Bowers v. Univ. of S.C.

• Docket Number: C. A. 3:20-4486-MGL-KDW
• Decision Date: 22 August 2023
• Parties: Pamela Jean Bowers, Plaintiff, v. University of South Carolina and David W. Voros, Defendants.
• Court: U.S. District Court — District of South Carolina

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Pamela Jean Bowers, Plaintiff, v. University of South Carolina and David W. Voros, Defendants.

C. A. No. 3:20-4486-MGL-KDW

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

August 22, 2023

REPORT AND RECOMMENDATION (MOTION FOR SUMMARY JUDGMENT BY VOROS, ECF NO. 70)

Kaymani D. West United States Magistrate Judge.

Plaintiff Pamela Jean Bowers (“Plaintiff” or “Bowers”) filed this litigation against her former employer, Defendant University of South Carolina (“USC”), and against Defendant David W. Voros (“Voros), her former spouse and colleague at USC's School of Visual Arts and Design (“SVAD”), where he is still employed as 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 filed separate motions for summary judgment; this Report focuses on Voros' Motion for Summary Judgment, ECF No. 70, to which Plaintiff has responded, ECF No. 80, and Voros has replied ECF No. 86. Having reviewed the filings, including their numerous exhibits; and applicable law, the undersigned recommends Voros' Motion for Summary Judgment, ECF No 70, be granted and he be dismissed as a party.

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).

II. Factual Background^[1]

A. Beginning of Bowers' and Voros' employment with USC

Bowers and Voros were married when they began working for Defendant USC's School of Visual Art and Design (SVAD) painting department in 2000. Voros Dep. 11-12, 36-38, ECF No. 78-1.^[2]Bowers began as a temporary faculty member before she was promoted to instructor; she was later promoted to senior instructor with a contract. Id. at 37-38; see Dep. of SVAD Director Laura Kissel 79, ECF No. 78-4 (indicating full-time instructors sign contracts for a certain number of years); 2019 Reappointment, ECF No. 78-56; 2022 Reappointment, ECF No. 78-57.

Voros began his employment with USC as an assistant professor in 2000 and was promoted to assistant professor with tenure in or around 2005. Voros Dep. 11-13. Voros has been the head or coordinator of the painting department since 2000; he continued to serve as the Coordinator throughout Plaintiff's employment. Id. at 14-15; Deposition of one-time SVAD Director Peter Chametzky 29, ECF No. 78-2. Voros served 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 the painting area and who was assigned to each class. Chametzky Dep. 37; Deposition of SVAD Business Manager Kim Gore 34, ECF No. 78-5.

Chametzky and Voros testified Bowers was good at her job. Chametzky, Voros, and Bowers all testified that Voros and Bowers worked well together before their separation (in late 2016). Chametzky Dep. 31, 33-34, 52; Voros Dep. 38; Bowers Dep. 32, ECF No. 78-3.

B. Bowers' and Voros' relationship ends; Voros sends numerous emails to Bowers from USC account

Bowers and Voros 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 a former SVAD student, Alex Stasko. Voros Dep. 39 (noting Stasko had been an SVAD graduate student). Voros testified that Bowers had made it clear she did not wish to continue a romantic relationship with him when he was served with divorce papers. Bowers “by and large ignored” any personal communications Voros sent her after the separation. Voros Dep. 40-41. The record includes numerous post-separation email messages between Voros and Bowers, many of which originated from Voros' work-supplied email account. Voros Dep. 41-42; see generally numerous emails between Voros and Bowers, ECF No. 78-21.^[3]Plaintiff requested that Voros use personal email accounts for matters concerning their children or other personal matters. Voros acknowledged that “in retrospect” it would have been “better not to use [his] work email account for personal correspondence.” Voros Dep. 44; see id. at 42-44.

C. Voros allegedly interfered with Bowers' job duties^[4]

Chametzky recalled that Plaintiff had complained to him that Voros was coming into the room where she taught and making her feel uncomfortable. Chametzky Dep. 67, 72 (testimony not providing specific timeframe). Chametzky testified he spoke to Voros about not entering Bowers' classroom; however, he is unsure whether Voros stopped doing so. Chametzky Dep. 67. (In his deposition Voros did not recall such a meeting with Chametzky. Voros Dep. 18, 90-91, 163-64.)

1. 2017

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. 78-23. 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 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.

In opposing summary judgment, Bowers includes as a “disputed fact” that, “[i]n or around March 2017,” Voros had trapped her in her office for 15 minutes or more and made very threatening gestures toward her while her students were in the hallway. ECF No. 80 at 7; see Pl. Dep. 157-58 (referencing the incident but not indicating dates or to whom she reported it).

Chametzky completed Faculty Activities Report Evaluations for Bowers and Voros. In Plaintiff's evaluation, Chametzky noted Bowers was an effective teacher but also referenced “personal issues” that impeded her “optimal performance” for Fall 2016. May 19, 2017 Bowers Evaluation, ECF No. 78-24.

In his deposition Chametzky thought that would have been “referring to the issues between [Bowers] and [Voros].” Chametzky Dep. 101.

The record includes a November 3, 2017 email in which Bowers recaps details of complaints about Voros that she made in an October 31, 2017 meeting with SVAD Director Chametzky. Nov 3, 2017 Bowers' recap email to Chametzky, ECF No. 78-27. The two-page email recounts Bowers' report of recent problems with Voros, noting he “is transgressing normal professional boundaries and ignoring university harassment policies in his behavior” toward her. Id. at 2. Bowers recounted that, on October 26, 2017, Voros had stopped in while she...