Opinion
Civil Action 7:20-726-HMH-KFM
06-01-2022
Jennifer L. Calloway and Brad Calloway, Plaintiffs, v. University of South Carolina, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the defendant's motion for summary judgment (doc. 31). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
I. FACTS PRESENTED AND PROCEDURAL HISTORY
The University of South Carolina (“USC”) is a political subdivision of the State of South Carolina with regional campuses throughout the state (doc. 31-1 at 1-2). Jennifer Calloway ("Mrs. Calloway") was employed under contract by USC at its campus in Spartanburg County, South Carolina ("USC Upstate") as the head coach for the women's volleyball team from 1996 until November 2018 (docs. 35-3, Calloway decl. ¶ 3; 35-13 at 3; 35-16 at 4, 6).
In July 2017, USC Upstate hired Julio Freire ("Mr. Freire") to replace its retiring athletic director (docs. 1-1 ¶ 37; 31-1 at 2). As the athletic director, Mr. Freire was Mrs. Calloway's direct supervisor (docs. 1-1 ¶ 39; 31-1 at 2). Mrs. Calloway alleges that Mr. Freire sexually harassed her in a meeting on November 27, 2017 (docs. 35 at 3-4; 35-10 at 2). In an email reporting the harassment to Brendan Kelly, Ph.D. ("Dr. Kelly"), the USC Upstate chancellor, on January 3, 2018, Mrs. Calloway stated that she told Mr. Freire in the meeting that she needed more scholarships, higher paid assistants, and a pay raise to make the women's volleyball team more successful (doc. 35-10 at 2). Further, Mrs. Calloway reported that Mr. Freire responded to her request by stating, "What are you going to do extra for me that you aren't currently doing if I give you this big raise?" (id.) (emphasis in original). Mrs. Calloway claimed that she froze because she could tell by Mr. Freire's actions, tone, and demeanor that his comments were sexual in nature (id.). Additionally, Mrs. Calloway reported that Mr. Freire then closed the door, told her that they needed some privacy, and stated, "[B]e careful what you ask for. If I give you something, I expect something in return," and "You see, I could give you that big raise, but you wouldn't work any harder to earn it so why would I give it to you?" (id.). Mrs. Calloway reported that she "was in shock that he had suggested sexual favors for the warranted raise [she] had requested" (id.).
When questioned about Mr. Freire's comments in her deposition, Mrs. Calloway denied that Mr. Freire had ever used those words or similar prior to the meeting on November 27th (doc. 31-4, Calloway dep. 128:5-130:18, 136:13-137:5). However, the defendant has identified a draft memorandum that Mrs. Calloway wrote summarizing her conversation with Mr. Freire after a post-season meeting with him on November 21, 2017, which provides in relevant part, “You have referred multiple times that when you give me more resources that you expect something in return. I want to make sure we're on the same page in that being woefully underfunded for so long has an impact that will not be turned around overnight” (id. at 217:2-21, 221:20-224:2). Nevertheless, Mrs. Calloway testified in her deposition that the meeting on November 27th "was different because his tone was different. The way his body language was different. His demonstrative attitude and the way he was talking to me was different. The way he walked by me saying, 'You better watch what you ask for,' was different" (id. at 224:16-24).
Mrs. Calloway testified that after she reported Mr. Freire's alleged sexual harassment, Dr. Kelly purposefully avoided her at a fundraising auction at USC Upstate, his communication with her stopped, and he did not inform her that one of her players was speaking at the freshmen convocation or that he was honoring this player with the Earl Gordon Award, the highest award given by the school (doc. 35-2, Calloway dep. 206:6-25, 207:1-208:10, 209:16-20). Additionally, Mrs. Calloway testified that Dr. Kelly and his family were formerly very involved with the volleyball program, but, after she reported Mr. Freire's alleged sexual harassment, Dr. Kelly and his family did not attend any volleyball games in the 2018 season (id. at 208:17-25).
Mrs. Calloway also alleges that after she reported Mr. Freire's conduct, the defendant chose to not make any kind of formal or informal determination as to whether sexual harassment occurred (doc. 35 at 5; 35-11, Kelly dep. 141:1-18). However, the defendant submits that Dr. Kelly referred Mrs. Calloway's complaint to USC Upstate's Title IX coordinator, Alphonso Atkins ("Mr. Atkins"), and the USC Columbia Title IX department, from which Rhonda Edwards ("Ms. Edwards"), a senior investigator in the USC Equal Opportunity Programs, responded (doc. 31-5 at 2-7). Mr. Atkins and Ms. Edwards were appointed co-investigators of Mrs. Calloway's Title IX complaints and met with her on January 19, 2018 (id.). Following the interview, Mr. Atkins and Ms. Edwards advised Mrs. Calloway regarding the investigative process moving forward, which required Mrs. Calloway's execution of a formal complaint (id. at 5, 7). However, Mrs. Calloway did not execute a formal complaint, and a formal investigation was not opened (id. at 2-7). Mrs. Calloway submits that she did not file a formal complaint because Mr. Atkins and Ms. Edwards discouraged her from doing so by informing her that if she filed a formal complaint, she would be precluded from filing a complaint with the Equal Employment Opportunity Commission ("EEOC") or any outside agency (doc. 35-2, Calloway dep. 169:2-171:9). Nevertheless, USC Upstate appointed the associate athletic director as Mrs. Calloway's direct supervisor (doc. 31-3, Kelly dep. 131:1-14).
USC Upstate received other complaints regarding Mr. Freire from other coaches and donors (docs. 31-1 at 5; 35-11, Kelly dep. 147:25-149:13). Therefore, USC Upstate terminated Mr. Freire's employment due to these complaints, as well as "overall unrest within the athletic department" (id.). USC Upstate then hired Daniel Feig ("Mr. Feig") as its athletic director in June 2018 (docs. 31-1 at 5; 35 at 6; 35-3, Calloway decl. ¶ 14). Dr. Kelly tasked Mr. Feig with making the sports programs more competitive for conference championships, and, thus, Mr. Feig evaluated the teams based on their win/loss record, team culture, and academic success (docs. 35-25 at 4; 35-8, Feig dep. 32:4-13, 38:15-44:9, 92:23-93:7; 35-11, Kelly dep. 250:21-253:20). Specifically regarding the volleyball team, Mr. Feig asked Mrs. Calloway to provide him with written feedback about some of the strengths and weaknesses of the athletic department generally and her program (doc. 35-13 at 2-5). Mrs. Calloway provided the documentation to Mr. Feig on June 28, 2018, part of which detailed her concerns about the volleyball program's need for additional funding (id.). Mr. Feig and Mrs. Calloway had a meeting on this feedback, and Mrs. Calloway submits that Mr. Feig told her that he understood how hard it was to be successful when the program was underfunded and that he was hoping that he would be able to change that by providing the volleyball program with more money (doc. 35-3, Calloway decl. ¶¶ 14-16).
During Mrs. Calloway's employment as the head volleyball coach, the volleyball team was honored several times for the players' academic achievements (docs. 35-7 at 2-8; 35-7 at 2). Additionally, in 2018, the volleyball team had a record of 13-19, with the team making it to the conference tournament and finishing fifth in the conference (docs. 35-26; 35-27). Mrs. Calloway testified that making it to the conference tournament was "a big deal" for the team and the school and that she purposefully made the team's non-conference schedule more challenging so that the players would be more prepared for the post-season competition (doc. 35-2, Calloway dep. 121:19-123:3). Since the volleyball program moved from Division II to Division I twelve years prior, the volleyball team had not had a winning season (doc. 35-8, Feig dep. 146:16-21). Mrs. Calloway submits that, prior to moving to Division I, her volleyball team was extremely successful at Division II (doc. 35-3, Calloway decl. ¶¶ 10-11). However, when the team moved to Division I, the volleyball program was not provided any increase in budget, which was needed to be competitive with other Division I teams (id. ¶ 12).
On November 30, 2018, Mr. Feig and Dr. Kelly informed Mrs. Calloway that they were not renewing her contract for "competitive reasons" (docs. 35-2, Calloway dep. 200:2-203:23; 35-16 at 4, 6). While working as the volleyball coach, Mrs. Calloway was never given any negative feedback from Mr. Feig or any kind of warning that her job was in jeopardy for poor performance or lack of winning seasons (docs. 35-3, Calloway decl. ¶¶ 7, 17-20; 35-8, Feig dep. 128:15-129:2, 132:8-13, 155:12-156:9). Mrs. Calloway testified that if she had known her job was in jeopardy based on her win/loss record, she would have scheduled easier matches against lower ranked schools to ensure that she had a higher winning percentage (doc. 35-3, Calloway decl. ¶ 21). Instead, Mrs. Calloway operated under the premise that it was important to make the conference tournament, which she did the last three years of her employment (id. at ¶ 22).
Mrs. Calloway and her husband, Brad Calloway ("Mr. Calloway"), (collectively "plaintiffs") filed an amended complaint in the Spartanburg County Court of Common Pleas on January 28, 2020, alleging claims of sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"); sex discrimination and retaliation in violation of Title IX of the Education Amendments of 1972 ("Title IX"); and state law claims for negligent hiring and negligent training and supervision (doc. 1-1). Mr. Calloway also brought a state law claim for loss of consortium (id.). The defendant removed the matter on February 13, 2020 (doc. 1). On January 18, 2022, the parties filed a stipulation dismissing with prejudice the claims of sex discrimination and retaliation under Title IX and the state law claim of negligent training and supervision (doc. 29). On the same date, the defendant filed a motion for summary judgment (doc. 31). The plaintiffs filed a response on February 9, 2022 (doc. 35). In their response, the plaintiffs state they “are not resisting” the motion on the claims for loss of consortium and negligent hiring (id. at 1). Accordingly, those claims should be dismissed without opposition from the plaintiffs, leaving the claims for sex discrimination and retaliation under Title VII remaining. This matter is now ripe for review.
II. APPLICABLE LAW AND ANALYSIS
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “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 judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only 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.
B. Mr. Calloway
Although not raised by the parties, the undersigned finds that Mr. Calloway lacks standing. Article III of the Constitution extends the judicial power of the United States only to actual cases and controversies. U.S. Const. art. III. Because of this constitutional limitation, a plaintiff must show that he has standing to adjudicate his claim in federal court. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998). To establish standing, "a plaintiff must demonstrate that: (1) [he] has suffered an injury in fact; (2) the asserted injury in fact is fairly traceable to, or caused by, the challenged action of the defendant; and (3) it is likely rather than just conjectural that the asserted injury in fact will be redressed by a decision in the plaintiff's favor." Taubman Realty Grp. Ltd. P'ship v. Mineta, 320 F.3d 475, 480 (4th Cir. 2003) (citation omitted). "[T]he injury-in-fact element requires that the plaintiff suffer an invasion of a legally protected interest [that] is concrete and particularized, as well as actual or imminent." Friends for Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 320 (4th Cir. 2002) (citations and internal quotation marks omitted). "Because questions of standing are jurisdictional in nature, they may be raised at any time by a party or sua sponte by the court." Bradacs v. Haley, 58 F.Supp.3d 499, 506 n.4 (D.S.C. 2014) (citing Plyler v. Moore, 129 F.3d 728, 731 n.6 (4th Cir. 1997); Ctr. State Farms v. Campbell Soup Co., 58 F.3d 1030, 1038 (4th Cir. 1995)).
Here, Mr. Calloway has voluntarily dismissed his loss of consortium claim, and the only remaining claims are for sex discrimination and retaliation under Title VII, which are based on the defendant's actions regarding Mrs. Calloway's employment. Therefore, because Mr. Calloway has not alleged that he suffered an injury in fact with regard to the remaining claims, the undersigned finds that he lacks standing and recommends that the district court dismiss him from the instant matter.
C. Sex Discrimination
1. Exhaustion
As an initial matter, the defendant argues that Mrs. Calloway did not exhaust her administrative remedies for her sex discrimination claim (doc. 31-1 at 13-16). Before filing a civil action under Title VII in federal court, a plaintiff must first exhaust her administrative remedies by filing a charge of discrimination with the EEOC within 300 days of the alleged discriminatory act. See 42 U.S.C. § 2000e-5(e)(1), (f)(1); Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843 (2019); Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). In the employment discrimination context, courts have interpreted statutory requirements to exhaust administrative remedies to mean that each discrete incident of discriminatory treatment must be administratively exhausted. Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002)). The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976) (stating that a subsequent civil suit "may encompass only the 'discrimination stated in the [EEOC] charge itself or developed in the course of a reasonable investigation of that charge'") (quoting Equal Emp. Opportunity Comm'n v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976)); see also Smith, 202 F.3d at 247 ("A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit."). "Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (affirming the district court's dismissal of some of the plaintiff's claims because they were outside the scope of her original EEOC charge and were therefore time barred).
Here, Mrs. Calloway filed a charge with the EEOC on August 2, 2019 (docs. 35-16 at 3-4; 31-1 at 16; 35 at 14). Therefore, Mrs. Calloway's only timely allegations are those that occurred on or after October 6, 2018 (300 days prior to August 2, 2019). Because Mrs. Calloway's charge includes allegations occurring after this date, the undersigned will consider whether she exhausted her sex discrimination claim based on those timely allegations herein.
When asked in the charge what the alleged discrimination was based on, Mrs. Calloway checked the boxes for sex and retaliation (doc. 35-16 at 4). Further, Mrs. Calloway provided in the "particulars" section of the charge, in relevant part, that she believed that "gender discrimination and my raising concerns regarding gender discrimination and sexual harassment were motivating factors in my termination. I believe I was retaliated against" (id.). Mrs. Calloway also attached a three-page document to her charge with additional factual allegations, including, in relevant part, as follows:
[O]n November 30, 2018, I was called into a meeting with Mr. Feig. I thought this was going to be a meeting to recap the season and go over my contract. Instead, Mr. Feig told me that they were not renewing my contract. When I asked why they were not renewing my contract, Mr. Feig told me it was for "competitive reasons."
I believe this was pretextual. There are several sports at USC Upstate that have not had competitive seasons by any standards. The baseball program has not had a winning season since 2012. The men's soccer program had a losing season and a losing conference record in 2018. Yet, these male coaches were not terminated for "competitive reasons." . . . When I complained that I did not want to provide sexual favors in exchange for being provided adequate funding for my team, I was retaliated against and fired. ...
Overall, I believe I was held to a higher standard than my male counterparts. . . . I was, purportedly, fired for "competitive reasons." In reality, I believe I was fired both due to my gender and in retaliation for my complaint regarding sexual harassment ....(Doc. 35-16 at 7).
In comparison, in her amended complaint, Mrs. Calloway alleged as follows in her claim for sex discrimination:
Defendant's conduct was discriminatory against [Mrs. Calloway] with respect to failing to treat her equally to male coaches, allowing her to be discriminated against by her supervisors, subjecting her to different and heightened scrutiny at work, holding her to different and higher standards, and retaliating against her for engaging in conduct protected by Title VII, in particular, reporting the sexual harassment of Freire, in violation of Title VII.(Doc. 1-1 ¶ 85). Mrs. Calloway also alleged that Mr. Feig told her that USC Upstate was not renewing her contract for competitive reasons on November 30, 2018; despite the lack of funding for the women's volleyball team, Ms. Calloway's team record was better comparatively than most of the other athletic teams at USC Upstate; and contracts for coaches of teams with less competitive athletic and academic records were renewed by USC Upstate (id. ¶¶ 77-81).
The defendant argues that Mrs. Calloway failed to exhaust her administrative remedies because her charge and deposition testimony regarding her allegations after October 6, 2018, "center around" her Title IX claim and her allegations of Mr. Freire's conduct on November 27, 2017 (doc. 31 at 16). The defendant further argues that Mrs. Calloway's charge does not articulate specific allegations of discriminatory conduct occurring after October 6, 2018 (id. at 14). As seen in the description above, Mrs. Calloway clearly alleged in both her charge and her amended complaint that her contract was not renewed on November 30th because of her gender and that male coaches with less competitive records were retained. Additionally, Mrs. Calloway checked the relevant box for sex discrimination in her charge. Therefore, the undersigned finds that Mrs. Calloway has exhausted her sex discrimination claim and will consider the merits of that claim herein.
2. Merits
Mrs. Calloway alleges that the defendant discriminated against her based on her gender in violation of Title VII when it did not renew her contract (docs. 1-1 ¶¶ 84-85; 35 at 8-23). Title VII makes it "an unlawful employment practice for an employer - (1) 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 . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1). "A plaintiff has two potential avenues to avoid summary judgment in a Title VII discrimination claim." Perkins v. Int'l Paper Co., 936 F.3d 196, 206 n.4 (4th Cir. 2019). The plaintiff may proceed under the mixed-motive framework, presenting "direct or circumstantial evidence that creates a genuine issue of material fact as to whether an impermissible factor such as race solely or partially motivated the employer's adverse employment decision." Id. Alternatively, the plaintiff may proceed under the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Id. Because Mrs. Calloway proceeds under the McDonnell Douglas framework, the undersigned will address her sex discrimination claim accordingly.
There are three steps under the McDonnell Douglas framework:
(1) the plaintiff must establish a prima facie case of discrimination or retaliation; (2) if the plaintiff presents a prima facie case, then the burden shifts to the defendant to show a legitimate, non-discriminatory or non-retaliatory reason for the adverse employment action; and (3) if the defendant shows such a reason, then the burden shifts to the plaintiff to prove that the reason is pretextual.Sanders v. Tikras Tech. Sols. Corp., 725 Fed.Appx. 228, 229 (4th Cir. 2018). To show a prima facie case of discrimination, a plaintiff must demonstrate: (1) membership in a protected class; (2) satisfactory work performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class, or some other evidence giving rise to an inference of unlawful discrimination. See id. at 230 (citation omitted); Whitaker v. Nash-Rocky Mount Bd. of Educ., 546 Fed.Appx. 209, 211 (4th Cir. 2013).
Here, the defendant does not appear to contest that Mrs. Calloway has shown a prima facie case of sex discrimination. Additionally, the undersigned finds that Mrs. Calloway has made such a showing sufficient to survive summary judgment. Mrs. Calloway was a female coach for the defendant, and the defendant decided to not renew her contract. See Mooberry v. Charleston S. Univ., C/A No. 2:20-00769-RMG-MGB, 2021 WL 5911333, 5 n.5 (D.S.C. Nov. 4, 2021) (finding that the defendant's non-renewal of the plaintiff's contract was an adverse employment action under Title VII), R&R adopted by 2022 WL 123005 (D.S.C. Jan. 13, 2022); Marzett v. Charleston Cnty. Sch. Dist., C/A No. 2:14-cv-3932-RMG-MGB, 2017 WL 1274254, at *9 (D.S.C. Jan. 27, 2017) ("In addition, the court finds that the Plaintiff suffered an adverse employment action when her contract was not renewed by [the defendant]."), aff'd by 697 Fed.Appx. 186 (4th Cir. 2017). Moreover, Mrs. Calloway has shown a genuine issue of material fact regarding satisfactory job performance through evidence of some success in this role and that the defendant never communicated to her or documented any issues regarding her win/loss record during her employment. Further, Mrs. Calloway has presented evidence giving rise to an inference of discrimination. Specifically, she has presented evidence that the defendant never communicated to her during her employment the reasons it now gives for not renewing her contract. Moreover, while not necessary to show both, Mrs. Calloway has also presented some evidence of different treatment of similarly situated employees outside of the protected class. Specifically, Mrs. Calloway identified that she finished the 2018 season with a .406 win percentage, made the conference tournament, and finished fifth overall in the conference. In comparison, however, the male coach of the men's soccer team achieved a .219 win percentage and did not make the conference tournament, yet his contract was renewed (doc. 35-28). Moreover, the male coach of the men's basketball team was retained despite having a record of 3-26, or a .103 win percentage, and finishing last in the conference (doc. 35-29). Mrs. Calloway has also presented evidence that Mr. Feig communicated with at least one male coach, Tyson John, regarding his need to improve his win/loss record (doc. 35-8, Feig dep. 155:12-15). Further, Mr. Feig testified that he has had evaluations with coaches where he "would certainly let them know, it is [his] expectation that they might have more success in future years than they have . . ." (doc. 35-8, Feig dep. 44:18-22). Thus, the plaintiff has shown a prima facie case of sex discrimination.
The defendant argues that, even assuming Mrs. Calloway can establish a prima facie case, she cannot show that its non-discriminatory reason for not renewing her contract was pretext for discrimination (doc. 31-1 at 18). The defendant submits that it did not renew Mrs. Calloway's contract for lack of competitive performance, twelve non-winning seasons in a row, and propounding a culture of mediocrity (id.). The defendant has presented evidence that Mr. Feig was newly hired and tasked with evaluating the sports programs and making them more successful.
The defendant also argues that Mrs. Calloway's prior knowledge of Mr. Freire's tendency to use the same or similar language as presented during the meeting on November 27th presented an issue of credibility (doc. 31-1 at 14). However, credibility determinations are for the jury and not for the court at the summary judgment stage. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.”); Shaw v. Stroud, 13 F.3d 791, 804 (4th Cir. 1994) (“[T]he credibility of a deposition is a question for the jury rather than an issue to be settled at the summary judgment stage.”) (citation omitted).
However, Mrs. Calloway has presented evidence that the defendant did not provide her with any negative feedback regarding her job being in jeopardy or that she needed to improve her win/loss record. Specifically, Mrs. Calloway provided in her declaration that she "never received a written warning, counseling, or performance improvement plan that my job was in jeopardy if I did not win more games," "[a]t no time did [Mr.] Feig ever tell me I had to win to keep my job," "[a]t no time did Feig ever tell me he had any concerns with my win-loss record or that I was in danger of losing my job," "[a]t no time did Feig ever even hint that he was disappointed in the way I was coaching," and "[Dr.] Kelly never told me that I needed to win in order to keep my job or that he was disappointed with any aspect of my coaching" (doc. 35-3, Calloway decl. ¶¶ 7, 17-20). Additionally, Mr. Feig testified that he never communicated to Mrs. Calloway that her job was in jeopardy if she was not more competitive (doc. 35-8, Feig dep. 128:15-21). Mr. Feig further testified that he did not recall ever having any conversations with Mrs. Calloway about negative performance (id. at 132:8-13). When asked why he had not had such conversations with the plaintiff, Mr. Feig testified, "I think - well, I guess it never came up, but, in general, that was our expectation in Division I athletics, is that we be competitive. So I think every coach I have ever worked with knows that that's like the Number 1 expectation" (id. at 128:22-129:2). While Mr. Feig testified that he would have given Mrs. Calloway feedback about needing to win more had he been present for the 2017 season or had he renewed her contract in 2018, Mr. Feig does not explain why he did not provide her with any feedback in the approximately six months that he served as her direct supervisor or before and/or during the 2018 season (id. at 155:12-156:9). Further, Dr. Kelly testified that feedback regarding the volleyball team being mediocre and needing improvement should come from a direct supervisor, or athletic director, and that it is the direct supervisor's role to give feedback on the lack of progress (doc. 35-11, Kelly dep. 253:21-254:18).
The significance of the defendant's lack of feedback is exacerbated when viewed in light of the defendant's disciplinary procedures, Mr. Feig's testimony about his management style, and the fact that Mr. Feig provided such feedback to at least one other male coach. USC Upstate has disciplinary procedures that provide that supervisors should engage in "[c]oaching, counseling, and correction" to help an employee improve performance and that "[g]ood documentation is vital and necessary to support the level of discipline imposed" (doc. 35-15 at 2-3). Further, Mr. Feig testified that he has performance evaluations with coaches and provides them with feedback "so we can be on the same page, in terms of all facets of their program," which is important "so they understand we need to be successful in all three of these phases" (doc. 35-8, Feig dep. 44:10-45:13).
Additionally, as set out above, Mrs. Calloway provided in her declaration that she purposefully made her schedule tougher to prepare the team for the conference tournament and that she would have scheduled her non-conference games differently had she known that her job was in jeopardy for not having winning seasons. Further, Mrs. Calloway argues in her response to the motion for summary judgment that her "personnel file is completely devoid of any performance documentation relating to any issues, including any documentation of the reasons now proffered by [the d]efendant for its actions" (doc. 35 at 11). Moreover, Mrs. Calloway has presented evidence that male coaches with less successful records than her had their contracts renewed and one male coach was given feedback about needing improvement in winning.
A court in this district has addressed similar facts in Mooberry, 2021 WL 5911333. In that case, the plaintiff was employed as the head volleyball coach for the defendant university. Id. at *1. The plaintiff made various complaints of gender discrimination to the defendant, and the defendant's athletic director shortly thereafter declined to renew her contract after six years of employment. Id. at *1-2. The defendant subsequently stated that it did not renew the plaintiff's contract because "(1) [the athletic director] observed that she did not possess the characteristics of a Division I coach; (2) she received negative feedback from some of her team members; and (3) she had an unimpressive win-loss record." Id. at *5 (internal quotation marks omitted). However, the court found that a reasonable factfinder could conclude that the defendant's stated reason for not renewing the volleyball coach's contract was pretext for discrimination when none of the defendant's proffered reasons were communicated to her during her employment or at the time of her employment termination; the athletic director testified that he did not talk to her about her winning percentage and how that could affect her; her personnel file did not contain documentation related to the stated performance issues; the athletic director testified that his personal style of handling employee issues was to deal with things immediately as they came up and he found it important to document performance issues; and the defendant's employee handbook stated that expectations of an employee's job performance and work conduct were to be communicated and explained throughout the course of employment. Id. at *5-6.
Likewise, here, the undersigned finds that a reasonable factfinder could conclude that the performance issues that the defendant now proffers as its non-discriminatory reasons for not renewing Mrs. Calloway's contract are pretextual, particularly in light of the fact that Mrs. Calloway was a long-time employee of the defendant and was never provided any feedback or counseling regarding any performance issues prior to the non-renewal of her contract. Therefore, the undersigned recommends that the district court deny the defendant's motion for summary judgment on Mrs. Calloway's sex discrimination claim.
D. Retaliation
Mrs. Calloway also alleges that the defendant retaliated against her in violation of Title VII by not renewing her contract because she reported Mr. Freire's alleged sexual harassment (docs. 1-1 ¶¶ 83-88; 35 at 23-26). In analyzing this claim, Mrs. Calloway proceeds under the McDonnell Douglas burden-shifting framework, and thus, the undersigned will consider her retaliation claim under that framework herein.
Title VII also prohibits unlawful retaliation, preventing employers from "discriminating] against of [their] employees ... because [the employees] ha[ve] opposed any practice made an unlawful employment practice by [Title VII] ..." 42 U.S.C. § 2000e-3(a). To establish a prima facie case for Title VII retaliation a plaintiff must show "(i) that [she] engaged in protected activity, (ii) that [her employer] took adverse action against [her], and (iii) that a causal relationship existed between the protected activity and the adverse employment activity." Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015) (citation and internal quotation marks omitted). Once a prima facie case has been established, the burden then shifts to the employer "to show its purportedly retaliatory action was in fact the result of a legitimate non-retaliatory reason." Id. If the employer makes this showing, the burden shifts back to the plaintiff to present sufficient evidence to rebut the employer's purported nonretaliatory reasons by demonstrating they "were not its true reasons, but were a pretext for discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (citations and internal quotation marks omitted); see also Foster, 787 F.3d at 250. "To satisfy the pretext of a Title VII retaliation claim, the plaintiff bears the ultimate burden of establishing that [his] protected activity was a but-for cause of the adverse action." Jones v. UnitedHealth Grp., Inc., 802 Fed.Appx. 780, 781-82 (4th Cir. 2020) (citation and internal quotation marks omitted). "If a plaintiff can show that she was fired under suspicious circumstances and that her employer lied about its reasons for firing her, the factfinder may infer that the employer's undisclosed retaliatory animus was the actual cause of her termination." Foster, 787 F.3d at 250 (citing Reeves, 530 U.S. at 148).
As an initial matter, after summarizing the relevant law, the defendant's argument in its motion on Mrs. Calloway's retaliation claim states, in its entirety, is as follows:
As with Mrs. Calloway's claim for discrimination, the decision not to renew her contract was based on a lack of competitive success, twelve years of non-winning seasons, and a culture of mediocrity. Mrs. Calloway acknowledges competitive reasons as the basis for her non-renewal in her EEOC filing and deposition. However, her refusal of that reason and subjective belief USC retaliated against her does not constitute direct evidence of the same.(Doc. 31-1 at 19). As set out above, Mrs. Calloway chose to proceed under McDonnell Douglas, and thus, the undersigned declines to address the defendant's argument regarding a lack of direct evidence. See Saulsberry v. Savannah River Remediation, LLC, C/A No. 1:16-cv-02792-JMC, 2019 WL 3711978, at *7 (D.S.C. Aug. 7, 2019) ("A plaintiff is at liberty to choose whether he or she wishes to present direct evidence of an intentional discrimination claim or proceed under the burden-shifting framework, which utilizes both circumstantial evidence and an inferential scheme, first laid down by McDonnell Douglas.") (citations omitted). Moreover, it again appears that the defendant does not contest Mrs. Calloway's ability to show a prima facie case of retaliation but rather argues that she cannot show that the defendant's non-discriminatory reasons for not renewing her contract were pretext. In her response, Mrs. Calloway asserts that she "engaged in protected activity when she made a good-faith complaint of sexual harassment" and that the "[d]efendant does not argue that [she] did not engage in protected activity for purposes of making a prima facie showing" (doc. 35 at 23). The defendant did not file a reply.
Nevertheless, as with Mrs. Calloway's sex discrimination claim, the undersigned will address Mrs. Calloway's ability to show a prima facie case. Mrs. Calloway has presented evidence that the defendant took an adverse action against her by not renewing her contract. Moreover, as discussed in the pretext analysis, Mrs. Calloway has shown a causal relationship between her complaint about Mr. Freire and the defendant not renewing her contract. However, the undersigned questions whether Mrs. Calloway can show one element of the prima facie case of discrimination - that she engaged in a protected activity.
Protected activity "includes complaining to superiors about suspected violations of Title VII." Strothers v. City of Laurel, Md., 895 F.3d 317, 328 (4th Cir. 2018) (citation and internal quotation marks omitted). "To warrant protection, the employee's perception of a violation must be objectively reasonable under the circumstances known to her." Id. (citation and internal quotation marks omitted). When determining whether a plaintiff had a reasonable basis to oppose what she perceived as sexual harassment, courts examine the elements of such claim in light of what the plaintiff knew. See id. Presuming that Mrs. Calloway was complaining of quid pro quo sexual harassment, a plaintiff bringing such claim must show that (1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) her reaction to the harassment affected tangible aspects of her compensation, terms, conditions, or privileges of employment; that is, the acceptance or rejection of the harassment must be an express or implied condition to the receipt of a job benefit or cause of a tangible job detriment; and (5) the employer knew or should have known of the harassment and took no effective remedial action. Okoli v. City of Baltimore, 648 F.3d 216, 222 (4th Cir. 2011) (citation omitted). Here, Mrs. Calloway has alleged that Mr. Freire requested sexual favors for providing her with a raise and additional funding for the volleyball team. While Mr. Freire's language in the meeting on November 27th does not necessarily indicate that his conduct was based on sex, Mrs. Calloway testified that his tone and demeanor indicated that his comments were sexual in nature and that his demonstrative attitude was different during that meeting than on prior occasions. Because of this testimony, as well as the defendant's lack of opposition to Mrs. Calloway's ability to show this element or a prima facie case, the undersigned is constrained to find that a genuine issue of material fact remains regarding whether she engaged in a protected activity.
The defendant argues that it did not renew Mrs. Calloway's contract for lack of competitive performance, twelve non-winning seasons in a row, and propounding a culture of mediocrity. However, for similar reasons as discussed with Mrs. Calloway's sex discrimination claim, the undersigned finds that a reasonable factfinder could conclude that the defendant's stated reason was pretext for retaliation. The defendant has presented evidence that Mr. Feig was newly hired and tasked with evaluating the sports programs and making them more successful. Moreover, at the time that Mrs. Calloway's contract was not renewed, she had twelve consecutive non-winning seasons. Nevertheless, Mrs. Calloway was a long-time employee of the defendant, having worked as the head volleyball coach for over 22 years. Moreover, at her first contract renewal after reporting Mr. Freire's alleged sexual harassment, Mrs. Calloway's contract was not renewed. Further, Mrs. Calloway testified that her relationship with Dr. Kelly changed after she reported Mr. Freire's alleged sexual harassment, and the record reflects that while Mr. Feig recommended the hiring and firing of employees, Dr. Kelly made the final decision (doc. 35-8, Feig dep. 17:18-22). Based on the foregoing, the undersigned concludes that a reasonable factfinder could determine that the defendant's stated reason was pretext for retaliation and recommends that the district court deny the defendant's motion for summary judgment on Mrs. Calloway's retaliation claim.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the district court grant the defendant's (doc. 31) motion for summary judgment on the loss of consortium and negligent hiring claims, deny the motion on the Title VII sex discrimination and retaliation claims, and dismiss Mr. Calloway from the action.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).