CAMERON McGOWAN CURRIE, District Judge.
This matter is before the court on two motions for summary judgment and two related evidentiary motions. For reasons set forth below: (1) the motion to dismiss or for summary judgment filed by Defendants The University of South Carolina ("USC"), USC's former Athletic Director, Eric Hyman ("Hyman"), and USC's Deputy Athletic Director, Marcy Girton ("Girton") (collectively "USC Defendants") is granted in full, albeit not on all grounds argued (Dkt. No. 129); (2) Plaintiff's motion to exclude or strike declarations filed by the USC Defendants is rendered moot by the court's disposition of the USC Defendants' dispositive motion without consideration of the challenged evidence (Dkt. No. 133); (3) the motion to exclude Plaintiff's proffered expert on Title IX is moot (Dkt. No. 131); and (4) the motion for summary judgment filed by Defendants Shelley Smith and Jamie Smith
Through this action, Plaintiff, Idana Barbara DeCecco ("Plaintiff" or "DeCecco"), seeks damages based on allegations that her USC soccer coaches, Shelley and Jamie Smith, treated DeCecco improperly including by engaging in sexual harassment. DeCecco also alleges that the USC Defendants and Coach Shelley Smith failed to take appropriate action to protect her from this mistreatment.
Summary judgment should be granted 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). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). Moreover, the party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
Rule 56(c)(1) provides as follows:
Fed.R.Civ.P. 56(c)(1).
The opposing party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). Therefore, "[m]ere unsupported speculation ... is not enough to defeat a summary judgment motion." Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir.1995). Similarly, the non-moving party cannot create a genuine issue of material fact by presenting his or her own conflicting versions of events. Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) ("A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct.").
The facts central to the dispositive motions, taken in the light most favorable to DeCecco, the non-moving party, are set out below.
The exit interview form for the same player, which DeCecco does not quote, indicates that the player was dissatisfied because the coaches played favorites, carried their personal lives onto the field, contradicted each other, and sometimes used foul language. Dkt. No. 146-1 at 3-4. She also complained about teasing and joking which hurt self-esteem and coaches picking on people they did not like. Id. at 5; see also id. at 6 (stating in response to question no. 1 that "Jamie needs to learn how to talk to women. Can't talk to them the same way [as males]. Matt [the other assistant coach] is a complete jerk.").
Jamie Smith sat roughly six feet ("two meters") from DeCecco. P. dep. at 42-43. He asked her "how [she] was doing, how [she] was feeling," and "just talk[ed] ... about [her] playing time .... the whole time [she] was there." P. dep. at 38. He asked "[w]hat he could do to get [DeCecco] more playing time[,] if he could talk to Shelley about it[.]" Id. He also "asked how [DeCecco] was feeling, if [she] was okay, if [she] was adjusting well." Id.
During the meeting, there were two sets of knocks at the door. P. dep. at 45. DeCecco determined the person knocking was Shelley Smith during the first set of knocks when the person knocking inquired "who's in there?" Id. DeCecco asked Jamie Smith if they should get the door, to
When DeCecco opened the door, Shelley Smith looked at DeCecco and asked "what the hell is going on?" P. dep. at 48. As Shelley Smith entered the room, DeCecco walked out. P. dep. at 48, 304. The door was then closed (DeCecco describes it as being closed in her face) after which DeCecco heard the Smiths arguing. P. dep. at 304. DeCecco was shocked by the encounter and stood by the door for about thirty seconds before walking away. P. dep. at 48, 304-05.
Although upset by what his daughter relayed, Mr. DeCecco and his daughter "concluded that Shelley Smith should be responsible to report the incident, or at the very least, call a meeting to discuss the incident." Id. ¶ 22 (also stating that he "was very conflicted, because I was uncertain of how or with whom such problems were supposed to be addressed in the event that Shelley Smith did not take responsibility to report or investigate the incident"). There is no evidence that DeCecco or her father followed up to see if
P. dep. at 83-84.
DeCecco also refers to another player telling her about a complaint made against Jamie by a former team member. Id. at 84. The only specification of what information was provided to DeCecco is a reference to earlier testimony regarding the former player whose exit interview and letter are found at Hyman Ex. 5 (discussed above).
The USC Defendants also mention a few other incidents or circumstances DeCecco referenced in her deposition as potential bases for her claim of harassment. These include Jamie Smith cursing at practice, making condescending comments to players, and comments Jamie Smith made to trainer Stephanie Rosehart in April 2009. Dkt. No. 129-1 at 10-11. The comments to Rosehart were allegedly made in the presence of DeCecco and another player and were to the effect that it would be funny or weird to imagine a specified player and her soon-to-be fiancé fooling around or having sex because the player was so "out there" and her fiancé was so quiet. P. dep. at 69-71, 310-11.
The appeal was dismissed on July 15, 2010, based on DeCecco's failure to get back with Dr. Miller or take other action to pursue her appeal. Id.
Consistent with procedures referenced in his prior email, Hyman responded that because DeCecco had already met with her head coach, the next step was to meet with Girton. Id. He further stated that he would meet with DeCecco and her parents if they and Girton still felt it was necessary after a meeting with Girton. Id. A series of emails was subsequently exchanged in which DeCecco stated she had already met with Girton who advised her to work with her coaches but that she and her coaches had not "come to a workable solution." Id. Hyman responded with suggested meeting dates. Id. Hyman's assistant also exchanged emails with DeCecco regarding potential meeting dates, beginning with a July 14, 2010 email suggesting possible dates between July 22 and 30. P. dep., D. ex 14 (Dkt. No. 129-7 at 6-7).
Also on July 14, 2010, DeCecco copied Hyman and Girton on an email to the Smiths questioning why her locker had been cleaned out. P. dep., D. ex. 14 (Dkt. No. 129-7 at 5). Jamie Smith responded that he had spoken to the administration and they suggested waiting to set a meeting time until Shelley Smith returned. Id.
On July 27, 2010, DeCecco copied Hyman and Girton on a second email to the Smiths raising concerns regarding her status on the team. P. dep. at 186, D. ex. 44. (also stating "if I am being kicked off of the team, I need to receive the promised redshirt"). DeCecco again referred to the cleaning out of her locker and noted that she was not being allowed to participate in team functions. Id. Girton responded within two hours, at 3:40 p.m., asking DeCecco to meet with Girton, the Smiths, Jamie Funk (USC's compliance officer), and Rob Campbell (the team's academic advisor) on July 29, 2010, at 8:15 a.m. P. dep. at 186, D. ex. 45.
During the meeting, DeCecco initially discussed concerns including that she "felt isolated" and was "depressed," "not having a good time," and was "upset about the scholarship." Id. at 105. DeCecco's father then raised several concerns including the "toxic environment," "neglect [by] Shelley [Smith]," and presence of "too much domination by Jamie [Smith]." P. dep. at 106. Mr. DeCecco then confronted Jamie Smith as to whether he had promised DeCecco redshirt status her sophomore year and whether he had threatened that bad things would happen if DeCecco appealed the scholarship decision. P. dep. at 106-07; C. DeCecco dep. II at 12. Both DeCecco and her father testified that Jamie Smith conceded making the "bad things" comment. Id. Mr. DeCecco testified that Jamie also admitted promising redshirt status. Id.
At this point, Shelley Smith made a "remark about something being inappropriate."
DeCecco remained in Columbia, South Carolina (the location of the USC campus where she attended) until August 9, 2010. There is no evidence that she had any further interaction with the Smiths from the July 29, 2010 meeting until her departure.
After returning to Canada, DeCecco suffered emotional distress which she attributes to events at USC. Dkt. No. 139 at 14 (citing, e.g., Christopher Marusiak dep. at 40, 49, 76-77 (treating psychologist who concluded DeCecco suffered post traumatic stress disorder which he attributed to events she allegedly suffered at USC)). This emotional distress caused DeCecco difficulties both in her academic and athletic career. P. dep. at 191-93 (testifying that emotional difficulties contributed to her decision to redshirt her first year on the University of Alberta soccer team, then to leave the team after one year), 254-55 (noting she was in a position to be a starting player her first year at University of Alberta, but left the following year due to her mental state), 269-70 (stating that events alleged in the complaint "completely stunted" her "whole soccer career" and "whole academic plan"). DeCecco left the University of Alberta team after one year, at which point she had at least two years of eligibility to play college soccer remaining. Id. But for the denial of redshirt status at USC, she would have had three years remaining. Id.
The verified complaint asserts eight causes of action against the various Defendants.
DeCecco's first cause of action asserts a claim for sexual harassment under 20 U.S.C. § 1681(a) ("Title IX"). Dkt. No. 1 ¶¶ 134-56. This claim, which is asserted solely against USC, relies on allegations that USC allowed the Smith Defendants to sexually harass DeCecco by failing to investigate and address incidents of sexual harassment including but not limited to the Locker Room Incident, the Boxer Shorts Incident, and Shelley Smith's alleged adverse treatment of DeCecco.
DeCecco's second cause of action asserts a claim for sexual harassment under 42 U.S.C. § 1983. Dkt. No. 1 ¶¶ 157-62. This claim is asserted against USC and the Smith Defendants. It alleges that the Smiths engaged in sexual harassment of DeCecco and that USC condoned and ratified that conduct through the actions (and inactions) alleged above.
DeCecco's third cause of action is a common law claim for intentional infliction of emotional distress ("outrage") and is asserted solely against the Smith Defendants. Dkt. No. 1 ¶¶ 163-69. It alleges that the Smiths' sexual harassment and threatening conduct was intended to and did cause DeCecco to suffer extreme emotional distress.
DeCecco asserts three separate negligence claims, two for simple negligence and one for gross negligence. The first simple negligence claim (fourth cause of action) is asserted against Hyman, Girton and the Smith Defendants. Dkt. No. 1 ¶¶ 170-78. It alleges that these Defendants knew or should have known that Jamie Smith had acted inappropriately toward players and, consequently, should be held liable for failing to protect DeCecco from the risk of harm posed by him. This claim relies, in part, on prior complaints by players and an alleged prior directive that Jamie Smith not meet privately with players.
As to both of the Smith Defendants, this claim relies on allegations of a failure to protect and of "sexual harassment or other inappropriate conduct by [both coaches.]" Dkt. No. 1 ¶ 174. As to Jamie Smith, it alleges further that he "breached his duty to protect a student athlete by engaging in
The second simple negligence claim (fifth cause of action) is asserted solely against USC under the South Carolina Tort Claims Act, S.C.Code Ann. § 15-78-10 et seq., ("SCTCA").
The sixth cause of action, for gross negligence, is asserted solely against USC under the SCTCA. It rests on some of the same allegations as the fifth (negligence) cause of action against USC, specifically those involving a failure to properly supervise and control the Smith Defendants and to prevent them from harassing, abusing or retaliating against DeCecco.
The seventh cause of action is asserted solely against the Smiths. It alleges fraud based on the representations regarding DeCecco's redshirt status. Dkt. No. 1 ¶¶ 218-225.
The eighth "cause of action" is asserted against USC and the Smith Defendants. It purports to be a separate claim for punitive damages but does not assert any legal theory distinct from those previously asserted. Thus, in context, it seeks punitive damages based on the previously asserted claims of harassment and retaliatory conduct. Dkt. No. 1 ¶¶ 226-231.
USC argues that DeCecco's Title IX claim is barred by the statute of limitations (Dkt. No. 129-1 at 17-19) (arguing that a one-year period applies), as well as on substantive grounds (id. at 19-30). As to substantive grounds, USC relies on the following: (1) absence of notice to USC of the alleged sexual harassment (id. at 19-22); (2) absence of evidence of deliberate indifference (id. at 22-23); (3) insufficient evidence to establish that the alleged harassment was severe or pervasive (id. at 23-28); and (4) to the extent DeCecco alleges Title IX retaliation, absence of evidence that DeCecco engaged in "protected activity," at least prior to the July 29, 2010 meeting, or suffered any arguably retaliatory action after July 29, 2010 (id. at 28-31).
DeCecco responds arguing that her Title IX claim is timely and that she has adduced adequate evidence to support her claim. See Dkt. No. 139 at 16-20 (arguing for a three-year limitations period and, alternatively, that estoppel and waiver preclude USC from relying on any shorter period). As to the merits, DeCecco argues that: (1) any failure of notice from DeCecco was the result of USC's own procedures which prevented receipt of notice (id. at 23-26); (2) USC officials demonstrated deliberate indifference by failing to respond to DeCecco and her father's complaints (on July 29, 2010) and to prior "allegations of harassment and discrimination in [USC's] Women's Soccer Program" by other players (id. at 26-27); and (3) the age and power disparities between DeCecco and Jamie Smith warrant a finding of a sufficiently severe and pervasive environment of harassment to support her claim (id. at 27-28) (suggesting "Jamie Smith's conduct in this case is similar to the UNC Women's Soccer Coach's actions in Jennings v. Univ. of North Carolina, 482 F.3d 686, 695 (4th Cir.2007), and arguably worse given the physical touch during the Locker Room Incident). DeCecco does not address USC's arguments relating to her claim for retaliation under Title IX, although she does refer, generically, to alleged retaliatory actions throughout her memorandum.
Id. at 290, 118 S.Ct. 1989; see also id. at 292, 118 S.Ct. 1989 (upholding summary judgment for school district because district could not be "liable in damages under Title IX for a teacher's sexual harassment of a student absent actual notice and deliberate indifference," while noting that the decision did not preclude any available state-law claim against district or teacher or a claim under Section 1983 against teacher in his individual capacity).
As to what constitutes actual notice, the Court noted that petitioners conceded they could not satisfy the actual notice standard where:
Id. at 291, 118 S.Ct. 1989.
The court rejected reliance on the wrongdoer's own knowledge as notice to the entity. Id. ("Where a school district's liability rests on actual notice principles, however, the knowledge of the wrongdoer himself is not pertinent to the analysis."). It also rejected arguments based on the district's "failure to promulgate and publicize an effective policy and grievance procedure for sexual harassment claims." Id. ("[The school district's] failure to comply with the regulations [regarding policies and grievance procedures], however, does not establish the requisite actual notice and deliberate indifference. And in any event, the failure to promulgate a grievance procedure does not itself constitute `discrimination' under Title IX.") (also noting that such regulations could be enforced administratively).
The principles announced in Gebser were reiterated and reinforced the following year in Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). There the court noted it had "rejected the use of agency principles to impute liability to [a school district] for the misconduct of its teachers" and had rejected a negligence-based "knew or should have known" standard. Id. at 642, 119 S.Ct. 1661. Instead, a school district is liable for damages under Title IX "only where the district itself intentionally acted in clear violation of Title IX by remaining
Relying on Gebser and Davis, the Fourth Circuit upheld a district court's post-verdict grant of judgment as a matter of law in favor of a school district on a Title IX claim despite the fact that a school principal had constructive notice of an unreasonable risk of harm sufficient to hold him responsible under Section 1983. Baynard v. Malone, 268 F.3d 228 (4th Cir.2001). The court held, first, that "no rational jury could conclude that [the principal] — the relevant official for purposes of [the district's] liability under Title IX — had actual notice that [the teacher] was abusing one of his students." Id. at 238. Second, it held that "no rational jury could find that [the principal] was invested with the power to take corrective action on behalf of [the district]." Id. at 238-39. As to the second holding, the court "agree[d] with the Fifth Circuit that whether a supervisory employee may be viewed as the proxy of the school district depends upon whether the district has delegated to that employee the traditional powers of an employer, e.g., the authority to hire and terminate employees." Id. at 249. While noting that a principal in the relevant school system "possesses substantial authority over the school to which he or she is assigned," including the duty to supervise employees, the court concluded that the principal was not a proxy for the district because he did not have "the power to hire, fire, transfer or suspend teachers." Id.
Notice to Shelley Smith is also inadequate because she is one of the two alleged harassers. See Gebser, 524 U.S. at 291, 118 S.Ct. 1989 (holding notice to the wrongdoer is not notice to the employing
Assuming the court could isolate the actions of Jamie Smith from those of Shelley Smith and assuming that notice to Shelley Smith was otherwise adequate as notice to USC, DeCecco's Title IX claim would still fail the notice prong. This is because the only actual notice Shelley Smith is alleged to have received was of limited facts surrounding the Locker Room Incident which did not, alone, give notice of a sexually hostile environment. That is, under DeCecco's version of events, Shelley Smith learned only that a closed door meeting took place between Jamie Smith and DeCecco in the coaches' locker room from which DeCecco emerged looking upset. As there are many reasons why DeCecco might have been upset, this does not constitute actual notice of even a single incident of sexual harassment (much less one sufficiently severe to satisfy the relevant standard). There is no evidence Shelley Smith was actually aware of any touching or sexual innuendo which might have occurred during the meeting.
Moreover, as explained below, there is no evidence that DeCecco suffered any sexual harassment, discrimination, or any other adverse treatment after the meeting given her lack of further contact with either of the Smiths and her election to pursue the remainder of her education elsewhere. Thus, even if Mr. DeCecco's comments in the July 29, 2010 meeting constituted notice of an instance of sexual harassment/hostile environment, and even if USC responded with conscience indifference,
There is no evidence that DeCecco was prevented from meeting with Girton when she sought to do so or that she was limited in the concerns she was allowed to raise. Thus, the evidence does not support any inference that DeCecco was prevented from giving notice of any sexual harassment to Girton or Hyman.
The failure of notice, at least prior to July 29, 2010, precludes a finding of deliberate indifference as USC cannot have been deliberately indifferent in failing to respond to an environment of which it was unaware. Even if DeCecco and her father gave some notice of a sexually hostile environment during the July 29, 2010 meeting, she cannot establish deliberate indifference after that date because it is undisputed that those present reacted to Mr. DeCecco's vague allegations by inviting the DeCeccos to make a formal complaint. Neither did so. USC cannot have been deliberately indifferent by failing to take further action under these circumstances.
There is, in any event, no evidence that DeCecco was subjected to sexual harassment, a sexually abusive environment, or any other form of adverse treatment after
For reasons discussed below with respect to the Section 1983 claim against the Smith Defendants, the court also finds that the Title IX claim fails because DeCecco cannot establish that she was subjected to severe or pervasive harassment because of her gender. See infra Discussion § III.B.2.
These determinations eliminate the need to resolve USC's other arguments including those based on its statute of limitations defense. Thus, the court does not reach the issue of whether the proper limitations period is one, two or three years. The court does, however, reject DeCecco's arguments that USC is estopped from raising or has waived its statute of limitations defense.
To the extent DeCecco's Title IX claim rests on alleged retaliation, it fails because she has not presented any evidence that she suffered any adverse action after engaging in protected activity. See Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir.2010) (required elements for retaliation claim are (1) that plaintiff engaged in protected activity; (2) that plaintiff suffered an adverse action; and (3) a causal link between the activity and adverse action). The only evidence that DeCecco engaged in protected activity under Title IX is found in her father's vague reference to the Locker Room Incident during the July 29, 2010 meeting. There is no allegation that DeCecco suffered any adverse action following that meeting. Thus, to the extent the complaint suggests a claim for retaliation, that claim fails.
USC moves for dismissal or summary judgment as to the Section 1983 claim on three grounds. First, it argues that, as an arm of the state, it is protected from liability
DeCecco challenges each of these propositions, arguing, inter alia, that she may pursue a claim under Section 1983 against USC and that this is her "exclusive remedy" for federally-protected rights. These arguments are in error.
While the Section 1983 cases on which DeCecco relies involve claims against "state actors," none suggest that the claim may be asserted against an entity that is an arm of the state. See, e.g., Dkt. No. 139 at 29 (citing Roberson v. City of Goldsboro, 564 F.Supp.2d 526, 527 (E.D.N.C.2008)). USC is such an entity. See, e.g., Greer v. University of South Carolina, 2012 WL 405773 (report and recommendation), adopted 2012 WL 405727 (D.S.C.2012). As explained in Greer:
Id. at *4. See also Kendley v. University of South Carolina, 2009 WL 5194997 (D.S.C. 2009) (identical language in a report and recommendation adopted by the undersigned).
DeCecco's suggestion that Will is either inapplicable or no longer good law to the extent it bars claims against the state is without merit. See Dkt. No. 139 at 29 (relying on Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 256, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009), as authorizing Section 1983 claim against state entities). In Fitzgerald, the court explained certain distinctions between Title IX and Section 1983 noting that "§ 1983 equal protection claims may only be brought against individuals as well as municipalities and certain other state entities." Id. (emphasis added). It is this reference to "certain other state entities" on which DeCecco relies in suggesting that USC is subject to suit under Section 1983.
DeCecco's reliance is misplaced. A careful reading of Fitzgerald reveals the Court's statement that "§ 1983 equal protection
Contrary to DeCecco's position, such language did not suggest an intent to modify longstanding interpretations of Eleventh Amendment immunity or to expand the scope of Section 1983 to claims precluded under Will. See, e.g., In re Secretary of Dep't of Crime Control and Public Safety, 7 F.3d 1140, 1149 (4th Cir.1993) (noting "it has long been settled that 42 U.S.C. § 1983 ... does not effect ... an abrogation" of a state's immunity under the Eleventh Amendment). Indeed, the Court again relied on Will, after its opinion in Fitzgerald was issued, noting that a plaintiff could not seek damages against a state under Section 1983, even when the state waived sovereign immunity, because "a state is not a `person' under § 1983." Haywood v. Drown, 556 U.S. 729, 734 n. 4, 129 S.Ct. 2108, 173 L.Ed.2d 920 (2009).
In sum, USC is entitled to dismissal of the Section 1983 claim both under the Eleventh Amendment and because it is not a "person" subject to suit for damages under the statute. This determination makes it unnecessary to address USC's other arguments as to this claim.
DeCecco's fourth through sixth causes of action assert three separate claims for negligence. The fourth cause of action, asserted against Hyman, Girton and the Smiths, alleges negligence in the hiring, retention, and failure to properly supervise Jamie Smith. As it relates to Hyman and Girton, this claim is founded largely on allegations that they failed to respond properly to prior complaints regarding Jamie Smith and, arguably, that they failed in their duty to supervise Shelley Smith and the USC Women's Soccer Program in general.
The fifth and sixth causes of action, for negligence and gross negligence, are asserted solely against USC. Both of these causes of action rest on allegations that USC acted negligently in (1) hiring and retaining Jamie Smith, (2) failing to take corrective action when on notice of improper actions by the Smiths (alleged as "ratification"), (3) failing (through Hyman) to properly supervise or monitor USC's coaching staff or exercise proper "institutional control," and (4) allowing negligent misrepresentations to be made to DeCecco.
The court rejects DeCecco's various arguments that USC has waived its Eleventh Immunity defense. First, Lapides v. Board of Regents of the Univ. Sys. of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), is inapplicable because this matter was initiated in federal court by DeCecco, rather than being removed to this court by USC. See Dkt. No. 139 at 21 (noting Lapides held voluntary removal of case to federal court waived Eleventh Amendment immunity and arguing that extension of Lapides supports a finding of waiver in this action). Neither does any other action by USC in its defense of this matter support a finding of waiver, particularly given that USC gave notice of an Eleventh Amendment immunity defense in its Answer. As with the statute of limitations defense, USC was
DeCecco does not directly address Girton and Hyman's Eleventh Amendment immunity argument other than by disavowing that they are sued in their official capacities. Dkt. No. 139 at 21-22. DeCecco further argues that the individual capacity negligence claim against these Defendants is not barred by the SCTCA because these Defendants' actions were outside the scope of their official duties. Her arguments, like her allegations, however, focus on alleged errors in the performance of their duties, not actions outside the scope of their duties.
DeCecco's characterization of her allegations against Girton and Hyman as fitting within the exceptions to immunity is without support. Nothing these Defendants are alleged to have done involved anything other than performance of their official duties.
In response, DeCecco asserts that she "is not required to reassert any applicable duty" because the SCTCA provides that "[l]iability for acts or omissions under this chapter is based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty." Dkt. No. 139 at 33 quoting S.C.Code Ann. § 15-78-20(a). She then argues that these Defendants violated the duty created by the SCTCA by failing to take proper action in response to complaints about Jamie and Shelley Smith prior to DeCecco's enrollment, including in response to an allegation of discrimination reported by a deaf player. Pointing to what she views as their worst offense, DeCecco states: "Most egregiously, they failed to follow up on Miss DeCecco's father's report of misconduct by Jamie Smith." Id. at 34. This alleged misconduct is described as including: "the Coaches' Locker Room Incident, threats that `bad things would happen' [if DeCecco pursued an appeal,] and failure to secure a redshirt for Miss DeCecco." Id. (also referring to a "blanket refusal to meet, communicate, be receptive, and investigate Miss DeCecco's claims").
To the extent DeCecco argues that the negligence was Girton and Hyman's failure to investigate allegations made during the July 29, 2010 meeting, her claim fails because she has failed to identify any injury which she suffered after this date as a result of the failure to investigate. Further, to the extent DeCecco's claim is based on a failure to investigate her allegations regarding the Locker Room Incident, her claim fails because she and her father failed to make a specific allegation or to ask for any such investigation after being invited to make a formal complaint.
Finally, DeCecco's allegations that Hyman and Girton engaged in a "blanket refusal to meet, communicate, be receptive, and investigate [her] claims" or refused to meet with her "until she faced her harasser" are wholly unsupported by the record. In each of the two relevant emails from Hyman, he noted that the practice was to require a player to speak first with her coaches but he also noted that DeCecco had already satisfied that step. DeCecco did not, in any event, advise Hyman or Girton that she had any complaint regarding sexual harassment, fraud, or any other legally actionable conduct until the July 29, 2010 meeting (if at all). Her father's reference during that meeting to the Locker Room Incident did not suggest touching or sexual innuendo. Despite the absence of such detail, Mr. DeCecco's comment drew an invitation to file a formal complaint. This reaction does not suggest a blanket refusal to meet, communicate, be receptive or investigate once even an allusion to sexual harassment was made.
DeCecco's last cause of action for punitive damages (asserted against USC and the Smith Defendants) does not advance any independent legal theory of relief. Instead, it seeks punitive damages based on legal theories previously advanced, with added allegations relevant to an award of punitive damages under one or more of those theories. It follows that USC is entitled to summary judgment on this claim in light of the disposition of all other claims asserted against it.
For the reasons set forth above, the USC Defendants' motion for summary
The court reaches its conclusion as to the USC Defendants' motion for summary judgment without consideration of the declarations of former players. DeCecco's challenge to the admissibility of these declarations is, therefore, moot. Dkt. No. 133 (arguing that these declarations are inadmissible because of procedural deficiencies including that they are not sworn in the presence of a notary, fail to certify all required matters, are unreliable, and include impermissible legal conclusions).
DeCecco offers Professor Hogshead-Makar as an expert on Title IX. Hogshead-Makar August 17, 2012 Report ("H-M Report") at 2. Hogshead-Makar opines, inter alia, that USC either had inadequate policies for the reporting of sexual harassment or failed to implement those policies adequately or both. H-M Report at 5-7; H-M dep. at 86-88. She also opines that various USC employees or officials failed to take proper action when they received notice of certain complaints or events. H-M Report at 6-7 (noting, inter alia, that Shelley Smith failed to follow policy when she failed to report a September 2008 incident — presumably referring to the October 2008 Locker Room Incident — and participants in the July 29, 2010 meeting with DeCecco and her father failed to follow through with an investigation). Although Hogshead-Makar does not offer any express opinion on the adequacy of any specific notice, the court assumes for present purposes that her opinion is meant to support the conclusion that both Shelley Smith's knowledge of circumstances surrounding the Locker Room Incident (in October 2008) and DeCecco's father's comments in the July 29, 2010 meeting gave USC actual knowledge of sexual harassment or a hostile environment.
USC seeks to exclude all of Hogshead-Makar's opinions. USC argues that these opinions are inadmissible legal opinions, irrelevant, and lacking in adequate foundation. Dkt. No. 131.
Thus, while the court has considered Hogshead-Makar's opinions, it either finds her opinions legally or factually unsupported (to the extent contrary to the rulings above) or irrelevant to the basis on which the court has granted USC summary judgment on the Title IX claim. This ruling renders USC's motion moot as there remains no claim on which Hogshead-Makar might offer an opinion.
As noted above, DeCecco asserts five causes of action against the Smith Defendants. Four of these causes of action assert distinct legal theories: violation of 42 U.S.C. § 1983 (sexual harassment); intentional infliction of emotional distress; negligence; and fraud. The fifth cause of action seeks punitive damages without asserting a legal theory of relief. The court, therefore, construes the fifth "cause of action" against the Smiths as seeking punitive damages under one or more of the first four claims, rather than as an independent cause of action.
The Smiths move for summary judgment on each cause of action. For the reasons set forth below, the motion is granted in full, albeit not on all grounds argued.
Because of inconsistencies between the verified complaint and certain arguments DeCecco makes in opposition to the Smiths' motion, the court begins by clarifying the scope of DeCecco's claims against these Defendants. First, the only negligence claim asserted against the Smiths is found in the fourth cause of action which is asserted jointly against Hyman, Girton, and the Smiths. Thus, to the extent DeCecco relies on allegations found in the fifth and sixth negligence claims (asserted solely against USC), her arguments are misplaced. See Dkt. No. 150 at 22 (referring to counts four through six in opposition memorandum's heading to section on negligence).
The court also disregards any suggestion that DeCecco's claims against the Smiths include a claim under Title IX as
DeCecco's fraud claim is, likewise, limited to the particular fraud alleged in the Complaint: misrepresentations regarding redshirt status. Dkt. No. 1 ¶¶ 218-225. Contrary to certain arguments in opposition to the Smiths' motion, the Complaint does not allege fraud based on representations regarding the duration of DeCecco's scholarship or whether she would be given a starting position, which were allegedly made when she was recruited for USC's soccer team. Compare Dkt. No. 1 ¶¶ 218-225 (fraud allegations) with Dkt. No. 150 at 31 (referring to scholarship promise in opposing motion for summary judgment as to fraud claim). Such a limitation is required by the pleading rules applicable to claims for fraud. Fed.R.Civ.P. 9(b) (requiring "circumstances constituting fraud" to be pleaded with particularity).
Through her second cause of action, DeCecco alleges that the Smiths and USC violated 42 U.S.C. § 1983 in their treatment of DeCecco. The court addresses this claim here only as it relates to the Smith Defendants.
The complaint does not state whether the Smiths are sued in their individual or official capacity as to the Section 1983 (or any other) claim. Capacity is, however, a critical threshold issue as it determines which immunities (Eleventh Amendment versus qualified immunity) apply.
In her memorandum in opposition to the Smiths' motion for summary judgment, DeCecco asserts that her claims against the Smiths are advanced both "in their individual and official capacities." Dkt. No. 150 at 10. She further appears to argue that all of her claims against these Defendants may survive in both capacities. Id. at 10-11. DeCecco also relies on Biggs v. Meadows, 66 F.3d 56, 60-61 (4th Cir. 1995), which instructs courts to consider "the nature of the plaintiff's claims, the relief sought, and the course of proceedings to determine whether a state official is being sued in a personal capacity." Dkt. No. 150 at 11 (asserting that when her claims are evaluated "in light of the Biggs factors, some of the conduct alleged in the Complaint ... is based on the Smith Defendants' conduct within the scope of their employment, while others [sic] fall outside.").
In her memorandum in opposition to the Smiths' motion for summary judgment, and despite her discussion of Biggs, DeCecco affirmatively asserts that she is proceeding against the Smiths in their official capacity as to her Section 1983 claim. The court inquired as to this issue at oral argument, at which point counsel for DeCecco indicated that she intended to proceed against the Smiths in both their official and individual capacities as to the Section 1983 claim. Any official capacity claim fails for reasons discussed above. The court, therefore, considers whether DeCecco's Section 1983 claim may be construed as an individual capacity claim.
DeCecco's Section 1983 claim against the Smiths is founded on a theory of sexual harassment. To survive on this claim, DeCecco must show that the person or persons whose actions are at issue: (1) were state actors, (2) harassed her because of her sex, and (3) the harassment was sufficiently severe or pervasive to interfere unreasonably with her educational activities. See Jennings v. University of North Carolina, 482 F.3d 686, 701 (4th Cir.2007) (addressing college soccer player's Section 1983 claim against soccer coach and noting that elements are governed by traditional Title VII jurisprudence).
Id. at 696 (internal citations, quotation and editing marks omitted).
In Jennings, the court found the severity and pervasiveness element satisfied both for purposes of a Title IX claim against the university and a Section 1983 claim against the offending coach and an administrator (based on supervisory liability). The court did so based on consideration of two specific instances of conduct targeting the plaintiff, Jennings, which occurred in and were made worse by an overall hostile environment which kept all players, including Jennings, in constant fear of individualized harassment.
The court described the overall hostile environment and Jennings' exposure and reaction to it as follows:
Id. at 691; see also id. at 692 n. 1 (noting "Jennings herself heard most of the comments... that [the coach] made in front of
The two specific instances of conduct directed to Jennings included explicit inquiries regarding her sexual activities. The court described the first incident and Jennings' reaction as follows:
Id. at 693 (citations to record omitted). The court described the second incident as follows:
Id. at 693.
The court noted that the coach "had tremendous power and influence over a player's opportunity for achievement in the soccer world" because of his stature as "the most successful women's soccer coach in U.S. college history." Id. at 696. The court then found the combination of the power and age disparity, the coach's prying into his players' personal lives, including explicit and crude inquiries into their sex lives and other actions, sufficient to support a finding of objective severity. Id. (noting the coach "pried into and talked openly about his players' sex lives in a way that was disrespectful and degrading").
As the court explained the overall atmosphere:
Dkt. No. 150 at 15, 16; see also id. at 17 (arguing resulting damages as follows: "As a result of the conduct of the Smith Defendants, Miss DeCecco's full scholarship was not renewed, effectively forcing her from the University. She then transferred to a Canadian school, lost credits, and will belatedly graduate. As a result, she was denied educational opportunities and benefits."). The court addresses each of the allegations in DeCecco's summary below, first individually and then collectively.
DeCecco urges the court to disregard her deposition testimony, contending that defense counsel engaged in an "obvious strategy of intimidating and wearing [her] down" during her deposition. Dkt. No. 139 at 9. Defendants, in contrast, argue DeCecco's deposition testimony should control to the extent it differs from the allegations in her verified complaint because a party may not create a genuine issue of fact by presenting two conflicting versions of the facts.
For present purposes, the court will resolve this dispute only in part: concluding that DeCecco's deposition testimony relating to Jamie Smith's conduct and comments during this alleged meeting controls over any contrary allegations in the complaint. Barwick v. Celotex Corp., 736 F.2d at 960 ("A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct.").
That said, the following sequence of events is supported by both the verified complaint and DeCecco's deposition when viewed in the light most favorable to DeCecco.
The court concludes that a reasonable jury could find that this incident was sexually motivated and both subjectively and objectively abusive (thus, an incident which could contribute to a finding of a sufficiently hostile environment). The subjective prong may be satisfied by DeCecco's testimony regarding her reaction. It is also supported by her father's corroborating testimony regarding DeCecco's state of mind when she called him following the incident. The objective prong may be satisfied based on: (1) the location of the meeting (a dressing room with access limited to other coaches); (2) the age and power disparity between DeCecco and her coach; (3) the failure of Jamie Smith to respond when Shelley Smith twice knocked on the door; (4) the ambiguous questions regarding whether he could do something to help DeCecco get more playing time, such as speak to Shelley Smith for her; and (5) the touch on the leg.
In concluding that a jury might find the Locker Room Incident sexually motivated and subjectively and objectively abusive, the court does not suggest that it is, alone, enough to support a claim for hostile environment. Instead, the court concludes that it is an incident which might, in combination with other incidents, support a claim that DeCecco was subjected to an environment sufficiently hostile to interfere with her educational opportunities and benefits.
DeCecco must, therefore, point to other incidents contributing to a hostile environment to support a claim under Section 1983. In this regard, the court notes that DeCecco has not presented any evidence that she was subjected to any other closed-door meeting, arguably sexually suggestive comments, or inappropriate touching during the remainder of her time at USC.
DeCecco's testimony also supports an inference that she was told by a teammate that a former player had complained about Jamie Smith and that Jamie Smith had been told not to meet alone with female players as a result. The specifics of what DeCecco was told and when are not clear. Despite extensive discovery on this issue, however, there is no direct or circumstantial evidence that Jamie Smith was ever given such an instruction.
The exit interview complaints specific to Jamie Smith included assertions that: (1) players felt Jamie Smith acted as head coach; (2) players were scared of Jamie and afraid they would be punished on the soccer field if they talked to Shelley about him; (3) Jamie Smith made unspecified comments about one player's hair, makeup or clothing that upset the player; and (4) Jamie Smith did not know how to talk to women. Complaints not specific to Jamie included: (1) fear that complaints about the coaches would result in loss of playing time; (2) a belief that the best people did not get a chance to play and the coaches played favorites and picked on people they did not like; (3) a view that the coaches carried their personal lives onto the field and contradicted each other; and (4) that the coaches sometimes used foul language and engaged in teasing and joking which hurt players' self esteem.
Finally, there is evidence DeCecco and another player overheard comments Jamie Smith made to trainer Stephanie Rosehart (another USC employee) along the lines that it would be funny or weird to imagine a specified player and her soon-to-be fiancé fooling around or having sex because the player was so "out there" and her fiancé was so quiet. For present purposes, the court assumes Jamie Smith was aware of the presence of DeCecco and her teammate and their ability to overhear his comments.
While comments made to others may contribute to proving the existence of a hostile environment, the particular comments referenced here add little or no weight to DeCecco's claim of a hostile environment. This is because they are scattered over a period of two years and, with the exception of the isolated comment to the trainer, are either not sexual or ambiguous as to sexual intent.
DeCecco suggests an alternative motive by arguing that the scholarship reduction was the end game in Shelley Smith's maltreatment of DeCecco. In essence, this theory presumes that Jamie Smith's threat was motivated by his desire to support Shelley Smith's maltreatment of DeCecco, which, in turn, was motivated by Shelley Smith's negative reaction to finding DeCecco alone in the coaches' locker room with Jamie Smith. To this extent, Jamie Smith's motivation would be derivative of Shelley Smith's motivation, which is insufficient for reasons discussed below. See infra Discussion § III.B.2.b. "Jealousy Motive."
Considered alone, the allegations of actions by Jamie Smith are insufficient to support a claim that he created a sexually hostile environment which a reasonable person would find abusive or which deprived DeCecco of educational benefits. Harris, 510 U.S. at 21, 114 S.Ct. 367; Jennings, 482 F.3d at 696, 701. While this disposes of any claim based on Jamie Smith's individual actions, it does not dispose of the Section 1983 claim which is considered further below both with respect to Shelley Smith's independent actions and the combined effect of both of the Smiths' actions.
Assuming without deciding that a reasonable jury could find that the dating question satisfies the basic motivation requirement, that it was made because of DeCecco's gender, there remains no evidence to suggest the inquiry was made with an intent to harm, embarrass, or harass DeCecco. To the contrary, the evidence suggests only that Shelley Smith followed up on a concern raised by team captains in a manner intended to minimize any embarrassment to DeCecco (by speaking to the other player), accepted the other player's word that there was no dating relationship, and indicated a willingness to discuss the issue when DeCecco later suggested she would like to do so.
The more difficult question is whether a reasonable jury could find Shelley Smith's motivation for any adverse treatment of DeCecco to be "because of" DeCecco's gender. Nothing in the nature of the treatment itself suggests sexual hostility (DeCecco and all other players on the team were female and the alleged adverse treatment was not sexual in nature). To the extent there is any suggestion of sexual motivation, it is found in the alleged trigger: Shelley Smith's reaction to the Locker Room Incident. For reasons set forth below, the court concludes that such a motive does not support a claim for sexual harassment under Section 1983.
In response, DeCecco makes several arguments as to why Shelley Smith's alleged hostile treatment was "because of" DeCecco's gender. See Dkt. No. 171 at 1-16. Although DeCecco argues that Shelley Smith's actual emotion is irrelevant, her arguments all circle back to some adverse reaction by Shelley Smith to finding DeCecco alone in the coaches' locker room with Jamie Smith.
Dkt. No. 171 at 11; see also id. at 5-6 (arguing DeCecco has shown the alleged mistreatment by Shelley Smith would not have happened but for her gender because Jamie Smith is presumably heterosexual and, consequently, "there is absolutely no evidence that Coach Shelley Smith would be upset or jealous of Miss DeCecco for any reason other than ... that Miss DeCecco was a woman alone with [Shelley Smith's] husband in a locked room").
All parties filed supplemental memoranda addressing this issue on December 17, 2012. Dkt. Nos. 171, 172, 173. No party was able to locate any Title IX or Section 1983 case addressing the issue. All, however, found Title VII cases addressing whether actions motivated by jealousy may constitute gender-based harassment or discrimination. See Dkt. Nos. 171 at 7-15, 172 at 2-4, 173 at 3-5. With one possible exception, Vargas-Caban v. Caribbean Transportation Services, 2005 WL 3560689 (D.Puerto Rico 2005) (cited by DeCecco), all of the cases hold that jealousy does not suffice.
In Vargas-Caban, the plaintiff alleged that she was subjected to sexual harassment and a gender-based hostile environment by her employer's male chief executive officer ("CEO") and his female subordinate, Nicoletti. Vargas-Caban alleged that the male CEO subjected her to unwelcome and inappropriate sexual contact "including rubbing, touching, kissing or caressing ... which, in the context described by plaintiff, may be perceived as sexually charged." Slip. Op. at 13. Vargas-Caban also alleged that her immediate supervisor, Nicoletti, treated her in a "violent[,] humiliating and demeaning manner." Id. Vargas-Caban suggested this treatment was motivated by jealousy due to Nicoletti's assumption that Vargas-Caban and the CEO had a sexual relationship. The court denied the employer's motion for summary judgment (on a Title VII claim) noting that, in addition to the allegations of jealousy-based motivation,
It is unclear whether the Vargas-Caban court considered jealousy a sufficient proxy for gender-based animus, or whether it found this potential motivation irrelevant in light of evidence of unwelcome and inappropriate touching by the CEO. See Slip Op. at 13 (discussing actions of CEO and Nicoletti collectively). In any event, the court did not directly address whether jealousy may suffice and any implicit conclusion as to the sufficiency of a jealousy motive is dicta. Under these circumstances, this court does not find Vargas-Caban persuasive authority supporting consideration of jealousy as sufficient motivation to support a claim of gender-based discrimination or harassment.
The remaining cases fall into two categories: cases involving sexual jealousy and cases involving some other form of jealousy, such as jealousy based on a co-worker's superior skills or opportunities. See, e.g., Hoskins v. Napolitano, 2012 WL 5921041, Slip Op. at 14 (D.Md.2012) (addressing jealousy based on plaintiff's claimed "superior work experience"). While the court agrees with DeCecco that the latter category of cases are distinguishable, it does not agree that all the cases DeCecco addresses are distinguishable on this basis. See Dkt. No. 171 at 8-10.
For example, DeCecco argues that Blackshear v. Interstate Brands Corp., 2010 WL 2045195 (S.D.Ohio) is distinguishable because the "jealousy stemmed from some factor other than gender." Dkt. No. 171 at 8 (emphasis in original). While all individuals involved in the incidents at issue in Blackshear were female, and plaintiff conceded she could not assert a claim for sexual orientation discrimination, she argued that the harassment was gender-motivated because the mistreatment was motivated by plaintiff's relationship with someone who was the object of her supervisor's affection. Id. *5. The court rejected this argument noting that the "purported mistreatment ... was not because Plaintiff was a female but because [she] was a person (regardless of gender) who was involved in a relationship with [the object of the supervisor's affection.]" Id. The court explained that "[m]ere jealousy of this sort, however distasteful or immature, does not equate to discrimination, harassment, or retaliation based on gender." Id.
Similar circumstances were presented in Huffman v. City of Prairie Village, 980 F.Supp. 1192 (D.Kan.1997) and Bush v. Raymond Corporation, Inc., 954 F.Supp. 490 (N.D.N.Y.1997). See Dkt. No. 171 at 10 (seeking to distinguish Huffman and Bush). For example, in Huffman, the court held that a female employee's claims based on actions of her female supervisor did not support a gender-based discrimination claim because the supervisor's alleged mistreatment was motivated by jealousy over plaintiff's relationship with the supervisor's boyfriend. See Huffman, 980 F.Supp. at 1199 (holding this motivation did not constitute gender-based discrimination). Similarly, in Bush, the court held gender-based motivation was not supported where plaintiff admitted her immediate supervisor was motivated by jealousy over special treatment the supervisor believed plaintiff received as a result of an assumed affair with a higher-level supervisor. Bush, 954 F.Supp. at 498.
The Eleventh Circuit Court of Appeals reached a similar conclusion in Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902, 903, 905 (11th Cir.1990) (cited by Defendants). There, the court held plaintiff had not shown gender discrimination, despite the fact she was terminated for allegedly having an affair with the owner's son while the owner's son, who was also an employee, was not disciplined. The court concluded that the difference in treatment was based on the difference in relationships (preference for a family member and desire to preserve the family in the face of the daughter-in-law's jealousy) rather than based on gender.
The court finds the cases discussed above (with the exception of Vargas-Caban) persuasive and concludes that alleged mistreatment motivated by a relationship or a threat to relationship is not mistreatment because of gender. In the present case, Shelley Smith's alleged mistreatment of DeCecco followed and was allegedly motivated by her reaction to finding DeCecco in the coaches' locker room with Jamie Smith. Whether this reaction is characterized as anger, jealousy, fear, or some other emotion, it is founded on the relationship between Jamie and Shelley Smith (as husband and wife, head coach and assistant coach, or both), not on DeCecco's gender per se. Under these circumstances, the court concludes that DeCecco cannot establish that any adverse action taken against her by Shelley Smith was because of DeCecco's gender. It follows that she cannot establish a Section 1983 claim against Shelley Smith.
Given the absence of evidence that Shelley Smith's alleged mistreatment of DeCecco was because of DeCecco's gender, Shelley Smith's actions cannot be considered in combination with Jamie Smith's actions to support a claim for hostile environment. It follows, given the inadequacy of the allegations based on Jamie Smith's actions alone, that DeCecco's claim that she was subjected to a hostile environment because of her gender fails whether asserted collectively or individually against either of the Smiths.
DeCecco's claim would fail even if the court were to find jealousy, anger, or protection of relationships a proper proxy for gender-based harassment. This is because the novelty of imposing liability on this basis supports a qualified immunity defense. See, e.g., Gregg v. Ham, 678 F.3d 333, 338-39 (4th Cir.2012) (noting defense of qualified immunity involves a two-step procedure, which considers first whether a constitutional violation has occurred and second whether the right violated was clearly established); Henry v. Purnell, 652 F.3d 524, 534 (4th Cir.2011) (noting that second step considers whether the contours of the right the official is alleged to have violated were sufficiently clear that the official would understand what he was doing violated that right).
Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Williams v. Hansen, 326 F.3d 569, 579 (4th Cir.2003) (applying Anderson in concluding, in the alternative to a favorable ruling on the merits, that defendant was entitled to qualified immunity because "if judges of the United States Courts of Appeals are of the view that plaintiffs are advancing a `right' that did not exist when allegedly infringed (and still does not exist) then the right could not have been clearly established at the time infringed."); Lopez v. Robinson, 914 F.2d 486, 489 (4th Cir. 1990) (applying Anderson in noting that "court must determine whether the actions would infringe `particularized' rights claimed by the plaintiff").
At best, DeCecco has directed the court to a single unpublished case from the District of Puerto Rico which may support the conclusion that jealousy or some other relationship-based motive may, at least in combination with other evidence of gender-based harassment, support a claim for sexual harassment under Title VII and, by analogy, Section 1983. The weight of authority, which this court finds persuasive, goes the other way. Under these circumstances, the court cannot find that it was clearly established when DeCecco was a player at USC that her coaches would violate DeCecco's constitutional rights if they treated her adversely due to a coach's jealousy or other relationship-based motive. It follows that the Smiths would be entitled to qualified immunity even if jealousy (or a similar motive) was found to be sufficient to establish gender-based discrimination or harassment.
In the absence of proof of the underlying claim against Jamie Smith, Shelley Smith cannot be liable under a supervisory liability claim. See Evans v. Chalmers, 703 F.3d 636, 654 (4th Cir.2012) (dismissing supervisory liability claims based on failure of the claim against the subordinate because "supervisors ... cannot be liable under § 1983 without some predicate constitutional injury at the hands of the individual [state] officer") (internal quotation marks omitted).
For the reasons set forth above, the court concludes that DeCecco has failed to establish a claim against either of the Smith Defendants under Section 1983.
DeCecco's cause of action for intentional infliction of emotional distress, also known as the tort of outrage, is asserted solely against the Smith Defendants. To support a claim under this state law cause of action, DeCecco must show that (1) these Defendants intentionally or recklessly inflicted severe emotional distress on DeCecco or were certain or substantially certain that such distress would result from their conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and
The claim at issue in Ford involved a real estate purchaser's repeated verbal harassment of his realtor over an extended period of time. The harassment included "orally accost[ing] [the realtor] with insulting and/or profane remarks on no less than seven different occasions." Id. at 779. On several of these occasions, the purchaser entered the realtor's home without invitation or came up to her in public places, yelling and using profanity. The South Carolina Supreme Court found this evidence "susceptible of the inference that the conduct complained of ... was not a mere complaint by a dissatisfied homeowner, but was instead a continuing pattern of highly questionable conduct over a period of almost two years[,]" which supported submission of the claim for intentional infliction of emotional distress to the jury. Id. at 780.
As many cases after Ford have emphasized, the second and fourth elements of the tort of outrage, the second being dispositive here, require heightened proof. See Hansson v. Scalise Builders of S.C., 374 S.C. 352, 650 S.E.2d 68, 71 (2007) (tracing development of the tort). This reflects a "widespread reluctance of courts to permit the tort of outrage to become a panacea for wounded feelings rather than reprehensible conduct." Id. at 71 (quoting Todd v. S.C. Farm Bureau Mut. Ins. Co., 283 S.C. 155, 321 S.E.2d 602, 611 (S.C.Ct. App.1984), rev'd on other grounds, 287 S.C. 190, 336 S.E.2d 472 (1985)).
It is for this same reason that the court acts as a gatekeeper by deciding, in the first instance, "whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, and only where reasonable persons might differ is the question one for the jury." Id. at 71 (internal citation and quotation marks omitted). Numerous appellate decisions affirm dismissal of outrage claims for failure of this element. See, e.g., Williams v. Lancaster County School Dist., 369 S.C. 293, 631 S.E.2d 286, 292-93 (S.C.Ct.App.2006) (finding parents' allegations against principal and school district relating to actions that affected their children's grades or class ranks could not be characterized as extreme and outrageous); Gattison v. S.C. State College, 318 S.C. 148, 456 S.E.2d 414 (S.C.Ct.App.1995) (university employee failed to establish sufficiently outrageous conduct despite evidence his supervisor falsely accused employee of misplacing documents, taunted him, and told employee college was going to fire him); Shipman v. Glenn, 314 S.C. 327, 443 S.E.2d 921 (S.C.Ct.App.1994) (holding supervisor's conduct in ridiculing speech impediment and then threatening to fire employee with cerebral palsy was not sufficient to support claim of outrage); Todd, 321 S.E.2d at 612 (holding actions of independent contractor hired by employer, which included lying and requiring employee to take a voice stress test that was later determined to be in violation of state law, did not satisfy necessary threshold because violation of the state statute "does not import moral turpitude or outrageousness" and "lying, in and of itself, [is not] outrageous conduct").
In deciding whether DeCecco's collective allegations against the Smiths present facts sufficient that a reasonable jury could find their individual or collective conduct "so extreme and outrageous as to exceed all possible bounds of decency [such that
It is against this backdrop that the court views DeCecco's claim for intentional infliction of emotional distress. The three most serious allegations are Jamie Smith's actions with respect to the Locker Room Incident, Shelley Smith's later inquiry of how DeCecco could live with herself knowing she would not be played, and Jamie Smith's alleged threat that bad things would happen if DeCecco appealed her scholarship reduction. As to the Locker Room Incident, the ambiguity of the comments and touch prevent a finding that the conduct was sufficiently extreme or outrageous to satisfy the relevant standard. Likewise, while Shelley Smith's inquiry was phrased in a manner that may have been unnecessarily harsh, it was not so far beyond the bounds of acceptable player-coach interactions as to exceed all possible bounds of decency. The same is true as to Jamie Smith's statement that bad things might happen if DeCecco appealed. While this alleged threat was sufficiently ambiguous that it might have been construed as physically threatening, there is no evidence that Jamie Smith intended it to be so construed or otherwise intended it to cause emotional distress (as opposed to dissuading DeCecco from filing or pursuing an appeal). Further, even if the threat violated college sports regulations, such a violation is not enough to establish extreme and outrageous conduct. See generally Todd, 321 S.E.2d at 612 (finding lying and violation of statute intended to protect employees did not support outrage claim). The other alleged actions are of less severity and, even collectively, cannot be viewed as "so extreme and outrageous as to exceed all possible bounds of decency." DeCecco's outrage claim, therefore, fails as a matter of law.
As noted above, the negligence claim asserted against the Smith Defendants is also asserted against Hyman and Girton. This section of the order addresses this negligence claim (the fourth cause of action) only as it relates to the Smith Defendants.
The fraud cause of action is asserted solely against the Smith Defendants, and, presumably, solely in their individual capacity.
To prove fraud, DeCecco must establish the following nine elements: "(1) a representation; (2) its falsity; (3) its materiality; (4) either knowledge of its falsity or a reckless disregard of its truth or falsity; (5) intent that the representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury." Turner v. Milliman, 392 S.C. 116, 708 S.E.2d 766, 769 (2011).
In her Verified Complaint, DeCecco alleged that the Smith Defendants "told [her] they had applied for and she was receiving a redshirt for the 2009 season." Dkt. No. 1 ¶ 219 (fraud claim). In her deposition, DeCecco testified that she asked for a redshirt by mid-September 2009. P. dep. at 248:16-25; id. at 342:1-5. This request was made first of Jamie Smith and then of both coaches. P. dep. at 249:1-21. Jamie Smith said "he would look into it, look into the details for [her]." Id. at 249: 11-12. DeCecco inquired again later as to the redshirt status and the coaches responded that they "didn't know." P. dep. at 249:13-16. At the end of the season, Shelley Smith suggested DeCecco contact Jamie Funk, who was responsible for NCAA Compliance. P. dep. at 249:22-250:21. Funk informed DeCecco that no redshirt request had ever been made and she could not then apply for a redshirt because she had played during the season. P. dep. at 251:4-14. DeCecco's father also testified that, during the July 29, 2010 meeting, Coach Jamie Smith admitted that he promised DeCecco a redshirt. C. DeCecco dep. at 12:3-10.
For purposes of this order, the court assumes that this evidence is sufficient to support a finding that one or both of the Smiths promised to at least look into obtaining redshirt status for DeCecco when she requested that status after the start of the 2009 season, later responded to inquiries in a manner that suggested they had initiated the process, but, in fact, never took action to pursue redshirt status for DeCecco. The court further assumes without deciding that DeCecco has shown evidence of injury in the loss of a year of eligibility even though she still has at least two years of eligibility remaining and no immediate plans to use that eligibility.
DeCecco's claim fails even with these favorable assumptions because her injury must flow from the false representation,
As noted above, DeCecco's claim for punitive damages does not assert an independent cause of action. Instead, it suggests a potential basis for punitive damages if she establishes liability under one or more of her other causes of action. As none of DeCecco's substantive claims survive, her claim for punitive damages also fails.
For the reasons set forth above, the Smith Defendants' motion for summary judgment is granted in full, albeit not on all grounds argued.
For the reasons set forth above, Defendants' motions for summary judgment are granted in full, albeit not on all grounds argued, and the remaining evidentiary motions are rendered moot.
IT IS SO ORDERED.
S.C.Code Ann. § 15-78-70(a), (b). See also S.C.Code Ann. § 15-78-200 ("Notwithstanding any provision of law, [the SCTCA] is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of the employee's official duty. The provisions of this chapter establish limitations on and exemptions to the liability of the governmental entity and must be liberally construed in favor of limiting the liability of the governmental entity.").
Dkt. No. 139 at 32 n. 16. DeCecco also alleges that Hyman and Girton aided and abetted fraud committed by her coaches because they required her to meet with the coaches first and then failed to intervene to prevent reduction of her scholarship. Even applying a constructive notice standard, which the court presumes for present purposes applies to the negligence claim, there is no evidence that these Defendants were aware of any alleged touching or sexual innuendo, even after Girton received some notice that a closed-door meeting had occurred (which notice was not given until July 29, 2010). To the extent DeCecco suggests these Defendants aided and abetted fraud by failing to prevent reduction of her scholarship, her argument also fails for several reasons including that: (1) the fraud alleged in the complaint does not relate to the scholarship promise; (2) neither does it allege participation by these Defendants; and (3) allegations of aiding and abetting fraud are irrelevant to the claim for negligence asserted against Hyman and Girton.
