Lashley v. Spartanburg Methodist Coll.

Full title: Summer D. Lashley, Ph.D., Plaintiff, v. Spartanburg Methodist College, W…

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

Date published: Dec 20, 2021

Civil Action 7:18-cv-2957-JD-KFM (D.S.C. Dec. 20, 2021)

Opinion

Civil Action 7:18-cv-2957-JD-KFM

12-20-2021

Summer D. Lashley, Ph.D., Plaintiff, v. Spartanburg Methodist College, W. Scott Cochran, Mark W. Gibbs, Ph.D., Teresa D. Ferguson, Jonathan J. Keisler, Ph.D., Angelia A. Turner, and Clevon A. Boyd, Defendants.

Kevin F. McDonald United States Magistrate Judge

REPORT OF MAGISTRATE JUDGE

Kevin F. McDonald United States Magistrate Judge

This matter is before the court on the defendants' motion for summary judgment (doc. 212). Pursuant to 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in employment discrimination cases and submit findings and recommendations to the district court.

I. BACKGROUND

The plaintiff's complaint alleged fifteen causes action arising from her employment and termination therefrom as Director of the Criminal Justice Program and Professor of Criminal Justice at Spartanburg Methodist College (“SMC”) during the 2017-2018 school year. Defendant W. Scott Cochran is the President of SMC; defendant Mark W. Gibbs, Ph.D., is the Dean of Instruction and a Professor of Philosophy and Religion at SMC; defendant Teresa D. Ferguson is the Dean of Students at SMC¹; defendant Jonathan J. Keisler, Ph.D., is a Professor of Economics at SMC; defendant Angelia A. Turner is the Director of the Online Criminal Justice Program at SMC; and defendant Clevon A. Boyd is the former Chief of SMC's Campus Police Department.

1 Defendant Ferguson was a sworn Class 1 law enforcement officer at the time of the events at issue herein, having been promoted from Chief of Campus Police to Dean of Students in March 2017 (doc. 244-3, Ferguson dep. 8-9).

The plaintiff alleged the following causes of action in her complaint: 1) breach of contract against SMC; 2) breach of contract accompanied by a fraudulent act against SMC; 3) violation of the South Carolina Payment of Wages Act against SMC and Cochran; 4) defamation - libel and slander per se against all defendants; 5) wrongful termination in violation of public policy against SMC; 6) disability discrimination in violation of the Americans with Disabilities Act (“ADA”) against SMC; 7) retaliation in violation of the ADA against SMC; 8) unlawful health inquiry in violation of the ADA against SMC; 9) gender discrimination in violation of Title IX of the Education Amendments Act of 1972 (“Title IX”) against SMC; 10) retaliation in violation of Title IX against SMC; 11) hostile work environment, disparate treatment, and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) against SMC; 12) retaliation in violation of Title VII against SMC; 13) invasion of privacy against SMC, Gibbs, and Ferguson; 14) violation of civil rights against Boyd in his individual capacity, pursuant to 42 U.S.C. § 1983; and 15) violation of the Employee Retirement Income Security Act of 1974 (“ERISA”) against SMC (doc. 1).

On October 15, 2021, the defendants filed a motion for summary judgment (doc. 212). The plaintiff filed a response in opposition on November 12, 2021 (docs. 242, 243, 244), and the defendants filed a reply on November 19, 2021 (doc. 249). Accordingly, the motion is now ripe for review.²

2 At the parties' request, the motion was held in abeyance pending the completion of the parties' second mediation on December 14, 2021 (doc. 248).

II. FACTS PRESENTED

A. Plaintiff's Initial Employment

In May 2017, the plaintiff signed a one-year contract to teach criminal justice courses at SMC and to act as the Director of the Criminal Justice Program (doc. 212-2, Jenny Dunn aff. ¶ 4 & ex. B). The term of this contract began on July 1, 2017, and ended on May 8, 2018 (id. ex. B). The plaintiff also signed a separate contract with SMC on January 9, 2018, to teach an additional spring semester course titled, “Intro to Forensics Science” (id. ex. B at 3). Under her contracts with SMC, the plaintiff taught a full load of criminal justice courses during the Fall 2017 and Spring 2018 semesters (id. ex. B at 1). The contracts the plaintiff signed in May 2017 and January 2018 refer to SMC's Policies and Procedures Manual and Faculty Handbook. Dr. Lashley had access to these publications throughout the time she worked at the college (id. ¶ 5 & ex. A).

Dr. Mary Jane Farmer, the Chair of the Social Sciences Department, who was the plaintiff's immediate supervisor, testified that at the end of the Fall 2017 semester she was “pleased” with the plaintiff's job performance and “happy” to have her at SMC (doc. 212-8, Farmer dep. 22-23). Dr. Farmer testified that after the plaintiff's first semester at SMC, the plaintiff was at the middle mark (50%) in terms of her performance but “was working her way towards the upper half” (id. 20). From her observations of the plaintiff's classes, Dr. Farmer felt that the plaintiff had “a mastery of the material” and “good rapport with the students, ” but Dr. Farmer was “concerned of the lack of structure” (id. 13). When the plaintiff complained that did not have enough time to prepare for class, Dr. Farmer advised the plaintiff to use the ten hours of weekly office time for her to prepare (id. 22-23). Dr. Farmer testified that by mid to late January 2018, the plaintiff was becoming “emotional, volatile, and … uncontrollable” (id. 69-71). In response to a complaint from defendant Angelia Turner, who shared an office with the plaintiff at the time, Dr. Farmer testified that she counseled the plaintiff because her office had become a “student lounge” (id. 36-37). Dr. Farmer told the plaintiff that even if the office was solely her own, she “still can't do that. It's charged with respect to the integrity of the office” (id. 37). She also told the plaintiff that her fraternization with students was cutting into the plaintiff's preparation time (id. 37-39). Dr. Farmer warned the plaintiff that “a lot of things get compromised” when you are friends with your students (id.). In February 2018, two female students complained to Dr. Farmer about the plaintiff's relationship with her work-study student, Katy Seeley, which they described as “inappropriate” (id. 39-40). Dr. Farmer told the students to go to Dr. Gibbs (id.). Dr. Farmer was not a part of the decision as to whether or not the plaintiff would receive a contract for the 2018-2019 school year (doc. 242-3, Farmer dep. 48). Dr. Farmer was responsible for helping to create the preliminary draft of the schedule for the 2018-2019 school year, and she scheduled the plaintiff to teach several courses in that preliminary draft (id.).

B. Plaintiff's Complaints on Behalf of Students

Jenny Dunn, the former Executive Director of Human Resources and Title IX Coordinator at SMC, recounted several incidents regarding students that the plaintiff brought to her attention during the plaintiff's employment at SMC. The first incident she reported was one day after a news story broke in the Spartanburg Herald newspaper about a baseball player being arrested on voyeurism charges after videotaping a teammate in the shower and posting the video on social media. The plaintiff emailed Ms. Dunn on September 29, 2017, telling Ms. Dunn that a player on the baseball team reported that coaches were trying to silence players and that he feared retaliation for coming forward (doc. 242-5 Dunn dep. 120-22). On September 30, 2017, the plaintiff sent Ms. Dunn an email regarding two additional incidents: (1) the plaintiff was told by a female student that a baseball player filmed himself and his girlfriend having sex and posted the video to a group chat for the other players to watch, without the girlfriend's knowledge or consent; and (2) that a women's soccer team player told her that their coach told the entire team that if something happened involving one of their teammates, they needed to keep the information strictly confidential, similar to the previous complaint about the baseball coaches (id. 123-25). The next incident that the plaintiff brought to the attention of Ms. Dunn was on December 6, 2017, when the plaintiff was informed by her work-study student, Ms. Seeley, that a member of the SMC wrestling team told her that one of his teammates had raped a woman the night before and was a regular drug user. The plaintiff further stated that the wrestler who told Ms. Seeley this was afraid to come forward with this information because of his fear of retaliation (id. 126-27). The plaintiff also made the administration aware³ that a female student had a large container of mustard dumped on her by a basketball player in the school cafeteria while other basketball teammates recorded the incident on their phones and that a female student who worked as a cashier at Wal-mart was fired from her job and arrested after several male basketball players engaged in a fraudulent scheme involving counterfeit gift cards (doc. 1, comp. ¶ 75).⁴ With regard to the female student who had mustard dumped on her by a basketball player, the plaintiff testified that Dr. Gibbs angrily told her that “the rumor has it that you told [the female student] to get an attorney” (doc. 242-6, pl. dep. 186).

3 It is unclear from the pleadings to whom in SMC's administration the plaintiff reported the two incidents described here. Further, it is unclear whether the students involved themselves told the plaintiff about the incidents or if she learned about the incidents from other students (see doc. 1, comp. ¶ 76 (“Various students at Defendant SMC made Plaintiff aware of the above activities because of Plaintiff's position as Director of the Criminal Justice Program and Professor of Criminal Justice at SMC.”)).

4 In the “Statement of Facts” in her response to the motion for summary judgment, the plaintiff makes numerous statements with no citation to the record (see doc. 242 at 2-10). Rule 56 provides that a party must support assertions by “citing to particular parts of materials in the record, ” and further provides that “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c). The undersigned has assumed in the instances where the plaintiff does not cite the record, such as with regard to the last two incidents cited here, that the plaintiff relies on her allegations in the verified complaint - to the extent those allegations are within her personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4^th Cir. 1991) (“[A] verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge.” (emphasis in original) (citations omitted)). However, conclusory allegations that are recounted by the plaintiff with no citation to the record and with no showing that the statement is based on the plaintiff's personal knowledge have not been included in the “Facts Presented” section of this report and recommendation (see e.g., doc. 242, at 5, 9) (stating, “[i]n every incident, the students' complaints fell on deaf ears and were swept under the rug or otherwise minimized by the administration and officials at SMC, ” and “no Title IX investigation was ever conducted into Dr. Lashley's allegations of gender discrimination and retaliation”)).

C. Plaintiff's Complaint about Mold

In late January 2018, the plaintiff complained to the maintenance department about what she believed was black mold in the Walker Building at SMC, the building where her office was located (doc. 1, comp. ¶ 78). The plaintiff indicated that she had asthma and that her respiratory problems had been exacerbated by the air quality in the building (id.). On Sunday, January 28, 2018, the head of maintenance at SMC, Marty Woods, sent an email to SMC's Executive Vice President of Academic Affairs Dr. Anita Bowles, Dr. Gibbs, and President Cochran about the plaintiff's complaint to a maintenance employee the previous Friday that she saw a ceiling tile in the hallway of the Walker Building that had black mold on it (doc. 242-4, Gibbs dep. 114-15). Mr. Woods stated that the ceiling tile had gotten wet from a condensation leak from the air handler above, and the ceiling tile had been removed and replaced (id.). Mr. Woods further indicated that he had spoken to President Cochran about the plaintiff's complaint, and they agreed that if the plaintiff felt the building was causing her respiratory distress, they “should immediately relocate her to another building on campus” (id. 115). Thus, Mr. Woods asked, “[W]here you would like to relocate her so we can prepare the space for her arrival” (id.). Dr. Gibbs' email response to Mr. Woods' email about the mold started, “Good Lord!, ” which Dr. Gibbs testified he meant “[m]aybe 'here we go again. It was a surprise, you know, nothing intended. No. deeper meaning there” (id. 116).

Dr. Gibbs met with the plaintiff on or about January 30, 2018, and the plaintiff described the meeting as follows:

And he came and sat down. And no one was there. And he is like, so tell me about your health issues. And he was very angry, and this is right after I had reported the mold and mildew

on the ceiling tiles. And I was just taken aback because he is very threatening. He was very angry, and I felt like if I didn't tell him I was going to lose my job. I didn't know. And then he was mad about me reporting the mold and mildew.

(Doc. 242-6, pl. dep. 71). In her verified complaint, the plaintiff stated that she told Dr. Gibbs she had been diagnosed with lupus in 2004, she had asthma all of her life, she suffered from post-traumatic stress disorder (“PTSD”), and she had severe gastrointestinal issues that required her to come to work in adult diapers (doc. 1, comp. ¶ 21). Dr. Gibbs testified in his affidavit that he offered the plaintiff an alternative office in the Ellis Building because of her complaint about mold in the Walker Building causing her respiratory issues (doc. 212-4, Gibbs aff. ¶¶ 18-19). The plaintiff testified that Dr. Gibbs described the alternative office as a “closet” (doc. 242-6, pl. dep. 87). Dr. Gibbs testified that the office was smaller than the plaintiff's office in the Walker Building, but it was not a closet (doc. 212-4, Gibbs aff. ¶ 18). Further, Dr. Gibbs testified that the office he offered the plaintiff was larger than his own current office (doc. 212-6, Gibbs dep. 120). Although the office is windowless, so are the offices of other SMC professors (doc. 212-11, Keisler dep. 65). The office in the Ellis Building was a three-minute walk from the plaintiff's classrooms in the Walker Building (id. 73). Dr. Gibbs testified that the information he sought from the plaintiff regarding her health issues was “needed to assess what could be done to accommodate her health, ” and he never sought more information than needed to engage in that process (id. ¶ 19).

On February 5, 2018, the plaintiff emailed Ms. Dunn, asking who at SMC handled reasonable accommodations and requesting reasonable accommodation paperwork (doc. 212-2, Dunn aff. ¶ 16 & ex. E). Ms. Dunn responded the same day, providing the plaintiff with a request for accommodation form, along with the faculty policy handbook and labor manual the plaintiff had also requested (id. ¶ 17 & ex. E). On February 7, 2018, the plaintiff emailed Ms. Dunn and informed her that she was diagnosed with Crohn's disease, that she had informed her immediate supervisor Dr. Farmer of her diagnosis, and that she expected the information to remain confidential (id. ¶ 18 & ex. E). The plaintiff never returned the reasonable accommodation form (id. ¶ 19).

D. Defendant SMC's Decision to Not Renew the Plaintiff's Contract

In January 2018, Dr. Gibbs evaluated faculty to determine candidates for contracts for employment during the 2018-2019 academic year. SMC's policy was to inform staff members by February 15th of the spring semester if they would be offered a contract for the next year (doc. 212-4, Gibbs aff. ¶ 4). Dr. Gibbs testified in his affidavit that he identified multiple incidents leading to his conclusion that SMC was not a good fit for the plaintiff (id. ¶ 5). First, beginning in August 2017, the plaintiff began complaining to Dr. Gibbs about conflicts with students, faculty, and staff (id.). According to Dr. Gibbs, these conflicts increased during the course of the plaintiff's short time at SMC and reached an intolerable level by late January 2018 (id.). Dr. Gibbs testified that the plaintiff's conflicts and complaints were quite regular and indicated to him that the plaintiff was having difficulty getting settled into her position (doc. 212-6, Gibbs dep. 77).

Second, in the early weeks of the Fall 2017 semester, the plaintiff was interviewed for a press release and for SMC's online publication (doc. 212-4, Gibbs aff. ¶ 5(b)). SMC's Vice President for Marketing, Lisa Ware, received multiple complaints from the plaintiff regarding these publications. Despite the plaintiff's express, written acknowledgment of these publications, the plaintiff demanded that Ms. Ware contact the local newspaper to have the articles retracted. Ms. Ware reported to Ms. Dunn “the erratic and confused tone of [the plaintiff's] requests and complaints” during their interactions (id. & ex. D at 018309).

Third, the plaintiff also made repeated complaints about Dale Hyder, an adjunct faculty member (doc. 212-4, Gibbs aff. ¶ 5(c)). As Director of the Criminal Justice Program, the plaintiff was Mr. Hyder's direct supervisor (doc. 212-6, Gibbs dep. 87). Regarding their conflict, Dr. Gibbs described the plaintiff as “a true academic” and Mr. Hyder as a “cop's cop” (id. 85-86). The plaintiff complained that Mr. Hyder undermined her in the classroom by stating his opinion regarding academics who lacked law enforcement experience. Dr. Gibbs met with other faculty members and Mr. Hyder to discuss the plaintiff's complaints (doc. 212-4, Gibbs aff. ¶ 5(c)). The plaintiff's conflict with Mr. Hyder escalated in late January 2018 (id.). At that time, the plaintiff asked students to report to Dr. Gibbs their conflicts with Mr. Hyder (id.). The plaintiff informed Dr. Gibbs that two students were worried that Mr. Hyder would retaliate against them because of Mr. Hyder's comments about the plaintiff (id. & ex. F). Dr. Gibbs met with the students, and it was his assessment that the plaintiff simply had a personality conflict with Mr. Hyder, but she was allowing the conflict to disproportionately affect her job performance (id. & ex. E). He also believed that the plaintiff should not have asked students to intervene in a faculty dispute (id.). Similarly, Dr. Farmer, the plaintiff's immediate supervisor, regarded the plaintiff's conflict with Mr. Hyder as a “clash of personalities” and a “petty rivalry” (doc. 212-8, Farmer dep. 31-34). The plaintiff never spoke with Mr. Hyder about her concerns (doc. 212-7, pl. dep. 111).

Fourth, Dr. Gibbs perceived that the plaintiff had an inappropriately close relationship with her work-study student, Ms. Seeley (doc. 212-4, Gibbs aff. ¶ 5(f)). Dr. Gibbs testified that the plaintiff was counseled about the excessive hours this student was reporting to SMC's administration, as these hours were limited by federal law and must be carefully limited to ensure students have adequate time for their studies (id.). Dr. Gibbs further testified that, on one occasion, the plaintiff was at home with an illness and inappropriately requested that he allow Ms. Seeley to take books to the plaintiff's home in Saluda, North Carolina (id. & ex. G). Dr. Gibbs testified that the plaintiff's history of interactions with faculty and staff caused him to conclude that she was not forming constructive relationships with faculty and staff and would have difficulty maintaining the professional relationships necessary to perform as a SMC professor (id. ¶ 5(e)).

In the weeks leading up to the February 15^th deadline for informing staff members if they would be offered a contract for the next year, Dr. Gibbs held discussions with Dr. Bowles regarding the plaintiff's status for the next academic year. Dr. Gibbs testified that he concluded, based on his experience working with the plaintiff and based on Dr. Bowles' input, that the plaintiff and SMC were not a good fit for each other (doc. 212-4, Gibbs aff. ¶ 4). Dr. Gibbs met with President Cochran and Dr. Bowles approximately a week prior to February 13, 2018, to present his recommendation that the plaintiff not be offered a contract for the next academic year (id. ¶ 6). That recommendation was accepted by President Cochran and Dr. Bowles (id.; doc. 212-5, Cochran aff. ¶ 4).

Dr. Gibbs testified that the plaintiff informed him on multiple occasions that SMC was not a good fit for her (doc. 212-4, Gibbs aff. ¶ 5; doc. 212-6, Gibbs dep. 77). In an email the plaintiff sent to Dr. George Franks on January 15, 2018, she requested a letter of recommendation and stated, “I just have to get out of SMC” (doc. 212-12 at 5). Similarly, on February 5, 2018, the plaintiff emailed Dr. Mark Rubin of Ashland University and reported, “I am applying everywhere and determined to get the f*** out of there” (id. at 6). However, the plaintiff sent an email to her supervisor, Dr. Farmer, on January 19, 2018, stating that she wanted to be put on the tenure track at SMC (doc. 242-7). The plaintiff also testified in her deposition, “And they were talking about tenure, and I'm like, hmm, but maybe that would be cool. I was considering all options to be honest. I would have even stayed [at SMC] five years” (doc. 242-6, pl. dep. 188).

Dr. Gibbs and then-Human Resources Director Dunn met with the plaintiff on February 13, 2018, to inform her of SMC's decision not to offer her a contract for the 2018-2019 academic year (doc. 212-4, Gibbs aff. ¶ 7). Dr. Gibbs testified that he explained to the plaintiff that the reason was that she was not a good fit for SMC (id.). Though the plaintiff said little during the short meeting, Dr. Gibbs perceived that she was initially shocked and then angered by the decision (id.). Dr. Gibbs further testified that later in the day on February 13^th, the plaintiff loudly stated to him, “I thought I could trust you . . . I thought we were friends . . . I looked to you as a father figure and now this” (id. ¶ 10 & ex. A). When Dr. Gibbs asked her why she had been cleaning out her office when he saw her taking boxes to her car, the plaintiff replied, “Isn't it obvious?” (id.). Dr. Gibbs testified that, based on this interaction, he felt that the plaintiff was emotionally unstable and potentially volatile (id. ¶ 10).

E. Defendant SMC's Decision to Immediately Terminate the Plaintiff's Employment

In a written statement, Angelia Turner stated that on Wednesday, February 14, 2018, she overheard the plaintiff speaking with a group of students and state that she felt like “blowing the school up” (doc. 212-3, Dunn aff. ex. I & J). Ms. Turner stated that the following day, she reported the plaintiff's comment to Dr. Gibbs at a Board of Trustees luncheon, telling Dr. Gibbs that she did not think the plaintiff “was serious, ” but she did “feel an obligation to say something . . ., just in case” (id.; doc. 244-1, Turner dep. 122, 128). In her deposition, the plaintiff denied every making any such comment, stating, “That would never, ever come out of my mouth” (doc. 242-6, pl. dep. 94-96). The plaintiff's work-study student, Ms. Seeley, who was identified in Ms. Turner's written statement as being present at the time of the alleged comment by the plaintiff, stated in her affidavit that she never heard the plaintiff “make any type of comment while Ms. Turner was present that could remotely be construed as a threat” (doc. 243-7, Seeley aff. ¶ 12). Ms. Turner testified in her deposition that after hearing the comment by the plaintiff, she did not immediately call 9-1-1, any law enforcement agency, or campus security, but instead testified that she reported it to her supervisor, Dr. Gibbs, the next day (doc. 244-1, Turner dep. 152-54). Dr. Gibbs testified that he did not remember speaking directly with Ms. Turner about the plaintiff's alleged comment, but thought that he learned of the comment “through the grapevine” and was “certain” that he did not hear it directly from Ms. Turner at the Board luncheon (doc. 242-4, Gibbs. dep. 149-51).

In an affidavit and written statement, Dr. Jonathan Keisler, Professor of Economics at SMC, testified that on February 15, 2018, the plaintiff entered his office at SMC, closed the door, and began to complain about Dr. Gibbs and President Cochran (doc. 212-3, Dunn aff. ex. I & J). She claimed that SMC had fired her unfairly. According to Dr. Keisler, the plaintiff stayed in his office for about 45 minutes and became increasingly agitated. At one point, she said, “Bad stuff happens when people cross me. My dad says it's true. They turn up dead.” Dr. Keisler testified that the plaintiff specifically mentioned Dr. Gibbs and President Cochran, calling them “evil people” and declaring that they would “get theirs” (id.). In her deposition, the plaintiff denied every making such a comment (doc. 242-6, pl. dep. 114-15). Dr. Keisler testified that he reported the plaintiff's comments to Dr. Gibbs, because he “was genuinely concerned that she might be angry enough to harm someone” (doc. 212-3, Dunn aff. ex. I & J). Ms. Ferguson testified that neither Ms. Turner nor Dr. Keisler ever reported the alleged threats by the plaintiff to any of the law enforcement officers on the SMC campus (doc. 244-3, Ferguson dep. 59-60).

Dr. Gibbs testified during his deposition that Dr. Keisler first told him about the meeting with the plaintiff late that afternoon, probably after 5:00 p.m., either on Dr. Gibbs' way home or after he had already arrived at his home in Asheville (doc. 242-4, Gibbs dep. 173-74). Dr. Keisler testified that he spoke to Dr. Gibbs in person before Dr. Keisler left for the day around 2:40 p.m. (doc. 244-2, Keisler dep. 112). Dr. Keisler further testified that the first person he tried to notify about the conversation was Ms. Ferguson, and he reached her after he returned to his office around 1:30 p.m. after his class (id. 109). Ms. Ferguson, however, testified that she learned of Dr. Keisler's involvement with the plaintiff's alleged threat on the morning of February 16, 2018, from President Cochran (doc. 244-3, Ferguson dep. 58).

On February 15, 2018, President Cochran met with Ms. Ferguson, Dr. Bowles, and Dr. Gibbs regarding the plaintiff's conduct following the February 13^th meeting when she was informed that her contract would not be renewed (doc. 212-5, Cochran aff. ¶ 5). Dr. Gibbs reported that the plaintiff confronted him on February 13^th, and President Cochran also learned of Ms. Turner's report that the plaintiff stated to students that she “felt like blowing up” the school. In his affidavit, President Cochran noted that February 14^th was the date of the school shooting in Parkland, Florida (id. ¶¶ 5-6).⁵ On the evening of February 15^th or the morning of the 16^th, President Cochran was informed that Dr. Keisler reported that the plaintiff made troubling comments to him about President Cochran and Dr. Gibbs (id. ¶ 7).⁶

5 President Cochran testified in his deposition regarding his own experience with workplace violence in June 1990, when he witnessed a workplace shooting that resulted in the deaths of several of his own co-workers (doc. 212-10, Cochran dep. 108-11).

6 Although it was not known to the administration of SMC at the time, the plaintiff also spoke with her supervisor, Dr. Farmer, after she was told that her contract would not be renewed on February 13^th. Dr. Farmer testified that the plaintiff came to her crying after learning that she would not be offered a contract for the following year (doc. 212-8, Farmer dep. 73-74). According to Dr. Farmer, the plaintiff became angrier as the conversation progressed, and the plaintiff concluded by telling Dr. Farmer, “I thought you were my friend. Why won't you defend me? That Mark Gibbs is Judas, he is the evil one” (id.).

On February 16, 2018, President Cochran and Ms. Ferguson informed the plaintiff of her immediate termination of employment (doc. 212-5, Cochran aff. ¶ 8). President Cochran testified in his affidavit that he told the plaintiff that her termination was the result of her unprofessional, inappropriate interactions and conversations with SMC's faculty, and he instructed the plaintiff to leave campus as soon as she could gather her possessions (id.). The plaintiff stated in her verified complaint⁷ that President Cochran did not explain why she was being terminated immediately, other than to say “in a loud, hostile voice while hovering over her desk, 'Because of conversations!'” (doc. 1, comp. ¶ 24). President Cochran testified that when he told the plaintiff that she was being terminated from employment, he agreed on SMC's behalf to make the remaining payments under the plaintiff's one-year contract (doc. 212-5, Cochran aff. ¶ 16). Ms. Ferguson, a law enforcement officer though not then in uniform, helped the plaintiff with her things and escorted her to her car. The meeting was short and concluded without incident (id. ¶ 8).

7 As noted, a verified complaint must be regarded as the equivalent of an affidavit for purposes of summary judgment when the allegations contained therein are based on personal knowledge. Williams, 952 F.2d at 823.

F. Post-Termination Conduct

Trina Gilliam, SMC's Director of Residence Life, was responsible for seven residence halls and supervised SMC's resident hall directors (doc. 212-15, Gilliam dep. 17). Ms. Gilliam testified that on the day of the plaintiff's termination from employment, then-Human Resources Director Dunn recommended that she “send a text message to notify [her] adult staff that [the plaintiff] was very upset, so if [they] see her on campus, to let campus safety know” (id. 54). Ms. Gilliam sent a message to the five resident hall directors, who are all SMC employees, stating, “If you see this woman on campus, notify campus police IMMEDIATELY. This is Dr. Summer Lashley and she was relieved of her duties as a faculty member today. Normally her hair is pulled back in a ponytail. DO NOT APPROACH HER! She may be volatile and unstable” (id. 56-58; doc. 242-8). This text message included the plaintiff's photograph, which Ms. Gilliam testified she found “[m]aybe [on] LinkedIn, I'm not sure” and which she included because she knew her staff would not know what the plaintiff looked like (doc. 212-15, Gilliam dep. 56-57; doc. 242-8). The plaintiff testified that the photograph was the same as the one posted on her LinkedIn profile, which she described as “very private” (doc. 212-7, pl. dep. 83; doc. 1, comp. ¶ 63). Ms. Dunn testified that her “directive” to Ms. Gilliam was “to notify our staff that if [the plaintiff] was on campus, that they should report it to campus police” (doc. 242-5, Dunn dep. 213-14). She further testified that she was “surprised” that the text message was sent out, as she would have communicated the information “more discreetly” (id. 211). Ms. Dunn testified that she did not tell Ms. Gilliam how to let her staff know, but sending a text message was “not how [she] would have done it” (id. 215).

In the days following the plaintiff's termination, SMC's administration instructed Mr. Boyd, who was the then-Chief of the SMC Campus Police Department, to send the plaintiff a trespass notice (doc. 212-2, Dunn aff. ¶ 27). The letter, which is dated February 22, 2018, informed the plaintiff that she was not permitted on SMC's campus nor to have any contact with the college on its properties by any means, including telephone, email, and social media (doc. 212-3, Dunn aff. ex. L).

The plaintiff's counsel sent President Cochran a letter of representation on February 26, 2018, indicating that Dr. Lashley was considering various legal claims against the school and reserving all of her rights under her contract and the SMC Faculty Handbook (doc. 243-1). On March 6, 2018, the plaintiff's counsel sent another letter to President Cochran, formally requesting a grievance of both the non-renewal of her contract and her termination from employment, filing an official report of discrimination and retaliation under Title IX, requesting a copy of all plan documents for any employee benefit or welfare plan at SMC, and asserting that the plaintiff's civil rights were being abridged by Mr. Boyd's trespass notice (doc. 243-2).

On March 8, 2018, the defendants' attorney sent a letter to the plaintiff's attorney, stating that SMC considered the previous correspondence to be a rejection of the offer to pay her the balance of her contract (doc. 243-3). President Cochran attested that after the plaintiff threatened the school with litigation through her lawyer, he rescinded the offer to pay the plaintiff the unearned portion of her income; however, SMC ultimately paid the plaintiff the balance of her salary for the school year and paid COBRA premiums through her contract term (doc. 212-5, Cochran aff. ¶ 16). The plaintiff alleged in her complaint that the amount provided by the defendants was approximately $1,500.00 short, because of the deferral pay from the first semester that allowed the plaintiff to continue receiving a regular paycheck over the summer (doc. 1, comp. ¶ 31).

On May 10, 2018, the plaintiff's attorney wrote a letter to the Chair of the SMC Board of Trustees, filing a formal complaint under the Whistleblower Protection Policy in the SMC Policies and Procedures Manual and requesting remedies including “reinstatement with back pay and benefits, public apology, compensatory damages for emotional distress and other actual damages, injury to reputation, medical and therapy bills, and attorney's fees and costs” (doc. 243-5). The plaintiff contends in her complaint that defendant SMC has failed to investigate or otherwise process her whistleblower complaint in accordance with the SMC Employee Handbook (doc. 1, comp. ¶ 32).

After filing a charge against defendant SMC with the Equal Employment Opportunity Commission and receiving a notice of right to sue, the plaintiff filed her verified complaint, initiating this action on November 1, 2018 (docs. 1, 1-1).

III. 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. Federal Claims

1. ADA

In her sixth, seventh, and eighth causes of action, the plaintiff alleged claims for disability discrimination, retaliation, and unlawful health inquiry in violation of the ADA against defendant SMC (doc. 1, comp. ¶¶ 85-107).

a. Disability Discrimination

In her ADA disability cause of action, the plaintiff alleged that defendant SMC discriminated against her by refusing to accommodate her disability, by not renewing her contract, and by terminating her employment (id. ¶ 89). For the reasons set forth below, the undersigned recommends that summary judgment be granted on the plaintiff's sixth cause of action.

(1) Failure to Accommodate

To prevail on her claim for failure to accommodate, the plaintiff must prove: (1) that she was an individual with a disability under the ADA; (2) that the employer knew of this disability; (3) that with a reasonable accommodation, she could perform the essential functions of the position; and (4) that the employer refused to make such accommodations. Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013).

The defendants first argue that the plaintiff cannot show that she is a “qualified individual” with a disability (doc. 212-1 at 24). The defendants contend that the plaintiff “cannot demonstrate that either malady [respiratory issues or gastrointestinal condition] rise to the threshold of an ADA disability” (id.). The ADA defines “disability” as a physical or mental impairment that substantially limits one or more of the major life activities of an individual, a record of such an impairment, or being regarded as having such an impairment. 42 U.S.C. § 12102(1). The ADA further states that “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2). Pursuant to the ADA Amendments Act of 2008, the definition of disability “‘shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by [its] terms.'” Summers v. Altarum Inst., Corp., 740 F.3d 325, 329 (4th Cir. 2014) (quoting 42 U.S.C. § 12102(4)(A)).

Here, the plaintiff stated in her verified complaint that her gastrointestinal issues required her to wear adult diapers to work (doc. 1, comp. ¶¶ 19-22). The undersigned finds that, viewing the evidence in a light most favorable to the plaintiff, she has forecasted sufficient evidence to establish a genuine dispute of fact regarding whether she has a disability as defined by the ADA. In her verified complaint, the plaintiff also stated that she has been diagnosed with asthma, PTSD, and lupus (id. ¶ 21), and she argues in response to the motion for summary judgment that these are also disabilities as defined by the ADA (doc. 242 at 21-24). However, the plaintiff has presented no evidence supporting her claim that these impairments substantially limit one or more of her major life activities (see id.). 42 U.S.C. § 12102(1). Nonetheless, as the plaintiff has presented sufficient evidence upon which a reasonable jury could conclude that her gastrointestinal issues are a disability within the meaning of the ADA, she can satisfy the first element of a prima facie case.

The defendants next argue that the plaintiff has failed to show that SMC refused to make reasonable accommodation (doc. 212-1 at 25-26). The undersigned agrees. The “reasonable accommodation” definition in the implementing regulations of the ADA sets forth a negotiation process for an employer and employee engaged in finding a reasonable accommodation:

To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

16 C.F.R. § 1630.2(o)(3). This requirement is “implicit in the fourth element” of a plaintiff's prima facie case for failure to accommodate. Haneke v. Mid-Atlantic Capital Mgmt., 131 F App'x 399, 400 (4th Cir. 2005).

In response to the defendants' argument, the plaintiff contends:

Her severe GI issues caused her to contact Ms. Dunn about an accommodation under the ADA to move her office closer to a bathroom. Plaintiff's office was on the third floor of the Walker Building at SMC, and the only bathrooms were on the first and second floors. There was clearly office space available on the second floor at that time, which would have been adjacent to the women's restroom, which was never offered to Dr. Lashley. Ms. Dunn did give her an ADA accommodation form, but she was fired before she could get an appointment from her doctor to fill out the document.

(Doc. 242 at 21). The plaintiff cites no evidence in support of her claim that she asked Ms. Dunn for the accommodation of moving her office closer to a bathroom due to her gastrointestinal issues (see id.). As set forth in more detail above, the evidence before the court shows that the plaintiff emailed Ms. Dunn on February 5, 2018, requesting reasonable accommodation paperwork, and Ms. Dunn responded and provided the request for accommodation form that same day. On February 7, 2018, the plaintiff emailed Ms. Dunn and informed her that she was diagnosed with Crohn's disease. However, the plaintiff did not inform Ms. Dunn in any of the emails that her diagnosis limited her ability to work, nor did the plaintiff describe a need for an accommodation to perform the essential functions of her position. Further, the plaintiff never returned the reasonable accommodation form (doc. 212-2, Dunn aff. ¶¶ 16-19 & ex. E), and Ms. Dunn testified that the plaintiff did not otherwise request to have her office moved (doc. 249-2, Dunn dep. 201). “The duty to engage in an interactive process to identify a reasonable accommodation is generally triggered when an employee communicates to his employer his disability and his desire for an accommodation for that disability.” Wilson, 717 F.3d at 346-47 (citations omitted). Moreover, the plaintiff cites no evidence supporting her claim that “[t]here was clearly office space available on the second floor at that time” (doc. 242 at 21). As for the plaintiff's claim that she “was fired before she could get an appointment from her doctor to fill out the document” (doc. 242 at 21), the defendants note that in her deposition, the plaintiff testified that she did not read the form and thus did not realize that it did not need to be completed by a doctor (doc. 183-1, pl. dep. 181-82; see doc. 212-3 at 39).⁸ Further, contrary to her argument here, the plaintiff testified that she actually did give the form to her doctor (id.).

8 The one-page reasonable accommodation request form asked questions regarding the accommodation requested and provided a space for the employee's signature and date (doc. 212-3 at 39). The form stated at the bottom that “additional medical documentation may be requested” (id.).

Further, with regard to the mold issue in the Walker Building that the plaintiff complained was causing her respiratory issues, even assuming that the plaintiff's respiratory issues and/or asthma are a disability within the meaning of the ADA, the undisputed evidence shows that Dr. Gibbs offered to move the plaintiff to an office in another building. The plaintiff claims that she “did not request an accommodation for her office to be moved to the Ellis Building, ” that “this was something Defendant Gibbs suggested on his own, ” that Dr. Gibbs described the other office as a “windowless closet, ” and that “her actual accommodation request was to have her office moved closer to a bathroom in the Walker Building” (doc. 242 at 23). However, as discussed above, the plaintiff has cited no evidence showing that she requested the accommodation of moving her office closer to a bathroom in the Walker Building. Further, as noted above, “The duty to engage in an interactive process to identify a reasonable accommodation is generally triggered when an employee communicates to his employer his disability and his desire for an accommodation for that disability.” Wilson, 717 F.3d at 346-47 (emphasis added). Moreover, although the plaintiff claims in her response to the motion for summary judgment that moving her office to another building would not address the underlying mold problem in the Walker Building since her classes met there (id.), she has pointed to no evidence that she raised this concern with either Dr. Gibbs or Ms. Dunn.⁹ “[A]n employer is not obligated to provide an employee the accommodation he or she requests or prefers; the employer need only provide some reasonable accommodation.” Crawford v. Union Carbide Corp., No. 98-2448, 1999 WL 1142346, at *4 (4th Cir. Dec. 14, 1999) (citation omitted). Further, “'[a]n employer's liability for failure to provide a reasonable accommodation ensues only where the employer bears responsibility for the breakdown in such communications.'” Neloms v. Charleston Cty. Sch. Dist., C/A No. 2:18-316-DCN-MGB, 2019 WL 4409459, at *5 (D.S.C. Sept. 16, 2019) (quoting Allen v. City of Raleigh, 140 F.Supp.3d 470, 490 (E.D. N.C. 2015)). Here, the evidence before the court is that Dr. Gibbs offered to move the plaintiff to another office to accommodate her complaints that mold in the Walker Building caused her respiratory issues, and the plaintiff failed to respond with any alternatives.

9 As for the plaintiff's argument that the alternative office was not a reasonable accommodation because it was a “windowless closet, ” Dr. Gibbs testified that the office was smaller than the plaintiff's office in the Walker Building, but it was not a closet (doc. 212-4, Gibbs aff. ¶ 18). Further, Dr. Gibbs testified that the office he offered the plaintiff was larger than his own current office (doc. 212-6, Gibbs dep. 120). Moreover, the evidence before the court is that other SMC professors also have windowless offices, and the alternative office was a three-minute walk from the plaintiff's classrooms in the Walker Building (doc. 212-11, Keisler dep. 65, 73).

Given the evidence before the court and viewing that evidence in a light most favorable to the plaintiff, a reasonable jury could not determine that SMC refused to make reasonable accommodation for the limitations imposed by the plaintiff's impairments. Based upon the foregoing, the undersigned recommends that the district court grant summary judgment to defendant SMC on the plaintiff's ADA failure to accommodate cause of action.

(2) Non-Renewal of Contract and Termination from Employment

The McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), burden-shifting framework applies to both discrimination and retaliation claims under the ADA. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015). When bringing a wrongful discharge claim under the ADA, “a plaintiff must prove '(1) that she has a disability, (2) that she is a qualified individual for the employment in question, and (3) that her employer discharged her (or took other adverse employment action) because of her disability.'” Id. (quoting EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir. 2000)). See Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 235-36 (4th Cir. 2016) (holding that the ADA requires that a plaintiff's disability be a but-for cause of the adverse employment action). If the plaintiff can establish a prima facie case, the burden then shifts to the employer to produce evidence of a legitimate, nondiscriminatory reason for the adverse employment action. Jacobs, 780 F.3d at 575 (citation omitted). The burden then shifts back to the plaintiff to prove that these asserted justifications are pretextual. Id. at 575-76 (citation omitted).

As discussed above, the plaintiff has presented sufficient evidence upon which a reasonable jury could conclude that her gastrointestinal issues are a disability within the meaning of the ADA, and thus she can satisfy the first element of a prima facie case. Further, for purposes of this motion, the undersigned will assume that the plaintiff can establish the second element. However, summary judgment should be granted because the plaintiff cannot show that her contract was not renewed and/or she was terminated from employment because of her alleged disability. Here, the evidence of record fails to indicate that the individuals involved in the decisions to not renew the plaintiff's contract (President Cochran, Dr. Bowles, and Dr. Gibbs) and terminate her employment (President Cochran, Ms. Ferguson, Dr. Bowles, and Dr. Gibbs) possessed discriminatory animus linked to the plaintiff's underlying medical conditions. Rather, the plaintiff's own argument regarding the “close proximity in time between her confrontation by Dr. Gibbs to tell her about her health conditions, her requested accommodation to move her office closer to the restroom, and the adverse employment actions” (doc. 242 at 24) indicates that this claim is better suited to consideration in the retaliation context. See Israelitt v. Enterprise Servs., LLC, C/A No. SAG-18-1454, 2021 WL 795150, at *7 (D. Md. Mar. 2, 2021). As the plaintiff has failed to prove that her alleged disability was a “but for” cause of either her contract not being renewed or her termination from employment, summary judgment should be granted to defendant SMC on this claim.

b. Retaliation

Section 503 of the ADA prohibits retaliation against an employee “because [that] individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [thereunder].” 42 U.S.C. § 12203(a). As noted, the McDonnell Douglas burden-shifting framework discussed above applies to both discrimination and retaliation claims under the ADA. Jacobs, 780 F.3d at 572. To establish unlawful retaliation under the ADA, the plaintiff must prove “(1) she engaged in protected conduct, (2) an adverse action was taken against her by the employer, and (3) a causal link exists between the protected conduct and the adverse action.” Reynolds v. Am. Nat'l Red Cross, 701 F.3d 143, 154 (4th Cir. 2012).

In her verified complaint, the plaintiff alleged that she engaged in protected activity by requesting that SMC accommodate her disability and, through her attorney, threatening to pursue a charge of disability discrimination against SMC with the EEOC (doc. 1, comp. ¶ 95). She further alleged that defendant SMC retaliated against her by telling her she could be moved to a windowless closet in another building on campus, refusing to renew her employment contract, terminating her employment, and by rescinding President Cochran's assurance that her salary and benefits would continue through the end of her contract period (id. ¶ 96).

The defendants first argue that the plaintiff cannot show that she engaged in protected conduct. The undersigned disagrees. Importantly, a plaintiff does not have to “prove the conduct he opposed was actually an ADA violation. Rather, he must show he had a ‘good faith belief' the conduct violated the ADA.” Reynolds v. Am. Nat'l Red Cross, 701 F.3d 143, 154 (4th Cir. 2012). A requested accommodation can constitute “conduct protected by the ADA.” Jacobs, 780 F.3d at 577. As discussed above, the evidence of record does not indicate that the plaintiff ever specifically requested to be moved to an office closer to a bathroom as an accommodation for her gastrointestinal impairment. However, it is undisputed that she did request and receive an accommodation form from Ms. Dunn on February 5, 2018 (doc. 212-2, Dunn aff. ¶¶ 16-19 & ex. E). Accordingly, the undersigned finds that the plaintiff can establish the first element.

With regard to the second element of a prima facie case, the non-renewal of the plaintiff's contract on February 13, 2018, and her termination from employment on February 16, 2018, are clearly adverse employment actions. However, the undersigned cannot find that the rescinding on March 8, 2018, of President Cochran's offer to pay the plaintiff the balance of her contract for the unearned portion of her income (doc. 243-3) was an adverse employment action. At the time of President Cochran's offer, the plaintiff's contract had been terminated, and she was no longer an employee of SMC.¹⁰ Further, the undersigned recommends that the district court dismiss the plaintiff's claim that “Dr. Gibbs telling [her] that they could move her office to a windowless closet in another building on campus” was a retaliatory action (id.). Specifically,

10 Defendant SMC has presented evidence that it ultimately did pay the plaintiff the balance of her salary under the contract as well as COBRA premiums through the contract term (doc. 212-3 at 87-88).

Under the ADA, “[a]n alleged retaliatory action must be ‘materially adverse,' meaning that the plaintiff must show that the action ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.' ” Laird v. Fairfax Cty., 978 F.3d 887, 893 (4th Cir. 2020) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)). The harm must be “a significant detriment, not relatively insubstantial or trivial.” Id. (quoting Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015)).

Hightower v. Shoes, C/A No. 6:20-cv-3959-DCC-JDA, 2021 WL 3486885, at *3 (D.S.C. Aug. 9, 2021). As discussed above, the undisputed evidence here shows that while the office offered to the plaintiff in the Ellis Building was smaller than the plaintiff's office in the Walker Building (doc. 212-4, Gibbs aff. ¶ 18), it was larger than Dr. Gibbs' own current office (doc. 212-6, Gibbs dep. 120). Moreover, the evidence before the court is that other SMC professors also have windowless offices, and the alternative office was a three-minute walk from the plaintiff's classrooms in the Walker Building (doc. 212-11, Keisler dep. 65, 73). Accordingly, a reasonable jury could not conclude that telling the plaintiff she could be moved into this office was a materially adverse retaliatory action.

The close proximity in time between the plaintiff's alleged protected activity on February 5, 2018, in requesting an accommodation form, and the defendants' decision on February 13, 2018, to not renew the plaintiff's contract and on February 16, 2018, to terminate the plaintiff's employment, is sufficient to satisfy the third element. “Close temporal proximity can demonstrate causation, an element of [a plaintiff's] prima facie case of retaliation. Cole v. Fam. Dollar Stores of Maryland, Inc., 811 Fed.Appx. 168, 174 (4th Cir. 2020) (citing Waag v. Sotera Defense Sols., Inc., 857 F.3d 179, 192 (4th Cir. 2017) (“[F]or purposes of establishing a prima facie case, close temporal proximity between activity protected by the statute and an adverse employment action may suffice to demonstrate causation.”)). However, the undersigned notes that this causal connection is somewhat tenuous given the intervening events (the reports of the plaintiff's threatening comments) that occurred between the plaintiff's request for an accommodation form and her termination from employment. See Nowlin v. Dodson Brothers Exterminating Co., Inc., C/A No. 18-cv-480-SAL-TER, 2020 WL 4607260, at *11 (D.S.C. Feb. 6, 2020) (finding that causal connection was broken between plaintiff's protected activity and termination by the intervening event of a report that plaintiff was involved in verbal altercation with a co-worker (citation omitted)), R&R adopted by 2020 WL 2306610 (D.S.C. May 8, 2020).

Accordingly, under the McDonnell Douglas burden-shifting framework, the burden of production shifts to the defendant to offer a legitimate, non-retaliatory reason for its adverse employment actions. Defendant SMC has done so here by forecasting evidence upon which a reasonable jury could find that the plaintiff's contract was not renewed because she was not a good fit with SMC, and she was terminated from employment based on the reports of her unprofessional, inappropriate interactions and conversations with SMC's faculty, including Dr. Gibbs, Ms. Turner, and Dr. Keisler.

Therefore, the burden shifts back to the plaintiff to show that SMC's purported nonretaliatory reasons were not its true reasons, but were a pretext for retaliation. “[T]he McDonnell Douglas framework has long demanded proof at the pretext stage that retaliation was a but-for cause of a challenged adverse employment action.” Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015). “[T]o carry her burden at the pretext stage of showing 'that retaliation was a but-for cause' of her termination, [the plaintiff] must present evidence to “establish both that the employer's reason [for the termination] was false and that retaliation was the real reason for the challenged conduct.” Cole, 811 Fed.Appx. at 174 (quoting Foster, 787 F.3d at 252). “Importantly, although intermediate evidentiary burdens shift back and forth under this framework, [the plaintiff] retains the ultimate burden of persuading the trier of fact, . . . that [her] engagement in the protected activities was a ‘but for' cause of [her suspension and/or termination from employment].” Staley v. Gruenberg, 575 F. App'x. 153, 155 (4th Cir. 2014) (internal citations and quotation marks omitted).

The undersigned finds that the plaintiff has failed to forecast evidence upon which a reasonable jury could determine that defendant SMC's decisions to not renew her contract and terminate her employment were pretext for retaliation in violation of the ADA. The plaintiff must show that but-for her engaging in protected conduct, SMC would not have taken the adverse action. While the plaintiff's complaint about mold (to the extent this could be considered a request for accommodation as opposed to a general complaint) and her request for an accommodation form occurred shortly before the non-renewal of her contract and her termination from employment, “this temporal proximity alone is not sufficient to establish that her engagement in protected activity was a 'but for' cause” of the adverse employment actions. Staley v. Gruenberg, 575 Fed.Appx. 153, 156 (4th Cir. 2014) (citation omitted). Further, the plaintiff's claim that her request for an accommodation form was the reason for the non-renewal of her contract is undermined by the undisputed testimony of Ms. Dunn that she was not consulted about SMC's decision to not offer the plaintiff another contract (doc. 212-4, Gibbs aff. ¶ 6; doc. 212-2, Dunn aff. ¶ 13).

Here, the record shows that the defendants did not consider the plaintiff to be a “good fit” for SMC, and the plaintiff's emails and text messages demonstrate that she felt the same. Moreover, with regard to her termination from employment, while the plaintiff disputes that she made the threatening comments reported by Ms. Turner and Dr. Keisler and she questions the precise sequence of Ms. Turner's and Dr. Keisler's actions in reporting the comments, it is absolutely undisputed that the reports of threatening comments by the plaintiff were made to SMC's administration by Ms. Turner and Dr. Keisler on or about February 15, 2018, and the plaintiff was terminated from employment the next day. The plaintiff has failed to present any evidence showing that the decisionmakers in this case did not honestly believe that the plaintiff had made the comments that were reported to them. See Holland v. Washington Homes, Inc., 487 F.3d 208, 217 (4th Cir. 2007) (“[T]he uncontested evidence established ... the decisionmaker[ ] honestly believed that Holland deserved to be discharged for threatening Peck, regardless of whether Holland did in fact issue the threats.”); Wilson v. United Parcel Servs., Inc., C/A No. 1:10-CV-636, 2012 WL 405064, at *5 (E.D. Va. Feb. 7, 2012), aff'd, 479 Fed.Appx. 453 (4th Cir. 2012) (“Although Wilson may argue that he was not insubordinate, he has no evidence that Mr. Jennings did not honestly believe that Wilson had in fact been insubordinate at the time Mr. Jennings made the termination decision. Because Wilson cannot establish pretext without such evidence, his claim of discriminatory termination must fail.”); Duggan v. Sisters of Charity Providence Hosps., 663 F.Supp.2d 456, 469 (D.S.C. 2009) (“Much of the parties' memoranda address the factual discrepancies among the witnesses about the severity of Duggan's conduct on January 17; however, factual discrepancies about the underlying conduct are irrelevant because it is the perception of the decision maker that matters.”). Further, it is not for this court to decide whether SMC's decisions to not renew the plaintiff's contract and to terminate her employment were wise, fair, or correct, nor does the court “sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998) (internal quotation marks and citation omitted).

Based upon the foregoing, the undersigned recommends that the district court find that the plaintiff failed to present evidence sufficient to show that defendant SMC's decisions to not renew her contract and terminate her employment were pretext for retaliation in violation of the ADA.

c. Unlawful Health Inquiry

The ADA prohibits an employer from making “inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such . . . inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). In her complaint, the plaintiff alleged that Dr. Gibbs made an unlawful health inquiry when he asked on January 31, 2018, that she tell him “about [her] health conditions” (doc. 1, comp. ¶ 101).

The defendants argue that the plaintiff's claim fails because she voluntarily disclosed her health conditions to co-workers, supervisors, and students (doc. 212-1 at 26-27). The defendants further argue that Dr. Gibbs discussed the plaintiff's health conditions with her only for job-related reasons consistent with SMC's business necessity after the plaintiff reported that mold in the Walker Building was causing her respiratory complications (id.; see doc. 212-4, Gibbs aff. ¶¶ 18-19). The defendants cite Reynolds, in which the Court of Appeals for the Fourth Circuit affirmed summary judgment on the plaintiff's medical inquiry claim, finding that the plaintiff disclosed his medical condition voluntarily to his supervisor, who was also his friend, as well as to another person. 701 F.3d at 155. The defendants cite evidence showing that the plaintiff discussed her health issues with numerous co-workers, including Dr. Gibbs, as well as students (see doc. 212-12 at 19-21 (to Ms. Turner, “I'm in the ER. I have C Diff and the doctor says it's serious . . . “), at 23 (to Dr. Farmer, Dr. Gibbs, and Sharon Wilborn, “I have pneumonia. The doctor said I am contagious . . . “), at 26 (to Dr. Gibbs, “I have been dealing with kidney stones. . . “), at 27 (to Dr. Farmer regarding using a strainer for kidney stones); doc. 249 at 17 (to Dr. Gibbs, “At least you're not wearing diapers . . . “) (to Judy Heffner, “I've been in hospital - have C DIFF”); doc. 212-3 at 7 (separate text messages to two students informing them that she had C. diff), at 28 (to Ms. Seeley regarding C. diff diagnosis), and at 22-24 (to students telling them she “contracted a contagious illness”). As argued by the defendants (doc. 249 at 16-17), the plaintiff's claim that she only informed Dr. Gibbs of her health problems when he confronted her while he was “very angry” and “threatening” (doc. 242-6, pl. dep. 71) is undermined by evidence showing text messages between the plaintiff and Dr. Gibbs a few days later when she invited Dr. Gibbs to “call her at home, ” stating that she was “still having symptoms” (doc. 249 at 17). When Dr. Gibbs stated that he had a deep cough, the plaintiff responded, “At least you're not wearing diapers” followed by laughing emojis (id.). Based upon the evidence of record, a reasonable jury could not determine that defendant SMC made an unlawful health inquiry in violation of the ADA. Accordingly, the undersigned recommends that summary judgment be granted on this cause of action.

2. Title VII

In her eleventh and twelfth causes of action, the plaintiff alleged claims for hostile work environment¹¹ and retaliation in violation of Title VII against defendant SMC (doc. 1, comp. ¶¶ 131-53).

11 As noted by the defendants, the headings of the plaintiff's Title VII and Title IX hostile work environment claims (ninth and eleventh causes of action) contain the terms “disparate treatment” and “gender discrimination” (doc. 1, comp. ¶¶ 108, 131). However, the plaintiff has failed to present any evidence that her termination from employment or her contract non-renewal were based on her gender. The plaintiff appears to agree that she is not pursuing claims for disparate treatment in violation of Title VII or Title IX (doc. 242 at 26 (“Plaintiff's allegations of gender discrimination relate to an alleged hostile work environment created by frequent and pervasive comments by Defendant Gibbs . . . [and] comments made by . . . Dale Hyder . . . . “)). Accordingly, to the extent such claims were alleged in the plaintiff's complaint, summary judgment should be granted to the defendants.

a. Hostile Work Environment

Title VII prohibits creating or allowing a hostile work environment based on race, color, religion, sex, or national origin. See Baqir v. Principi, 434 F.3d 733, 746 n.14 (4^th Cir. 2006). To prove a hostile work environment, a plaintiff must show that: (1) she experienced unwelcome harassment; (2) the harassment was based on her sex; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) some basis exists for imputing liability to the employer. See Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc).

The defendants argue that summary judgment should be granted on the plaintiff's Title VII hostile work environment claim because the plaintiff has failed to show that the alleged conduct was based on her sex and was sufficiently severe and pervasive to create a hostile work environment (doc. 212-1 at 14-17). The undersigned agrees.¹²

12 As the undersigned recommends that summary judgment be granted on the plaintiff's hostile work environment claims under Title VII and Title IX on this basis, the defendants' additional arguments in support of dismissal of these claims will not be addressed (see doc. 212-1 at 12-20).

In response to the motion for summary judgment, the plaintiff argues that a “hostile work environment [was] created by frequent and pervasive comments by Defendant Gibbs that were derogatory and offensive to Plaintiff, as well as comments made by Plaintiff's subordinate, an adjunct professor named Dale Hyder, a male employee who frequently disparaged and undermined Plaintiff, without an[y] consequence” (doc. 242 at 26). The plaintiff does not discuss the actual comments allegedly made by Dr. Gibbs and Mr. Hyder - either in her statement of facts or in her argument - but rather simply makes the conclusory argument that whether her allegations “are severe and pervasive enough to be considered a hostile work environment is a question of fact for the jury in this case” (id. at 26-27).¹³ The undersigned disagrees as a reasonable jury could not conclude based on the record before the court that the defendants created or allowed a hostile work environment in violation of the plaintiff's rights under Title VII.

13 As noted, Rule 56 provides that a party must support assertions by “citing to particular parts of materials in the record, ” and further provides that “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c).

The evidence before the court related to the comments allegedly made by Dr. Gibbs and Mr. Hyder consists of the following:

• The plaintiff testified, “When I first started in July [Dr. Gibbs] came up to my office ... And he said to me, oh, and by the way, you need to wear looser tops because you teach criminal justice students who are mostly male” (doc. 242-6, pl. dep. 67, 70).

• The plaintiff testified that in “maybe Octoberish, ” Dr. Gibbs “said something about my top again, like it's too tight” (id. 70).

• The plaintiff testified that no one other than Dr. Gibbs sexually harassed her and that the foregoing comments were “everything he did to sexually harass” her (id. 71).

• In her complaint, the plaintiff also alleged that Dr. Gibbs created a hostile work environment based on sex by commenting to her about the attractiveness of Mr. Hyder's wife, stating that the plaintiff's work-study student “dressed like a common street whore, ” stating that certain faculty members or students had “resting bitch face, ” and referring to the plaintiff as a “crazy cat lady” (doc. 1, comp. ¶ 112).

• The plaintiff frequently complained to Dr. Gibbs that Mr. Hyder, an adjunct faculty member for whom she was direct supervisor, undermined her in the classroom by stating his opinion regarding academics who lacked law enforcement experience (doc. 212-6, Gibbs dep. 85-86).

• Dr. Gibbs was asked in his deposition whether Mr. Hyder's “sort of skepticism about Dr. Lashley's street credibility . . . could have been sort of gender bias type of an allegation between how she was being treated by her subordinate employee based on gender, ” to which Dr. Gibbs replied, “There could be. . . . I don't know whether it was gender as much as it was credential” (doc. 242-4, Gibbs dep. 98).

• Dr. Gibbs testified that he “wanted to protect [the plaintiff]. She was new and she was already having issues, and so I wanted to step in and put some distance between” the plaintiff and Mr. Hyder (id. 88). Dr. Gibbs further testified that he did not mean “protect, as in physically. I mean, let me handle it, put some distance between the two of you and let me handle it” (id.105). Dr. Gibbs testified that he spoke with Mr. Hyder when the plaintiff brought up the issue during the fall semester, but when Dr. Lashley complained about Mr. Hyder in January, he thought that the plaintiff “needed to step up” and “needed to fight the battle with Mr. Hyder rather than . . . interceding on her

behalf” (id.). Dr. Gibbs further testified that he would describe Mr. Hyder's conduct toward the plaintiff as “disrespectful” (id. 106).

Here, viewing the evidence in a light most favorable to the plaintiff, there is absolutely no evidence that Dr. Hyder's alleged “undermining” of her to students was based on the plaintiff's sex, nor is there any evidence that Dr. Gibbs' alleged conduct such as commenting to her about the attractiveness of Mr. Hyder's wife, stating that the plaintiff's work-study student “dressed like a common street whore, ” stating that certain faculty members or students had “resting bitch face, ” and referring to the plaintiff as a “crazy cat lady, was based on the plaintiff's sex. Moreover, even assuming the comments allegedly made by Dr. Gibbs and Mr. Hyder were based on the plaintiff's sex, the conduct alleged by the plaintiff falls far short of meeting the “severe or pervasive” element. In Faragher v. City of Boca Raton, the Supreme Court reaffirmed the standard for determining when a plaintiff has established a hostile work environment, stating that a plaintiff must establish that the environment was “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” 524 U.S. 775, 787 (1998). Actionable harassment occurs when the workplace is “permeated with discriminatory intimidation, ridicule, and insult.'” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). Title VII is not a “general civility code.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). “Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). When considering a plaintiff's claim that she was subjected to a hostile work environment, courts must consider the totality of the circumstances. Harris, 510 U.S. at 23. Relevant factors “may include the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. Here, the plaintiff has failed to forecast evidence upon which a reasonable jury could determine that the conduct was sufficiently severe or pervasive to create a hostile work environment.

Accordingly, summary judgment should be granted to defendant SMC on the plaintiff's Title VII hostile work environment cause of action. See Sunbelt Rentals, Inc., 521 F.3d at 315-16 (collecting cases holding that complaints of rude treatment, callous behavior by superiors, or differences of opinion or personality conflicts with superiors are not actionable under Title VII).

b. Retaliation

To establish a prima facie case of retaliation under the burden-shifting framework in McDonnell Douglas, 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) (alterations in original) (quoting Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004)). The burden then shifts to the employer to demonstrate that “its purportedly retaliatory action was in fact the result of a legitimate non-retaliatory reason.” Id. If the employer does so, the burden shifts back to the plaintiff to show that “the employer's purported nonretaliatory reasons ‘were not its true reasons, but were a pretext for discrimination.'” Id. (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc)).

In her complaint, the plaintiff alleged that she engaged in protected activity under Title VII by (1) complaining to Dr. Gibbs “about improper comments towards Plaintiff by a male colleague [Mr. Hyder] who was specifically undermining her with students” and (2) by making “an internal complaint” to President Cochran, then-Human Resources Director and Title IX Coordinator Dunn, and outside employment counsel “about gender discrimination against her in violation of Title VII” (doc. 1, comp. ¶ 148). With regard to Mr. Hyder's alleged “undermining” of the plaintiff, the defendants argue that there is no evidence that this conduct was based on the plaintiff's sex. The undersigned agrees. Protected activity occurs when the employee “(1) communicates to [her] employer a belief that the employer has engaged in . . . a form of employment discrimination . . . and (2) concerns subject matter that is actually unlawful under Title VII or that the employee reasonably believes to be unlawful.” DeMasters v. Carilion Clinic, 796 F.3d 409, 418 (4th Cir. 2015) (internal quotation marks and citations omitted). Here, viewing the evidence in a light most favorable to the plaintiff, the plaintiff reported to Dr. Gibbs that Mr. Hyder undermined her in the classroom by stating his opinion regarding academics who lacked law enforcement experience. Such conduct does not concern subject matter that is actually unlawful under Title VII or that the plaintiff could reasonably believe was unlawful under Title VII.

Moreover, as to the plaintiff's conclusory allegation in her complaint that she reported “gender discrimination against her in violation of Title VII” to President Cochran, Ms. Dunn, and outside employment counsel (doc. 1, comp. ¶ 148(B)), the plaintiff cites no evidence in support of this allegation in her response to the motion for summary judgment. The plaintiff has failed to provide dates or any other specifics supporting her claim that she engaged in protected activity by reporting sex/gender discrimination against her. “Naked assertions of ‘contact' with [human resources], … are insufficient to demonstrate that [the plaintiff] had engaged in legally cognizable ‘protected activity.'” Malry v. Montgomery Cty. Bd. of Educ., C/A No. 8:17-cv-01590, 2018 WL 6523884, at *9 n.8 (D. Md. Dec. 11, 2018) (finding that claims that the plaintiff contacted the human resources office repeatedly through the year were inadequate (citation omitted)). In her response, the plaintiff relies on her arguments as to her Title IX retaliation claim (doc. 242 at 27-28), in which she cites her attorney's letters to Dr. Cochran, Ms. Dunn, and to defense counsel that were sent after the plaintiff's termination from employment (id. at 28). These letters did not mention alleged sex discrimination against the plaintiff nor did the letters mention any other form of discrimination made unlawful by Title VII (docs. 243-1, 243-2).¹⁴ To the extent the plaintiff alleged that the letters constitute opposition activity¹⁵ because the letters mentioned her assistance to female students in reporting alleged sex discrimination, “'Title VII is not a general bad acts statute, however, and it does not prohibit private employers from retaliating against an employee based on her opposition to discriminatory practices that are outside the scope of Title VII.'” Stennis v. Bowie State Univ., 716 Fed.Appx. 164, 167 (4th Cir. 2017) (quoting Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011)). “Title VII . . . [does] not prohibit sex discrimination against students; rather, Title IX protects students from sex discrimination.” Id. Accordingly, no reasonable jury could find that the plaintiff engaged in protected activity under Title VII by opposing alleged discrimination that is covered by Title IX.

14 The letter dated February 26, 2018, references “several potential legal claims, ” including violation of Title IX, and the letter dated March 6, 2018, notes that the plaintiff “would like to file an official report of discrimination and retaliation with SMC under Title IX . . . .” (docs. 243-1, 243-2).

15 Title VII distinguishes between two forms of protected activity: participation and opposition. Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). “Activities that constitute participation are outlined in the statute: (1) making a charge; (2) testifying; (3) assisting; or (4) participating in any manner in an investigation, proceeding, or hearing under Title VII.” Id. The Court of Appeals for the Fourth Circuit has “articulated an expansive view of what constitutes oppositional conduct, recognizing that it encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities.” DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015) (internal quotation marks omitted).

Based upon the foregoing, summary judgment should be granted to defendant SMC on the plaintiff's Title VII retaliation cause of action.

3. Title IX

In her ninth and tenth causes of action, the plaintiff alleged claims for hostile work environment and retaliation in violation of Title IX against defendant SMC (doc. 1, comp. ¶¶ 108-30).

a. Hostile Work Environment

Title IX of the Educational Amendments of 1972 prohibits gender discrimination in educational programs and activities that receive federal financial assistance. 20 U.S.C. § 1681. Title IX creates an implied private right of action, which “extends to employment discrimination on the basis of gender by educational institutions receiving federal funds.” Preston v. Com. of Va. ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir.1994) (citations omitted). To establish a Title IX claim on the basis of sexual harassment, the plaintiff must show that (1) she was employed an educational institution receiving federal funds, (2) she was subjected to harassment based on her sex, (3) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity, and (4) there is a basis for imputing liability to the institution. See Jennings v. Univ. of N.C. , 482 F.3d 686, 695 (4th Cir. 2007) (citations omitted). The Court of Appeals for the Fourth Circuit has stated that it looks “to case law interpreting Title VII of the Civil Rights Act of 1964 for guidance in evaluating a [sexual harassment] claim brought under Title IX.” Id. (citations omitted). The plaintiff's Title IX hostile work environment claim is based on the same conduct alleged in her Title VII claim (doc. 1, comp. ¶¶ 108-23, 131-46; doc. 242 at 26-28). Accordingly, for the reasons discussed above with regard to the plaintiff's Title VII hostile work environment claim, summary judgment should also be granted to defendant SMC on the plaintiff's Title IX hostile work environment cause of action.

b. Retaliation

The plaintiff alleged that she engaged in protected activity under Title IX by assisting student in making complaints about male student athletes, by complaining about Mr. Hyder's improper comments about her, and by making a formal complaint about Title IX violations (doc. 1, comp. ¶ 125). She further alleged that defendant SMC retaliated against her by not renewing her contract, terminating her employment, and rescinding President Cochran's offer to continue her pay and benefits throughout the remainder of her contract (id. ¶ 126).

In Jackson v. Birmingham Board of Education, the Supreme Court of the United States held that Title IX provides a private right of action for school employees who assert complaints of sex-based discrimination on behalf of students and who are subsequently subjected to adverse employment action because of the complaints of discrimination. 544 U.S. 167, 174 (2005) (“When a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination' ‘on the basis of sex,' in violation of Title IX.”). “If Title IX's private right of action does not encompass retaliation claims, the teacher would have no recourse if she were subsequently fired for speaking out. Without protection from retaliation, individuals who witness discrimination would likely not report it, indifference claims would be short circuited, and the underlying discrimination would go unremedied.” Id. at 180-81. As the Court observed, “sometimes adult employees are the only effective adversaries of discrimination in schools.” Id. at 181. As with her Title VII claim, to establish a prima facie case of Title IX retaliation, a plaintiff is required to “show (1) that she engaged in protected activity; (2) that her employer took an adverse action against her; and (3) that a causal connection existed between the adverse activity and the protected action.” Stennis., 716 Fed.Appx. at 166-67 (citations omitted).

With regard to the plaintiff's allegation that defendant SMC retaliated against her based on her report to Dr. Gibbs that Mr. Hyder undermined her in the classroom by stating his opinion regarding academics who lacked law enforcement experience, as the undersigned found with regard to the plaintiff's Title VII retaliation claim, this conduct does not concern subject matter that is actually unlawful under Title IX or that the plaintiff could reasonably believe was unlawful under Title IX. Accordingly, summary judgment should be granted to defendant SMC on this claim.

As to the plaintiff's claim that she engaged in protected activity under Title IX by assisting students in making complaints about male student athletes, she has presented evidence that she raised complaints of sex-based discrimination on behalf of students to Ms. Dunn. The defendants argue that the plaintiff cannot prevail on her Title IX retaliation claim “because the incidents she refers to did not result in a formal complaint or investigation with the U.S. Department of Education Office for Civil Rights” (doc. 212-1 at 21-22) (footnote omitted)). The undersigned disagrees. In support of their argument, the defendants cite Stennis v. Bowie State University, in which the Court of Appeals for the Fourth Circuit upheld the district court's ruling that the plaintiff failed to allege that she engaged in either participation or opposition protected activity under Title VII. 716 Fed.Appx. at 167. In that case, the plaintiff professor complained to the defendant university's human resources department regarding her students' concerns that the department chair was discriminating against them. Id. at 166-67. She claimed that the department chair retaliated against her by recommending that she be denied tenure. Id. at 167. Specifically, the court noted that “'participation in an internal employer investigation not connected with a formal EEOC proceeding does not qualify as protected activity under the participation clause'” of Title VII, and thus the plaintiff did not engage in participation activity because she did not file her own charge with the EEOC until after the adverse action took place. Id. (quoting Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 49 (2^nd Cir. 2012)). The court held that the plaintiff failed to allege that she engaged in opposition activity because the conduct she opposed (alleged discrimination against students) was not prohibited by Title VII. Id. As discussed above, the undersigned recommends that the plaintiff's Title VII retaliation cause of action be dismissed for this same reason. Importantly, however, the Fourth Circuit vacated the district court's order dismissing the plaintiff's Title IX retaliation and did not find that plaintiff failed to allege that she engaged in protected activity under Title IX, as argued by the defendants here. See Id. at 168.

As set forth in detail above, the plaintiff emailed Ms. Dunn on September 29 and 30 and December 6, 2017, regarding several incidents involving student athletes, which Ms. Dunn admitted could implicate Title IX (doc. 242-5, Dunn dep. 120-27). The plaintiff also reported the allegations regarding the mustard incident involving a basketball player and the Wal-mart counterfeit gift card incident involving basketball players (doc. 1, comp. ¶ 75). With regard to the mustard incident, the plaintiff testified that Dr. Gibbs angrily told her that “the rumor has it that you told [the female student] to get an attorney” (doc. 242-6, pl. dep. 186), which Dr. Gibbs has denied (doc. 242-4, Gibbs dep. 110). Further, as noted by the plaintiff, Dr. Gibbs admitted in his deposition that the decision not to renew the plaintiff's contract was “the combination of [the plaintiff] complaining” about issues at SMC “and that it wasn't a good fit, and it just appeared that things were not headed in a positive direction” (doc. 242-4, Gibbs dep. 124). As noted by the defendants, the context of Dr. Gibbs' testimony shows that his reference to the “complaining” was about the plaintiff's complaints about students not living up to her expectations and her complaints to Vice President for Marketing Ware seeking a retraction of a press release in which the plaintiff was featured (id. 107-08). However, Dr. Gibbs did testify that he “heard . . . through the grapevine” that the plaintiff had encouraged the female student involved in the mustard incident to hire a lawyer (id. 110). Based upon the foregoing the undersigned finds that the plaintiff can establish a prima facie case of retaliation in violation of Title IX.

Accordingly, as the plaintiff has “adduced evidence sufficient to create triable issues of fact as to all elements of her prima facie case of retaliation . . . [, ] [u]nder McDonnell Douglas, . . . the burden of production shifts to the defendant to offer a legitimate, non-retaliatory reason for its adverse employment action.” Doe v. Morgan State Univ., C/A No. GLR-19-3125, 2021 WL 2550496, at *16 (D. Md. June 21, 2021) (Title IX retaliation case) (internal quotation marks omitted). Defendant SMC has done so here by demonstrating that the plaintiff's contract was not renewed because she was not a good fit with SMC, and she was terminated from employment based on the reports of her unprofessional, inappropriate interactions and conversations with SMC's faculty, including Dr. Gibbs, Ms. Turner, and Dr. Keisler.

Accordingly, the burden shifts back to the plaintiff to show that SMC's purported nonretaliatory reasons were not its true reasons, but were a pretext for Title IX retaliation. As noted above, “to carry her burden at the pretext stage of showing 'that retaliation was a but-for cause' of her termination, [the plaintiff] must present evidence to “establish both that the employer's reason [for the termination] was false and that retaliation was the real reason for the challenged conduct.” Cole, 811 Fed.Appx. at 174 (quoting Foster, 787 F.3d at 252). As with the plaintiff's ADA retaliation claim, the undersigned recommends that the district court find that the plaintiff has failed to carry her burden.

The plaintiff's argument that her contract was not renewed and she was terminated from employment in retaliation for her complaints on behalf of female students is undermined by the fact that defendant SMC entered into a separate contract with the plaintiff on January 9, 2018, to teach an additional spring semester course titled, “Intro to Forensics Science” (doc. 212-2, Dunn aff. ¶ 4 & ex. B at 3). This additional contract was entered after the plaintiff's emails to Ms. Dunn on September 29 and 30 and December 6, 2017, regarding several incidents involving student athletes (doc. 242-5, Dunn dep. 120-27). Moreover, the plaintiff's claim that her complaints about potential violations of Title IX were the reason for the non-renewal of her contract is undermined by the undisputed testimony of Ms. Dunn that she was not consulted about SMC's decision to not offer the plaintiff another contract (doc. 212-4, Gibbs aff. ¶ 6; doc. 212-2, Dunn aff. ¶ 13). Moreover, Ms. Dunn testified that she did not contribute to defendant SMC's decision to terminate the plaintiff's employment (doc. 212-2, Dunn aff. ¶ 13). Further, Dr. Gibbs testified that while he had heard of “some behavior issues with student athletes, ” he was not aware of the plaintiff's reports of such (doc. 249-3, Gibbs dep. 108-09). As noted above, Dr. Gibbs did testify that he “heard . . . through the grapevine” that the plaintiff had encouraged the female student involved in the mustard incident to hire a lawyer (doc. 242-4, Gibbs dep. 110), and the plaintiff testified that Dr. Gibbs angrily told her that “the rumor has it that you told [the female student] to get an attorney” (doc. 242-6, pl. dep. 186). However, the undersigned finds this evidence insufficient to meet the plaintiff's burden of establishing that retaliation was the but-for cause for the non-renewal of her contract and termination from employment. As discussed above with regard to the plaintiff's ADA retaliation claim, the plaintiff has failed to demonstrate that the decisionmakers in this case did not honestly believe that the plaintiff was not a good fit for SMC in making the decision to not renew her contract or that the decisionmakers did not honestly believe that the plaintiff had made the threatening comments that were reported to them in making the decision to terminate her employment. Accordingly, summary judgment should be granted on the plaintiff's Title IX retaliation cause of action.

4. Section 1983

In her fourteenth cause of action, the plaintiff alleged a claim against Mr. Boyd in his individual capacity for violation of her civil rights (doc. 1, comp. ¶¶ 160-69). Specifically, the plaintiff alleged that Mr. Boyd, who was at that time the Chief of SMC's Campus Police Department, violated her constitutional rights by sending a trespass notice to the plaintiff, by referring to a “domestic terrorist” in a Facebook post, and by depriving her of First Amendment and Due Process rights to speech and association (id. ¶¶ 162-164). The defendants first argue that Mr. Boyd's Facebook post and trespass notice do not amount to constitutional deprivations (doc 212-1 at 30-31). In response, the plaintiff does not address the Facebook post, and thus she has apparently abandoned this allegation (doc. 242 at 31-32).¹⁶

16 Mr. Boyd testified that his Facebook post that stated “I do not want to see that little domestic terrorist's face on my timeline. Thanks, ” related to the school shooting in Parkland, Florida, which occurred two days before his post (doc. 212-4, Boyd dep. 61). He further testified that he was on vacation in Florida on the day that the plaintiff was terminated from employment, and he did not learn of her termination while away from SMC (id. 52). Even if the plaintiff had not abandoned this allegation, summary judgment would be appropriate as the plaintiff has presented no evidence that the post related to her in any way.

The defendants argue that Mr. Boyd was not acting under color of state law at the time he issued the trespass notice, the notice did not amount to a constitutional deprivation, and Mr. Boyd is entitled to qualified immunity (doc. 212-1 at 29-33). In response, the plaintiff addresses only the state actor issue, arguing that because Mr. Boyd was a Class 1 police officer at the time, “the mere fact that [defendant Boyd] was an employee of a private college does not exempt him from potential liability under 42 U.S.C. § 1983” (doc. 242 at 31-32). The undersigned has assumed for purposes of this motion that Mr. Boyd was acting under color of state law at the time the trespass notice was issued.

As noted, the defendants argue that the trespass notice issued to the plaintiff does not amount to a constitutional deprivation. The undersigned agrees. As the plaintiff does not address this issue nor the argument that Mr. Boyd is entitled to qualified immunity, she has waived further argument on these issue. The evidence shows that on February 22, 2018, Mr. Boyd sent to the plaintiff a trespass notice, informing her that she was not allowed “to have any contact with [SMC] on its properties by any means. This includes, but not limited to telephone, email, or social media . . . “ (doc. 242-9). When she received the trespass notice, the plaintiff was no longer an employee of SMC and had no entitlement to be on campus. Courts that have considered a plaintiff's right to enter a state-owned college have concluded that denial of access does not implicate protected property or liberty interests. See Moore v. Ricotta, 29 Fed.Appx. 774, 775 (2^nd Cir. 2002) (holding that an alumnus of a university has “the status of a visitor” and therefore does “not, at the time, have a Fourteenth Amendment liberty or property interest in being present on campus.”); Price v. Mount Wachusett Comm. Coll., C/A No. 11-10922, 2012 WL 3596859, at *6 (D. Mass. Feb. 17, 2012) (dismissing Section 1983 claims arising from campus issuing trespass notice to former employee/student); People v. Leonard, 477 N.Y.S.2d 111, 114-15 (N.Y.App.Div. 1984) (“Although [a campus] may be open generally for the enjoyment of the public, [a] defendant, who concededly is not a student or employee at the campus, has ... no “property” or “liberty” interest in being present on campus grounds ....”). Trespass after notice is a misdemeanor criminal offense prohibited by South Carolina Code § 16-11-620. Private property owners are permitted to provide written notice to invoke the power of the statute. See Jackson v. City of Abbeville, 623 S.E.2d 656, 658 (S.C. Ct. App. 2005).

Based upon the foregoing, summary judgment should be granted in favor of defendant Boyd on the plaintiff's Section 1983 cause of action.

5. ERISA

In her fifteenth cause of action, the plaintiff alleged a claim for violation of ERISA against defendant SMC (doc. 1, comp. ¶¶ 170-76). Specifically, the plaintiff alleged a statutory claim that SMC failed, in violation of 29 U.S.C. § 1132, to provide her with certain documents within 30 days after her written request (doc. 1, comp. ¶¶ 173-74). “ERISA requires [a plan] administrator ‘upon written request of any participant or beneficiary, [to] furnish a copy of the latest updated summary plan description, plan description ... contract, or other instruments under which the plan is established or operated.'” Glocker v. W.R. Grace & Co., 974 F.2d 540, 544 (4th Cir. 1992). The statute provides that a plan administrator who fails to comply with a request for information that the administrator is required to furnish to a participant by mailing the requested material within 30 days after such request may, in the court's discretion, be liable to the participant in the amount of up to $100 a day. 29 U.S.C. § 1132(c)(1).

Here, the evidence before the court shows the following sequence of events: Ms. Dunn testified that on March 1, 2018, after the plaintiff's termination from employment, she provided the plaintiff “all relevant post-termination benefits information” (doc. 212-2, Dunn aff. ¶ & ex. H). Exhibit H to Ms. Dunn's affidavit shows that the specific documents provided to the plaintiff included forms for converting the plaintiff's SMC life insurance and long-term disability plans to private plans and COBRA information (doc. 212-3 at 53-74). On March 6, 2018, the plaintiff's counsel sent a letter to President Cochran, with a copy to Ms. Dunn, requesting “a copy of all plan documents for any employee welfare benefit plan in which she was a participant during her employment with SMC” (doc. 243-2). On November 5, 2018, after this action was filed, defense counsel sent the plaintiff's counsel a letter by email, noting that the complaint's fifteenth cause of action referred to SMC's employee welfare and benefit plan documents (doc. 244-6). Defense counsel noted in the letter that the documents were attached via Sharefile (id.).

The defendants argue that prior to her request on March 6, 2018, defendant SMC had already provided her with the documents she needed to meaningfully participate in any benefit provisions afforded under SMC policies (doc. 212-1 at 34). In response, the plaintiff argues that defendant SMC was 214 days late in responding to her request, and thus she is entitled to a statutory award of $21,400 (doc. 242 at 32). She argues that the COBRA notice sent to her on March 1, 2018, “after her insurance benefit were unilaterally canceled by Defendant Cochran in retaliation for asserting her legal rights against Defendant SMC was not the documentation Plaintiff's counsel requested in his letter of March 6, 2018” (doc. 242 at 32). However, the plaintiff does not identify what documentation was missing. Further, the undisputed evidence before the court is that defendant SMC paid the plaintiff's COBRA premiums through the expiration of her contract term (doc. 212-5, Cochran aff. ¶ 16). There is no other evidence before the court of the circumstances of the plaintiff's insurance and whether it was cancelled by SMC or by the insurance carrier.

The plaintiff further argues that she “did not have the documents she needed to participate meaningfully in all of the welfare and benefit plans to which she was entitled under SMC's plans. Her promised status of employment benefits through the end of her 2017-2018 contract could have entitled her to apply for benefits or continuation of coverage under short-term or long-term disability benefits or to convert her life insurance at SMC following her termination” (doc. 242 at 32-33). As noted above, however, the information sent to the plaintiff on March 1^st included information regarding conversion of life insurance and disability benefits (doc. 212-3 at 53-74). Moreover, the plaintiff has failed to identify what requested plan documents were not included in the documents provided to her by Ms. Dunn on March 1^st. It is impossible for the court to even compare the documents provided by defendant SMC on March 1^st with the documents provided on November 5^th, as the plaintiff did not attach the documents provided on November 5^th as an exhibit to her response.

The plaintiff argues that “the statute does not require any showing of actual economic harm to recover the statutory penalties under ERISA” (doc. 242 at 33). The undersigned agrees with the plaintiff's assertion. See Faircloth v. Lundy Packing Co., 91 F.3d 648, 659 (4th Cir.1996) (“The purpose of [29 U.S.C. § 1132(c)(1)] is not to compensate participants for injuries, but to punish noncompliance with ERISA. Accordingly, prejudice to the party requesting the documents is not a prerequisite to the imposition of penalties. . . .. But prejudice is a factor that a district court may consider in deciding whether to impose a penalty. . . . The district court may also consider whether the administrator acted in bad faith.” (citations omitted)). However, here, the plaintiff has failed to present evidence regarding what “plan documents for any employee welfare benefit plan in which she was a participant during her employment with SMC” existed that the defendant failed to provide to her. As such, no reasonable factfinder could determine that defendant SMC did not comply with the requirements of 29 U.S.C. § 1132(c)(1), and, therefore, the court does not need to reach the issue of statutory penalties. Accordingly, summary judgment should be granted to defendant SMC on the plaintiff's ERISA cause of action. See Fed. R. Civ. P. 56(e) (providing that if a party “fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it . . . .”).

C. State Law Claims

As set out above, the undersigned recommends that summary judgment be granted on all of the plaintiff's federal causes of action. The court's jurisdiction over the plaintiff's state law claims is premised on supplemental jurisdiction (doc. 1, comp. ¶ 11). See 28 U.S.C. § 1367(a). The district court may decline to exercise supplemental jurisdiction if it “has dismissed all claims over which it has original jurisdiction.” Id. § 1367(c)(3). “[T]rial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished, ” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.1995) (citation omitted), and the Court of Appeals for the Fourth Circuit has identified several factors for a court to consider when making this determination: (1) “convenience and fairness to the parties, ” (2) “the existence of any underlying issues of federal policy, ” (3) “comity, ” and (4) “considerations of judicial economy.” Id. (citations omitted). Nonetheless, the undersigned has considered the plaintiff's state law causes of action and recommends as follows.

1. Breach of Contract

The plaintiff alleged in her first cause of action that defendant SMC breached the terms of her employment contract by the following:

Terminating Plaintiff's employment, without sufficient cause; [b]y failing or refusing to pay all of Plaintiff's compensation under the contract; [b]y failing or refusing to provide employee benefits to Plaintiff throughout the term of her contract; [b]y failing or refusing to conduct any investigation into Plaintiff's claims of whistleblower retaliation; and [b]y failing or refusing to take appropriate action to remedy Plaintiff's claims of whistleblower retaliation.

(Doc. 1, comp. ¶ 40). "The elements of an action for breach of contract are (1) the existence of a contract; (2) the contract's breach; and (3) damages cause by such breach." Mears Group, Inc. v. Kiawah Island Utility, Inc., 372 F.Supp.2d 363, 376 (D.S.C. 2019) (citing Allegro, Inc. v. Scully, 791 S.E.2d. 140, 146 (S.C. 2016)).

The defendants first argue that at the time of the plaintiff's termination from employment, she was not “'able, ready, and willing'” to continue performing under the contract (doc. 212-1 at 35-36 (quoting Swinton Creek Nursery v. Edisto Farm Credit, ACA, 483 S.E.2d 789, 796 (S.C. Ct. App. 1997))). In support of this argument, the defendants note Dr. Gibbs' testimony that the plaintiff was cleaning out her office and taking her things to her car on February 13, 2018 (id. at 36 (citing doc. 212-4, Gibbs aff. ¶ 8 & ex. A). The plaintiff, however, testified that she took her degrees down to take them to a frame shop to “correct misaligned frames” and because she “didn't trust them with [her] stuff anymore” (doc. 183-1, pl. dep. 80-82). On February 14, 2018, she told a student, “My students aren't supposed to know. They threatened me. That's why I took all my stuff down” (doc. 212-3 at 7). A few hours before her termination, she sent a text message to a friend, stating, “I took all my stuff home and they are mad. Screw them. It's so backwards here” (doc. 212-12 at 27). The plaintiff argues that she was actually performing her contract at the time of termination from employment and had indicated her intention to teach through the end of the semester (doc. 242 at 14). She further argues that whether or not she removed her framed degrees from her office after she was informed that her contract would not be renewed for the 2018-2019 school year is completely immaterial to the issue. Viewing the evidence in a light most favorable to the plaintiff, it appears that issues of material fact remain as to whether the plaintiff was able, ready, and willing to continue performing under her contract. Accordingly, the motion for summary judgment should be denied on this basis.

As part of her breach of contract cause of action, the plaintiff claims that SMC ignored her request for a grievance and her whistleblower complaint in violation of the procedures provided in SMC's Policies and Procedures Manual and Faculty Handbook, which were referenced in her contract (doc. 1, comp. ¶ 40). Like the plaintiff, the undersigned “cannot follow” (doc. 242 at 14) the defendants' argument on this point, which states:

Although SMC's Policies and Procedures Manual contains a disclaimer, it is applicable only to non-faculty, at-will employees. Aff. of Dunn, at Ex. A, § III-1. Plaintiff was a faculty member working under a one-year contract, not an at-will employee. Plaintiff's contract references “certain policies regarding faculty status, benefits and performance” enumerated in the Faculty Handbook. Id., at Ex. B. However, the Faculty [ ] contains no disclaimer statement regarding at-will employees. This is because faculty are employed through contracts, such as Plaintiff's.

(Doc. 212-1 at 36). As noted by the plaintiff, Ms. Dunn testified that faculty members are not at-will employees, but have contracts that incorporate the SMC Policies and Procedures Manual and the Faculty Handbook (doc. 242-5, Dunn dep. 238).

With regard to the plaintiff's claim that SMC refused to pay the balance of her contract or provide benefits, the defendants argue that SMC had no obligation to pay the plaintiff for work performed after her termination, but President Cochran nonetheless agreed to do so (doc. 212-1 at 37). The defendants claim that the plaintiff failed to accept the offer and instead threatened the school with litigation, which resulted in President Cochran rescinding his offer (id.). Rather than an “offer, ” the plaintiff alleged in her verified complaint that President Cochran “promised” that she would be paid salary and benefits through the end of her contract (doc. 1, comp. ¶¶ 24, 61). The undersigned finds that issues of material fact remain as to whether a contract existed and was breached by SMC on this point.

The undersigned finds that defendant SMC has failed to establish that no issue of material fact exists and that they are entitled to judgment as a matter of law on the breach of contract cause of action. Accordingly, summary judgment should be denied on this claim.

2. Breach of Contract Accompanied by a Fraudulent Act

In her second cause of action, the plaintiff alleged a claim against defendant SMC for breach of contract accompanied by a fraudulent act (doc. 1, comp. ¶¶ 44-52).The plaintiff specifically alleged that defendant SMC committed one or more of the following fraudulent acts: “fabricating a false reason for Plaintiff's immediate termination; by falsely accusing Plaintiff of making threats against the students, faculty, and/or staff of Defendant SMC; and by inducing employees of Defendant SMC to execute false and fraudulent affidavits against Plaintiff” (doc. 1, comp. ¶ 47). To succeed on her claim for breach of contract accompanied by fraudulent act, the plaintiff must prove: (1) a breach of contract; (2) fraudulent intent relating to the breaching of the contract, not merely to its making; and (3) a fraudulent act accompanying the breach. Floyd v. Country Squire Mobile Homes, Inc., 336 S.E.2d 502, 503-04 (S.C. Ct. App.1985) (citations omitted).

Assuming for purposes of this motion that the plaintiff can prove a breach of her contract, summary judgment should be granted to defendant SMC because the plaintiff has presented absolutely no evidence supporting her claims that defendant fabricated a false reason for her termination, falsely accused her of making threats, and/or induced employees to execute false affidavits.

The plaintiff contends that “there are serious factual disputes about the veracity of the reports from Ms. Turner and Dr. Keisler, ” noting that “Defendant Turner's credibility was completely destroyed during her deposition” when, although Ms. Turner testified that she had never been involved in any civil or criminal legal proceedings, the plaintiff's counsel cross-examined “her about two pending fraud claims against her and numerous bad check charges, [and] she asserted her Fifth Amendment rights against self-incrimination and refused to answer the questions” (doc. 242 at 15; doc. 244-1, Turner dep. 15-29). The plaintiff further notes (doc. 242 at 15) that Ms. Turner was apparently having significant financial problems in February 2018, because she asked the plaintiff to pay her water bill (doc. 252-6, pl. dep. 84), and that Ms. Turner was behind in launching the online criminal justice program (doc. 243-4, Cochran dep. 126-27). Viewing this evidence in a light most favorable to the plaintiff, it is unclear how this evidence raises any inference that defendant SMC “fabricat[ed]” a false reason for terminating her employment, “falsely accus[ed]” her of making threats, or “induc[ed]” employees to execute false affidavits, as the plaintiff alleged in her complaint. The plaintiff has failed to show any evidence that defendant SMC should have doubted Ms. Turner's credibility, as the evidence noted by the plaintiff arose after this litigation was initiated. Moreover, President Cochran testified that the report of either Ms. Turner or Dr. Keisler alone was sufficient ground for the plaintiff's immediate termination from employment (doc. 212-5, Cochran aff. ¶ 10). The plaintiff has failed to show evidence that defendant SMC had any reason to doubt the truthfulness of Dr. Keisler's report of the plaintiff's similarly disturbing statements, which occurred at approximately the same time as Ms. Turner's report.

The plaintiff next argues that “there were also material differences between the original written statements of Defendants Turner and Keisler, which were obtained by Defendant Ferguson on Monday, February 19, 2018, and the affidavits of those two individuals that were provided to Plaintiff's counsel on March 8, 2018” (doc. 242 at 15). The plaintiff notes that Ms. Turner's affidavit differed from her written statement in that it omitted the statement, “Hopefully, Dr. Lashley was expressing emotions and did not actually mean to carry out anything adverse on campus, ” and the affidavit also did not include the names of any of the students who witnessed the plaintiff's alleged comment about blowing up the school, whereas her hand-written statement specifically named Ms. Seeley, who disputed Ms. Turner's account (doc. 212-3 at 77, 84-85; doc. 243-7, Seeley aff. ¶ 12). As noted by the defendants, the plaintiff's alleged “material differences” are more accurately described as minor variations between Ms. Turner's written statement and later affidavit. Regardless, these variations fail to raise any inference that defendant SMC “embellished” Ms. Turner's account, as argued by the plaintiff (doc. 242 at 16). Moreover, the plaintiff cites no evidence supporting her theory that defendant SMC also “embellished” Dr. Keisler's account of the plaintiff's comments (id.). As the plaintiff has failed to present evidence upon which a reasonable jury could find defendant SMC's “fraudulent intent relating to the breaching of the contract” or that defendant SMC committed a fraudulent act accompanying the breach, summary judgment should be granted in favor of defendant SMC on this cause of action.

3. South Carolina Payment of Wages Act

In her third cause of action, the plaintiff alleged a claim of violation of the South Carolina Payment of Wages Act against SMC and defendant President Cochran (doc. 1, comp. ¶¶ 53-61). She alleged President Cochran is independently liable based on his promise to pay the balance of the plaintiff's contract at the time of her termination from employment (id.).The plaintiff also alleged that the amount eventually provided by SMC was approximately $1,500.00 short (id. ¶ 31).

In the appropriate case, an employee “ may recover for any failure to pay wages due to an employee … in an amount equal to three times the full amount of the unpaid wages, plus costs and reasonable attorney's fees as the court may allow.” S.C. Code Ann. § 41-10-80(C). However, as noted in Rice v. Multimedia, Inc., such recovery is not mandatory, and an “employer is protected from penalties if there is a good faith dispute over wages allegedly due.” 456 S.E.2d 381, 383 (S.C. 1995) (citation omitted).

The defendants argue that summary judgment should be granted on this claim because the plaintiff was paid all wages due under the statute (doc. 212-1 at 39). The defendants further argue that even if she was owed wages, “as a disloyal employee, Plaintiff cannot claim the benefit of the Wage Payment Act” (id. (citing Futch v. McAllister Towing of Georgetown, Inc., 518 S.E.2d 591, 594 (S.C. 1999) (stating that South Carolina "precedent establishes that an employee who breaches the common law duty of loyalty to an employer, often described as a ‘faithless servant,' forfeits the right to compensation"))). Lastly, the defendants argue that any delay in payment of the plaintiff's wages was a result of a good faith dispute regarding the plaintiff's claim to wages and benefits (id.). President Cochran attested that after the plaintiff threatened the school with litigation through her lawyer, he rescinded the offer to pay the plaintiff the unearned portion of her income; however, SMC ultimately paid the plaintiff the balance of her salary for the school year and paid COBRA premiums through her contract term (doc. 212-5, Cochran aff. ¶ 16).

In response to the motion for summary judgment, the plaintiff argues that President Cochran promised that she would be paid through May 8, 2018, but her compensation and benefits were suspended on February 28, 2018, after the plaintiff's counsel sent a letter of representation threatening legal action against the school (doc. 242 at 16). The plaintiff further argues “that because her compensation was spread out over 12 months, but she only worked 10 months under her contract, Defendants shorted her pay for the time she actually worked at the school” (id.). The plaintiff contends that the defendants' argument that she was a disloyal employee for “repeatedly exploiting a vulnerable student” (id. at 17 (quoting doc. 212-1 at 40)) is based on text messages obtained in discovery in this case and thus cannot serve as justification for the failure to pay her wages.

In their reply, the defendants argue that the plaintiff's claim that her last paycheck was $1,500.00 short is “demonstrably false” (doc. 249 at 7). The undersigned agrees. The defendants have submitted evidence showing that defendant SMC made a lump sum payment to the plaintiff on May 31, 2018, for the balance of her contract term (doc. 212-3 at 91-93). On that date, defendant SMC sent the plaintiff a check for $2,559.96 for COBRA reimbursement and made a direct deposit of $12,129.48, which payroll records show was for gross wages in the amount of $18,166.67, less taxes (id.). The plaintiff's one-year contract required paying her gross monthly salary of $4,166.67 for the months of March through June 2018, which totaled of $16,666.67 (docs. 1-2, 249-1), and defendant SMC also paid the plaintiff $1500.00, less taxes, for the balance of the plaintiff's January 2018 contract to teach an additional course (id.; see doc. 212-2 at 193). Thus, the defendants' evidence shows that on May 31, 2018, the plaintiff was paid the remainder of the gross amount due under her contracts of $18,166.67 ($16,666.67 + $1,500.00). Moreover, as to the alleged delay in paying the balance of the amount due under her contracts, the plaintiff's response fails to address the merits of the defendants' good faith dispute defense. See Rice, 456 S.E.2d at 383. Accordingly, the undersigned recommends that the district court grant the defendants' motion for summary judgment on this cause of action.

4. Defamation - Libel and Slander per se

In her fourth cause of action, the plaintiff alleged a claim for “defamation - libel and slander per se” against all the defendants (doc. 1, comp. ¶¶ 62-72). In this cause of action, the plaintiff alleged that numerous statements made by the defendants were defamatory (doc. 1, comp. ¶¶ 63-66). In their motion for summary judgment, the defendants address each of the allegedly defamatory statements, arguing that the statements do not rise to the level of actionable conduct because the statements are privileged, merely statements of opinion, unpublished, or true (doc. 212-1 at 41-49). In her response, however, the plaintiff argues against summary judgment only as to the post-termination text message sent by Ms. Gilliam on February 16, 2018, and the reports of defendants Ms. Turner and Dr. Keisler to SMC's administration regarding the plaintiff's alleged threatening statements (doc. 242 at 17-20). Accordingly, it appears that the plaintiff has abandoned her claims that the other statements cited in her complaint were defamatory, and thus summary judgment should be granted in favor of the defendants as to those claims for the reasons argued by the defendants in their motion.

Defamatory communications can take two forms: libel and slander. Slander is a spoken defamation, while libel is a written defamation or one accomplished by actions or conduct. Swinton Creek Nursery v. Edisto Farm Credit, ACA, 514 S.E.2d 126, 133-34 (S.C. 1999). In South Carolina, the elements for a defamation claim are: 1) a false and defamatory statement concerning another; 2) an unprivileged publication to a third party; 3) fault on the part of the publisher; and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Murray v. Holnam, Inc., 542 S.E.2d 743, 748 (S.C. Ct. App. 2001). Further, defamation in the form of libel, which is at issue in this case, is actionable per se,

meaning without pleading or proof of special damages, if it involves "written or printed words which tend to degrade a person, that is, to reduce his character or reputation in the estimation of his friends or acquaintances, or the public, or to disgrace him, or to render him odious, contemptible, or ridiculous...." Lesesne v. Willingham, 83 F.Supp. 918, 921 (E.D.S.C.1949). In other words, if the trial judge can legally presume, because of the nature of the statement, that the plaintiff's reputation was hurt as a consequence of its publication, then the libel is actionable per se. Capps v. Watts, supra. Essentially, all libel is actionable per se.

Holtzscheither v. Thomson Newspapers, Inc., 506 S.E.2d 497, 502 (S.C. 1998).

The evidence before the court shows that on February 16, 2018, the day of the plaintiff's termination from employment, Ms. Gilliam sent a message to the five resident hall directors, who are all SMC employees, stating, “If you see this woman on campus, notify campus police IMMEDIATELY. This is Dr. Summer Lashley and she was relieved of her duties as a faculty member today. Normally her hair is pulled back in a ponytail. DO NOT APPROACH HER! She may be volatile and unstable” (id. 56-58; doc. 242-8). This text message included the plaintiff's photograph, which Ms. Gilliam testified she found “[m]aybe [on] LinkedIn” and which she included because she knew her staff would not know what the plaintiff looked like (doc. 212-15, Gilliam dep. 56-57; doc. 242-8). The plaintiff testified that the photograph was the same as the one posted on her LinkedIn profile, which she described as “very private” (doc. 212-7, pl. dep. 83; doc. 1, comp. ¶ 63).

In her response in opposition to the motion for summary judgment, the plaintiff states, “Later that evening, the plaintiff began to receive text messages from students indicating that her photo was being circulated throughout school with a statement to alert authorities if anyone saw her on campus” (doc. 242 at 7). No. citation to the record is included. Accordingly, as noted above, the undersigned has assumed that the plaintiff relies on her verified complaint, in which she alleged, “Immediately after Plaintiff's termination of employment on February 16, 2018, a text message or email message was circulated to all Resident Assistants and Residence Hall Directors, which message contained Plaintiff's personal photograph from her LinkedIn profile, with the message, 'If you see this lady, please let me know !!'” (doc. 1, comp. ¶ 63). The complaint further alleged that “[t]he defamatory message about Plaintiff was widely circulated by Resident Assistants to other students, faculty, and staff within SMC, who reasonably interpreted the email to imply that Plaintiff was a criminal or posed some type of serious threat to the school“ (id. ¶ 65). The text message that is referenced in the plaintiff's response (doc. 242 at 7, 17-18) and included as Exhibit G to her response (doc. 242-8) does not include the words “If you see this lady, please let me know!!” Accordingly, it is unclear if the plaintiff is referring to another text message. To the extent the plaintiff is referring to the text message sent by Ms. Gilliam to the five resident hall directors (doc. 242-8), the plaintiff has submitted no evidence supporting her claim that the message was circulated beyond the resident hall directors to whom it was addressed. Moreover, the plaintiff has not shown that she has personal knowledge regarding the recipients of the text message such that the allegation in her complaint that the text was “widely circulated” can be considered an affidavit.

The defendants argue that summary judgment should be granted because Ms. Gilliam's text message was not defamatory because it was true and because it was privileged (doc. 212-1 at 44-45). Under the “the affirmative defense of conditional or qualified privilege … one who publishes defamatory matter concerning another is not liable for the publication if (1) the matter is published upon an occasion that makes it conditionally privileged, and (2) the privilege is not abused.” Swinton Creek Nursery, 514 S.E.2d at 134. To demonstrate the privilege applies, a defendant must prove the following elements: (1) good faith, (2) an interest to be upheld, (3) a statement limited in its scope to this purpose, (4) a proper occasion, and (5) publication in a proper manner and to proper parties only. Harris v. Tietex International Ltd., 790 S.E.2d 411, 415 (S.C. Ct. App. 2016). “Generally, whether an occasion gives rise to a qualified privilege is a question of law for the court.” Kunst v. Loree, 817 S.E.2d 295, 304 (S.C. Ct. App. 2018) (citation omitted). Matters such as whether a defendant acted in good faith in making the statement, whether the scope of the statement was properly limited in its scope, and whether the statement was sent only to the proper parties are examples to consider in determining whether the scope of the privilege has been exceeded or abused. Murray v. Holnam, 542 S.E.2d 743 (S.C. 2001).

Here, the evidence shows that Ms. Gilliam had limited involvement with the plaintiff and described their interactions as friendly (doc. 212-15, Gilliam dep. 39-40). Ms. Gilliam testified that after the plaintiff's termination, Ms. Dunn advised her that the plaintiff “had just been released of her responsibilities at the institution, and she was very emotional [and] very upset” (id. 54). Ms. Dunn further conveyed that Dr. Lashley was “emotionally unpredictable” and that if seen to contact campus safety immediately (id. 57-59). There is no evidence that Ms. Gilliam composed the text based on anything other than the information Ms. Dunn provided to her, and the evidence before the court is that Ms. Gilliam sent the text message only to five adult resident hall directors who were all SMC employees. Accordingly, the undersigned finds that the occasion gives rise to a qualified privilege. Thus, “a prima facie presumption to rebut the inference of malice exists, and the plaintiff has the burden to show either actual malice or that the scope of the privilege has been exceeded.” Kunst, 817 S.E.2d at 304-05 (citing Swinton Creek Nursery, 514 S.E.2d at 134).

As noted by the plaintiff, “[o]rdinarily, the jury determines if a qualified privilege has been abused or exceeded.” Id. at 305. See Swinton Creek Nursery, 514 S.E.2d at 134 (“Factual inquiries, such as whether the defendants acted in good faith in making the statement, whether the scope of the statement was properly limited in its scope, and whether the statement was sent only to the proper parties, are generally left in the hands of the jury to determine whether the privilege was abused.”). The plaintiff argues that there is “substantial disagreement . . . about who actually authorized or directed the sending of the text messages in question” (doc. 242 at 19). The plaintiff bases this argument on Ms. Gilliam's testimony that Ms. Dunn recommended that she send the text message (doc. 212-15, Gilliam dep. 54), while Ms. Dunn's testimony was that her “directive” to Ms. Gilliam was “to notify our staff that if [the plaintiff] was on campus, that they should report it to campus police” but that she was “surprised” that the text message was sent out, as she would have communicated the information “more discreetly” (doc. 242-5, Dunn dep. 211-14). Ms. Dunn testified that she did not tell Ms. Gilliam how to let her staff know, but sending a text message was “not how [she] would have done it” (id. 215). Based upon the foregoing, the undersigned recommends that the district court deny summary judgment and allow a jury to determine whether the qualified privilege was abused or exceeded in the sending of the text message.

The defendants also argue that the reports of Ms. Turner and Dr. Keisler to SMC's administration regarding the plaintiff's alleged threatening statements are subject to the qualified privilege, because these defendants were obligated under SMC policy to report the comments to SMC's administration or campus security (doc. 212-1 at 45) (citing doc. 212-2 at 56). In response, the plaintiff argues:

Perhaps if such statements were made through the appropriate channels, such as a call to law enforcement or campus security immediately after hearing the alleged statements, those Defendants might have a valid argument for qualified privilege. However, they made their accusations against Dr. Lashley outside of the method set forth in the Policies and Procedures Manual for reporting threatening behavior or conduct on campus.

(Doc. 242 at 20). SMC's Policies and Procedures Manual for the 2017-2018 school year provides, in pertinent part, in the Workplace Violence Prevention Policy section:

Anyone who believes that he or she is a victim of threatening or violent conduct in the workplace, or who observes such behavior or believes a credible threat of such behavior exists should call Campus Safety at 864-587-4003. Campus Safety will notify the appropriate supervisor, the Director of Human Resources and the President or their designee.

(Doc. 212-2 at 55). Here, as with the text message discussed above, the undersigned finds that the reports by Ms. Turner and Dr. Keisler gives rise to a qualified privilege, but a jury should determine if the qualified privilege has been exceeded. Accordingly, summary judgment should be denied as to these statements.

As set out above, the plaintiff alleged the defamation cause of action against “all defendants” (doc. 1, comp. ¶¶ 62-72). However, she has apparently abandoned the majority of the claims made in her complaint, as she limited her opposition to the motion for summary judgment to the text message sent by Ms. Gilliam and the reports of Ms. Turner and Dr. Keisler to SMC's administration regarding the plaintiff's alleged threatening statements. Based upon the foregoing, summary judgment should be denied on this cause of action as to Ms. Gilliam's text message and the reports of Ms. Turner and Dr. Keisler and should be granted as to all other allegations against the other individual defendants.¹⁷

17 Neither Ms. Gilliam nor Ms. Dunn are named defendants in this action.

5. Wrongful Termination in Violation of Public Policy

In her fifth cause of action, the plaintiff alleged a claim for wrongful termination in violation of public policy against defendant SMC (doc. 1, comp. ¶¶ 73-84). South Carolina recognizes a public policy exception to the employment at-will doctrine. Lawson v. South Carolina Dep't of Corrs., 532 S.E.2d 259, 260 (S.C. 2000). “'Where the retaliatory discharge of an at-will employee constitutes violation of a clear mandate of public policy, a cause of action in tort for wrongful discharge arises.'” Id. (quoting Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d 213, 216 (S.C. 1985)). The defendants argue that summary judgment should be granted because the plaintiff was not an at-will employee at the time of her discharge (doc. 212-1 at 49-50). The plaintiff does not address this argument in her response to the motion (see doc. 242 at 20-21).

The Supreme Court of South Carolina has found that “an employee under an at-will contract with a 30 day notice provision may maintain an action for wrongful discharge in violation of public policy under Ludwick.” Stiles v. Am. Gen. Life Ins. Co., 516 S.E.2d 449, 451 (S.C. 1999) (answering certified question). Here, however, the plaintiff has specifically alleged that she was a contractual employee with a definite term and that defendant SMC breached that contract. ”[W]ithout more, a contract for a definite term and an at-will contract are distinct.” Cunningham v. Anderson Cty., 778 S.E.2d 884, 886 (S.C. 2015) (finding that plaintiff failed to advance argument that he was an at-will employee and affirming trial court's grant of summary judgment on plaintiff's wrongful discharge claim). Accordingly, summary judgment should be granted to defendant SMC on this cause of action.¹⁸

18 The defendants further argue that even if she could sustain a state law claim for wrongful discharge, this cause of action is barred by the plaintiff's statutory causes of action arising under federal law (doc. 212-1 at 50). The plaintiff concedes that some of her claims for retaliation are addressed in connection with specific statutory remedies, such as the ADA, Title IX, and Title VII, and cannot be simultaneously pursued under the holding of Lawson, 532 S.E.2d 259 (doc. 242 at 20).

6. Invasion of Privacy

In her thirteenth cause of action, the plaintiff alleged an invasion of privacy claim against defendants SMC, Dr. Gibbs, and Ms. Ferguson (doc. 1, comp. ¶¶ 154-59). The plaintiff bases her claim on the following actions of the defendants:

(1) defendant Dr. Gibbs' demanding that she tell him about her health conditions”; (2) Dr. Farmer's disclosure to colleagues in the Social Science Department that the plaintiff had been diagnosed with Clostridium difficile (“C. diff”), which caused some of her colleagues to make fun of her for possibly giving them all diarrhea; (3) school official perpetuating rumors about the plaintiff reportedly having sexual relationships with a student and a member of the campus police department; (4) Ms. Dunn's pressuring the plaintiff into disclosing detailed information about her prior stalker; (5) Ms. Ware's sending the plaintiff's photograph to local media outlets, without her permission, announcing her hiring at SMC, and failing to have those outlets take down her photograph upon request by the plaintiff; and (6) dissemination of the plaintiff's photo around campus immediately after her termination, via text message, informing everyone that she had been terminated, stating that she was volatile and unstable, and suggesting that she was a dangerous threat to the safety of students, faculty, and staff at the school.

(Doc. 242 at 29-30; see doc. 1, comp. ¶ 155).

South Carolina law has recognized three distinct claims for invasion of privacy: (1) wrongful appropriation of personality, (2) wrongful publicizing of private affairs, and (3) wrongful intrusion into private affairs. Snakenberg v. Hartford Cas. Ins. Co., 383 S.E.2d 2, 5 (S.C. Ct. App. 1989) (citation omitted). The plaintiff's allegations indicate she is pursuing the second and third types of claims. See Meetze v. Associated Press, 95 S.E.2d 606, 608 (S.C. 1956).

“Wrongful publicizing of private affairs involves a public disclosure of private facts about the plaintiff. The gravamen of the tort is publicity as opposed to mere publication. The defendant must intentionally disclose facts in which there is no legitimate public interest-there is no right of privacy in public matters.” Snakenberg, 383 S.E.2d at 6. For claims for wrongful publicizing of private affairs, “an essential element of recovery is a showing of a public disclosure of private facts.” Rycroft v. Gaddy, 314 S.E.2d 39, 43 (S.C. Ct. App. 1984) (emphasis in original) (citation omitted). “Communication to a single individual or to a small group of people, absent a breach of contract, trust, or other confidential relationship, will not give rise to liability.” Id. (citations omitted).

“Wrongful intrusion into private affairs, consists of the following elements, which must be pleaded and proved: (1) Intrusion . . .;(2) Into that which is private . . . (3) Substantial and unreasonable enough to be legally cognizable . . . and (4) Intentional.” Snakenberg, 383 S.E.2d at 6. “An intrusion may consist of watching, spying, prying, besetting, overhearing, or other similar conduct.” Id. Importantly, “[t]he law protects normal sensibilities, not heightened sensitivity, however genuine.” Id. (citation omitted).

With regard to the plaintiff's claims that Dr. Gibbs demanded that she tell him about her health conditions and that Dr. Farmer disclosed to colleagues in the Social Science Department that the plaintiff had been diagnosed with C. diff, the plaintiff has failed to show any public disclosure. The evidence of record before the court is that, after learning from the plaintiff of her diagnosis with C. diff, Dr. Farmer requested that facilities staff clean areas of the Walker Building to protect SMC's students and employees (doc. 212-12 at 28-30). Dr. Farmer's email request did not disclose the person who was diagnosed with C. diff (id.). Moreover, the plaintiff has presented no evidence that Dr. Gibbs publicly disclosed information regarding the plaintiff's health conditions following their meeting on January 30, 2018. “When a plaintiff bases an action for invasion of privacy on 'intrusion' alone, bringing forth no evidence of public disclosure, it is incumbent upon him to show a blatant and shocking disregard of his rights, and serious mental or physical injury or humiliation to himself resulting therefrom.” Rycroft, 314 S.E.2d at 43. The plaintiff has failed to do so here with regard to either Dr. Farmer's email or Dr. Gibbs' request that the plaintiff tell him about her health conditions. As noted by the defendants, the plaintiff announced her C. diff diagnosis to various co-workers and students. The plaintiff sent separate text messages to two students and an SMC employee informing them that she had C. diff (doc. 212-3 at 7); she sent a text message informing student Ms. Seeley of the C. diff diagnosis and then stating, “I hope I gave it to Mark” (id. at 28); she sent text messages to Ms. Turner informing her about the C. diff diagnosis and directing her to “wash everything” at the office (doc. 212-12 at 19-21); and she also emailed students telling them she “contracted a contagious illness” (id. at 22-24). The plaintiff argues that the defendants' “assertion that [she] was 'neither private about her health issues, nor squeamish about disclosing . . . intimate health details' is not only offensive, but also unsupported by the record on summary judgment, especially when viewed in Plaintiff's favor” (doc. 242 at 30 (quoting doc. 212-1 at 53)). However, this evidence is certainly relevant to whether the circumstances show a “blatant and shocking disregard” of the plaintiff's rights and serious mental or physical injury or humiliation resulting therefrom. Further, the plaintiff has cited no opposing evidence demonstrating that specific, material facts exist giving rise to a genuine issue. Accordingly, summary judgment should be granted to the defendants as to these allegations in the plaintiff's invasion of privacy cause of action.

The defendants further argue that there is no evidence that any defendant or SMC employee published a rumor about the plaintiff's alleged relationship with a student or a member of the campus police department (doc. 212-1 at 53-54). The defendants cite Dr. Farmer's and Ms. Ferguson's deposition testimonies in support of their argument (id.; see doc. 212-8, Farmer dep. 39; doc. 212-13, Ferguson dep. 42-45). The plaintiff does not address the defendants' argument or cite any evidence in support of this allegation in her response to the motion for summary judgment (see doc. 242 at 28-31). Accordingly, summary judgment should be granted to the defendants as to this allegation.

The plaintiff further bases the invasion of privacy claim on “Ms. Ware's sending the plaintiff's photograph to local media outlets, without her permission, announcing her hiring at SMC, and failing to have those outlets take down her photograph upon her request by the plaintiff” (doc. 242 at 30). The defendants argue that the evidence shows that the plaintiff fails to meet the standard of proof necessary to survive summary judgment (doc. 212-1 at 54-55). With no citation to evidence, the plaintiff summarily argues that because of her

[D]ire concerns about her privacy after the story that Plaintiff reasonably believed would be limited to the internal SMC magazine for students and alumni was distributed by SMC's marketing department to local news media without her permission, Plaintiff desperately tried to recapture her privacy by requesting that Lisa Ware, the Vice President of Marketing, contact the news media about taking down the photo and story. Rather than cooperating in this matter, Ms. Ware mocked Plaintiff and called her “erratic and confused.”

(Doc. 242 at 30-31).

The evidence before the court tells a different story. On June 7, 2017, shortly after she was hired, the plaintiff emailed Dr. Gibbs and asked if SMC wanted her photo for the school's website, stating that she could provide one that she was “comfortable with” (doc. 212-12 at 13). Dr. Gibbs responded in the affirmative and told her to send the photo to SMC's Vice President of Marketing, Ms. Ware, which the plaintiff did (id. at 2-3, 11-12). Further, in the early weeks of the Fall 2017 semester, the plaintiff was interviewed for a press release and for SMC's online publication (doc. 212-4, Gibbs aff. ¶ 5(b)). Afterwards, Ms. Ware received complaints from the plaintiff regarding a misspelling in an article and another professor's name being under her photo in another article (doc. 212-4 at 17-18).¹⁹The plaintiff indicated that she was uncomfortable with any information being shared about her on the internet, and Ms. Ware offered to pull the article the plaintiff had previously approved for the college magazine if the plaintiff was not comfortable with it (id.). The plaintiff replied that the edited article was okay for the magazine, but she noted that she had not known that she would be included in a web article other than the Frontiers magazine, and she did not “want to be included on any social media” as she was “just not comfortable with it” (id. at 16). Ms. Ware emailed Ms. Dunn with the plaintiff's concerns and noted that the plaintiff had not asked that the links to the articles be removed (id. at 15). Ms. Ware noted that “[b]ecause of the erratic and confused tone of [the plaintiff's] requests and complaints, ” she thought it was best to have communication about the issues flow through Ms. Dunn (id.). Ms. Ware further noted that aside from the article and photo in the college magazine (Frontiers) that the plaintiff had approved, there would be no further publicity surrounding the plaintiff's employment at the college. Ms. Ware also noted that she had emails from the plaintiff indicating that her photo and contact information in the campus directory and on the criminal justice web page were correct (id.). In other emails, Ms. Ware indicated that while she never heard back from the plaintiff, the plaintiff requested to Ms. Dunn that the articles be “removed completely.” Ms. Ware indicated that she was not going to contact the publications to have the articles removed from the internet, because she was unwilling to request a correction or retraction that she believed would damage a relationship that was in the best interest of the college to maintain, especially over small mistakes that reflected poorly on the publication and not on SMC (id. at 14-15).

19 The plaintiff shared the link to one of the articles with Dr. Mark Rubin in an email with the subject “I was in the news” (doc. 212-12 at 4). The plaintiff also sent a text to Ms. Seeley, asking, “Does the trailblazer get published like frontier? I want to save the interview one. It is good” (doc. 212-3 at 9).

Here, the undisputed evidence shows that the plaintiff approved the use of her photo and announcement of her employment with the defendant, but later changed her mind. She has made no showing of intentional disclosure of “private facts” about which the public has no concern. Accordingly, for the reasons argued by the defendants, this claim fails.

The plaintiff further alleges an invasion of privacy by “Ms. Dunn's pressuring the plaintiff into disclosing detailed information about her prior stalker” (doc. 242 at 29-30). The defendants argue that the plaintiff cannot demonstrate a reasonable expectation that she would be free from her voluntary disclosure to SMC of this potential risk to her safety (and thus the safety of the students and faculty around her) and further argue that no fact finder could conclude that Ms. Dunn's careful handling of the situation would “cause mental injury to a person of ordinary feelings and intelligence” (doc. 212-1 at 54). The undersigned agrees. The evidence before the court shows that in September 2017, the plaintiff voluntarily disclosed to Ms. Dunn an incident in 2011 involving an alleged stalker. After speaking with the plaintiff and after consulting with an attorney to identify the best method of protecting the plaintiff and the campus, Ms. Dunn sent a followup email asking the plaintiff whether a restraining order was in place and whether it would possible for the plaintiff to share the name and a photo of her assailant so that the information (but not the plaintiff's name) could be shared with Campus Police (doc. 212-12 at 17). The plaintiff thereafter responded with the requested information (id. at 16).

The plaintiff did not respond to the defendants' arguments regarding Ms. Dunn's request for information about the plaintiff's stalker (see doc. 242 at 28-31). Based upon the foregoing, the defendants' motion for summary judgment should be granted as to this allegation.

The defendants do not specifically address in their motion for summary judgment the plaintiff's allegation of invasion of privacy by the dissemination by text message²⁰ of her photo and the message that she had been terminated from employment, was volatile and unstable, and suggesting that she was a dangerous threat to the safety of students, faculty, and staff at SMC (see doc. 212-1 at 51-55). Accordingly, while summary judgment should be granted to the defendants as to all other allegations in this cause of action, summary judgment should be denied as to this claim.

20 Presumably, this allegation regards the text message sent by Ms. Gilliam on February 16, 2018.

IV. CONCLUSION AND RECOMMENDATION

Wherefore, based upon the foregoing, the undersigned recommends that the defendants' motion for summary judgment (doc. 212) be granted on the plaintiff's sixth (ADA discrimination and failure to accommodate), seventh (ADA retaliation), eighth (ADA unlawful health inquiry), ninth (Title IX gender discrimination), tenth (Title IX retaliation), eleventh (Title VII hostile work environment, disparate treatment, and gender discrimination), twelfth (Title VII retaliation), fourteenth (Section 1983), and fifteenth (ERISA) causes of action.

Should the district court not accept the recommendation to dismiss all of the federal claims, or should the court accept this recommendation and choose to retain supplemental jurisdiction over the plaintiff's state law causes of action, the undersigned further recommends that summary judgment be granted on the following state law causes of action: second (breach of contract accompanied by a fraudulent act); third (South Carolina Payment of Wages Act); fourth (defamation - libel and slander per se), except as to the text message sent by Ms. Gilliam and the reports of Ms. Turner and Dr. Keisler to SMC's administration regarding the plaintiff's alleged threatening comments; fifth (wrongful termination in violation of public policy); and thirteenth (invasion of privacy), except as to the allegation regarding the text message sent by Ms. Gilliam after the plaintiff's termination from employment. The undersigned recommends that the motion for summary judgment be denied as to the plaintiff's first (breach of contract) cause of action and the portions of the fourth (defamation - libel and slander per se) and thirteenth (invasion of privacy) causes of action described above.

IT IS SO RECOMMENDED.

The attention of the parties is directed to the important notice on the following 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).