Dececco v. University of South Carolina (918 F. Supp. 2d 471, 2013)

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 Plaintiffs 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 (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 plaintiffs 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.

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.

September 2008 Player Letter. De-Cecco 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. 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 De-Cecco’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.” M

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, De-Cecco cites generieally 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. 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 and that the four-year scholarship on paper could be said to be four full years ... because of the caliber of athlete that I was and because ... I was an international student.” P. dep. at 153. Jamie Smith allegedly told DeCecco that she “would have to do something drastically horrible or not fulfill [her] side of [the] contract” to lose the scholarship and starting position. Id. at 154.

Status Pre-Locker Room Incident. DeCecco arrived at USC and began practice with the soccer team on August 1, 2008. P. dep. at 137, 144 (Dkt. No. 129-3). She did not participate in the pre-season voluntary summer workouts, which many freshmen attended, and also failed her initial physical fitness test. P. dep. 138-139, 144-45. DeCecco was frustrated that she was not receiving as much playing time as she desired, as expressed in an email she sent her mother on September 28, 2008. P. dep. at 150, Defendant’s deposition exhibit (“D. ex.”) 23 (complaining in strong language about other players she viewed as less skilled getting more playing time) (Dkt. No. 129-7 at 52). DeCecco’s father also raised concerns regarding DeCecco’s lack of playing time when he visited USC early in the fall of 2008. C. DeCecco aff. ¶¶ 15-17 (referring to his visit to USC in the early Fall 2008 season during which he spoke with both coaches regarding what DeCecco needed to do to get more playing time). Both DeCecco’s email to her mother and her father’s visit to USC occurred before the Locker Room Incident addressed below.

Locker Room Incident. After a game on October 12, 2008, Jamie Smith conveyed a message to DeCecco, through another player, to meet him in the coaches’ locker room for a private conference. P. dep. at 31-32, 35. DeCecco went to the coaches’ locker room as directed. She heard the door click (lock automatically) when Jamie Smith closed it. P. dep. at 60. The locking mechanism did not, however, prevent DeCecco from exiting the room or other coaches (who had keys or codes to the keypad) from entering. Id. at 56-60.

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 which he responded “don’t worry about it, just listen to me.” P. dep. at 45. At roughly the same time as the second series of knocks, Jamie Smith touched DeCecco’s leg at or near her knee. P. dep. 43-47. DeCecco described her reaction at this point as “freaking out,” and testified that she immediately stood up, went to the door, and opened it. P. dep. 43-47, 241.

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 De-Cecco 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.

DeCecco’s Immediate Reaction. De-Cecco was upset by the Locker Room Incident including Shelley Smith’s reaction when DeCecco opened the door. She called her father while walking back to her dorm to tell him about the encounter. See, e.g., P. dep. at 49; C. DeCecco aff. ¶¶ 18-22 (describing phone call and his reaction) (Dkt. No. 151-7). DeCecco told her father that Jamie Smith “touched her thigh” and that she was “creeped out just being alone with Jamie and became extremely uncomfortable and distressed when Shelley arrived outside the room.” C. DeCecco aff. ¶ 20.

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 De-Cecco or her father followed up to see if Shelley Smith made a report or took other action. While there is no evidence of any report or corrective action, there is also no evidence that any similar incident (closed-door meeting with a male coach or arguably inappropriate touching) occurred thereafter, either to DeCecco or any other female soccer player.

Subsequent Treatment-Limited Playing Time and Related Comments. De-Cecco testified that, prior to the Locker Room Incident, she played a total of 362 minutes, but only played ten minutes in subsequent matches, including five minutes in the match immediately following the Locker Room Incident. P. dep. at 156 (Dkt. No. 150-2). DeCecco also testified that, on a couple of occasions in the Spring of her freshman year, Shelley Smith asked DeCecco “how can you live with yourself knowing I’m not going to play you, you’re not going to play here.” P. dep. at 79, 319.

“Dating” Inquiry. DeCecco also relies on an incident in which she claims Shelley Smith suggested DeCecco and another player might be engaged in a lesbian relationship. Dkt. No. 139 at 10. The only cited evidence is Shelley Smith’s deposition testimony. According to Shelley Smith, the team captains came to her with a concern that another player had been “hanging out a lot” with DeCecco and that the two might be dating in violation of team rules. S.S. at 50-51 (Dkt. No. 146-8 at 4-5). Smith went to the other player and stated she “|j]ust want[ed] to make sure there’s nothing going on between you and [DeCecco.]” Id. The other player responded there was nothing going on and that was the end of it, at least as to Shelley Smith’s involvement. Id. There is no evidence to the contrary. It is also unclear whether this incident occurred before or after the Locker Room Incident.

Jamie Smith Conduct Other than Locker Room Incident. DeCecco also relies on a few other instances of what she deemed inappropriate conduct by Jamie Smith. Dkt. No. 139 at 9. First, she refers to an incident prior to a game in which Jamie Smith mimed a “gangster” singer, pulling his pants down so that his boxer shorts showed (“Boxer Shorts Incident”). See id.; P. dep. at 80-83, 312. This incident occurred at the edge of the field before a game in the presence of the full team and public. Id. (asserting that the incident was embarrassing to all of the players present).

DeCecco also suggests Jamie Smith occasionally questioned other players about their sexual relationships. Dkt. No. 139 at 9. She refers to two instances, one in which a teammate told DeCecco:

[S]he was in a meeting with Jamie and she felt very awkward, she felt she couldn’t say anything and that she was in there with him and he was talking[,] asking her questions about her boyfriend[,] being scared that her boyfriend was going to take focus away from soccer, and that since he was in another university that he was scared she was maybe going to leave and not be as committed as she was because of her focus being skewed.

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 flaneé 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.

Redshirt Status. During her sophomore year, DeCecco asked repeatedly for redshirt status. She claims the Smiths promised to look into redshirt status for her. C. DeCecco dep. (part II) at 12 (Dkt. No. 130-8) (testifying that Jamie Smith answered affirmatively when asked if he “promised [DeCecco] a redshirt at the beginning of [the] year.”). Near the end of the season, one or both of the Smiths referred DeCecco to USC’s compliance officer, Jamie Funk, who advised DeCecco that no request had ever been made and she was, at that point, ineligible for redshirt status because she had played in two games. See P. dep. at 248-49, 250-51, 331, D. ex. 7 (apparently a summary of events prepared by DeCecco) (Dkt. No. 129-4 at 12).

Scholarship Reduction. In December 2009, the Smiths advised DeCecco that her scholarship would not be continued into her junior year. P. dep. at 163-64, D. ex. 28 (letter signed December 9, 2009). In January 2010, DeCecco’s mother advised DeCecco to contact the Athletic Director. P. dep. 170, D. Ex 31 (noting concerns relating to the scholarship reduction and also referring to the need to obtain redshirt status if DeCecco changed colleges).

First Request for Meeting with Hyman. DeCecco emailed Hyman on February 17, 2010, advising him that she was on the women’s soccer team and asking for a meeting to discuss “[s]ome concerns ... regarding her situation[.]” P. dep. at 111-12, D. ex. 14. Hyman responded that USC’s policy required her to first meet with her head coach and then the sport’s administrator. He noted, however, that because DeCecco indicated she had already discussed the issues with her coach, she should contact Girton, the Assistant Athletic Director (apparently the relevant “sport’s administrator”) to set up a meeting. Id. Hyman also indicated that he would meet with DeCecco after she met with Girton if she still wanted a meeting with him. Id.

February 2010 Meeting with Girton. DeCecco met with Girton in February 2010. P. dep. at 150; Girton dep. at 6-7, 18-19. DeCecco’s concerns, as expressed in that meeting, included “the struggle between the relationship with Shelley [Smith] and I and how we weren’t communicating very well.” P. dep. at 150. De-Cecco also “stressed that [she] was very upset about what was going on with her scholarship.” Id. DeCecco felt that Girton “understood that there [were] other pressing issues or there was something going on where it was not healthy” and DeCecco “was struggling with everything.” Id. at 150-51. DeCecco did not, however, mention “the coaches’ locker room incident or anything of that nature” to Girton. Id. at 151.

Scholarship Modification by Shelley Smith. In March or April 2010, after returning from a trip home, DeCecco spoke with Shelley Smith regarding her scholarship. P. dep. at 163-66 (referring to meetings with Shelley Smith in March or April during which Shelley Smith indicated she “could work something out” and was going to “crunch some numbers and see what she could do to help [DeCecco] out.”); P. dep., D. ex. 29. Thereafter, in May 2010, Shelley Smith offered DeCecco a 75% scholarship for her junior year with the understanding that the scholarship would not be renewed for the following school year (2011-12). P. dep. at 166, D. Exs. 29, 30. DeCecco accepted and signed this offer on May 31, 2010. Id.

Appeal of Scholarship Reduction. Two weeks after accepting the 75% scholarship offer, DeCecco sent a letter to Dr. Edgar Miller, Director of Student Financial Aid, asking him to “look at [her] appeal process to review it.” See P. dep. at 178-81, D. ex. 39 (letter to Dr. Miller “requesting] an appeal” of her scholarship reduction). Dr. Miller contacted DeCecco within two days to answer her questions regarding the appeal process and to discuss whether she wanted to pursue an appeal. P. dep. at 180-81, D. ex. 40. The conversation ended with agreement De-Cecco would advise Miller within a week whether she wanted to pursue her appeal. Id.

The appeal was dismissed on July 15, 2010, based on DeCeeco’s failure to get back with Dr. Miller or take other action to pursue her appeal. Id. DeCecco testified that she did not pursue the appeal because of a threat by Jamie Smith (discussed below). See P. dep. at 178-81, 184.

Threat by Jamie Smith. In addition to other allegations regarding the Smiths’ behavior, DeCecco testified that Jamie Smith threatened her after the conclusion of her sophomore year by stating that “bad things would happen” if she appealed her scholarship reduction for the coming year. Dkt. No. 139 at 10 (citing P. dep. at 321-22). The threat was allegedly made during a soccer summer camp held in June 2010. P. dep. at 78-79, 229-30, D. Ex 39, 61. See also infra “July 29, 2010 Meeting.”

Second Request for Meeting with Hyman. Although she did not pursue the appeal, DeCecco did seek a further meeting with Hyman. She requested this meeting through a July 9, 2010 email in which she stated that she and her parents wanted to meet with him “about the situation with Women’s Soccer, it’s very important. If we could meet with you as soon as possible that would be great.” P. dep. at 111-12, D. ex. 14 (Dkt. No. 129-7 at 3-4).

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 De-Cecco 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.

July 29, 2010 Meeting. DeCecco and her father met with Girton, the Smiths, Funk, and Campbell on July 29, 2010, to discuss concerns raised in DeCecco’s July 27, 2010 email. Although the email does not expressly address scholarship concerns, DeCecco and her father hoped to address increasing the scholarship from 75% to 100%. P. dep. at 100-01, 187. DeCecco and her father also planned to bring up other concerns, “near the end” of the meeting, including relating to threats, sexual harassment, and the Locker Room Incident. P. dep. at 101-04.

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.” C. DeCecco dep. II at 12-14. DeCecco’s father responded: “How appropriate is it for your male coach to have a closed, locked door meeting with a female athlete?” Id. As Mr. DeCecco characterized the response, “that’s when the room erupted.... Girton immediately jumped up, and she had quite a raised voice and said, ‘Look, if you’re going to make accusations, this meeting ends now, and you don’t make accusations like that without proof.’ ” Id. at 13. Mr. DeCecco offered to provide proof, Shelley and Jamie Smith both indicated they did not know what Mr. DeCecco was talking about, and Funk asked Mr. DeCecco “would you like to make a formal complaint.” Id. Mr. DeCecco said he didn’t know if he wanted to make a formal complaint and asked if he should. Id. The meeting then, in Mr. DeCecco’s words, “got quite civil again” with Girton asking what the DeCeccos “were looking for, what we could do about the scholarship situation.” Id. at 13-14. The remainder of the meeting involved “talking about percentages and all that type of stuff.” Id.; see also P. dep. at 107.

Events Post-July 29, 2010. The De-Ceceos did not file any complaint or otherwise follow up on the accusation Mr. De-Cecco made in this meeting. P. dep. 107-OS; C. DeCecco dep. II at 25-26 Neither did they subsequently request a meeting with Hyman. P. dep. at 110-111. Instead, later on the day of the meeting, DeCecco decided not to remain at USC and emailed the University of Alberta confirming that she would transfer there in the Fall. P. dep., D. ex. 13 (July 29, 2010 email to University of Alberta coach). De-Cecco had applied to the University of Alberta several months earlier. P. dep. at 110,141.

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.

CAUSES OF ACTION

The verified complaint asserts eight causes of action against the various Defendants. These causes of action are summarized below.

1. Title IX Claim

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.

2. Section 1983 Claim

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.

3. Intentional Infliction of Emotional Distress

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.

4.Negligence (Hyman, Girton, and Smith Defendants)

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 hable 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 harassing, abusive conduct towards Miss DeCecco, as fully set forth in the preceding paragraphs.” Id. ¶ 177.

5. Negligence (USC)

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”). Dkt. No. 1 ¶¶ 179-210. The allegations are similar to those in the fourth cause of action, including allegations that: (1) USC was aware of prior inappropriate action by Jamie Smith and had previously directed him not to meet privately with players (¶¶ 180-86) (also referring to a duty to protect players from unspecified inappropriate conduct by Shelley Smith); (2) USC failed to properly supervise the Smiths and ratified, condoned, or facilitated their improper actions by failing to take corrective measures (¶¶ 185-87); (3) USC (through Hyman) failed to exercise proper institutional controls and failed to supervise or monitor the Smith Defendants (¶¶ 188-202) (relying expressly on duties set out in the NCAA Division I Manual); and (4) USC allowed the Smiths to make knowingly false representations regarding DeCecco’s redshirt status (¶¶ 203-08).

6. Gross Negligence

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. Thus, this cause of action is in the nature of a claim for enhanced (punitive) damages as to the fifth cause of action.

7. Fraud

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.

8. Punitive Damages

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.

Causes of Action broken down by Defendant. In sum, DeCecco is proceeding against USC under three distinct legal theories: violation of Title IX, violation of Section 1983, and common law negligence/gross negligence (hiring, retention, and redshirt status). She is proceeding against Girton and Hyman under only one legal theory, common law negligence, based on an alleged failure to protect De-Cecco from known risks presented by one or both of the Smiths. Finally, she is proceeding against the Smiths under four distinct legal theories: violation of Section 1983 (sexual harassment), intentional infliction of emotional distress, negligence (failure to protect and intentional conduct), and fraud (based on alleged failed promises to seek or obtain redshirt status).

DISCUSSION

I. USC DEFENDANTS’ MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

A. TITLE IX CLAIM AGAINST USC

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.

1. Title IX Discrimination/Harassment

a. Notice

Legal Standard. The court begins with the issue of notice. As the United States Supreme Court has explained, the notice requirement for a damages claim under Title IX differs from that under other statutory schemes because the “express statutory means of enforcement [of Title IX’s mandate] is administrative[,]” with the right to damages arising under a judicially-created “implied private right of action.” Gebser v. Lago Vista Ind. Sch. Dist. 524 U.S. 274, 281, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); see also id. at 285-288, 118 S.Ct. 1989 (distinguishing statutory remedies under Title VII and rejecting reliance on “principles of respondeat superior or constructive notice”). In light of the nature of the private remedy, the Court held as follows:

[A] damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails to adequately respond.

We think, moreover, that the response must amount to deliberate indifference to discrimination. The administrative enforcement scheme presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation. That framework finds a rough parallel in the standard of deliberate indifference.

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:

The only official alleged to have had information about [the offending teacher’s] misconduct is the high school principal [and the information available] consisted of a complaint from parents of other students charging only that [the teacher] had made inappropriate comments during class, which was plainly insufficient to alert the principal to the possibility that [the teacher] was involved in a sexual relationship with a student.

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). Compare id. with Jennings, 482 F.3d at 700 (finding adequate notice of coach’s sexual harassment where player informed the Assistant to the Chancellor — who was also the university’s highest ranking lawyer and an official responsible for fielding sexual harassment complaints — of concerns including by “givfing] vivid details of [the coach’s] sexual comments about his players when the team was together”).

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 deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge.” Id. (emphasis added).

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.

Prior Complaints (Exit Interviews). To the extent DeCecco relies on complaints raised by other players prior to the events she challenges as discriminatory {e.g., exit interviews of former players and a letter from a former player), her claims fail because, like the earlier parental complaints in Gebser, the complaints do not allege facts sufficient to give USC actual notice of sexual harassment. See Gebser, 524 U.S. at 290-91, 118 S.Ct. 1989 (concluding parental complaints of inappropriate comments during class were “plainly insufficient” to alert the school district to the “possibility that [the teacher] was involved in a sexual relationship with a student”); see also Baynard, 268 F.3d at 238 (finding no actual notice for purposes of Title IX claim despite finding constructive notice for § 1983 claim). Instead, these documents complain about insufficient playing time, coaching style, and concerns with favoritism. At worst, this evidence suggests Jamie Smith used foul language, made unspecified inappropriate comments, had an unspecified objectionable way of talking to women, and made comments to one player about her hair, makeup or clothing. Thus, the evidence of complaints by other players does not establish actual knowledge of a sexually hostile environment.

Notice to Shelley Smith. To the extent DeCecco relies on notice to Shelley Smith as notice to USC, she fails to satisfy Title IX’s actual notice requirement for several reasons. First, notice to Shelley Smith is not notice to USC (for Title IX purposes) because Shelley Smith had, at most, limited supervisory responsibility over Jamie Smith. See S.S. dep. at 28 (testifying that, although she is head coach and her husband an assistant coach, she has never been his supervisor — instead, he reports to the administration as an employee). This limited authority is not enough in light of Gebser, Davis, and Baynard.

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 entity). In this regard, it is significant that the alleged loss of educational opportunities (a critical element of a Title IX claim) would not have occurred without Shelley Smith’s alleged adverse reaction to the Locker Room Incident and subsequent alleged mistreatment of DeCecco, which included cutting her playing time and reducing her scholarship.

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.

Communications with Hyman and Girton before July 29, 2010. To the extent DeCecco relies on her communications with Hyman and Girton before the July 29, 2010 meeting, her claims fail because she never indicated any concern relating to sexual discrimination, harassment, or a sexually hostile environment. Instead, she suggested concerns regarding insufficient playing time, scholarship status, and her interpersonal relationship with Shelley Smith. To the extent DeCecco gave notice of interpersonal relationship problems, that notice did not even hint at sexual harassment. Thus, the notice was inadequate to support a Title IX claim because it failed to give USC actual notice of any discrimination prohibited by Title IX.

July 29, 2010. To the extent DeCecco relies on her father’s comments in the July 29, 2010 meeting, her claims fail because, while the vague comments suggested possible sexual discrimination or harassment (or at least circumstances presenting a heightened possibility of improper actions), neither she nor her father elected to follow up with a formal complaint despite an invitation to do so. Had they done so, they might have cured any deficiencies in the vague nature of the complaint.

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, that indifference did not cause any further harm. See infra this section “Deliberate Indifference.”

Inadequate Policies and Dissemination. The express language of Gebser precludes DeCecco from relying on the absence of adequate policies or failure to publicize those policies to satisfy the notice prong. There is, in any event, no evidence that the failure of notice in this case is attributable to any inadequacies in USC’s policies or its failure to publicize those policies. Instead, as explained above, it is clear that DeCecco failed to give actual notice of alleged sexual harassment or hostile environment to any person in a position to correct the alleged mistreatment despite repeated communications with individuals in such positions.

Requirement to Meet with Coach First. DeCecco also misses the mark in arguing that USC’s policies prevented her from reaching the proper person with her complaint because USC required her to discuss her concerns with her alleged harasser. Contrary to her arguments, the facts establish that Hyman did not require DeCecco to meet with her head coach after she raised concerns with him. Instead, Hyman’s emails to DeCecco stated that while USC’s procedure required a player to first discuss concerns with her head coach, DeCecco had already satisfied that step and should meet next with Girton. Hyman also made clear a willingness to meet with DeCecco after she met with Girton. DeCecco never gave notice of any concern relating to sexual harassment in these email exchanges and requests for meetings, or in any meeting before July 29, 2010.

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.

b. Deliberate Indifference

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 July 29, 2010. Thus, even if USC’s actions in failing to pursue the matter after the July 29, 2010 meeting constitute deliberate indifference, that indifference did not cause DeCecco to suffer injury covered by Title IX.

c.Insufficient Severity

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 De-Cecco cannot establish that she was subjected to severe or pervasive harassment because of her gender. See infra Discussion § III.B.2.

d.Statute of Limitations

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.

e.Retaliation

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.

B. SECTION 1983 CLAIM AGAINST USC

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 for damages by the Eleventh Amendment. Dkt. No. 129-1 at 31-32 (citing, e.g., Huang v. Board of Governors of the Univ. of N.C., 902 F.2d 1134, 1138-39 (4th Cir.1990)). Second, it argues that it is not a “person” subject to suit under Section 1983. Id. at 32 (citing, e.g., Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). Finally, USC argues that the claim fails on the merits for many of the same reasons it argues the Title IX claim fails. Id. at 33 (citing Gairola v. Commw. of Va. Dep’t of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985) (elements of a prima facie case under Section 1983 are the same as under Title VII); Jennings, 482 F.3d at 695 (case law interpreting elements of Title VII claims provides guidance for Title IX claims); see also Baynard, 268 F.3d at 237-38 (distinguishing notice requirements in Title VII and Title IX actions)).

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:

The University is an arm of the State of South Carolina, [footnote omitted] See Maryland Stadium Auth. v. Ellerbe Becket, Inc., 407 F.3d 255 (4th Cir.2005) (“Numerous courts have decided whether public state universities are ‘arms of the state.’ Almost universally, the answer has been in the affirmative.”); Martin v. Clemson University, [654 F.Supp.2d 410] C/A No. 8:08-354-GRA, 2009 WL 2782182 (D.S.C. Aug. 28, 2009) (unpublished) (holding that Clemson University was an arm of the state entitled to Eleventh Amendment immunity); Johnson v. South Carolina State Univ., C/A No. 5:09-1421-MBS, 2009 WL 1834488 (D.S.C. June 24, 2009) (unpublished) (holding that South Carolina State University was entitled to Eleventh Amendment immunity); S.C.Code Ann. § 59-101-10 (legislatively creating the University of South Carolina and other State colleges and universities); S.C.Code Ann. § 59-107-10 (including the University of South Carolina in the definition of “state institution”).

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 proteetion claims may only be brought against ... certain other state entities” referred to claims for injunctive relief brought against “military service schools and traditionally single-sex public colleges” exempt from all of Title IX’s provisions. Id. at 257, 129 S.Ct. 788 (noting that some activities exempted under Title IX may, nonetheless “form the basis of equal protection claims” and citing United States v. Virginia, 518 U.S. 515, 534, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (holding men-only admissions policy at Virginia Military Institute violated the Equal Protection Clause) and Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 731, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) (women-only admission policy at traditionally single-sex public college violated the Equal Protection Clause)).

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.

C. NEGLIGENCE CLAIMS AGAINST USC, HYMAN AND GIRTON

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.

1. Negligence and Gross Negligence Claims Against USC

USC’s Arguments. USC argues that DeCecco’s negligence and gross negligence claims against it are barred by the Eleventh Amendment. Dkt. No. 129-1 at 37 (incorporating arguments advanced with respect to 42 U.S.C. § 1983 claim against USC and negligence claim against Hyman and Girton to the extent pursued against them in their official capacities). USC also argues that the claims are (1) barred under the SCTCA to the extent founded on claims of ac