Dececco v. Univ. of S.C.

918 F.Supp.2d 471

Idana Barbara DECECCO, Plaintiff,

v.UNIVERSITY OF SOUTH CAROLINA, Eric Hyman, Marcy Girton, Shelley Smith, and Jamie Smith, Defendants.¹

Civil Action No. 3:11–cv–2300–CMC.

United States District Court,

D. South Carolina,

Columbia Division.

Jan. 16, 2013.

Stephanie Underwood Roberts, Jeffrey D. Patton, Spilman Thomas and Battle, Winston–Salem, NC, Michael S. Garrison, Spilman Thomas and Battle, Charleston, WV, for Plaintiff.

Shahin Vafai, Vance J. Bettis, Gignilliat Savitz and Bettis LLP, Damon C. Wlodarczyk, Nikole H. Boland, Roy F. Laney, Riley Pope and Laney, Columbia, SC, for Defendants.

OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND RELATED EVIDENTIARY MOTIONS

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 ² (collectively “Smiths” or “Smith Defendants”) is granted (Dkt. No. 130).

INTRODUCTION

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.

The USC Defendants argue, inter alia, that they cannot be held liable for the alleged mistreatment under any of DeCecco's legal theories due to lack of notice. All Defendants argue that DeCecco's federal claims fail because the factual record does not support a claim that the alleged sexual harassment met relevant legal standards. All Defendants also raise other legal and procedural defenses.

STANDARD

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:

(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(a) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers or other materials; or

(b) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

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.”).

FACTS

The facts central to the dispositive motions, taken in the light most favorable to DeCecco, the non-moving party, are set out below.³

Allegations by Former Players. Before the events at issue in this action, a number of female soccer players provided USC officials with complaints or negative comments regarding one or both of the Smith Defendants. These comments are largely in the form of exit interviews and related communications, which are summarized below.⁴

September 2008 Player Letter. DeCecco relies, most heavily, on complaints made by a player who left the USC Women's Soccer Program before DeCecco arrived at USC. Dkt. No. 139 at 2–4.⁵ This player's complaints are contained in a letter sent to USC's Director of Student Financial Aid and Scholarships in September 2008 (shortly after DeCecco's arrival at USC). Dkt. No. 146–12. The letter includes allegations that one or both of the Smith Defendants: (1) promised a four or more year scholarship (though they declined to place the promise in writing, conceding that such a promise would violate NCAA rules) and then reneged on that promise; (2) belittled the player, who had a learning disability, including by stating she lacked the intelligence to be a college student; (3) discriminated against her by cutting her from the team for partying when other students with better grades were not cut for the same behavior; (4) threatened to tell other players she did not fit in if she tried to stay on the team; and (5) lied to USC officials about a phone call and then reacted harshly when her parents provided evidence allegedly showing the Smiths' statement was a lie. See, e.g., Dkt. No. 139 at 4 (citing former player's dep. ex. 6, Sep. 26, 2008 letter to Dr. Edgar W. Miller (Dkt. No. 146–12)).

Hyman Dep. Ex. 4. DeCecco also relies on an exit interview dated December 15, 2006, almost two years before DeCecco's arrival at USC, in which the departing player stated that she did not “agree with all of [the coaches'] decisions and the way they go about things.” That player further noted she “knew if I said stuff about [the coaches] then I'd probably never see 2 sec[onds] of playing time.” Dkt. No. 146 at 4 (Hyman dep. ex. 4) (responding to inquiry whether she discussed her concerns with the Athletic Director or other administrator). Other comments indicate concerns that the “best people didn't get a chance to get on the field” and the coaches played favorites. Id. (responding to question no. 9).

February 2008 Letter and Hyman Dep. Ex. 5. DeCecco next relies on a letter from a former player to Shelley Smith written in or around February 2008, before DeCecco's arrival at USC. This letter states that “[w]e feel like we can't talk to you about Jamie because you are his wife” and “[e]veryone was scared of Jamie, ... scared to talk to you, ... we feared we would be punished on the soccer field.” Dkt. No. 146–1 at 8 (Hyman dep. ex. 5). This player also complained of “inappropriate and unprofessional comments routinely”and that she “would personally get upset when Jamie would always make comments about the way I looked; whether it be my hair, makeup, or clothing.” Id.⁶

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.”).

Other Exit Interviews. Finally, DeCecco cites generically to other exit interviews which she states “complain of improper treatment, mistreatment and/or discrimination by Defendants Jamie Smith and/or Shelley Smith [.]” Dkt. No. 139 n. 2 (citing Hyman dep. exs. 2–6) (Dkt. No. 145–9 through 146–2). One of these noted a dismissed player's complaint that “I did not like Jamie using the “F” word so much,” and that “[m]any of the girls think Jamie is really the Head Coach.” Hyman dep. ex. 2.

Absence of Direct Reference to Sexual Harassment. The various exit interviews and comments suggest possible problems with the coaching staff, at least in the perception of these departing players.⁷ There are, on the other hand, no direct references to any sexually harassing conduct beyond ambiguous concerns about unspecified inappropriate and unprofessional comments, foul language, Jamie's way of talking to women, and comments by Jamie to one player about “the way I looked; whether it be my hair, makeup or clothing.” Hyman dep. ex. 5.

Recruitment Promises to DeCecco. Prior to DeCecco's enrollment at USC, she was actively recruited by Jamie Smith who allegedly gave DeCecco's parents a personal assurance DeCecco would receive a full scholarship for all four years even though, as he disclosed, scholarships could only officially be granted on a yearly basis. Craig DeCecco affidavit (“C. DeCecco aff.”) ¶ 10 (Dkt. No. 151–7); see also Idana DeCecco deposition (“P. dep.”) at 153–54, 158 (Dkt. No. 129–3). DeCecco described the assurance as being that she would “be a starter...