questions as to USC's knowledge and need to control Voros as well as the foreseeability of her complained-of damages. Finally, Plaintiff acknowledges the two-year limitations period but argues she incurred actionable harm during that two-year span. ECF No. 78 at 10-14.
Both parties analyze the negligent supervision claim under the framework sent out by the South Carolina Supreme Court in Degenhart v. Knights of Columbus, 420 S.E.2d 495, 496 (S.C. 1992). As the court explained in Degenhart, an employer may be liable for negligent supervision if the employee intentionally harms another when he: (1) is on the premises of the employer or using a chattel of the employer; (2) the employer knows or has reason to know of the ability to control the employee; and (3) the employer knows or should know of the necessity and opportunity for exercising control. Id.
Because both parties have analyzed the negligent supervision claim using the Degenhart framework, the undersigned offers a recommendation using same. However, it is noted that this framework is only appropriate as to acts undertaken by Voros outside the course of his employment. See Trahey v. Grand Strand Reg'l Med. Ctr./HCA Healthcare, Inc. Parallon, No. 4:22-cv-1567-RBH-TER, 2023 WL 2643833, at *4 & n.5 (D.S.C. Mar. 27, 2023) (noting Degenhart sets out appropriate standard for acts outside scope of employment but the “standard negligence elements” of duty, breach, causation, and damages apply when the employee is not acting outside scope of employment; denying motion to dismiss in part because arguments regarding scope had not been addressed by parties). As noted above, in the absence of a stipulation one way or another whether acts were undertaken within or without the scope of employment are best considered by the jury. Neither party has analyzed this matter using the standard negligence framework. The court notes, though, that at least one case cited by Plaintiff does not reference Degenhart at all but utilizes a traditional negligence analysis. Sabb v. S.C. State Univ., 567 S.E.2d 231, 237 (S.C. 2002) (upholding denial of directed verdict motion and finding duty existed and was breached when university became aware of supervisor's “actions and behavior” but permitted him to remain in his position “without any real effort to rectify the hostile conditions within the department”).
USC argues Plaintiff cannot demonstrate it knew or should have known of the necessity of controlling Voros. This element can be proven by evidence that the employer had knowledge of previous misconduct. “[A] single isolated incident of prior misconduct (of which the employer knew or should have known) may support a negligent retention claim, provided the prior misconduct has a sufficient nexus to the ultimate harm.” Doe v. ATC, Inc., 624 S.E.2d 447, 451 (S.C. Ct. App. 2005). More specifically, USC argues there is “no evidence in the record of any prior sexual misconduct by Defendant Voros or that USC was aware of this prior sexual misconduct.” ECF No. 69-1 at 9. USC submits Plaintiff's allegations of a “hostile work environment” are insufficient and that, to prevail here, Plaintiff “must cite specific instances of physical harm to her and that Defendant USC had notice of Defendant Voros committing those same harms.” Id. (citing no case law in support).
In response, Plaintiff points to evidence that USC had received numerous complaints that Voros was sexually inappropriate and/or retaliatory, prior to and during the time Plaintiff was complaining about Defendant Voros. The cited evidence includes the following: Chametzky's March 2017 “Problems in Painting” Play, ECF No. 78-15 (discussing numerous complaints); Dunavant's 2016 allegations of “verbal harassment/intimidation,” ECF Nos. 78-7 and -8 (“checking the box” for discrimination based on “sex/gender” and “retaliation,” but not detailing specific sex-related incidents); April 13, 2017 email from EOP Assistant Director Wells, ECF No. 78-16 (relaying that Misenheimer reported Voros had intimidated her in her classroom and No Contact Order issued to Voros); August 2018 email from Misenheimer to Kissel, ECF No. 78-20 (regarding concerns about retaliation by Voros and noting the No Contact Order did nothing); Misenheimer EOP submitted by Kissel in September 2018, ECF No. 7821 (noting threats of retaliatory behavior made by Voros to Bowers concerning Plaintiff); Chametzky Dep. 54-55 (regarding report from undergraduate student Chapman that Voros kissed her at a party; Chametzky indicated Chapman said she did not feel sexually harassed); Voros Dep. 26-27 (indicating Chapman was not telling the truth and that he possibly greeted her in the “Italian manner,” which involved a side-of-head or cheek-kiss only); Chapman Dep. 14-15 (indicating Voros kissed her on the check, she reported it made her uncomfortable but indicating she did not tell Chametzky she believed there had been a sexual advance); Sheridan Dep. 13-16 (student's report to Kissel and others concerning Voros' behavior that made her uncomfortable, including an incident of uncomfortable physical proximity); April 10, 2017 email from Chametzky to Wells, ECF No. 78-14 (indicating Voros called Chametzky regarding a letter from Wells and promising to take legal action against Chametzky); April 2, 2019 Meeting of Plaintiff, Bowers, and Chapman with USC Police ECF No. 78-22 at 3 (reporting threatening behavior from Voros); August 1, 2019 resignation email, ECF No. 78-34 (describing atmosphere at SVAD as “increasingly hostile,” noting lack of action by USC against Voros despite numerous reports, advising that, on the advice of her health care professionals, she would be unable to continue teaching there without changes).
The undersigned agrees Plaintiff has set out evidence from which a reasonable jury could determine USC should have known of the necessity to control Voros and that Plaintiff suffered resulting injury. Some of these actions, including Plaintiff's resignation, took place within the two years prior to Plaintiff's filing this litigation. USC argues Plaintiff would be required to “cite specific instances of physical harm to her and that Defendant USC had notice of Defendant Voros committing those same harms.” ECF No. 69-1 at 10 (emphasis added). However, USC has cited no case law indicating the behavior of which the employer must be on notice and attempt to control must be physical in nature, or that the prior behavior must have resulted in precisely the same harm complained of by Plaintiff.
In addition, as noted in a footnote above, the parties analyzed this matter using Degenhart, which is applicable for actions of an employee outside the scope of his employment. In the event the complained-of acts were within the scope of employment, a negligence standard would apply. Neither party analyzed the matter in this way, however. The court will not make that determination in a vacuum and without argument from the parties.
On this record, the undersigned recommends USC's Motion for Summary Judgment be denied as to the negligent supervision and retention cause of action.
2. Breach of contract
In her Ninth Cause of Action, Plaintiff avers USC breached a contract formed pursuant to policies in USC's Policies and Procedures Manual. Am. Compl. ¶¶ 144-52 (referencing several EOP Policies, including the Sexual Harassment Policy found at EOP 1.02). Plaintiff alleges USC breached that contract when it “failed to take appropriate ca[u]tion in response to Plaintiff's complaints of harassment and bullying[,]” and when it “forced Plaintiff out of her position in retaliation for Plaintiff's complaints.” Am. Compl. ¶ 150. Plaintiff indicates she suffered damages that included “lost wages, diminished earning capacity, lost benefits, and the costs and fees of this action.” Am. Compl. ¶ 152. In opposing summary judgment as to this cause of action, Plaintiff argues that, in addition to EOP 1.02, USC's Faculty Manual (likely the “Policies and Procedures Manual” referenced in the Amended Complaint) created a contract that USC allegedly breached. ECF No. 78 at 29.
Plaintiff also references EOP 1.03 and 1.05 in her Amended Complaint. However, Plaintiff focuses on EOP 1.02 in opposing summary judgment.
USC seeks summary judgment, arguing the “Policy and Procedures Manual does contain a conspicuous disclaimer,” which would keep Plaintiff from having a “reasonable or objective expectation that the Policy created a contract since there was no meeting of the minds[.]” ECF No. 69-1 at 21. Assuming, arguendo, there was a contract, USC also argues Plaintiff has proffered no evidence that USC breached such contract. Plaintiff counters that USC has created binding contracts through its Faculty Manual and EOP Policy 1.02 (Sexual Harassment Policy) and breached such contracts by “fail[ing] to adequately investigate and remediate the harassment that Plaintiff persistently brought to Defendant USC's attention.” ECF No. 78 at 29. On Reply, USC also argues that Plaintiff's failure to comply with EOP Policy 1.02 herself (by not filing a sexual harassment complaint that complied with Section 11.G.3) amounted to a breach of any contract by Plaintiff herself, thereby “barr[ing her] from asserting any breach on behalf of Defendant USC since Plaintiff's obligation must be performed first prior to Defendant USC acting or investigating.” ECF No. 86 at 6.
In support of her breach of contract argument, Plaintiff has provided a copy of the USC-Columbia Faculty Manual (last revision June 9, 2017). ECF No. 78-39. After its table of contents, The Faculty Manual begins:
The University of South Carolina System is committed to the policy and practice of affirmative action and equal opportunity in education and employment for all qualified persons regardless of race, sex, age, color, religion, national origin, disability or veteran status.
It is the policy of [USC] to recruit, hire, train, promote, tenure, and otherwise make educational and personnel decisions without regard to race, color, religion, sex, gender, national origin, age, disability, sexual orientation, genetics, or veteran status (except where sex or age is a bonafide occupational qualification). See also University Policy EOP 1.00 Equal Opportunity and Affirmative Action.ECF No. 78-39 at 9. Plaintiff notes immediately following, The Faculty Manual provides links to its EOP policies. ECF No. 78 at 33. The court also notes that, following the above-quoted language, The Faculty Manual then includes the following “Preamble,” which provides in part as follows:
The Faculty Manual embodies the essential elements of the employment relationship between the faculty, individually and collectively, and the university. It establishes the terms of employment, the manner of appointment, the procedures and standards for tenure and promotion, the duties of faculty members, and the procedures and standards for termination of employment....
Through the years, much information of interest and importance to the faculty has been added to The Faculty Manual. Such information has been placed in appendices in this edition, clarifying what material is part of the essential contract between the faculty and the university. The appendices may be amended in appropriate cases by the university without faculty or trustee approval.ECF No. 78-39 at 9 (bolded emphasis in original).
Other than referencing the initial language found in The Faculty Manual (with its link to EOP Policies), Plaintiff's contract argument focuses on EOP 1.02. She has provided a copy of EOP 1.02 dated January 1, 1995 and revised May 5, 2010, citing to language she argues is mandatory in nature that creates contractual obligations that USC purportedly breached. ECF No. 78-38.
Prior to considering the language of EOP 1.02 itself, the court considers USC's argument that it is entitled to summary judgment because EOP 1.02 contains a conspicuous disclaimer. ECF No. 68-1 at 21. Language in an employee handbook or employment policy may create an employment contract only when “(1) the handbook provisions and procedures in question apply to the employee; (2) the handbook sets out procedures binding on the employer; and (3) the handbook does not contain a conspicuous and appropriate disclaimer.” Bishop v. City of Columbia, 738 S.E.2d 255, 259 (S.C. Ct. App. 2013) (citations omitted).
In considering whether a disclaimer is conspicuous and appropriate, Section 41-1-110 of the South Carolina Code provides as follows:
It is the public policy of this State that a handbook, personnel manual, policy, procedure, or other document issued by an employer or its agent after June 30, 2004, shall not create an express or implied contract of employment if it is conspicuously disclaimed. For
purposes of this section, a disclaimer in a handbook or personnel manual must be in underlined capital letters on the first page of the document and signed by the employee. For all other documents referenced in this section, the disclaimer must be in underlined capital letters on the first page of the document. Whether or not a disclaimer is conspicuous is a question of law.S.C. Code Ann. § 41-1-110.
Notably, though, no disclaimer language is included in the record's versions of either The Faculty Manual (ECF No. 78-39) or EOP 1.02 (ECF No. 78-38). In support of its argument that the “Policies and Procedures Manual does contain a conspicuous disclaimer,” USC supplies a third document: Policy Number HR 0.00. ECF No. 69-13. This policy, revised January 31, 2019, provides a bolded, underlined, capitalized “policy disclaimer” that “shall be added to the beginning of all Division of Human Resources policies.” ECF No. 69-13 at 2. USC argues this “conspicuous disclaimer” is contained in the Policy and Procedures Manual. ECF No. 69-1 at 21. USC submits that Plaintiff testified she had read the Policy. Id. (citing to page 202 of Pl. Dep., ECF No. 69-3). Accordingly, USC argues, “Plaintiff would have no reasonable or objective expectation that the Policy created a contract since there was no meeting of the minds” and Plaintiff's breach of contract claim should be dismissed. ECF No. 69-1 at 21.
Page 202 of Plaintiff's exhibit that was provided by USC is from an uncertified rough draft of the deposition transcript. It appears the referenced testimony is found on page 207 of the full copy of that transcript that was provided by Plaintiff, ECF No. 78-2. In response to being asked whether she had ever “read” or been “handed a handbook or policy and procedure manual when [she] came to work at USC,” Plaintiff responded, “I mean, I am sure at some point, yes. I don't remember exactly when. Or I was notified of it.” Pl. Dep. 207.
While the “policy disclaimer” that HR 0.00 mandates is to be “added to the beginning of all Division of Human Resources policies” is “in underlined capital letters” as required by S.C. Code Ann. § 41-4-110, the undersigned agrees with Plaintiff that USC has not demonstrated EOP 1.02 actually included this disclaimatory language that would be binding on Plaintiff. ECF No. 78 at 31. USC has not provided a version of EOP 1.02 that actually includes the disclaimer at all, nor has it provided evidence that the disclaimer, if included, is located on the first page of the disclaimed document as the statute requires. On this record, therefore, the court cannot find as a matter of law that EOP 1.02 contains a conspicuous disclaimer that satisfies the statutory requirements. Furthermore, USC does not even argue that The Faculty Manual itself contains a disclaimer that complies with the statutory requirements. For the court to dismiss a breach of an implied employment contract claim based on the disclaimer alone, it must plainly comply with all statutory requirements. Cf. Smith v. Daimler Trucks NA, LLC, No. CV 7:14-2058-BHH-KFM, 2016 WL 762605, at *13 (D.S.C. Jan. 21, 2016), report and recommendation adopted, No. CV 7:14-2058-BHH, 2016 WL 741390 (D.S.C. Feb. 25, 2016) (finding disclaimer did not meet statutory requirements because entire disclaimer, although in all capital letters, was not all underlined). USC is not entitled to summary judgment based on its conspicuous-disclaimer argument.
However, finding the disclaimer is not conspicuous as a matter of law does not end the court's analysis. Plaintiff must also identify portions of the Handbook that are mandatory, are applicable to her, and were breached. Grant v. Mt. Vernon Mills, Inc., 634 S.E.2d 15, 20 (S.C. Ct. App. 2006). To be considered mandatory language, the purported contract must be “definitive in nature, promising specific treatment in specific situations.” Anthony v. Atl. Grp., Inc., 909 F.Supp.2d 455, 467 (D.S.C. 2012). It must not be “couched in permissive language” such as “normally” and “should.” Grant, 634 S.E.2d at 21-22.
USC argues it is entitled to summary judgment in any event, submitting there was no “meeting of the minds” so there could be no contract. ECF No. 69-1 at 21 (citing Player v. Chandler, 382 S.E.2d 891, 893 (S.C. 1989)). USC does not focus on South Carolina case law considering whether a contract may be implied in the employment arena based on mandatory language. However, as noted by Plaintiff, in this setting, the court first considers whether the employee is covered by the provision(s) at issue and whether they contain mandatory or permissive language. ECF No. 78 at 32 (citing Grant, 634 S.E.2d at 20; Conner v. City of Forest Acres, 560 S.E.2d 606, 610 (S.C. 2002)).
Plaintiff focuses on the following language of EOP 1.02, arguing it contains binding, mandatory language regarding sexual harassment. EOP 1.02 provides:
The purpose of this Policy is to define “sexual harassment” in both the University employment and academic contexts, to provide procedures for the investigation of sexual harassment claims, and to ensure that violations are fully remedied, while also protecting the constitutional and academic rights of every member of this community.EOP 1.02 I.D., ECF No. 78-38 at 2. EOP 1.02's definition of “Prohibited Conduct” includes the following:
2. A member of the University community shall not encourage, condone, or fail to take reasonable steps within this person's power to stop the sexual harassment of another member of the University community, regardless of whether the harassment is by another member of the University community or by person doing business with the University.
a. A member of the University community shall not retaliate, threaten to retaliate, or attempt to cause retaliation against any person (1) who reasonably protests against sexual harassment practices within the University or (2) who becomes involved in any capacity in the procedures established in this Sexual Harassment Policy.EOP 1.02 I.E.2, ECF No. 78-38 at 5-6 (emphasis added).
The subject policies must be reviewed for ‘“mandatory' or ‘promissory' language or promises ‘specific treatment in specific situations.' ” Lord v. Kimberly-Clark Corp., 827 F.Supp.2d 598 602 (D.S.C. 2011). Where there are two reasonable inferences as to whether language is mandatory, the language should go to the jury. Id. at 603-04 (citing Greene v. Quest Diagnostics Clinical Labs., Inc., 455 F.Supp.2d 483 (D.S.C. 2006)). The court can, absent ambiguity, determine that the subject language is mandatory where it is “definitive in nature, promising specific treatment in specific situations.” See Lord, 827 F.Supp.2d at 604.
Plaintiff argues the language is mandatory, promises specific treatment, and is applicable to her. Accordingly, she urges the court to determine The Faculty Manual and EOP 1.02 create a binding contract between her and USC. ECF No. 78 at 32-35. USC does not address the specific language of EOP 1.02 in its principal brief. On Reply, USC submits that, even assuming, arguendo, the EOP creates a contract, Plaintiff “would be barred from asserting any breach on behalf of Defendant USC” because she did not first satisfy her obligations under that same Policy. In particular, USC looks to section II.B of EOP 1.02, noting the “University EOP” is to carry out the provisions of the Sexual Harassment Policy, and that the Policy includes mandatory reporting requirements on behalf of individuals such as Plaintiff. ECF No. 87 at 6-7. As noted by USC, Section II.G.3 provides:
a. To initiate an investigation of an alleged violation of this Policy, a person must file a sexual harassment complaint.
b. The complaint must be filed with the Office of the University EOP, or the Campus Sexual Harassment Representative who will forward it to the University EOP.
c. The complaint must be sworn to and filed within 180 calendar days of the last occurrence of the alleged event.
d. The complaint must be submitted in writing to the University and signed by the complainant.EOP 1.02 II.G.3 (emphases provided by USC). USC argues that Plaintiff's “fail[ure] to comply with the Policy herself [] is fatal to this cause of action.” ECF No. 86 at 6.
Having reviewed the parties' arguments and the language of EOP 1.02, the undersigned recommends denying USC's Motion for Summary Judgment on this cause of action. The language of EOP 1.02 contains language that a jury could find establishes a promise sufficient to create a contract. Certainly a part of any presentation to a jury can include USC's argument that Plaintiff cannot establish a breach because she did not specifically comply with certain requirements listed as to the investigation of a complaint under the Policy. The undersigned questions whether strict compliance is required, particularly as to retaliation-based claims. EOP 1.02 I.E.2 provides that a member of the University community “shall not retaliate, threaten to retaliate, or attempt to cause retaliation” against one who “reasonably protests against sexual harassment practices within the University” OR one who “becomes involved in any capacity in the procedures established in this Sexual Harassment Policy.” EOP 1.02 I.E.2.
a. A member of the University community shall not retaliate, threaten to retaliate, or attempt to cause retaliation against any person (1) who reasonably protests against sexual harassment practices within the University or (2) who becomes involved in any capacity in the procedures established in this Sexual Harassment Policy.EOP 1.02 I.E.2 (emphasis added). Even if Plaintiff did not ultimately sign the type of EOP Complaint form required for the EOP Department to initiate a formal investigation, numerous facts exist from which a jury could determine she “reasonably protest[ed] against sexual harassment practices within the University.” By the EOP's language, such “reasonable protest” is separate and distinct from involvement in the procedures set out in EOP 1.02. The undersigned is of the opinion that Plaintiff has set forth evidence of language from which a jury could determine the existence of a contract that was breached. USC's Motion for Summary Judgment should be denied as to the breach of contract cause of action.
IV. Conclusion and Recommendation
For the reasons set forth above, the undersigned recommends USC's Motion for Summary Judgment, ECF No. 69, be granted as to any Title VII disparate treatment or quid pro quo claims and Title IX claims, denied as to other claims, and this matter proceed to a jury trial.
IT IS SO RECOMMENDED.