Opinion
C. A. 3:20-4486-MGL-KDW
08-22-2023
Pamela Jean Bowers, Plaintiff, v. University of South Carolina and David W. Voros, Defendants.
REPORT AND RECOMMENDATION (MOTION FOR SUMMARY JUDGMENT BY VOROS, ECF NO. 70)
Kaymani D. West United States Magistrate Judge.
Plaintiff Pamela Jean Bowers (“Plaintiff” or “Bowers”) filed this litigation against her former employer, Defendant University of South Carolina (“USC”), and against Defendant David W. Voros (“Voros), her former spouse and colleague at USC's School of Visual Arts and Design (“SVAD”), where he is still employed as a tenured professor. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation (“Report”). USC and Voros filed separate motions for summary judgment; this Report focuses on Voros' Motion for Summary Judgment, ECF No. 70, to which Plaintiff has responded, ECF No. 80, and Voros has replied, ECF No. 86. Having reviewed the filings, including their numerous exhibits; and applicable law, the undersigned recommends Voros' Motion for Summary Judgment, ECF No. 70, be granted and he be dismissed as a party.
I. Standard of review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). Further, “[i]t is well recognized that a plaintiff may not avoid summary judgment by submitting an affidavit that conflicts with earlier deposition testimony.” Alba v. Merrill Lynch & Co., 198 Fed.Appx. 288, 300 (4th Cir. 2006) (citation omitted).
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-including those specifically related to Bowers' defamation claim-are set out in relevant portions of this Report.
A. Beginning of Bowers' and Voros' employment with USC
Bowers and Voros were married when they began working for Defendant USC's School of Visual Art and Design (SVAD) painting department in 2000. Voros Dep. 11-12, 36-38, ECF No. 78-1.Bowers began as a temporary faculty member before she was promoted to instructor; she was later promoted to senior instructor with a contract. Id. at 37-38; see Dep. of SVAD Director Laura Kissel 79, ECF No. 78-4 (indicating full-time instructors sign contracts for a certain number of years); 2019 Reappointment, ECF No. 78-56; 2022 Reappointment, ECF No. 78-57.
Although Bowers filed a separate opposition memorandum to Voros' Motion, her factual recitation often refers to exhibits filed in response to USC's Motion for Summary Judgment, ECF No. 78.
Voros began his employment with USC as an assistant professor in 2000 and was promoted to assistant professor with tenure in or around 2005. Voros Dep. 11-13. Voros has been the head or coordinator of the painting department since 2000; he continued to serve as the Coordinator throughout Plaintiff's employment. Id. at 14-15; Deposition of one-time SVAD Director Peter Chametzky 29, ECF No. 78-2. Voros served as “sort of a middle level management controller of the painting area.” Voros Dep. 67-68. Voros was responsible for ordering materials, overseeing the facilities, overseeing curriculum and curriculum compliance, managing day-to-day activities, coordinating visiting artists, coordinating the schedule, and recommending employees for temporary faculty positions. Voros Dep. 14-15; Chametzky Dep. 31. Voros had input regarding who was hired and rehired in the painting area and who was assigned to each class. Chametzky Dep. 37; Deposition of SVAD Business Manager Kim Gore 34, ECF No. 78-5.
Chametzky and Voros testified Bowers was good at her job. Chametzky, Voros, and Bowers all testified that Voros and Bowers worked well together before their separation (in late 2016). Chametzky Dep. 31, 33-34, 52; Voros Dep. 38; Bowers Dep. 32, ECF No. 78-3.
B. Bowers' and Voros' relationship ends; Voros sends numerous emails to Bowers from USC account
Bowers and Voros separated on December 5, 2016 and divorced on September 12, 2017. Voros Dep. 38. Their separation and divorce were, at least in part, because Voros had engaged in an improper sexual relationship with a former SVAD student, Alex Stasko. Voros Dep. 39 (noting Stasko had been an SVAD graduate student). Voros testified that Bowers had made it clear she did not wish to continue a romantic relationship with him when he was served with divorce papers. Bowers “by and large ignored” any personal communications Voros sent her after the separation. Voros Dep. 40-41. The record includes numerous post-separation email messages between Voros and Bowers, many of which originated from Voros' work-supplied email account. Voros Dep. 41-42; see generally numerous emails between Voros and Bowers, ECF No. 78-21.Plaintiff requested that Voros use personal email accounts for matters concerning their children or other personal matters. Voros acknowledged that “in retrospect” it would have been “better not to use [his] work email account for personal correspondence.” Voros Dep. 44; see id. at 42-44.
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.
C. Voros allegedly interfered with Bowers' job duties
In setting out relevant facts in her opposition memorandum Bowers acknowledges that some of these allegations of Voros' interferences are in dispute. Here, of course, the court considers all facts in the light most favorable to Bowers, the nonmoving party.
Chametzky recalled that Plaintiff had complained to him that Voros was coming into the room where she taught and making her feel uncomfortable. Chametzky Dep. 67, 72 (testimony not providing specific timeframe). Chametzky testified he spoke to Voros about not entering Bowers' classroom; however, he is unsure whether Voros stopped doing so. Chametzky Dep. 67. (In his deposition Voros did not recall such a meeting with Chametzky. Voros Dep. 18, 90-91, 163-64.)
1. 2017
On March 23, 2017, Chametzky prepared a document to make the new Dean of the College of Arts and Sciences aware of some of the complaints against Voros. The document, entitled “Problems in Painting” is written in the format of a play. “Problems in Painting,” ECF No. 78-23. Chametzky explained in his deposition that he prepared his summary in this format in lieu of submitting a “standard dry memo” and noting the new dean, Nina Levine,” was an English professor. Chametzky Dep. 131-32. In the “Play”/memo Chametzky recounted various complaints that had been made concerning Voros, concluding that the “numerous reports . . . have attested to erratic, unprofessional behavior on the part of Voros this semester.” Problems in Painting 3. Chametzky noted that “[n]umerous students feel alternatingly intimidated or neglected,” noted Bowers' complaints of Voros' entering her classroom and office uninvited” and indicated Bowers was “currently on a medical leave for 17 days, for reasons derived from this stressful situation.” Id.
In opposing summary judgment, Bowers includes as a “disputed fact” that, “[i]n or around March 2017,” Voros had trapped her in her office for 15 minutes or more and made very threatening gestures toward her while her students were in the hallway. ECF No. 80 at 7; see Pl. Dep. 157-58 (referencing the incident but not indicating dates or to whom she reported it).
Chametzky completed Faculty Activities Report Evaluations for Bowers and Voros. In Plaintiff's evaluation, Chametzky noted Bowers was an effective teacher but also referenced “personal issues” that impeded her “optimal performance” for Fall 2016. May 19, 2017 Bowers Evaluation, ECF No. 78-24.
In his deposition Chametzky thought that would have been “referring to the issues between [Bowers] and [Voros].” Chametzky Dep. 101.
The record includes a November 3, 2017 email in which Bowers recaps details of complaints about Voros that she made in an October 31, 2017 meeting with SVAD Director Chametzky. Nov. 3, 2017 Bowers' recap email to Chametzky, ECF No. 78-27. The two-page email recounts Bowers' report of recent problems with Voros, noting he “is transgressing normal professional boundaries and ignoring university harassment policies in his behavior” toward her. Id. at 2. Bowers recounted that, on October 26, 2017, Voros had stopped in while she 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, asked that she go speak with him, making her and students feel uncomfortable. Nov. 3, 2017 Bowers' recap email to Chametzky. Bowers declined to meet but asked for more information by way of a return email. Voros then emailed her two or three times a few moments later stating that he urgently needed to discuss their family court matters and needed her signature on documents in the next 30 minutes before he left the building. Id. Plaintiff responded and declined to meet with him and told him these matters should not be discussed on campus. Id. She indicated Voros responded with vulgarities and hostilities and “suddenly also addressed university business,” “rewriting history in which he stated the actual intension 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 that she and Voros did not meet in person to discuss the ordering of supplies). Voros then emailed Bowers and told her she could place supply orders for herself from now on. Nov. 3, 2017 Recap Email.
In his deposition Voros states it is “preposterous” that he would have stood over Bowers during class with “malicious intent.” Voros Dep. 55, ECF No. 78-1. Voros says he does recall commenting on Bowers' blouse being unbuttoned but indicated it seemed to be the appropriate thing to do so that Bowers would be made aware. Id. at 57. Voros recalls discussing the Norway project at some point but does not recall details of when that took place. Id. at 57-59.
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.
2. 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.
USC scheduled Bowers' and Voros' classes at separate times so there would be no overlap between their classes; however, Voros continued to go to campus during Bowers' scheduled class times and continued to occupy the classroom during her scheduled time and interrupt her class by entering while she was teaching. Kissel Dep. 21-22, 27, 66-67, 81-82; Feb. 6, 2018 email to Kissel, ECF No. 78-31; April 6, 2018 email to Kissel, ECF 78-32. In an April 16, 2018 email to Kissel, Bowers forwarded some email communications she had had with Voros in which she noted his “verbal abuse and profanity” in responding to Bowers' request that Voros leave the classroom for her scheduled class. Apr. 16, 2018 email to Kissel, ECF No. 78-35.
In her recitation of “disputed facts,” Bowers alleges Voros came into her class on January 31, 2018, asked her to go into his office so he could look at supplies, and when she did “made intimate, sexual advances toward [her], such as attempting to grope and hug her.” Pl. Mem. 8, ECF No. 78 (citing pages 168 and 169 of her deposition). Bowers acknowledges Voros denies such behavior. Id. (citing Voros Dep. 64, in which he indicates he may have hugged her at times but never to make her feel uncomfortable). The court notes that the referenced pages of Bowers' deposition testimony do not include such specific allegations. Rather, Bowers testified she believed Voros' behavior at USC was worse than at home, stating, “I believe he was taking advantage of the fact that I felt too shy or humiliated to, you know, yell back for example or call out if he was trying to grope me or something.” Bowers Dep. 169. Bowers does not indicate she reported such an incident to anyone at USC.
Plaintiff also includes as a “disputed fact” that, later on January 31, 2018, Voros was “waiting for Plaintiff by her car and was smirking and laughing when Plaintiff approached her car.” ECF No. 80 at 8 (citing Pl. Dep. 180; DV emails, ECF 78-21 at 43). Those referenced pages do not specifically pinpoint such behavior. Rather, on page 180 of her deposition Plaintiff generally indicates Voros “would then be waiting for me in the parking lot at work,” Pl. Dep. 180; and in the cited email, dated January 30, 2018, Voros indicates he had “smirked because [he] caught [Bowers'] eyes and [Bowers] smiled at [Voros,]” ECF 78-21 at 43.
Voros used profanity toward Plaintiff in April 2018 in response to her requests that he leave her classroom for her scheduled class. Apr. 16, 2018 email from Bowers to Kissel, ECF 78-35.
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.
Bowers took leave under the Family Medical Leave Act (“FMLA”) for the Fall 2018 semester. Pl. Dep. 208. In early September 2018, Graduate Instructor Autumn Wertz advised Kissel that Voros had blamed Bowers for not having a class syllabus prepared because she had not given Voros enough notice so that he could prepare. Sept. 7, 2018 email from Wertz to Kissel, ECF 78-37.
3. 2019
Plaintiff returned with modified duties, meaning a reduced courseload, in Spring 2019. Pl. Dep. 208-09; Dec. 4, 2018 email, ECF 78-39. On January 1, 2019, Plaintiff told Voros that she did not want to interact with him on campus and asked Voros about having Jamie Misenheimer teach her painting class because Plaintiff was on modified duties. Voros Dep. 68. Voros indicated he could not support that because Misenheimer had been untruthful about the Allison 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.
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. Voros notes that Bowers indicated she had known Misenheimer for 16 or 17 years, that Misenheimer had babysat for the children of Bowers and Voros, and Misenheimer had provided an affidavit for Bowers in the Bowers/Voros divorce. ECF No. 70-1 at 9; see Bowers Dep. 31; Misenheimer Dep. 109, ECF No. 70-5.
Dunavant previously brought an action against USC, Voros, International Center for the Arts, and former USC President Harris Pastides. The matter ended when it was resolved in mediation. Dunavant v. Univ. of S.C., 3:18-1604-MGL. Voros has provided various details about the Dunavant matter, including that she filed a complaint with USC's Equal Opportunity Program (EOP) in June 2016 and USC determined there was insufficient evidence of gender discrimination in that matter. ECF No. 70-1 at 3-9 (through scrivener's error, Voros indicates “Plaintiff,” here Bowers filed the June 2016 EOP Complaint; the evidence does not bear this out). As noted by Voros, Dunavant's own suit included allegations of sexual harassment and assault that had not been included in the complaints submitted to USC. In Dunavant's deposition in her case, she 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. Dunavant's case was resolved at mediation. Voros begins his Memorandum with a “case summary” that argues the claims of Bowers and Misenheimer are “retaliatory and a continuation of false allegations made against Mr. Voros” in Dunavant's suit.” ECF No. 70-1 at 2. Perhaps as part of that tact, Voros' memorandum includes a relatively extensive recital of facts related to the Dunavant matter in seeking summary judgment herein. See id. at 5-8. As Voros is the movant here, all facts are considered in the light most favorable to Bowers. Accordingly, Voros' details regarding the Dunavant litigation are not repeated herein as they are not relied on by Voros in the analysis section of his Motion for Summary Judgment.
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 complained about Voros to SVAD Business Manager Kim Gore. 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. ECF No. 78 at 910. Although not specific to this incident, Voros stated he and Bowers' “relationship had degenerated to a point where [they] were berating each other quite a bit[.]” Voros Dep. 47.
Bowers also indicates that, in Spring 2019, she and Misenheimer saw each other while at work and went into the painting resource room to discuss work. Voros saw them, said they were not allowed to be there, made threats, and demanded they leave. ECF No. 80 at 10 (citing Misenheimer Dep. 144, 163; Voros emails at 68. The court notes, however, that the cited records are not related to any such incident.
Bowers says that, during Spring 2019, Voros spoke with several students in advanced undergraduate courses and in grad courses and discouraged them from taking Bowers' courses. Bowers Dep. 56-57.
Bowers submits Voros “continued to use profanity toward Plaintiff, glare at Plaintiff, bring up his personal feelings about her at work, and ignore or respond with hostility to Plaintiff's emails with work-related questions and concerns throughout 2019.” ECF No. 80 at 10. In support she references a February 28, 2019 report she and her counsel submitted to the USC Police Department, ECF No. 78-22 at 3; an April 3, 2019 email in which she sent copies of some emails from Voros to the USC Police Department, ECF No. 78-49; a February 14, 2019 email from Bowers to Voros inquiring about work to which Voros apparently responded two days later with personal information and profanity, ECF No. 801; Voros' February 21, 2019 email to Bowers using profanity, Voros emails, ECF No. 78-21 at 68. Bowers also very generally references her February 14, 2019 EOP Online Complaint Form submitted to USC's EOP Office, ECF 78-42; and a recording of Bowers' meeting with Faculty Civility Advocate Susan Bon in which Bowers reported issues concerning Voros, ECF No. 78-48.
D. Bowers' semesters of leave, return to work, and eventual retirement
Plaintiff took FMLA leave in the Fall of 2018 and Fall of 2019. She took leave without pay in the Spring and Fall of 2020. Bowers Dep. 195-98, 208-212. She attributes her leaves to the actions taken against her by Voros. See generally id.; see also Kissel's statement in Misenheimer EOP 3, ECF No. 7814 (noting the “reason [Voros'] ex-wife [Bowers] is out on leave this semester is because of the mental anguish and anxiety she suffers.”); June 11, 2018 email from Bowers to Kissel outlining concerns, ECF 78-33.
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. 78-57. Bowers retired early in May 2022. Bowers Dep. 211-12, 217-22.
E. Voros continues employment with USC
Voros continued to serve as the SVAD Coordinator and hold management duties throughout Plaintiff's employment. Voros Dep. 14-15. Voros is still employed by USC, working remotely in administrative functions since 2021, where he earns his full salary. Kissel Dep. 55-56; Voros Dep. 178180, 183. Voros was still participating in department Zoom meetings during 2021. Bowers Dep. 45-46.
III. Analysis
Voros seeks summary judgment as to both causes of action brought against him: defamation and tortious interference with contractual relations.
A. Defamation
In his principal brief Voros combs through Plaintiff's Amended Complaint and sets out nine allegations related to her defamation claim. ECF No. 70-1 at 10-11. Voros discusses the applicable law and record evidence, arguing none of the allegations should survive summary judgment based on issues of timeliness and/or lack of competent supporting evidence. Id. at 12-18. In response, Plaintiff addresses only one of these allegations, arguing Voros has “ignore[d] key pieces of evidence in the record” and she has set out evidence sufficient to create a jury question as to her defamation claim. ECF No. 80-1314.
1) Applicable law
South Carolina law applies to the defamation cause of action. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938). The tort of defamation allows a plaintiff to recover when a defendant communicates a false message about the plaintiff to others that injures the plaintiff's reputation. McBride v. Sch. Dist. of Greenville Cnty., 698 S.E.2d 845, 852 (S.C. Ct. App. 2010). To establish defamation under South Carolina law, Plaintiff must show: “(1) a falseand defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Erickson v. Jones Street Publishers, LLC, 629 S.E.2d 653, 664 (S.C. 2006) (citation omitted). Statements may be defamatory per se when they “charge the plaintiff with one of five types of acts or characteristics: (1) commission of a crime of moral turpitude; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one's business or profession.” Fountain v. First Reliance Bank, 730 S.E.2d 305, 309 (S.C. 2012). To qualify as defamation per se, the “defamatory meaning of a message or statement” must be “obvious on the face of the statement.” Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998) (using as an example of a defamatory per se statement “A is a thief.”). Whether a statement is actionable per se is a matter for the court to determine. McBride, 698 S.E.2d at 852 (citing Erickson, 629 S.E.2d at 664). When a statement is considered actionable per se, defendant is presumed to have acted with common law malice, and the plaintiff is presumed to have suffered general damages. Id. When the statement is not actionable per se, “the plaintiff must plead and prove both common law malice and special damages.” Id. “Common law malice means the defendant acted with ill will toward the plaintiff, or acted recklessly or wantonly, i.e., with conscious indifference of the plaintiff's rights.” Erickson, 629 S.E.2d at 665.
South Carolina courts typically include “falsity” in stating the elements of defamation. However, as the court noted in Jeter v. Allstate Insurance Co., No. CV 7:15-1458-TMC, 2016 WL 7115912, at *4 (D.S.C. Aug. 22, 2016), a private individual claiming defamation as to a matter that is not of public concern “has no duty to plead or prove falsity during his case-in-chief[.]” Id. at *12, n.4 (quoting Parrish v. Allen, 656 S.E.2d 382, 392 (S.C. Ct. App. 2007)). Truth is an affirmative defense as to which the defendant has the burden of proof unless the statement involves a constitutional issue. Id.
In South Carolina, defamation claims are subject to a two-year statute of limitation. S.C. Code Ann. § 15-3-550 (2005). The limitations period begins when the alleged defamatory statement is made, not when the plaintiff learns of the statement.” Harris v. Tietex Int'l Ltd., 790 S.E.2d 411, 416 (S.C. Ct. App. 2016). Here, Plaintiff's Complaint was filed November 23, 2020, making untimely any alleged defamatory statement made prior to November 23, 2018. Plaintiff does contest Voros' timeliness arguments.
2) Voros' alleged statements that Bowers lied in her complaints
In responding to Voros' Motion, Plaintiff focuses her defamation claim on allegations that Voros told others Bowers' complaints against him were dishonest. In paragraph 83 of Plaintiff's Amended Complaint she alleges that “from 2017 to 2020 Defendant Voros has made statements to faculty, students, and others that Plaintiff has lied in her complaints about him.” Am. Compl. ¶ 83. When asked what evidence she had to support this allegation Plaintiff testified that Voros had told faculty member Brad Collins that Plaintiff had lied in complaints about Voros. Bowers Dep. 69.
In opposing summary judgment Plaintiff submits that a “reasonable juror could find that Defendant Voros made false statements to Collins that Plaintiff was lying about her complaints based on [an] email from Lucas Daprile [reporter] and The State article, together with statements from Voros.” ECF No. 80 at 13. On February 17, 2021, reporter Daprile emailed Bowers to note he was working on an article concerning allegations of harassment at USC. Daprile wanted to give Bowers a chance to respond to a statement by USC professor Bradford Collins. Feb. 17, 2021 email, ECF No. 80-2 at 2. Daprile stated, “I spoke to Bradford Collins, who defended Voros, saying he didn't think Voros was a sexual harasser and that the real harassment was the allegations and lawsuits against Voros.” Id. The article, published on March 12, 2021, discussed various discrimination claims against several members of USC's faculty. The State Article, ECF No. 80-3. After referencing Meisenhiemer's suit against Voros and USC, the article referenced Bowers' claim, describing it as one “filed by current USC professor and Voros' ex-wife Pamela Bowers, alleg[ing] Voros made multiple unwanted sexual advances on Bowers after their divorce while she was working on campus.” Id. at 7. Several pages later, the article included the above-referenced quote by Collins:
Bradford Collins, a USC art history professor who is friends with Voros, doubts the sexual harassment allegations against his friend. “My impression, my knowledge of David is he is not the kind of person that would be engaged in any of that,” Collins said. “He's not a sexual harasser,” Collins said.The State article, ECF No. 80-3 at 9.
In attempting to tie Collins' quote regarding his own “impression” and “knowledge” to being evidence that Voros had told other faculty that Plaintiff had lied in her complaints about him, Bowers looks to Collins' testimony that he and Voros are “friendly colleagues,” and notes Voros' described Collins as a mentor, someone he has “pleasant banter with.” ECF No. 80 at 13. Bowers further indicates that “Bowers['] and Misenheimer's allegations have likely come up between [Voros and Collins].” Id. (citing and quoting Collins Dep. 20-21, ECF No. 78-8; Voros Dep. 177-78. Bowers also notes Voros' emails to Bowers in which he indicated she was lying about her complaints, Voros emails, ECF No. 78-21 at 8, 45, 57, 66; and his deposition testimony that he has told “lots” of others that Bowers was saying things that were not true at times, Voros Dep. 88-89. There is no evidence that Voros published any statements in his emails to Bowers to a third party (nor does Plaintiff so argue).
Plaintiff submits her claims against Voros are well-documented and true, and that “[s]uch a statement made by Defendant Voros to the contrary is false and creates the insinuation that Plaintiff is dishonest and lacks integrity and is therefore defamatory.” ECF No. 80 at 14 (citing Smith v. Bradstreet Co., 41 S.E. 763 (S.C. 1902); Tyler v. Macks Stores of SC, Inc., 272 S.E.2d 633, 634 (1989)) (emphasis added). Plaintiff submits a reasonable juror could determine Voros defamed her “by words and acts by publishing the false accusations that Plaintiff was dishonest and lacked integrity to Plaintiff's colleagues, which caused harm to Plaintiff's reputation, as shown through Collins' statements and the published article.” Id.
The undersigned agrees with Voros that Plaintiff has not set out facts sufficient to survive summary judgment. It is far from clear what particular statement by Voros Plaintiff is referencing in referring to “such a statement.” Try as she might, she has not provided evidence that Voros published false and defamatory statements about her. Certainly, Collins' quotation in The State cannot be considered defamation by Voros. The article referenced Collins' own “impression” and “knowledge.” Further, as noted by Voros, Collins testified that the last time he had spoken with Voros about Bowers' case Voros explained he was not at liberty to discuss it, and they did not discuss it. Collins Dep. 22.
At bottom, Plaintiff's attempt to use Collins' published statement to “create[] the insinuation that Plaintiff is dishonest and lacks integrity” is not enough to survive summary judgment. Bowers' failure to otherwise point to specific published statements by Voros does not permit the court to determine whether the alleged statements were (a) of a potentially defamatory nature; (b) made after November 23, 2018 (so as to be timely); or (c) were made to persons to permit the court to determine whether nonprivileged publication took place. Summary judgment is appropriate without further analysis. See, e.g., Brailsford v. Wateree Cmty. Action, Inc., 135 F.Supp.3d 433, 448 (D.S.C. 2015) (granting summary judgment as to defamation claim and finding plaintiff's general allegations insufficient to satisfy basic elements of defamation claim as to which plaintiff bore burden of proof); Doe v. Cannon, No. 2:16-cv-00530-RMG, 2017 WL 591121, at *1 (D.S.C. Feb. 14, 2017) (dismissing defamation claim because the plaintiff's allegations failed to “state with specificity the time, place, medium, and listener of the alleged defamatory statements”).
3) Bowers has not pursued other claims of defamation
In seeking summary judgment Voros goes through nine allegations in the Complaint one by one and sets out argument why those allegations are subject to summary judgment because they are untimely, unsupported, or both. See ECF No. 70-1 at 10-11; 14-18. In responding to summary judgment, however, Plaintiff focuses only on the allegation discussed above. Further, in her deposition, Bowers told defense counsel she did not recall any other allegedly defamatory statements that had been published to a third party. ECF No. 70-1 at 18 (citing Pl. Dep. 71). Plaintiff has abandoned any other claims of defamation. See Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”); Sawyers v. United Parcel Serv., Inc., C/A No. 1:18CV1037, 2019 WL 4305771, at *3 (M.D. N.C. Sept. 11, 2019) (collecting cases showing that “[t]his district and others within the Fourth Circuit agree that failing to respond to an argument constitutes an abandonment of a claim”).
B. Tortious interference with contractual relations
Bowers' remaining cause of action against Voros is one for tortious interference with contractual relations. Am. Compl. ¶¶ 137-42. To establish such a claim under South Carolina law, Plaintiff must show the following: (1) the existence of a contract, (2) knowledge of the contract, (3) the intentional procurement of its breach, (4) the absence of justification, and (5) resulting damages. Eldeco, Inc. v. Charleston Cnty. Sch. Dist., 642 S.E.2d 726, 731 (S.C. 2007).
Voros seeks summary judgment, first arguing Plaintiff has not established the existence of a contract between herself and USC. Voros also argues, that, even if Plaintiff could establish the existence of a contract of which Voros was aware, she has not established a breach by USC that was intentionally procured by Voros. See ECF No. 70-1 at 18-20; ECF No. 86 at 4-5.
In arguing Plaintiff has not established the existence of a contract, USC focuses on Plaintiff's argument that USC's Faculty Manual (sometimes referred to as USC's Handbook) and EOP Policy create a contract of employment, arguing the EOP Policy contains a conspicuous disclaimer requiring a finding there is no contract as a matter of law. ECF No. 70-1 at 19. However, as discussed in detail in the Report concerning USC's Motion for Summary Judgment, the undersigned is of the opinion the Handbook and EOP Policy do not contain a conspicuous disclaimer that satisfies S.C. Code Ann. § 411-110 as a matter of law and that Plaintiff has created an issue of fact as to whether the Handbook and Policy contain mandatory language sufficient to create an issue of fact as to whether those documents form a contract between Plaintiff and USC. See Report as to USC's Mot. Summ. J., ECF No. 101.
As to this potential contractual source, then, the undersigned is of the opinion the analysis must proceed further. USC also argues Plaintiff has not provided evidence that Voros intentionally procured the breach of any contract potentially created by the EOP Policy. ECF No. 70-1 at 19-20 (citing deposition testimony of Chametzky, Kissel, EOP Director Scott, and Graciano that they were not aware of any attempts by Voros to interfere in any EOP investigation concerning claims by Bowers).
Further, the record includes evidence of an employment contract between Plaintiff and USC: a Reappointment Letter issued by USC on April 19, 2019 and accepted by Plaintiff on May 5, 2019 that appointed her as an SVAD Senior Instructor for the period of August 16, 2019 to May 15, 2022, at ¶ 9-month salary of $48,655. ECF No. 78-56. The record also includes a March 30, 2022 Reappointment Letter in which USC offered Bowers a reappointment for a one-year period: from August 16, 2022 to May 15, 2023. ECF No. 78-57. Plaintiff opted not to accept that reappointment; rather, Bowers retired early in May 2022. Bowers Dep. 211-12, 217-22. As argued by Voros, Plaintiff has presented no evidence the contract was breached at all. Rather, Plaintiff was offered a contract-renewal that she opted not to accept. ECF No. 86 at 5.
The undersigned agrees with Voros that Plaintiff cannot establish that Voros “intentionally procured the breach” of any employment contract that may have existed between Plaintiff and USC. Accepting for purposes of this Report that an issue of fact exists as to whether the Handbook and EOP may have created an employment contract based on USC's promises to undertake certain investigations, Plaintiff has pointed to no evidence that Voros intentionally interfered with such promises. Plaintiff generally submits that Voros intentionally procured a contract-breach by doing the following: sending hostile and harassing emails on Plaintiff's USC account after she asked him to stop, interrupting her scheduled class times, making negative statements, not providing a graduate assistant, demanding to meet in person on work business but then raising personal business, restricting her access to resources, and “berating, stalking, and sexually harassing Plaintiff at work.” ECF No. 80 at 15-16. Accepting all facts in the light most favorable to Plaintiff, this behavior by Voros might be considered “interference for an improper purpose,” which is another element of the tort. However, because Plaintiff has not set out any evidence linking Voros' behavior to procuring any actual contractual breach by USC summary judgment in Voros' favor is appropriate.
In making this recommendation, the court has considered the argument Plaintiff fashioned based on the Supreme Court of South Carolina's somewhat recent decision of Hall v. USB Financial Services, Inc., 866 S.E.2d 337, 345 (S.C. 2021). In that case, the court considered whether a tortious interference with contractual relations could lie when the “contractual relations” at issue were those of an employer and its at-will employee. In answering a certified question, the court determined that an at-will employment relationship could form the basis of a tortious-interference claim. The court explained that, while there is “no breach of contract when an employer fires an at-will employee[,] . . . the absence of an underlying breach does not shield a third party from liability when she intentionally and unjustifiably procures the termination of an at-will employee.” 866 S.E.2d at 344 (emphasis added).
Here, Plaintiff has provided no evidence of Voros' intentional procurement of any contractual breach. Hall's holding focuses on the at-will employment relationship. Even if the reasoning of Hall has application here, its holding does not assist Plaintiff because she has provided no evidence that she was actually terminated, let alone that Voros “intentionally and unjustifiably procured” that termination. As discussed at some length in the Report concerning the federal causes of action against USC, Plaintiff has argued that she was constructively discharged. However, the constructive discharge argument offered and discussed is that associated with judge-made law concerning federal employment civil rights statutes such as Title VII and Title IX. Plaintiff has offered no argument that the constructive discharge doctrine has any application in finding that a “discharge” of employment under South Carolina law as contemplated by Hall has taken place.
Accordingly, summary judgment is appropriate as to Plaintiff's claim of tortious interference with contract.
IV. Conclusion and Recommendation
For the reasons set forth above, the undersigned recommends Voros' Motion for Summary Judgment, be granted and he be dismissed as a party.
IT IS SO RECOMMENDED.