Bowers v. Univ. of S.C.

• Docket Number: C. A. 3:20-4486-MGL-KDW
• Decision Date: 06 July 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

July 6, 2023

REPORT AND RECOMMENDATION (MOTION FOR SUMMARY JUDGMENT BY USC, ECF NO. 68)

Kaymani D. West Florence, 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 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 have filed separate motions for summary judgment; this Report focuses on USC's Motion for Summary Judgment, ECF No. 68, to which Plaintiff has responded, ECF No. 78, and USC has replied, ECF No. 87. Plaintiff's Amended Complaint includes the following causes of action against USC: defamation negligence, sex discrimination (under both Title VII and Title IX), retaliation (under both 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 claim 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. 68, be granted as to Title VII and Title IX disparate treatment claims and as to Title VII quid pro quo 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).

II. Factual Background^[1]

A. Beginning of Bowers' employment with USC

Bowers and Voros were married to each other when they both began working for the painting department of USC's SVAD in 2000. Voros Dep. 12, 36-38, ECF No. 78-1. Plaintiff began as a temporary faculty member before she was promoted to instructor then senior instructor with a contract. Id. at 37-38; see Dep. of Laura Kissel 79, ECF No. 78-4 (indicating full-time instructors sign contracts for a certain number of years). One-time SVAD Director Peter 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, ECF No. 78-2; Voros Dep. 38; Bowers Dep. 32, ECF No. 78-3.^[2]

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 he currently is 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 Bowers' employment. Id. at 14-15. Voros was the “one full-time tenure track faculty member” in the painting department. Chametzky Dep. 29. 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. 78-5.

C. USC received complaints regarding Voros^[3]

In addition to the below-discussed complaints by Bowers, 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,^[4] 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. 78-7 (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. 78-8; May 16, 2016 email from Magdalena Gurdzinski-Hall, Ph.D., Director of USC's Study Abroad Office, ECF No. 78-6 (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);^[5]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 Jaime Misenheimer).^[6]

Jaime Misenheimer reported to Chametzky and filed a subsequent EOP complaint when Voros asked her to give Dunavant a bad grade. 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. 78-10 (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. 78-12 (advising of a complaint of retaliation by Misenheimer and advising Voros of the No Contact Directive). Misenheimer reported to 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; August 2018 email from Misenheimer to Kissel, ECF No. 78-13; EOP Online Complaint Form completed by Kissel on September 13, 2018, ECF No. 78-14 (reporting Misenheimer had forwarded an email from Bowers in which Bowers relayed Voros' comment that he was going to “get” Misenheimer and calling her various names).

An undergraduate art student, Lauren Chapman, also made complaints about Voros and about a male model to Kissel Chametzky, and the USC Police. Chapman Dep. 10-16, ECF No. 78-15; 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. 54-55. Kissel indicated Chapman told her she believed Voros was driving around her neighborhood and she feared retaliation. Kissel Dep. 3839. 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...