Bowers v. Univ. of S.C.

Full title: Pamela Jean Bowers, Plaintiff, v. University of South Carolina and David…

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

Date published: Jul 6, 2023

C. A. 3:20-4486-MGL-KDW (D.S.C. Jul. 6, 2023)

Opinion

C. A. 3:20-4486-MGL-KDW

07-06-2023

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

Kaymani D. West Florence, United States Magistrate Judge

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 Background¹

1 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. 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

2 Bowers testified that she and Voros had had issues at their home prior to the separation and that she had contacted the Richland County police numerous times. Bowers Dep. 115-22. In addition, in 2020, when Bowers was on leave from USC, there was a mutual restraining order preventing Bowers and Voros from contacting one another. Bowers Dep. 121.

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 Voros³

3 Information about these complaints are 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 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);⁵Dep. 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

4 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.

5 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. 70-1 at 5-8.

6 A related case brought by Misenheimer against the same Defendants was removed to this court on the same day this matter was removed. Misenheimer v. Univ. of S.C. and Voros, 3:20-4487-MGL-KDW.

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 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. 78-16.⁷Wertz 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 Graciano about in 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. 78-17.

7 The copy of Wertz' affidavit filed with the court is signed but not notarized.

Former SVAD Business Manager Catherine Gore testified that she “heard rumors” from graduate students 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 Dr. Graciano. Gore Dep. 25-26, ECF No. 78-5. 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, Presidential Faculty Fellow, was part of a meeting with a group of three students who indicated their belief that there was a hostile environment in the SVAD and they no longer felt safe on campus. Bon Dep. 12, ECF No. 78-19. Bon indicated the President's Office turned those concerns over to legal counsel. Id. Bon noted those students complained specifically about Voros and that they perceived there to be a hostile environment based on sexual discrimination. She noted, though, that those three individuals were not complaining they personally had been the victim of such discrimination or harassment. These complaints were around October 2021. Bon Dep. 13; see id. at 11-15, 85-86.

In addition to her role with the President's Office, 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. 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. In the summer of 2021, Scotchie told SVAD Chair Kissel she was worried about Voros. Scotchie requested that a new lock be placed on the exterior gate that goes into her teaching classroom space. Kissel Dep. 53-54. Kissel said Scotchie's concerns seemed personal and not related to something Voros had done. Kissel Dep. 54. 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. 7820. 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.

The record includes a May 11, 2018 email exchange between Voros and SVAD Director Kissel. ECF No. 78-50. Kissel included a list of the following comments students had shared with the Director of Graduate Studies:

• The interpersonal tension surrounding David Voros and Pam Bowers and Alex Stasko Miller has to be resolved. It negatively affects student life. Grads long thought that faculty and grads were the only ones affected and/or in the know; but it has become clear recently that undergrads are also aware of the drama and are quite openly talking about it. This has the protentional to be very damaging to the program, SVAD, and the university.

• David and Pam have not been consistently teaching their courses. They have not provided syllabi to their students in any classes. Either they do not show up at all, or they arrive late. They often leave shortly after arrival-leaving their GIA to continue the class without them. Abrupt departures are sometimes obviously due to the interpersonal drama.

• Grad students are very afraid of faculty retaliation and rejection. The one-person area situation heightens the threat of retaliation and career sabotage.

ECF No. 78-50 at 3. In her email providing Voros with these comments Kissel told him she had not called him in the day before to discuss his personal life, but they had spoken about how the MFA and BFA programs could be improved. Id. at 2. Kissel said she thought Voros should “know about the students' perception and what they claim to experience[.]” Id.

D. Bowers' and Voros' relationship ends

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 former SVAD student Alex Stasko. Voros Dep. 39. 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. 78-21.⁸Plaintiff 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.

8 The court does not focus on the specifics of these various emails in this section. To the extent the content of the emails is relevant to the claims in this litigation they are discussed below.

E. USC Police receive report about Voros in March 2017

On March 18, 2017, Misenheimer and Chapman reported concerns about Voros to the USC Police. Mar. 18, 2017 Reporting Officer Narrative, ECF No. 78-22 at 2. The report indicates Chapman, a student, and Misenheimer, an instructor who reported directly to Voros, had concerns about Voros' recent “erratic behavior.” Id. Chapman and Misenheimer 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.

F. Bowers' discussions with SVAD Chair Chametzky in Spring 2017

In February 2017 Chametzky entered Bowers' office and inquired whether the situation with Voros was ongoing. Bowers Dep. 187-88. Bowers' recollection is that Chametzky noted there was a lot of tension and suggested it could become an untenable situation as far as Bowers' position was concerned. Bowers Dep. 188-89. Chametzky recalls the meeting but does not recall whether he used the word “untenable” as it concerned Bowers' position. Chametzky Dep. 69-70. He acknowledged having mentioned Voros' tenured status during that meeting. Chametzky Dep. 70. He further recalled advising Bowers that she was not going to be fired “for having, you know, some problem like this[,]” and noting the matter would need to be worked out. Chametzky Dep. 70-71.

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 did speak 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, 163-164.) 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.

G. May 2017 performance evaluations

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. Chametzky's May 19, 2017 evaluation of Voros did not reference such “personal issues”; however, it did generally reference issues with class absences and the summer 2016 “serious conflict” with a student that had led to an EOP investigation. May 19, 2017 Voros Evaluation, ECF No. 7825. Chametzky noted that, while the EOP complaint was dismissed, its “repercussions [] continued to impact negatively in painting and in the school, particularly the graduate programs, throughout the year.” Id. Chametzky noted that had been “an isolated case[.]” Id.

H. October 2017: Voros disrupts Bowers' class

In late October, Voros uninvitedly entered Bowers' classroom from a backdoor to his office, walked up to Plaintiff, touched her shoulder, and whispered in her ear that he needed to talk to her to discuss a painting matter. Bowers Dep. 86-87. Bowers indicates Voros pressured her to discuss personal matters when she went to his office, but she advised she did not wish to do so. Id.; see Voros Dep. 61-63. Bowers emailed Voros on October 31, 2017 and asked him again to not bother her at work and objected to inappropriate comments about her body at work. Oct. 31, 2017 email, ECF No. 78-21 at 26. Earlier on October 31, 2017, Bowers asked that Voros not bother her at work; Voros responded by suggesting she “drop dead” and indicating she could handle her work orders herself. Id. at 28-29.

I. Bowers' October 31, 2017 meeting with Chametzky and email memorializing same

On October 31, 2017, Plaintiff met with Chametzky and complained about Voros. Nov. 3, 2017 Bowers' recap email to Chametzky, ECF No. 78-27. Bowers sent Chametzky a two-page email on November 3, 2017 in which she recounted her 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 was working with a group of students and asked that she go see him to discuss an “urgent professional matter.” When she went to see him at a break he asked her about a work-related project (working on a project in Norway) she had already declined and then began talking about Plaintiff's attire and how he could see down her top while she was with her students. Id. at 3. Bowers noted the behavior was “seriously inappropriate under any circumstances and [she] found it particularly distressing that he took advantage” of a discussion about professional development in that he “then degenerate[d] to sexualized commentary about [her] appearance, the timing of which seemed to be clearly motivated by his frustration at [her] refusal to work with him on the project.” Id. (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, ECF No. 78-21 at 25.) Bowers also recounted that on October 31, 2017 Voros interrupted her teaching and asked that she go speak with him, making her and students feel uncomfortable. Id. Bowers declined to meet but asked for more information by way of a return email. She indicated Voros responded with vulgarities and hostilities and “suddenly also addressed university business,” “rewriting history in which he stated the actual intention was to go over supply orders in person (not our usual practice/not necessary) rather than discuss court matters as he had indicated earlier.” Id. See also Bowers Dep. 55-56 (noting usual practice had been she and Voros did not meet in person to discuss the ordering of supplies). Bowers indicated to Chametzky that she had sent Voros an email later on October 31, 2017 asking that he not blur the lines between personal and business communications; not make degrading or harassing comments about her clothing or body; not enter her classroom; and to use university email for business-related matters only. Nov. 3, 2017 Bowers' recap email to Chametzky 3-4. Chametzky replied, “So noted. I am very sorry for the problems and hope that they can be amicably and professionally resolved.” Id. at 2.

In a November 9, 2017 email to Chametzky and Gore, Plaintiff noted Voros had advised her to do her own ordering of supplies but had advised Gore that only he could order supplies. Nov. 9, 2017 email, ECF No. 78-28.

In his deposition Chametzky indicated he spoke with someone in the College of Arts and Sciences about the “bad situation” that was ongoing with Voros and Bowers. Chametzky Dep. 32-33. He did not recall whether he specifically discussed whether Voros should be disciplined and noted that judgment would not be up to him. Id. Chametzky said he may have generally discussed Bowers' complaints with the EOP office but he does not recall specifically. Id. at 65-66 (“I can't be sure. So I'm not gonna say a total no or a total yes. Again, I don't remember.”).

J. Bowers complained to SVAD Business Manager Gore

As noted above, Bowers copied Gore on the November 9, 2017 email concerning issues with Voros' ordering of supplies. Gore testified that Bowers went to her office and advised that, despite his agreement not to use university email to discuss nonwork matters, Voros had been using the USC address to send Bowers “berating” emails. Gore Dep. 17-18. Gore did not ask to see those emails; rather, she suggested Bowers discuss the matter with Voros' direct report, Chametzky. Gore Dep. 18. Gore also noted Bowers' complaint that Voros had not ordered supplies she had requested. Gore again advised Bowers to discuss the matter with Chametzky. Gore Dep. 18-19. Gore indicated Bowers “might have” told her about a time Voros followed her down the hall and berated her. Gore Dep. 20-21. Gore did not speak with Chametzky or Voros regarding Bowers' complaints. Gore Dep. 19-20. Gore also recalled Bowers' complaining that Voros berated her and that it may have been in the context of Bowers' entering a room to retrieve a book. Gore Dep. 20-21. Although Gore did not recall a timeframe Bowers indicates in her memorandum this took place around the end of January 2019. Pl. Mem. 20, ECF No. 78.

In opposing summary judgment, Bowers includes as a “disputed fact” that she had reported to Gore that Voros had trapped her in her office for 15 minutes or more and made very threatening gestures toward her. Pl. Mem. 18, ECF No. 78; see Pl. Dep. 157-58 (referencing the incident but not indicating to whom she had reported it).

K. Bowers did not have a graduate assistant provided in Spring 2018

Plaintiff was not provided with a graduate assistant for the Spring 2018 semester. USC Resp. to Bowers Req. to Admit 7, ECF No. 78-29. In discussions regarding the International Center for the Arts in Italy, Voros advised Bowers that if she did not “stop playing games” he would admit no student assistants.” Mar. 23, 2017 email, ECF No. 78-21 at 5-6.

L. Kissel becomes SVAD Director and receives complaints from Bowers

Kissel took over from Chametzky as SVAD Director in January 2018. Kissel Dep. 11. When she took over, she had “surprisingly few” conversations with Chametzky. Kissel Dep. 44-45. Kissel indicated she believed Chametzky wanted her to have a “fresh start.” Kissel Dep. 45. Chametzky did advise Kissel that something had happened in Italy with Voros and the program and that he had written a summary she could read (referring to his “Play,” called “Problems in Painting”). Kissel did not review the “Play” until after Dunavant's lawsuit was filed in May 2018. Kissel Dep. 44-45; Play, ECF No. 78-23. While Chametzky was still Director he told Kissel that they were trying to schedule Bowers' and Voros' classes so there was no overlap between when they taught in the same area. Kissel Dep. 21-22.

Bowers approached Kissel in 2018 when she became Director with concerns about the behavior and speech and actions of Voros and forwarded Kissel emails between Bowers and Voros. Kissel Dep. 25; Feb. 12, 2018 email from Bowers to Kissel, ECF No. 78-30. Bowers complained to Kissel multiple times about Voros entering her classroom while she was teaching and that he occupied the classroom during her scheduled times, even after their classes were scheduled at opposite times. See Kissel Dep. 27-31; Feb. 16, 2018 email from Bowers to Kissel, ECF No. 78-31; April 6, 2018 email from Bowers to Kissel, ECF No. 7832. Kissel testified she recalled discussing the matter with Voros one time; she recalled that Voros indicated he would comply. Kissel Dep. 66. (Voros indicated he had never been called into his director's office to discuss his behavior. Voros Dep. 18-19). Bowers also reported to Kissel that Voros had stalked her and yelled at her in a parking lot at night. Kissel Dep. 41.⁹

9 In her recitation of “disputed facts,” Bowers alleges Voros came into her class on January 31, 2018, asked her to go into his office, and when she did “made intimate, sexual advances toward [her], such as attempting to grope and hug her.” Pl. Mem. 19, ECF No. 78 (citing pages 168 and 169 of her deposition). Bowers acknowledges Voros denies such behavior. Id. (citing Voros Dep. 64). The court notes that the referenced pages of Bowers' deposition testimony do not include such specific allegations. In any event, Bowers' factual recitation does not indicate she reported this specific encounter to Kissel or others at USC.

Kissel and Bowers spoke with Jamar Mitchell, Employee Relations Manager in USC's Division of Human Resources (“HR”), about Plaintiff's complaints in March and April 2018. March 27, 2018 to April 24, 2018 email chain among Mitchell, Kissel, and Bowers, ECF No. 78-34. In her deposition Kissel recalls having worked with someone in HR to write up a list of points that could be used to accommodate the use of shared resources and space. Kissel Dep. 26-27. Kissel recalls writing something out but does not recall having a meeting with Bowers or Voros. Kissel Dep. 27. On April 16, 2018, Bowers forwarded to Kissel an email chain between herself and Voros in which Bowers characterizes Voros' behavior and email responses as “verbal abuse and profanity” and notes Voros' continued “insistence on social interaction with [her] at work[.]” April 2018 email chain, ECF No. 78-35. Mitchell and Kissel referred Bowers to USC's Faculty Civility Advocate, who at the time was Jan Bruer. (That position was later held by Susan Bon.)

M. Plaintiff complains to Faculty Civility Advocate

Plaintiff contacted the Faculty Civility Advocate in an April 16, 2018 email and sought information about “filing a complaint about bullying.” She also noted she “may be filing something with EOP as well.” April 16, 2018 email to Faculty Civility Advocate, ECF No. 78-36. At that time, Bruer advised Plaintiff that EOP, not Faculty Civility, should be involved because her complaint “included elements of stalking, sexual harassment[.]” Bowers Dep. 171-74; see Bon Dep. 52 (indicating she did not believe Bruer had conducted a formal investigation of Bowers' complaint).

N. Bowers and Kissel meet again on May 25, 2018; Bowers' report forwarded to others; Bowers takes FMLA leave in Fall 2018

Bowers and Kissel met on May 25, 2018, as recapped in Bowers' June 4, 2018 email to Kissel. June 4, 2018 email, ECF No. 78-33 at 5-8. Bowers recapped some of the harassment and retaliation she believed she was experiencing; she also indicated her concern for her health and her ability to continue working for USC because of the ongoing situation with Voros. Id. Kissel told Bowers, “It appears you have done everything the University makes possible in the way of support and services.” Id. at 3-4. With Bowers' permission, Kissel forwarded Bowers' June 4, 2018 email to Associate Dean Cynthia Davis. Kissel told Davis that she “[would] inquire with HR about what might be possible to do to support Prof. Bowers with a temporary leave when Prof. Voros returns to campus this fall” and stated they had done what they could to separate their teaching onto unique and overlapping days, but there were still problems in Spring 2018. Id. at 1-2. Davis forwarded the matter to Lacy Ford, Jr., who advised Kissel that Title IX imposed upon her (and Davis) a duty to report Bowers' complaints to EOP. June 11, 2018 email, ECF No. 78-33 at 1-4. Kissel indicated she would do so. Id. at 1. In her deposition, Kissel recounted that Bowers had told her that Voros had “made sexual comments to her when she went into his office, looked down her shirt or saw down her shirt or told her that he could see or students could see, yeah.” Kissel Dep. 30. Kissel testified that she “did file an EOP complaint and encouraged [Bowers] to file a report.” Kissel does not believe Bowers did so. Kissel Dep. 31. Bowers indicates there is no record evidence of Kissel's ever submitting a complaint to the EOP concerning Bowers' complaints. Pl. Mem. 19, ECF No. 78.

Bowers was on Family Medical Leave Act (“FMLA”) leave for the Fall 2018 semester. Pl. Dep. 208; Kissel's statement in Misenheimer EOP 3, ECF No. 78-14 (noting the “reason [Voros'] ex-wife [Bowers] is out on leave this semester is because of the mental anguish and anxiety she suffers.”). On August 10, 2018, Voros called Bowers a “jerk,” noting other people would have to cover for her. August 10, 2018 email, ECF No. 78-21 at 72. On September 7, 2018, Voros' student, Autumn Wertz, complained to Kissel about the lack of a syllabus for ARTS 710. Wertz noted Voros had attributed the lack of a syllabus to Bowers because she had not given Voros enough notice of her leave. September 7, 2018 email, ECF No. 78-37.

O. Bowers is witness in EOP Complaint against Defendant Voros

On September 12, 2018, Bowers told Misenheimer that Voros had made threatening statements and referred to Misenheimer as a bitch and a liar. Misenheimer EOP 3, ECF No. 78-14; Oct. 3, 2018 Report to USC Police 3, ECF No. 78-22. Kissel reported this to EOP on September 13, 2018. Misenheimer EOP 1. In a September 17, 2018 letter, EOP Assistant Director Wells advised Bowers that the office would be in touch concerning Misenheimer's complaint. Bowers was advised to contact police if, as a witness, she was fearful for her own safety. September 17, 2018 EOP Letter to Bowers, ECF No. 78-38.

P. Bowers returns on modified duties in Spring 2019

Bowers returned with modified duties in Spring 2019. Bowers Dep. 208-09; December 4, 2018 email from HR Director Robinson, ECF No. 78-39. In January 2019, Bowers asked Voros about having Misenheimer teach her painting class because Plaintiff was on modified duties. Voros Dep. 68. Voros indicated he could not support that because Misenheimer had told lies in the Dunavant situation and often did not begin her classes on time. Id. at 68-69. In a “Ring” doorbell video, Voros is seen and heard telling Bowers the following: that Misenheimer (“Jamie”) had complained about him; that he would not allow Misenheimer to teach or even step foot in the painting class; that Misenheimer is a “lying shack of shit;” and that it is in his contract that he is responsible for maintenance of the room where Bowers taught. Voros Video 2:30-5:18, ECF No. 78-40.

On January 14, 2019 Kissel emailed Voros with Plaintiff's list of requested parameters upon her return from FMLA leave in January 2019. Bowers' requests included separately scheduled class times, making appointments to see Bowers, having no contact with Bowers when she was teaching, meeting with students, or holding office hours. She further requested no contact in the parking lot and that Voros refrain from asking Bowers' students about her. January 14, 2019 email from Kissel to Voros, ECF No. 78-14. Voros responded by asking Kissel whether she was free to discuss the matter. Id. Neither party points to record evidence concerning whether any such discussion took place.

Bowers indicates that, during Spring 2019, Voros spoke with several students in advanced undergraduate courses and in graduate courses and discouraged them from taking Bowers' courses. Bowers Dep. 56-57.

Q. Bowers files report with USC police in February 2019

On February 28, 2019, Plaintiff met with USC police and reported continued harassment by Voros, including derogatory emails, on-campus stalking, and threats from Voros toward her and other members of the USC community. February 28, 2019 USC Police Report 3, ECF No. 78-22.

R. Bowers files EOP Report in February 2019

Also on February 28, 2019, Bowers submitted an EOP Online Complaint Form, alleging discrimination/harassment on the basis of “Sex/Gender, Disability, and Retaliation.” Bowers EOP Complaint, ECF No. 78-42. Bowers emailed Kissel on March 1, 2019 to advise her she had submitted the EOP Complaint and had spoken with someone at USC Police Department as well as Risk Management. March 1, 2019 email, ECF No. 78-43.

S. EOP Sends Bowers' Complaint to Faculty Civility Advocate

USC's EOP Director, Clifford Scott, characterized Plaintiff's complaint as “bullying” and referred it to Susan Bon, USC's Faculty Civility Advocate, without undertaking an EOP investigation. Bon Dep. 3435, 44-45; March 12, 2019 email from Bon to Scott with edited version of letter to be sent from Scott to Bowers concerning the transfer to the Faculty Civility Advocate, ECF No. 78-44. Bon explained that, as the Faculty Civility Advocate, she is a mandatory Title IX reporter; however, she solely investigates and focuses on bullying concerns. Bon Dep. 21-22, 26-27, 52, 90. Claims of sexual harassment, discrimination, or retaliation, were to be referred to the EOP Office for investigation. Bon Dep. 22-24, 46, 56-67. Bon testified, “it's [for] their own benefit and protection that the higher authority would take precedence over the University policy.” Bon Dep. 24. She noted an EOP investigation would not take place at the same time as a civility investigation would. Rather, the “greater protection” of federal law would be pursued. Bon Dep. 45-46.

Bon responded to Scott's request regarding Bowers' complaint as follows:

Although there appear to be allegations of sexual harassment, I am inclined to characterize the issue as primarily a personal matter related to the previous spousal relationship. Nonetheless, the language conveyed in the correspondence and allegedly used during interactions, could rise to the level of verbal abuse or offensive conduct. As such, the Workplace Bullying Policy (ACAF 1.80) is possibly implicated. If Pamela initiates a formal request pursuant to the policy, I could proceed with an investigation.

March 8, 2019 email, ECF No. 78-44 at 4. Scott wrote Bowers on March 12, 2019 and advised her that he was requesting that the Faculty Civility Advocate investigate her complaint and that Bowers was to inform him if she objected. March 12, 2019 Letter, ECF No. 78-45. Plaintiff responded:

No, I do not object to this matter being investigated by the Faculty Civility Advocate if that is what you are requesting of that Office. I don't care who investigates it - I just want it to stop and I am starting to feel like getting the university to do anything meaningful is futile.

Will my complaint with the EOP Office be investigated by the EOP Office on my behalf? And after DV denies this problem, what additional investigation will be done?

Please note that the harassment and retaliation [I] am experiencing are ongoing and causing me incredible distress. I am available for further information.

March 24, 2019 email from Bowers to Scott, copying Bon, ECF No. 78-47 at 5-6.

T. Bowers complains to Faculty Civility Advocate in April 2019

Bowers and Bon met on April 11, 2019. See April 10, 2019 email, ECF No. 78-47; Recording of April 11, 2019 meeting between Bowers and Bon, ECF No. 78-48. As recounted by Bowers, during the meeting she did the following: questioned why EOP was not handling her complaint; reported that she felt the treatment from Voros was discrimination based on her sex and retaliation for rejecting his sexual advances; reported Voros made comments about her breasts and inappropriate sexual innuendos that made her uncomfortable; expressed fear, distress, and intimidation over interacting with Voros and filing complaints against him; and complained that his conduct was interfering with her work. Bon Recording at 0:00-4:46, 10:40-10:45, 26:20-27:40; see Bon Dep. 33, 47-49, 54-55, 91. Bon advised Bowers that she would be focused on bullying but would indicate any sexual implications in her report and would potentially suggest that EOP review the report. Bon Recording 13:39-14:16. Bon told Bowers that the EOP office determined the faculty civility advocate would be the “better avenue” for Bowers' complaints; she would only investigate bullying, not sexual harassment, if Bowers completed the paperwork; and that she may have to disclose Bowers' name if Bowers filed a formal complaint with her. Bon Recording at 13:20-13:37; Bon Dep. 31-32, 36, 47, 50-52.

Bowers completed a form requested by Bon and indicated on the form that she felt her complaint involved discrimination. Bon told Bowers she would still investigate and solely focus on the bullying complaint even if Bowers indicated she believed she had been subjected to discrimination because the EOP office had referred the matter to her for investigation. Bon Dep. 23-24, 56-58. Bon testified that she thought Bowers' complaints could have implicated Title VII or Title IX; she thought Bowers did not want to proceed as if it was a bullying, rather than discrimination, case; she believed Bowers' understanding was that EOP was not going to be a viable option; and she wanted to meet with Bowers one more time to try to find out whether she intended to go back to EOP because Bowers had indicated she still thought it was sexual discrimination, but Bon did not. Bon Dep. 31-32, 35-38, 47, 49-53, 90.

Bon and Scott had one more conversation after Bon met with Bowers “but it was - it was more not to say I - I think this really has to be investigated as Title IX, but it was rather to say I don't think Pam wants to file the complaint with my office because she has not responded to my last email so I believe she doesn't want me to proceed with a formal investigation.” Bon Dep. 49-50. Bon did not speak with Voros regarding the complaints; she did not speak with anyone about changing Bowers' schedule; she did not investigate any of Bowers' complaints; she is not aware of any formal Title IX or EOP investigations surrounding Bowers complaints; she did not follow up with Scott after meeting with Bowers to see if EOP was investigating Bowers' complaints; and she is unaware whether Bowers' complaints were ever addressed or resolved. Bon Dep. 31-32, 34, 39-41, 45-46, 61.

U. Bowers reports to USC police in April 2019

On April 2, 2019, Bowers, Chapman, and Misenheimer met with USC Police and reported threatening behavior from Voros, including Voros' sending threatening emails to Bowers; accusing Bowers, Misenheimer, and Chapman of conspiring to get him in trouble with a lawsuit; hacking Bowers' social media account; making unwelcomed advances; and stalking Chapman. April 2, 2019 Police Report, ECF No. 7822 at 4; Bowers forwarded documents to the police. April 2, 2019 email, ECF No. 78-49. Voros entered the classroom and saw that Bowers, Misenheimer, Chapman, and the officer were meeting. Voros Dep. 86-87.

Bowers also indicates that, in late March or early April 2019, she and Misenheimer were in the painting resource room discussing work when Voros saw them, threatened them, and demanded that they leave. Pl. Mem. 20, ECF No. 78 (citing generally to Misenheimer Dep., but including no page number).

V. Bowers' takes FMLA leave in Fall 2019, leave without pay in Spring and Fall 2020; returns in 2021; retires in May 2022

Bowers again took FMLA leave for her mental health in Fall 2019. She testified this was because of the treatment from USC and Voros. Pl. Dep. 195-198, 209-212; July 25, 2019 FMLA email, ECF No. 78-51. Bowers had been asked to continue to work with graduate students who had selected her to serve on their review committee in Fall 2019 while on leave. One of her students, Autumn Wertz, sent Bowers a text message indicating Bowers had been taken off of her committee by other committee members. Bowers did not receive an explanation for her removal. Wertz Text Message, ECF No. 78-52; Pl. Dep. 62-63.

Bowers spoke with Kissel and HR about resigning in Spring 2020. Bowers Dep. 210-211. HR Director Robinson told Plaintiff not to resign and instead file for leave without pay for 2020. Id.; December 17, 2019 Robinson email, ECF No. 78-53. Bowers worked for USC in Fall 2021. Bowers Dep. 207. Voros continued to serve as the Painting Coordinator during Bowers' absence and upon her return to work. Voros Dep. 14-15.

On March 30, 2022, USC sent Bowers an offer for reappointment as Senior Instructor for the period of August 16, 2022 through May 15, 2023, instead of her normal three-year term contract. 2019 Reappointment (for three years), ECF No. 76-56; 2022 Reappointment (for one academic year), ECF No. 7857. Bowers retired early in May 2022. Bowers Dep. 211-12, 217-22.

W. Voros continues employment with USC

Students protested USC's handling of complaints, including complaints against Voros, on USC's campus in April 2021. October 1, 2021 Carolina News & Reporter article, ECF No. 78-55. 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. 78-58. 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. 78-59. 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. Voros is still 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.

III. Analysis

USC seeks summary judgment as to all of Bowers' claims against it. USC Mot. Summ. J., ECF No. 68. After the parties agreed to dismissal of the defamation claim 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

Bowers' Amended Complaint includes Title VII causes of action for gender discrimination (including disparate treatment and a hostile work environment) and for retaliation. Am. Compl. ¶¶ 101-16. USC first argues that Bowers' 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. 68-1 at 12. 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, Bowers' claims are untimely because “the events in [her] Amended Complaint largely took place in 2017 and 2018” but she filed her complaint with EEOC on October 21, 2019. ECF No. 68-1 at 12 (citing to Bowers' sworn statement, dated October 21, 2019 and captioned as her “Supplemental Charge of Discrimination Based on Sex/Gender, Sexual Harassment, Hostile Work Environment, and Retaliation,” see Suppl. Charge, ECF No. 68-5). The Supplemental Charge indicates it relates to “EEOC Charge No. 436-2018-01718.” Id. Three-hundred days prior to October 21, 2019, is December 25, 2018.

Plaintiff counters that her claims related to 2017 and 2018 are appropriately considered because the 300-day lookback period runs from August 27, 2018, the date she indicates she initially filed her EEOC Charge. ECF No. 78 at 25 (citing to ECF No. 78-60 as her Charge). ECF No. 76-60, which is completed on an EEOC Intake Questionnaire form, is dated August 27, 2018; in the document, Bowers indicates, “ I want EEOC to consider this my Charge of Discrimination. I intend to supplement this Charge with additional information.” ECF No. 78-60 at 5. Plaintiff also indicates that she received a Right to Sue letter and timely filed this litigation, ECF No. 78 at 26, a point USC does not challenge.

As an initial matter, the court notes that, at times, parties have litigated whether Intake Questionnaires may be considered actual “Charges” for purposes of administrative exhaustion with the EEOC. See generally Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 393 (2008) (in ADEA context, discussing what may be construed as a “charge” for exhaustion purposes). Here, though, in its Reply USC does not question Plaintiff's considering the August 27, 2018 document as a charge and does not further discuss the issue of when the charge was actually filed. Accordingly, considering all facts in the light most favorable to Bowers, and noting USC has not questioned whether the August 27, 2018 filing is considered a charge for issues related to timeliness, the undersigned finds that all matters that took place within 300 days prior to August 27, 2018- which would be October 31, 2017-appropriately are considered to be within the 300-day window and appropriately may be considered herein. Furthermore, Bowers' argument that the continuing violation doctrine applies to hostile work environment claims is well taken. ECF No. 78 at 25-26. 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. 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 generally argues that Bowers' failure to file a complaint with EOP is fatal to her claim. ECF No. 68-1 at 13. As Bowers 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 26. Bowers also notes she made numerous attempts to report Voros to USC's EOP office. Id. at 26-27. 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 Bowers' 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 October 31, 2017 (or earlier, should they relate to a hostile-work-environment claim) appropriately may be considered as part of Bowers' 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, 530 U.S. at 146-47 (“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, 828 F.3d at 220 (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. '” Proud v. 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 Bowers alleges Title VII gender discrimination, including claims of a sexually hostile work environment/sexual harassment, and disparate treatment. Am. Compl. ¶¶ 101-10. In addition to its argument that Bowers did not administratively exhaust her Title VII claims, USC briefly submits it is entitled to summary judgment as to her Third Cause of Action because “there is no evidence in the record that Plaintiff was discriminated against on the basis of her sex or any evidence of disparate treatment by Defendant USC[.]” ECF No. 68-1 at 14. Employing no real legal analysis, USC submits only that “Plaintiff and Defendant Voros were in the middle of going through a divorce and Defendant USC attempted to create a cordial working environment based on the Plaintiff's demands. There is no evidence that Defendant USC disparately treated Plaintiff and that no action was taken against Defendant Voros [who] primarily stated at home during this time.” Id. (citing USC emails 006380-6381). USC does not discuss the substance of that email in its memorandum. Found at ECF No. 68-11, the email is one Kissel sent to Voros on January 14, 2019 that outlined the parameters Bowers had requested that she believed would help her focus so that she would be able to return to teaching. Kissel ended the email by indicating that her “concern is to maintain a calm and productive environment for painting students,” a goal she “know[s]” Voros shares. ECF No. 68-11 at 3. Voros responded to Kissel's email a few minutes later: “Let's discuss it. Are you free this afternoon?” Id. at 2.

Bowers 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 27-30 (citing cases and discussing potentially relevant evidence). Although USC submitted a Reply, it includes no argument specific to Bowers' Title VII claims of discrimination based on a hostile work environment,¹⁰quid-pro-quo harassment, or disparate treatment.

10 USC's Reply's argument that a hostile-work-environment claim may not be pursued as part of a state-law-based negligent supervision claim, see Reply 2-3, is discussed in the context of that cause of action.

As an initial matter, the court notes that, while Bowers 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 Bowers' Title VII discrimination/harassment cause of action by making a two-paragraph argument that there is “no evidence” of discrimination or disparate treatment and generally citing to a two-page email (out of the hundreds of pages of documentary evidence before the court). USC's suggestion that because the parties were going through a divorce and USC was “attempting to create a cordial environment” does not carry the day.

1. Title VII: hostile work environment claim

Considering USC's 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 Bowers was subjected to a hostile work environment and was treated disparately from Voros.

Especially surprising and telling is USC's failure to specifically seek summary judgment as to Bowers' Title VII hostile work environment claim. “[T]o prevail on a Title VII claim that a workplace is racially 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). Whether the environment is objectively hostile or abusive is “judged from the perspective of a reasonable person in the plaintiff's position.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). 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).

Taken in the light most favorable to Bowers, she has submitted evidence of harassing and threatening behavior based on sex, including the following:

• On October 31, 2017, Plaintiff met with Chametzky and complained about Voros. Nov. 3, 2017 Bowers' recap email to Chametzky, ECF No. 78-27. Bowers sent Chametzky a two-page email on November 3, 2017 in which she recounted her 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 was working with a group of students and asked that she go see him to discuss an “urgent professional matter.” When she went to see him at a break he asked her about a work-related project (working on a project in Norway) she had already declined and then began talking about Plaintiff's attire and how he could see down her top while she was with her students. Id. at 3. Bowers noted the behavior was “seriously inappropriate under any circumstances and [she] found it particularly distressing that he took advantage” of a discussion about professional development in that he “then degenerate[d] to sexualized commentary about [her] appearance, the timing of which seemed to be clearly motivated by his frustration at [her] refusal to work with him on the project.” Id. (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, ECF No. 78-21 at 25.)

• Bowers had reported to Gore that Voros had trapped her in her office for 15 minutes or more and made very threatening gestures toward her. Pl. Mem. 18, ECF No. 78; see Pl. Dep. 157-58 (referencing the incident but not indicating to whom she had reported it).

• Defendant Voros emailed Plaintiff following their separation, often from his USC email address to Plaintiff's University email address, telling Plaintiff that: he loved and missed her; he dreams about her; she looked beautiful; and he wished she would allow him to come back home. See Voros Dep. 41; see generally emails at ECF No. 78-21.

• Defendant Voros responded to Plaintiff's 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), ECF No. 78-42 at 2; see generally emails at ECF No. 78-21; Voros Dep. 44. Voros testified he used the word “cuntasaurus” as a “bastardization of [clitiroti] to deliberately harass

[Bowers].....” Voros Dep. 170-71 (emphasis added). Voros testified he was referring to a violent predator in Bowers' past when he emailed her, “Reminisce about your boyfriend Forest who you are too weak to face or your other abusers and blame it on your children's father.” Voros Dep. 213.

• Bowers alleges Voros came into her class on January 31, 2018, asked her to go into his office, and when she did “made intimate, sexual advances toward [her], such as attempting to grope and hug her.” Pl. Mem. 19, ECF No. 78 (citing pages 168 and 169 of her deposition). Bowers acknowledges Voros denies such behavior. Id. (citing Voros Dep. 64). In her Amended Complaint Bowers details such events as taking place on January 31, 2018. Am. Compl. ¶¶ 41-42. The court notes that the referenced pages of Bowers' deposition testimony include a general reference to Voros' “trying to grope” Bowers but do not include allegations specific to January 31, 2018.

• Spring 2018, Kissel recounted that Bowers had told her that Voros had “made sexual comments to her when she went into his office, looked down her shirt or saw down her shirt or told her that he could see or students could see, yeah.” Kissel Dep. 30.

• On September 12, 2018, Bowers told Misenheimer that Voros had made threatening statements and referred to Misenheimer as a “bitch” and a “liar.” This was reported to USC police. Misenheimer EOP 3, ECF No. 78-14; Oct. 3, 2018 Report to USC Police 3, ECF No. 78-22.

• 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 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; EOC 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).

• Susan Bon, in her position as Presidential Faculty Fellow, was part of a meeting with a group of three students who indicated their believe that there was a hostile environment in the SVAD and they no longer felt safe on campus. Bon Dep. 12, ECF No. 78-19. Bon indicated they turned those concerns over to legal counsel. Id. Bon noted those students complained specifically about Voros they perceived there to be a hostile environment based on sexual discrimination. She noted, though, that those three individuals were not complaining they personally had been the victim of such discrimination or harassment. These complaints were around October 2021. Bon Dep. 13. Students complained to the President's Office regarding Voros creating a hostile environment on the basis of sex discrimination in the School of Visual Arts and Design and that they no longer felt safe on campus in or around October 2021. Bon Dep. 11-15, 85-86.

• On May 11, 2018, SVAD Director Kissel advised Voros that, upon meeting with several graduate students, the Director of Graduate Studies noted that the “interpersonal tension surrounding David Voros and Pam Bowers and Alex Stasko Miller” needed to be resolved because it “negatively affects student life” and “has the protentional to be very damaging to the program, SVAD, and the university.” ECF No. 78-50 at 3. It was also noted that “grad students are very afraid of faculty retaliation and rejection.” Id.

Certainly, Bowers subjectively felt the harassing behavior related to sex and altered her conditions of employment. She became afraid to go to work, eventually taking leaves of absence and reducing duties to avoid contact with Voros. Construing all of the evidence in the light most favorable to Bowers (and considering USC's failure to even discuss the specific evidence in any detail) the undersigned is of the opinion that Bowers' evidence of behavior, including emails and physical actions directed toward her as well as evidence of complaints by other females who worked in USC's SVAD, 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. Bowers has provided evidence that Voros' behavior impacted her work, including depriving her of an assistant, having her class enrollment drop, and causing her such mental anguish that she took leaves of absence, some without pay and at the suggestion of USC employees. See generally U.S. Equal Emp. Opportunity Comm 'n v. MVM, Inc., No. CV TDC-17-2864, 2018 WL 2197727, at *12 (D. Md. May 14, 2018) (noting leave-without-pay status could be an adverse employment action). 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, Bowers has 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 argument as to whether Voros' conduct in this regard could be imputed so as to subject it to liability. Unquestionably, Bowers and others had complained to USC, including SVAD Chairs Chametzky and Kissel, the President's Office, the EOP Office, and the Faculty Civility Advocate Office. USC's general refrain of “Bowers did not file an official EOP Complaint” certainly does not automatically translate to the inability to impute Voros' actions to it. While it is true that Bowers herself apparently did not submit an official EOP Complaint, she certainly complained to those in authority and continued to advise Bon that she believed her complaints amounted to sexual harassment-not mere “nonsexual bullying” as those in the EOP office had suggested. Certainly “actual or constructive” knowledge of allegedly harassing behavior is necessary for imputation.¹¹ 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” complaint be lodged before the employer can be said to have such knowledge. The court will not make arguments for the parties. The court does note in passing that, in October 2021- which was well after this case was begun-USC indicated Voros would not be teaching in Spring 2022 and would be “barred from campus.” October 12, 2021 email from Interim Dean Joel H. Samuels, ECF No. 7858. Voros testified, however, that he was unaware of an actual ban and was only advised Kissel did not want him on campus for his “own protection.” Voros Dep. 184, 199-201. 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.”).

11 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. 78-62 at 12.

In sum, Bowers has set out evidence from which a reasonable jury could find a severe or pervasive hostile environment that altered work conditions. The apparent lack of an “official” internal EOP complaint notwithstanding, the record is rife with evidence of continued complaints by Bowers and others about Voros' allegedly harassing behavior. Those complaints took place at least as far back as early 2017 and continued. Voros continues to be employed by USC; Bowers noted that Voros participated in Zoom department meetings in 2021. A jury question exists as to whether any remedial action USC eventually took would be sufficient to keep Voros' conduct from being imputed to USC. “[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 even address the hostile-work-environment claim, 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 29. This harassment claim is similar to the hostile work environment claim discussed above except that it requires Bowers 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 Bowers' 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 leave without pay and retirement.” ECF No. 78 at 29. As discussed above, the undersigned is of the opinion Bowers 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 discuss the quid pro quo theory in any manner. USC has not specifically sought summary judgment as to a Title VII quid-pro-quo claim. In any event, based on the arguments before the court the undersigned is of the opinion Bowers has not set out evidence from which a jury could find quid-pro-quo harassment.

3. Title VII: Disparate treatment

Plaintiff also briefly argues she has set out a Title VII disparate treatment claim. ECF No. 78 at 2930. However, Plaintiff does not explain whether she is attempting to proceed using direct evidence or is attempting to set out a prima facie case of disparate treatment. And, as noted above, USC gives short shrift to any Title VII discrimination claim, arguing only that the parties were going through a divorce and USC “attempted to create a cordial working environment based on the Plaintiff's demands.” ECF No. 68-1 at 14. In Bowers' brief argument, she appears to cast her disparate treatment claim as another way of stating her hostile work environment claim. ECF No. 78 at 29 (“Defendant USC and Voros, who served in a supervisory position, treated Plaintiff in a disparate manner in comparison to male employees with respect to her terms, conditions, and privileges of employment [by] treating Plaintiff and other female employees in a hostile manner and creating a hostile work environment.”) (emphasis added). Bowers further submits she was treated disparately because personal issues between her and Voros were referenced in her evaluation but were not referenced in his evaluation. Id. at 29-30. Nowhere, though, does Bowers explain to the court how she can prevail under either proof-scheme. In the opinion of the undersigned, Bowers' failure to tie her alleged disparate treatment to specific adverse employment actions¹²is fatal to this claim.

12 The undersigned notes Bowers makes the argument she was constructively discharged in the context of her retaliation claims. ECF No. 78 at 30-32. She never makes that argument in the context of her Title VII discrimination claims.

In summary, the undersigned is of the opinion that the hostile-work-environment/sexual harassment portion of Bowers' Title VII discrimination claim should proceed to a jury trial. On this record, though, Bowers' 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.”).

For the same reasons discussed above, USC is not entitled to summary judgment based on Bowers' failure to exhaust remedies. At the least, actions as of October 31, 2017 and beyond are timely as they occurred within 300 days of Bowers' EEOC Charge. Further, to the extent Bowers is alleging a retaliatory hostile work environment, arguably the continuing violations doctrine operates to permit consideration of earlier actions so long as some portion of the environment took place subsequent to October 31, 2017. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101. Again, USC complains that Bowers did not complete an official internal EOP complaint but offers no legal authority to support its claim that such would amount to a failure to exhaust administrative remedies under Title VII.

Next, USC argues it is entitled to summary judgment because Plaintiff has not set out a prima facie case of retaliation. USC argues Bowers did not participate in any protected activity because she “never filed any complaint with the EOP office despite being advised to do so.” ECF No. 68-1 at 15 (including no case law or legal analysis). Bowers submits she participated in protected activity by complaining numerous times to various supervisors and others at USC, including the EOC office, the Faculty Civility Advocate office, HR, and, ultimately, the EEOC. ECF No. 78 at 31. Bowers also notes she participated in protected activity when she served as a witness to Misenheimer's EOP complaint. Id.

The undersigned agrees with Bowers. Unquestionably, Bowers reported Voros' treatment of her and other female faculty and students to various USC employees, including during an October 31, 2017 meeting with then-SVAD Director Chametzky (ECF No. 78-27); an April 2018 report to former Faculty Civility Advocate Bruer, whom Bowers says indicated her complaints “included elements of stalking, sexual harassment” that more appropriately would be considered by EOP, (Bowers Dep. 171-74); a May 2018 report to new SVAD Director Kissel, which was forwarded to HR representative and others); and a February 28, 2019 EOP Complaint, ECF No. 78-42. While USC's EOP Office determined Bowers' complaints were not related to sex and thus were not Title VII/IX complaints, it is unquestionable that Bowers took the position that she was sexually harassed by Voros and that a sexually hostile work environment existed. 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.” Bowers also indicates she acted as a witness to Misenheimer's EOP Complaint in September 2018. See ECF No. 78-38.

As for the complained-of adverse actions, Bowers focuses on her alleged constructive discharge but also submits “USC pressured [her] to take leave in response to her complaint” and that she was denied a teaching assistant. ECF No. 78 at 32-33. USC does not focus on the teaching-assistant denial or the “pressure to take leave.” Based on the relevant standard, the undersigned is satisfied that Bowers' being denied an assistant or being pressured to take leave could be “materially adverse” actions for purposes of her retaliation claim. The Supreme Court has defined an adverse employment action, as it relates to a retaliation claim, this way: something that “well might have dissuaded a reasonable worker from engaging in protected conduct.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal citation omitted) (internal quotation marks omitted). As USC does not discuss the issue of whether Plaintiff s leave-taking or having been denied an assistant would be materially adverse actions, the undersigned considers them to be for purposes of analyzing Plaintiff s Title VII retaliation claim.

The court also considers whether Plaintiff has established she was constructively discharged.¹³To 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 v. Brennan, 578 U.S. 547, 555 (2016).¹⁴ 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 retire/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.

13 Arguably, Plaintiff's claim of constructive discharge includes her 2019-21 leave-taking and her 2022 retirement after having been offered a shorter-than-normal contract extension. Because the parties did not make any distinction between acts that took place prior to or after the filing of Bowers' charge or this litigation, the court will not either.

14 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 she “suffered sexually harassing and intimidating behavior from Voros on a consistent basis, and Defendant USC did not stop Voros or protect Plaintiff, despite Plaintiff['s] repeated cries for help.” ECF No. 78 at 32. Bowers submits a reasonable person would have been compelled to resign under the circumstances. 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. 87 at 5. Citing no case law, USC argues Plaintiff “cannot be constructively discharged if her employment contract ended and Plaintiff refuses 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 (or retire) 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., June 4, 2018 email, ECF No. 78-33 at 5-8, the undersigned is of the opinion that a reasonable juror could determine Bowers was constructively discharged in May 2022.

To establish a prima facie retaliation claim Bowers must also show that the materially adverse actions-her denial of teaching assistance, taking of leave, and constructive discharge-were caused by 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. “Although there is no ‘bright-line rule' for temporal proximity,” courts have found a three-month gap insufficient to infer a causal relationship without other evidence of a causal link. Roberts, 998 F.3d at 127.

Plaintiff submits that her complaints to Chametzky about Voros in late October and early November 2017, see ECF No. 78-27 and -28) are causally related to her not being provided with a graduate assistant in January 2018. Further, Bowers submits her protected activity in communicating with Kissel in June 2018 and the EEOC in August 2018 were causally related to her leave-taking from 2019 to 2021 and her 2022 constructive discharge.

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 informal complaints with various persons from USC [or that] those informal complaints were the basis of the adverse employment action that Plaintiff believes she was subjected to.” ECF No. 68-1 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 Bowers has set out prima facie causation, a burden that is “not an onerous” one. Strothers, 895 F.3d at 335. Accordingly, Bowers 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 the materially adverse 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. See ECF No. 78 at 30 (Plaintiff s noting, in context of Title VII disparate treatment claim, that USC had not proffered a legitimate, nondiscriminatory reason for its actions). Accordingly, the burden cannot then shift back to Bowers 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 Bowers' Title VII retaliation cause of action.

E. Title IX: timeliness argument

Bowers 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 Bowers' claims are untimely.

In considering USC's argument that Bowers' Title IX claims are untimely, the court must first determine what the applicable statute of limitations is for her 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),¹⁵or 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.

15 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. 68-1 at 19; see also ECF No. 87 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 38-39 (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)). Bowers acknowledges that Moore was decided in the employment context. However, in addition to noting Wilmink was decided a year after Moore, Bowers 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 employee-status, 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 39.

Having considered the parties' arguments and cases cited, the undersigned recommends a finding that SCHAL's one-year limitations period applies to Bowers' Title IX claims. Neither party has cited to a controlling Fourth Circuit case on this issue, nor is the undersigned aware of one.¹⁶Further, 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 Bowers' claims are Title IX claims brought by an employee against her employer, SCHAL's one-year statute is most analogous and should be applied.

16 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 publicaccommodations claim brought by former group-home resident and conservator).

Bowers filed her Complaint in state court on November 23, 2020. ECF No. 1-1. For purposes of the timeliness analysis then, Bowers must bring her claims “within one year from the date of the violation alleged[.]” S.C. Code Ann. § 1-13-90(d)(6). Neither party initially included any detail as to which, if any, of Bowers' Title IX claims occurred on or after November 23, 2019. Rather, USC merely indicated it was entitled to summary judgment on timeliness grounds because “the events Plaintiff complains about occurred prior to November 23, 2019.” ECF No. 87 at 6; see also ECF No. 68-1 at 19 (“Many of the events that Plaintiff alleges happened more than one year before filing her initial Summons and Complaint, which occurred on November 23, 2020. Therefore, Plaintiff cannot continue her claim under Title IX since it is beyond the one-year statute of limitations.”). At the court's request, the parties provided supplemental briefing on this point. Pl. Suppl. Mem., ECF No. 96; USC Suppl. Mem., ECF No. 99.

Plaintiff generally submits that she was on FMLA leave for her mental health in Fall 2019 because of USC's failure to address her complaints that allowed Voros to create a hostile work environment. ECF No. 95 at 2. More specifically, Plaintiff looks to a December 17, 2019 email in which USC's HR Director, Robinson, advised Plaintiff not to resign and instead file for leave without pay for 2020. ECF No. 78-53. Bowers was on leave without pay until January 2021. Voros continued to serve as the Painting Coordinator during Bowers' absence and upon her return to work. Voros Dep. 14-15. Bowers also notes that, once she returned to work in the Spring of 2021, she continued to work with Voros on committees. ECF No. 95-1. Bowers also provides an October 5, 2021 email from Kissel in which Kissel indicates she was having issues assigning Bowers to teach certain classes because, at times, Bowers and Voros were requesting the same courses. She notes that certain courses were assigned to Voros instead of Bowers. ECF No. 95-3. Bowers also looks to her 2022 constructive discharge (discussed above). Because these acts contributed to the continuing hostile work environment and occurred on or after November 23, 2019, Bowers submits the continuing violation doctrine applies to make all complained-of acts appropriately considered. ECF No. 95 at 6 (citing Morgan, 536 U.S. at 105, Gilliam v. S.C. Dep't of Juv. Just., 474 F.3d 134, 141 (4th Cir. 2007)).

In its short response, USC submits that, because Bowers was not on the USC campus from Fall 2019 to Fall 2021, she “could not have been subject to a hostile work environment because she was not at work.” ECF No. 99 at 1. Based on this position, USC submits the continuing violation doctrine cannot apply because no action happened between November 2019 and November 2020. Id. at 2 (citing Gilliam, 474 F.3d at 140)).

In considering what acts may have been timely, the court notes that Title VII cases may inform issues arising under Title IX. Jennings v. Univ. of N.C. at Chapel Hill, 240 F.Supp.2d 492, 499 (M.D. N.C. 2002). Although the parties did not make this distinction, the court notes that the issue of whether the continuing violation doctrine applies depends on whether the claims are based on discrete discriminatory acts or hostile work environment-type claims, such as the one for deliberate indifference. Here, any of Bowers' Title IX claims that are based on discrete acts of misconduct predating November 23, 2019 are time-barred. However, any claims based on a single hostile environment practice with at least one constituent act occurring on or after November 23, 2019, are timely. See id. at 500.

F. Title IX: deliberate indifference claim

To establish a Title IX deliberate indifference claim, Plaintiff must demonstrate the following: (1) she is a member of a protected group; (2) she has been subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment was sufficiently severe so as to create an abusive education environment; (5) the educational institution had actual knowledge of the harassment; and (6) the educational institution was deliberately indifferent to the abusive conditions. Davis v. Monroe Cnty. Bd. of Ed., 526 U.S. 629. 640-41 (1999). USC argues it is entitled to summary judgment because Bowers did not file an EOP complaint, meaning she “cannot show that USC was deliberately indifferent to sexual harassment[.]” ECF No. 68-1 at 19 (citing no legal authority). USC submits Bowers has not provided evidence of a “severe or pervasive” hostile environment or evidence that permits imputation to USC, noting USC “worked with both Plaintiff and Defendant Voros to remedy the working situation between the parties while they finalized their divorce.” Id.

Bowers counters that she has provided ample evidence of her numerous complaints to various USC officials, including Chairs Chametzky and Kissel, EOP and the Faculty Civility Advocate, who is a mandated Title IX reporter. Further, Plaintiff submits USC did nothing to address the behavior and permitted it to continue for years. ECF No. 78 at 34. For the same reasons discussed above in connection with the Title VII hostile work environment claim, the undersigned is of the opinion Plaintiff has set out evidence from which a reasonable juror could determine she was subjected to a severe or pervasive environment that was intolerable and imputable to USC. See Pryor, 791 F.3d at 498 (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 Sunbelt Rentals, Inc., 521 F.3d at 319 (internal quotation marks omitted) (emphasis added in Pryor)). “Title IX has no administrative exhaustion requirement and no notice provisions.” Fitzgeraldv. Barnstable Sch. Comm., 555 U.S. 246, 247 (2009). Accordingly, so long as Bowers has set out an act related to the hostile work environment that took place on or after November 23, 2019, summary judgment should be denied.

Here, the undersigned is satisfied that Bowers has set out acts related to the pattern of the severe or pervasive environment that took place on or after November 23, 2019. Bowers submits she continued to advise USC that she would no longer be able to work if they did not address Voros' harassing behavior. On December 17, 2019, USC's HR Director sent an email indicating she had advised Bowers to take unpaid leave. ECF No. 78-53. Further, Voros continued to be employed by USC and work on committees that included Bowers, ultimately leading to her 2022 constructive discharge (as discussed above).¹⁷

17 USC has not argued or offered any authority to the effect that events that took place subsequent to the filing of the Complaint could not be considered in connection with the Title IX claims.

G. Title IX: disparate treatment

To state a claim for disparate treatment under Title IX, a plaintiff must allege: (1) “a procedurally or otherwise flawed proceeding”; (2) “that has led to an adverse and erroneous outcome”; and (3) “particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.” Doe v. Salisbury Univ., 123 F.Supp.3d 748, 766 (D. Md. 2015) (internal citation omitted). To satisfy the third element, Plaintiff must “do more than merely rely on ‘a conclusory allegation of gender discrimination. . . .'” Id. (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994)). “Sufficiently particularized allegations of gender discrimination ‘might include, inter alia, statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that also tend to show the influence of gender.'” Id. (quoting Yusuf, 35 F.3d at 715).

Plaintiff argues she was the victim of a “flawed proceeding,” citing to testimony of USC employees with little knowledge of Title IX reporting and evidence of Title IX mandatory reporters who received reports from her or others regarding Voros and failed to take action. ECF No. 78 at 37 (citing Kissel Dep. 36-37; Collins Dep. 26 (noting all faculty are mandatory reporters); March 12, 2019 Letter to Bowers from EOP (advising her complaint is being referred to Bon); 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; noting no one advised her she could report to EOP); Misenheimer Dep. 200-01 (indicating her belief that the available process included no real instruction, resulted in no investigation, and led to retaliation against those reporting); Bon Recording. Bowers asserts this failure led to her constructive discharge. In her supplemental filing, Plaintiff addresses the disparate treatment claim in conjunction with the hostile environment claim, arguing USC “treated Plaintiff in a disparate manner in comparison to Defendant Voros during the applicable period by allowing him to continue his employment at his full salary, both on campus and by offering remote teaching, paid leave, and administrative duties, while encouraging Plaintiff to take unpaid leave.” ECF No. 95 at 4-5. Further, Plaintiff submits USC showed a lack of regard for Plaintiff s safety and complaints while providing Voros with a police escort for his safety. Plaintiff submits she has provided evidence that USC “denied [her] the benefits of employment and treated her in a disparate manner based on her sex from November 2019 forward.” ECF No. 95 at 5 (citing no case law).

Unlike hostile work environment claims, however, disparate treatment claims are considered timely filed when the relevant “discrete act” took place within the relevant limitations period and do not combine with otherwise-untimely acts to allow for a continuing-violation theory. See Morgan, 536 U.S. at 111-12 (in Title VII context, finding disparate treatment claim took place at time complained-of wrong occurred, even when that wrong was connected to other acts). Here, Plaintiff is charged with demonstrating there was a “flawed proceeding” that led to an “erroneous outcome.” The record does include numerous allegations of times in which Plaintiff complained to various USC officials, most if not all of whom were mandatory Title IX reporters, but her complaints did not result in the proceeding she believed she should have received. However, none of these complaints that were not pursued or investigated took place on or after November 23, 2019. She first took leave in early 2019. It seems a stretch to allow her to argue that the entire time she continued to be employed, but on leave, could be considered timely for a disparate treatment claim. Any “flawed proceeding” would have taken place, at the latest, the last time Plaintiff made a complaint. Plaintiff has pointed to no specific complaint that was not investigated or was handled in an otherwise flawed manner that took place on or after November 23, 2019. Accordingly, that she was on leave and was ultimately constructively discharged after that date does not make her disparate treatment claim timely. The undersigned is of the opinion summary judgment would be appropriate as to the Title IX disparate treatment claim.

H. Title IX: retaliation

The analysis of Plaintiff s Title IX retaliation claim is much like that of her Title VII retaliation claim. See Feminist Majority Found. v. Hurley, 911 F.3d 674, 694 (4th Cir. 2018) (noting Title VII and cases interpreting it inform Title IX claims). As discussed above, the undersigned recommends a finding that Plaintiff s Title VII retaliation claim should survive USC's summary-judgment challenge. Because Plaintiff has set out some evidence that she was forced to take unpaid leave subsequent to November 23, 2019, and she has set out evidence that she was later constructively discharged, the undersigned recommends that Plaintiff s Title IX retaliation claim survive summary judgment.

I. State-law-based claims

1. Negligent supervision and retention

In her second cause of action Bowers alleges USC was negligent in its supervision and retention of Voros. Am. Compl. ¶¶ 93-100. Bowers alleges USC was “grossly negligent in supervising Defendant Voros, allowing him to continue to intentionally harm Plaintiff through sexual harassment and create a hostile environment in which no reasonable individual could feel safe.” Id. ¶ 95. She attributes resulting damages including “dignitary losses, including 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. ¶ 100.

a. Issues raised only on reply

USC seeks summary judgment as to this case 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”) contains two exceptions to the waiver of immunity that are 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 and § 15-78-60(14) provides immunity for “any claim covered by the South Carolina Workers' Compensation Act.”¹⁸USC 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. 87 at 1-3. These reply-raised arguments offer little, if any, legal analysis to support them. In fact, the mention of the Workers' Compensation Act exclusion is only one sentence long. Id. at 2. As there is no reason USC could not have raised these arguments in its principal brief, and as Bowers 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.

18 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:

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 Bowers 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 the issue regarding whether the workers-compensation exclusion applies, the undersigned notes that is an analysis often undertaken in employment cases that include negligent-supervision claims. See, e.g., Strong v. Charleston Cnty. Sch. Dist., No. 2:22-CV-1712-BHH, 2023 WL 2042169, at *3 (D.S.C. Feb. 16, 2023) (collecting cases). However, USC devoted only one sentence on reply to this argument. The court will not create USC's argument (or Plaintiff's response thereto) out of whole cloth. See Bauer v. Summey, 568 F.Supp.3d 573, 599 (D.S.C. 2021) (declining to consider conclusory arguments, and noting that “the court will not attempt to grapple with every hint of an argument, no matter how poorly developed; as the Fourth Circuit has now repeatedly explained, judges “are not like pigs, hunting for truffles buried in briefs. Similarly, it is not our job to [ ] make arguments for either party.” Hensley v. Price, 876 F.3d 573, 581 (4th Cir. 2017)); State Farm Fire & Cas. Co. v. Morningstar Consultants, Inc., No. CV 6:16-01685-MGL, 2017 WL 2265919, at *3 (D.S.C. May 24, 2017) (noting it is not “within the purview ofthis Court to take a single simple sentence in a counseled case, fashion an argument, adorn it with legal citations, and then judge the strength of its own argument. It is not within the ambit of the Court's role to do so.”). 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 Bowers' negligent supervision and retention cause of action arguing Bowers 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. 68-1 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 21-25.

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).¹⁹As 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.

19 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 Bowers 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. 68-1 at 10. USC submits Plaintiff's allegations of a “hostile work environment” are insufficient and that, to prevail here, Bowers “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 Bowers was complaining about Defendant Voros. The cited evidence of complaints by others include the following: Chametzky Play, ECF No. 78-23 (discussing numerous complaints); Dunavant's 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. 78-10 (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. 78-13 (regarding concerns about retaliation by Voros and noting the No Contact Order did nothing); Misenheimer EOP submitted by Kissel in September 2018, ECF No. 78-14 (noting threats of retaliatory behavior made by Voros to Bowers concerning Misenheimer); 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); Bon Dep. 11-15, 46, 85-86 (recounting meetings among USC President's Office and students regarding students' concerns about “a hostile environment in the [SVAD] and that they no longer feel safe on campus,” apparently taking place around October 2021); Bon Dep. 64-66, 93-94 (regarding Professor Scotchie's complaints that Voros would retaliate against her); Kissel Dep. 33-34, 38-39, 53-54 (regarding recent complaints from another professor about Voros' behavior in faculty meeting, complaints from Chapman, and complaints from Scotchie); April 10, 2017 email from Chametzky to Wells, ECF No. 78-20 (indicating Voros called Chametzky regarding a letter from Wells and promising to take legal action against Chametzky).

As further evidence that USC was aware of the need to supervise Voros, Bowers points to evidence of numerous complaints she made to her supervisors, HR, the EOP office, the Faculty Civility Advocate, and the USC Police. This evidence includes the Chametzky Play; Plaintiff's November 3, 2017 email to Chametzky summarizing various concerns and incidents related to Voros, ECF No. 78-27; February 12, 2018 email to Kissel forwarding exemplar email from Voros, ECF No. 78-30; June 4, 2018 email from Bowers to Kissel recapping May 25 meeting in which various issues with Voros; email forwarded to Human Resources, ECF No. 78-33; Bowers EOP Online Complaint Form (Harassment, Discrimination & Retaliation), ECF No. 78-42; Kissel Dep. 27-28, 66-67, 81-82 (regarding Bowers' various complaints); Bowers Dep. 171-75 (regarding complaints to EOP and being referred to Faculty Civility, and Faculty Civility Advocate Bon's asking her to sign document indicating she had not experienced sexual harassment, discrimination, or assault so her office could investigate bullying claims); Bon Dep. 33, 47-55, 91 (discussing meetings with Bowers and noting some of the complaints could have been gender-related).

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 Bowers suffered resulting injury. 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. 68-1 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 Bowers.

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 Eighth Cause of Action, Plaintiff avers USC breached a contract formed pursuant to policies in USC's Policies and Procedures Manual. Am. Compl. ¶¶ 143-51 (referencing several EOP Policies, including the Sexual Harassment Policy found at EOP 1.02).²⁰ Bowers 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. ¶ 149. Plaintiff indicates she suffered damages that included “lost wages, diminished earning capacity, lost benefits, and the costs and fees of this action.” Am. Compl. ¶ 151. In opposing summary judgment as to this cause of action, Plaintiff argues that, in addition to EOP 1.02, USC's Faculty Manual created a contract that USC allegedly breached. ECF No. 78 at 40.

20 Plaintiff also references EOP 1.03 and 1.05 in her Amended Complaint. However, Plaintiff focuses on EOP 1.03 in opposing summary judgment.

USC seeks summary judgment, arguing the “Policy and Procedures Manual does contain a conspicuous disclaimer,” which would keep Bowers from having a “reasonable or objective expectation that the Policy created a contract since there was no meeting of the minds[.]” ECF No. 86-1 at 21. Assuming, arguendo, there was a contract, USC also argues Bowers has proffered no evidence that USC breached such contract. Bowers 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. 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. 87 at 7.

As an initial matter, the undersigned notes that Bowers has identified herself as a “senior instructor with a contract” and has noted that full time instructors [such as herself] “sign contracts for a certain number of years.” ECF No. 78 at 2 & n.2 (citing Kissel Dep. 79). Plaintiff notes she had been working from August 16, 2019 to May 15, 2022 based on a Reappointment Letter. ECF No. 78 at 16; see Reappointment letter for term from August 16, 2019 to May 15, 2022, ECF No. 78-56. Bowers also provided a copy of a letter USC sent her on March 30, 2022 offering her reappointment from August 16, 2022 through May 15, 2023, instead of her “normal 3-year term contract.” ECF No. 78 at 16. The March 30, 2022 letter included language indicating the appointment “is subject to the terms and conditions set forth in The Faculty Manual in effect on the beginning date of this reappointment.” ECF No. 78-57 at 2. As discussed above, she did not sign that letter. The reappointment letter for the August 16, 2019 to May 15, 2022 period did not contain that specific reference to The Faculty Manual.

Typically, the body of South Carolina jurisprudence used by the parties in considering whether a manual or handbook or policy may be binding on an employer typically is considering whether an implied contract of employment might be considered to exist for an at-will employee. In any event, as both parties discuss cases concerning handbooks, policies, disclaimers, and mandatory language in considering whether the Manual and EOP 1.02 create contractual terms that are binding on USC and were breached, the undersigned does as well. Cf. Crenshaw v. Erskine Coll., 850 S.E.2d 1, 10 (S.C. 2020) (finding handbook was part of tenured professor at private university's contract but noting issue as to whether handbook created contract to non-tenured faculty or others to whom handbook applied could be issue of fact for jury).

In support of her breach of contract argument, Bowers has provided a copy of the USC-Columbia Faculty Manual (last revision June 9, 2017). ECF No. 78-61. 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 education 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. 78-61 at 9. Bowers notes immediately following, The Faculty Manual provides links to its EOP policies. ECF No. 78 at 44. 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. 78-61 at 9 (bolded emphasis in original).

Other than referencing the initial language found in The Faculty Manual (with its link to EOP Policies), Bowers' 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. 78-62.

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 21-22. 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. 78-61) or EOP 1.02 (ECF No. 78-62). 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. 68-12. 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. 68-12 at 2. USC argues this “conspicuous disclaimer” is contained in the Policy and Procedures Manual. ECF No. 68-1 at 21. Without quoting to Bowers' deposition testimony specifically, USC submits, “Plaintiff acknowledged the policy is online and if Plaintiff did in fact read the policy she would have found the conspicuous disclaimer that was presented to her in her deposition as USC Exhibit 1.” Id. (citing ECF No. 68-12).

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 Bowers that USC has not demonstrated EOP 1.02 actually included this disclaimatory language that would be binding on Bowers. ECF No. 78 at 42. 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. 68-1 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 Bowers, 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 43 (citing Grant, 634 S.E.2d at 20; Conner v. City of Forest Acres, 560 S.E.2d 606, 610 (S.C. 2002)).

Bowers 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. 78-62 at 2. EOP 1.02's definition of “Prohibited Conduct” includes the following:

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. 78-62 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 43-45. 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, Bowers “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 Bowers. 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 “failure to comply with the Policy herself [] is fatal to this cause of action.” ECF No. 87 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 Bowers 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). While it appears Bowers 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 protested] 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 Bowers 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. 68, be granted as to any Title VII disparate treatment or quid pro quo claims and any Title IX disparate treatment claims, denied as to other claims, and this matter proceed to a jury trial.

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

any claim covered by the South Carolina Workers' Compensation Act, except claims by or on behalf of an injured employee to recover damages from any person other than the employer, the South Carolina Unemployment Compensation Act, or the South Carolina State Employee's Grievance Act; (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.