Opinion
Case No.: 4:19cv275-MW/MAF
12-04-2020
Kennedy BURKS, et al., Plaintiffs, v. BOARD OF TRUSTEES OF FLORIDA AGRICULTURAL AND MECHANICAL UNIVERSITY, Defendant.
Marie A. Mattox, Farnita Saunders Hill, Tallahassee, FL, for Plaintiffs. Diana K. Shumans, Mitchell Johann Herring, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, for Defendant.
Marie A. Mattox, Farnita Saunders Hill, Tallahassee, FL, for Plaintiffs.
Diana K. Shumans, Mitchell Johann Herring, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, for Defendant.
ORDER GRANTING SUMMARY JUDGMENT IN PART AND REMANDING STATE-LAW CLAIMS
Mark E. Walker, Chief United States District Judge This is a Title IX case originally filed in state court and removed to this Court. Plaintiffs are five former members of the women's basketball team at Florida Agricultural and Mechanical University ("FAMU"), who allege they were discriminated against and retaliated against in violation of federal law, in addition to bringing several state-law claims. This Court has considered, without hearing, Defendant's motion for summary judgment, Plaintiffs’ response, Defendant's reply, and Defendant's sur-reply with respect to a late-filed Plaintiffs’ exhibit. For the reasons set out below, Defendant's motion, ECF No. 84, is GRANTED as to the Title IX claims. This Court declines to exercise supplemental jurisdiction over Plaintiffs’ remaining state-law claims, which are remanded to state court.
I. Summary Judgment Standard
Summary judgment is appropriate when "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). A "genuine" dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Facts are "material" with respect to the substantive law if they form disputes that are not "irrelevant or unnecessary" and have the potential to "affect the outcome of the suit." Id.
A nonmoving party's failure to provide sufficient evidence of an element for which it bears the burden of proof at trial mandates the entry of summary judgment for the moving party, "since a complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As it must, this Court accepts the facts in the light most favorable to the nonmovant, see Galvez v. Bruce , 552 F.3d 1238, 1241 (11th Cir. 2008), and it may not weigh conflicting evidence to resolve disputed factual issues, see Skop v. City of Atlanta, Ga. , 485 F.3d 1130, 1140 (11th Cir. 2007).
II. Background
Parties must cite "particular parts of materials in the record" to support their factual assertions. Fed. R. Civ. P. 56(c)(1). This Court may—but need not—consider other record materials. Fed. R. Civ. P. 56(c)(3). I have declined to consider record materials not cited in the parties’ briefs and not addressed in this order. Accordingly, the facts are these.
Plaintiffs are five former players of the FAMU women's basketball team. With respect to their federal claims, each alleges she faced disparate treatment, harassment, and retaliation from certain members of the FAMU women's basketball coaching staff as a result of either her gender, sexual orientation, association with non-heterosexual players, nonconformance with gender norms, complaints about discrimination, participation in a Title IX investigation, or some combination of these. Each alleges she was wrongfully dismissed from the team, and that Defendant failed to properly respond to the Title IX complaints resulting from their coaches’ discriminatory conduct.
Plaintiffs Holland and Reynolds are both openly gay and were in a relationship at one point in time while Ms. Holland was still a member of the team; however, they did not date at the same time that they were both teammates. ECF No. 91-11 at 38; ECF No. 91-4 at 33. Ms. Reynolds was dismissed from the team during the summer of 2016. Id. at 47. She subsequently graduated from FAMU. Id. at 8. Ms. Holland was also dismissed from the team, though the record is murky as to when this occurred. Plaintiffs cite to a "voluntary withdrawal form" bearing Ms. Holland's signature dated March 28, 2016; however, Ms. Holland testified, and Plaintiffs assert in their papers, that she was dismissed from the team in February 2017. Compare ECF Nos. 93-27 and 91-4 at 129. Following her dismissal from the team, Ms. Holland communicated with FAMU's Title IX coordinator, Carrie Gavin, regarding a Title IX investigation of FAMU's women's basketball coaches. See ECF No. 91-4 at 129. In February 2017, Ms. Holland's parents also wrote Deputy Athletic Director Elliott Charles an email listing several complaints regarding the basketball coaching staff. ECF No. 92-18.
Plaintiff Njoku was friendly with and openly associated with gay teammates. She was dismissed from the team on March 28, 2016. ECF No. 91-22. Sometime in the spring of 2016, Ms. Njoku informed FAMU's Athletic Director Milton Overton that she had been dismissed from the team. ECF No. 91-17 at 39-40. However, Plaintiffs cite no evidence that Ms. Njoku told Mr. Overton she was dismissed because of her association with gay teammates, or for any other specific reason. Ms. Njoku subsequently graduated from FAMU in 2017, presumably before Defendant completed its Title IX investigation. Id. at 8-9. Even so, Ms. Njoku participated in the investigation. Id. at 129.
Plaintiffs Whitlow and Burks also were friendly with and openly associated with gay teammates. Ms. Whitlow's mother was concerned with the way Ms. Whitlow was being treated by her coaches and attempted to set up a meeting with Athletic Director Overton in January 2017. She met with Mr. Overton on January 9, 2017, ECF No. 91-1 at 49-50, and explained that Ms. Whitlow was being retaliated against because of whom she hung out with, as her friends were considered to be "bad influences" and homosexual. Ms. Whitlow's mother continued to send emails to Mr. Overton, Mr. Charles, and Coach Erik Rashad after her January meeting and later participated in the Title IX investigation. ECF No. 91-1 at 55.
Ms. Burks testified that she was bullied by the head coach and was dismissed from the team on April 4, 2017, while the Title IX investigation was ongoing. See ECF No. 90-1 at 24-26, 62-63, 66-67. Similarly, Ms. Whitlow was dismissed the following day, April 5, 2017. ECF No. 90-14 at 147.
Former Head Coach LeDawn Gibson was not gentle with her players. Indeed, upon review of the record before this Court, it appears Coach Gibson often humiliated and insulted players beyond the normal limits of "tough love" or "old school" coaching techniques. Without dispute, Coach Gibson, among other women's basketball coaches, used profanity around players, commented on players’ personal relationships and private behavior, critiqued the way players dressed and spoke, and disapproved of same-sex relationships. See, e.g. , ECF No. 92-1 at 36, 40-41, 48-49, 72, 76, and 98. Indeed, she called Ms. Burks a "dummy" and other players "whores" and "nasty girls" during their time with the team and after they were dismissed. Multiple Plaintiffs were left on campus when the team traveled on various occasions, and Plaintiffs’ injuries were occasionally disregarded by some of the coaching staff. As mentioned above, some of Plaintiffs’ parents understandably objected to the treatment their daughters received and raised their concerns with school officials in early 2017.
This Court in no way condones the coaches’ conduct. Moreover, this Court sympathizes with Plaintiffs and their parents; however, this is not the issue before this Court.
In February 2017, Deputy Athletic Director Charles received an email containing an anonymous complaint about certain members of the FAMU women's basketball coaching staff. The message included allegations regarding Title IX violations and bullying. Mr. Charles forwarded the message to Carrie Gavin, FAMU's Title IX Coordinator, for further review. ECF No. 92-15 at 16-17: see also ECF No. 92-20 at 1.
The anonymous complaint is reproduced in the final Title IX investigation report. ECF No. 92-20. It reads as follows: "Thanks for your response on January 17, 2017. Accountability cannot be denied when you are being made aware of all the abuse of power of Coach LeDawn Gibson and Coach LaTasha Ganus. The information of how they bully and verbally abuse the players will soon hit the newspaper and FAMU will not be able to hide behind policy. That appears to be a common theme when complaints are brought to the attention of the athletic director office. The office likes to refer to policy, but sooner or later that will not help the situation. The office continues to allow the behavior of the women's coaching staff and eventually the office will be held accountable. FYI the coaching staff has dismissed two players based on their dislike of their sexual orientation in violation of Title 9, only because the office likes to throw around policy. I can not wait until this hits the newspaper and how the athletic office will continue to condone the bad behavior of the women's coaching staff. The office should really be embarrassed for not protecting and putting the interests of the players first. So, what policy allows them to violate Title 9?" Id. (internal brackets omitted).
Upon receipt of this message, Ms. Gavin requested additional information from Mr. Charles, including a list of players on the team. ECF No. 92-19; ECF No. 92-15 at 24-26. During her investigation, Ms. Gavin communicated with current and former players, as well as coaching staff and players’ parents. Ms. Gavin requested information from players and received several written responses. See ECF No. 92-15 at 24-26. She also met in person with at least two players to discuss their concerns. Id. at 21-22. Ms. Njoku, Ms. Holland, Ms. Burks, and Ms. Whitlow each participated in the investigation—either individually, or through their parents. See ECF Nos. 91-17 at 129; 91-4 at 129; 91-1 at 55; 90-9; and 93-25.
Ultimately, Ms. Gavin concluded her months-long investigation with a report dated June 30, 2017. ECF No. 92-20. Ms. Gavin's report recommended that the "same-sex allegations [were] unsubstantiated," based on the conflicting evidence she gathered from Plaintiffs and other players, parents, and colleagues of Coach Gibson. Id. at 14. Ms. Gavin also recommended that the interaction between the male and female coaches "requires improvement," and she advised that "all coaches within the Athletic Department [should] attend a training dealing with appropriate motivational skills." Id. Following a second, similar complaint against Coach Gibson in February 2019, ECF No. 92-2, Defendant promptly terminated her employment. ECF No. 92-1 at 10-11.
III. Title IX Discrimination Claims
Counts I-III, IX, XI, XV-XVII, XXIII, XXV XXIX-XXXIV, XLIII, XLV, XLVII, XLIX, LIII-LVIII, LXVII, LXIX, LXXI, LXXIII, LXXVII-LXXIX, LXXXV, LXXXVII. See ECF No. 63.
Title IX "provides in pertinent part that ‘[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.’ " Franklin v. Gwinnett Cnty. Pub. Schs. , 503 U.S. 60, 63 n.1, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (quoting 20 U.S.C. § 1681(a) ). Courts have held that Title IX's prohibition against sex-based discrimination includes discrimination on the basis of sexual orientation and gender expression. See, e.g., Adams by and through Kasper v. Sch. Bd. of St. Johns Cnty. , 968 F.3d 1286, 1304-05 (11th Cir. 2020) (finding Title IX prohibits discrimination on the basis of transgender status) (citing Bostock v. Clayton Cnty. , ––– U.S. ––––, 140 S.Ct. 1731, 207 L.Ed.2d 218 (2020) (holding that Title VII's prohibition on sex discrimination also forbids discrimination based on sexual orientation and transgender status)); Videckis v. Pepperdine Univ. , 150 F. Supp. 3d 1151 (C.D. Cal. 2015) (holding that sexual orientation discrimination is prohibited under Title IX). This Court will assume, without deciding, that each of Plaintiffs’ theories of discrimination—including discrimination due to sexual orientation, association with non-heterosexual students, and nonconformance with gender norms—all fall within Title IX's broader prohibition against discrimination on the basis of sex.
Regardless of the theory of discrimination, Plaintiffs’ Title IX discrimination claims all require two showings; namely, (1) an official with authority to take corrective measures had actual notice of the alleged discrimination; and (2) the official with such knowledge was deliberately indifferent to the misconduct. This Court will address each requirement in turn.
A. Actual Notice
"Title IX is predicated upon notice to an ‘appropriate person’ and an opportunity to rectify any violation." Doe v. Sch. Bd. of Broward Cnty., Fla. , 604 F.3d 1248, 1254 (11th Cir. 2010) (quoting Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) ) (internal quotation marks omitted). Accordingly, Defendant "may not be held liable on a theory of respondeat superior or mere constructive notice." Id. at 285, 118 S.Ct. 1989. Here, Plaintiffs cannot rely on the "common knowledge" of many team members and players’ parents that certain members of the coaching staff were homophobic and "bullies" to establish actual notice of discrimination; however, there is sufficient evidence before this Court establishing that FAMU had actual notice of discrimination in the spring of 2017.
The parties essentially agree that the anonymous email to Elliott Charles in early February 2017 constituted actual notice of discrimination. However, Defendant takes issue with the detail lacking from this anonymous complaint. Defendant asserts the message did not provide sufficient information to give notice to Defendant of each theory of discrimination that Plaintiffs raise in their Fourth Amended Complaint. On the other hand, Plaintiff asserts Defendant had actual notice not only from this complaint, but also from numerous complaints communicated by Plaintiffs and several of Plaintiffs’ parents to Coach Rashad, Athletic Director Overton, and Deputy Athletic Director Charles. This Court will address these issues in turn.
As an initial matter, any complaint made to Coach Rashad—or any other coach with less authority than Head Coach Gibson—does not constitute actual notice because Plaintiffs have not established that he—or any other assistant coach—is an "appropriate person" under Title IX. Doe , 604 F.3d at 1254 (citing Floyd v. Waiters , 171 F.3d 1264, 1264 (11th Cir. 1999) ). Plaintiffs have not identified record evidence showing that Coach Rashad was a school official who was in a position "with authority to take corrective measures in response to actual notice of [discrimination or harassment]." Id. Indeed, Plaintiffs’ response, ECF No. 94, mentions the "appropriate person" requirement only once in setting out the elements of a Title IX claim. Plaintiffs do not cite evidence or engage in any analysis to show how or why Coach Rashad is an "appropriate person" under Title IX, or why complaints made to him constitute "actual notice" of discrimination.
Secondarily, while the anonymous complaint in February 2017 fails to spell out each allegation contained in Plaintiffs’ Fourth Amended Complaint, to the extent that necessary detail is lacking, the deficiency is cured by the supplemental complaints provided to Athletic Director Overton, Deputy Athletic Director Charles, and Ms. Gavin at or around the date the anonymous complaint was submitted and during the Title IX investigation that followed. See ECF Nos. 92-16, 92-17, and 92-18. Accordingly, in the spring of 2017, Defendant had actual notice of discrimination.
B. Deliberate Indifference
The parties’ quarrel ultimately boils down to whether Defendant was deliberately indifferent once it received actual notice of the alleged misconduct. "Deliberate indifference occurs when the official's ‘response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.’ " Kocsis v. Florida State University Bd. of Trustees , 788 F. App'x 680, 684 (11th Cir. 2019) (quoting Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ. , 526 U.S. 629, 648, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) ).
Here, it's undisputed that Carrie Gavin, FAMU's Title IX Coordinator, commenced a months-long investigation into the February 2017 complaint as soon as Mr. Charles forwarded her the email he received. Upon receipt of this message, Ms. Gavin requested additional information from Mr. Charles, including a list of players on the team. During her investigation, Ms. Gavin communicated with current and former players, including several Plaintiffs, as well as some players’ parents, and the coaching staff. Ms. Gavin requested information from all players and received several written responses. She also met in person with at least two players.
Ultimately, Ms. Gavin concluded her investigation with a report dated June 30, 2017. ECF No. 92-20. Ms. Gavin's report recommended that the "same-sex allegations [were] unsubstantiated," based on the conflicting evidence she gathered from Plaintiffs and other players, parents, and colleagues of Coach Gibson. Id. at 14. Ms. Gavin also recommended that the male and female coaches’ interaction with each other "requires improvement," and that while allegations of bullying remained "inconclusive," she advised that "all coaches within the Athletic Department [should] attend a training dealing with appropriate motivational skills." Id.
Plaintiffs assert Ms. Gavin's investigation was "mediocre," and that she "reached conclusions that do not comport with the facts she gathered." ECF No. 94 at 46. In so stating, Plaintiffs ignore the undisputed fact that Ms. Gavin heard from not only several Plaintiffs and their parents, but also from other players who had no disagreement with the coaching staff's conduct, the coaches at issue, and others. Rather than siding with Plaintiffs’ accusations, Ms. Gavin apparently credited the responses from other players and coaches and ultimately decided the conflicting evidence did not support the allegations of discrimination.
Plaintiffs further contend that Defendant took "no actual action to rectify the situation," id. , notwithstanding the undisputed evidence that an immediate Title IX investigation and recommended training indeed resulted from the anonymous complaint submitted in February 2017. Moreover, following a second, similar complaint against Coach Gibson in February 2019, ECF No. 92-2, Defendant promptly terminated her employment. ECF No. 92-1 at 10-11; cf. Doe v. Sch. Bd. of Broward Cnty., Fla. , 604 F.3d 1248, 1261 (11th Cir. 2010) (holding that failure to institute any corrective measures following actual notice of a second complaint of sexual harassment constitutes deliberate indifference).
Plaintiffs fault Defendant for not implementing measures to "monitor" the coaching staff and protect players from further abuse, and, in support, cite two cases involving the sexual molestation of an elementary-school student, Davis v. Dekalb Cnty. Sch. Dist. , 233 F.3d 1367 (11th Cir. 2000), and a sexual relationship between a high-school student and his teacher, Sauls v. Pierce Cnty. Sch. Dist. , 399 F.3d 1279 (11th Cir. 2005). ECF No. 94 at 46. This Court notes that sexual harassment of minors—specifically, sexual molestation and rape—is of a different magnitude than the facts at issue in this case. What may be reasonable in response to allegations of the rape of a minor is not automatically required in response to adult university students’ allegations of harassment on account of their sexual orientation, association, or gender expression, and these cases are distinguishable for that reason.
The question is not whether FAMU could have done better; it is whether FAMU acted with deliberate indifference to its Title IX obligations when it received actual notice of misconduct. See Ross v. Univ. of Tulsa , 180 F. Supp. 3d 951, 973 (N.D. Okla. 2016), aff'd , 859 F.3d 1280 (10th Cir. 2017) (finding no deliberate indifference when university investigated reported rape, held a hearing, issued written findings, and suspended the accused during the process, though ultimately finding "no violation" of student code of conduct). Here, Plaintiff has cited no evidence from which a reasonable jury could find Defendant's response to the alleged discrimination was "clearly unreasonable in light of the known circumstances." Davis , 526 U.S. at 648, 119 S.Ct. 1661. Instead, the undisputed facts establish that FAMU promptly investigated the complaints of discrimination during the spring and summer of 2017, provided for additional training for all coaching staff, and subsequently terminated coaches shortly after FAMU was alerted to additional, similar complaints two years later. Defendant's actions are not "clearly unreasonable in light of the known circumstances," nor was Defendant deliberately indifferent to its Title IX obligations. Defendant is entitled to summary judgment on Plaintiffs’ claims of Title IX discrimination.
IV. Title IX Retaliation Claims
Counts IV, XIII, XVIII, XXVII, XXXV, LI, LIX, LXXV, LXXX, LXXXIX. See ECF No. 63.
Plaintiffs also allege that Defendant retaliated against them in violation of Title IX due to their complaints regarding discrimination and participation in Defendant's Title IX investigation. These claims similarly fail, but for different reasons.
Retaliation claims under Title IX are analyzed under the same framework as Title VII retaliation claims. Kocsis , 788 F. App'x at 686 n.4 (citing Bowers v. Bd. of Regents of Univ. Sys. of Ga. , 509 F. App'x 906, 911 (11th Cir. 2013) (per curiam) (unpublished opinion)). This framework requires each Plaintiff to establish that (1) she engaged in statutorily protected expression; (2) Defendant took action that would have been materially adverse to a reasonable player; and (3) a causal link existed between the two events. See Bowers , 509 F. App'x at 911. "A causal link between protected expression and the materially adverse action arises where the defendant was aware of the protected expression and took materially adverse action as a result." Kocsis , 788 F. App'x at 686.
Here, Plaintiffs point to each player's dismissal from the team as the "adverse action" in support of their retaliation claims. ECF No. 94 at 47. Assuming arguendo that the anonymous complaint from February 2017 and Plaintiffs’ participation in the Title IX investigation constitute statutorily protected activities, Plaintiffs’ proffered evidence of a causal link between their dismissals and their complaints of discrimination falls short of creating a question for the jury.
Specifically, as for Plaintiffs Njoku and Reynolds, it is undisputed that both players’ dismissals occurred months before Defendant received actual notice of discrimination in the February 2017 anonymous complaint and subsequent Title IX investigation. But Plaintiffs assert that Ms. Njoku also complained to her conditioning coaches that her injuries were not taken seriously by the coaching staff and that Ms. Reynolds's mother complained to Coach Rashad about the treatment her daughter faced prior to the February 2017 complaint and investigation. Even assuming arguendo that these complaints suffice as statutorily protected expressions, there is nothing cited by the Plaintiffs from which a jury can infer that Coach Gibson knew of these complaints before she dismissed the players or that these complaints were a reason for their dismissals. Moreover, while Plaintiff Reynolds cites to her mother's complaints to Coach Rashad and her attempts to speak with Athletic Director Overton about her daughter's treatment, she glosses over the fact that these communications occurred after Ms. Reynolds was dismissed from the team. See ECF No. 91-16 at 29 and 37. Accordingly, Plaintiffs Njoku and Reynolds fail to identify any facts from which a reasonable jury could infer a causal link between their dismissals from the basketball team and statutorily protected expression.
See ECF No. 94 at 49. However, Plaintiff Njoku fails to cite a particular part of the materials in the record that backs up this assertion. This Court is not required to, and will not, embark on a search for a needle in the haystack of materials Plaintiffs have filed in response to Defendant's motion for summary judgment.
Plaintiff Holland has similarly failed to identify evidence from which a reasonable juror could infer her dismissal from the team was linked to statutorily protected expression. For starters, it is undisputed that the complaint giving rise to Defendant's actual notice of discrimination was anonymous. The unidentified individual sent their anonymous complaint to Mr. Charles in early February 2017, who forwarded it to Ms. Gavin. Neither party asserts Coach Gibson was included in this initial communication. A jury could reasonably infer that Coach Gibson became aware of this anonymous complaint over the course of Ms. Gavin's Title IX investigation—which ranged from late-February to late-June 2017—as it's undisputed that Ms. Gavin communicated with Coach Gibson as part of her investigation. But there is nothing cited by the Plaintiffs from which a jury could reasonably infer that Ms. Gavin communicated with Coach Gibson regarding the complaint before Coach Gibson dismissed Ms. Holland. Nor is there evidence from which a jury could reasonably infer that Ms. Gavin communicated with others who alerted Coach Gibson to the existence of the investigation prior to Ms. Holland's dismissal. Nor, finally, is there evidence showing that, beyond the point of speculation, Coach Gibson had reason to think Ms. Holland was responsible for the anonymous complaint. See Martin v. Fin. Asset Mgmt. Sys., Inc. , 959 F.3d 1048, 1053 (11th Cir. 2020) ("[A] jury finding that a decisionmaker was aware of an employee's protected conduct ‘must be supported by reasonable inferences from the evidence, not mere speculation.’ ") (quoting Clover v. Total Sys. Servs., Inc. , 176 F.3d 1346, 1355 (11th Cir. 1999) ). Additionally, Plaintiffs do not dispute that Ms. Holland participated in Ms. Gavin's Title IX investigation after she was dismissed from the team. Accordingly, Plaintiff Holland has not presented evidence from which a jury could infer a causal link between her statutorily protected expression and her dismissal from the team.
Moreover, the anonymous complaint states that two gay players had been dismissed from the team. See note 2, supra. Plaintiffs have identified only two players who were allegedly dismissed because of their sexual orientation—Ms. Reynolds and Ms. Holland—accordingly, the allegation raised in the anonymous complaint, along with Ms. Holland's voluntary withdrawal form, dated March 28, 2016, ECF No. 91-7, do not support a reasonable inference that Ms. Holland was dismissed after the Title IX investigation began.
Finally, Plaintiffs Burks and Whitlow also have not identified evidence from which a jury could infer the necessary causal link between protected expression and adverse action, though their dismissals occurred about two months after Defendant received actual notice of discrimination and commenced a Title IX investigation. Plaintiffs point to (1) Ms. Whitlow's mother's meeting with school officials in January 2017; (2) the anonymous complaint in February 2017; (3) Ms. Burks's participation in the Title IX investigation; and (4) Ms. Burks's mother's communication with Ms. Gavin as protected expression that occurred months before and shortly after both players’ dismissals. Plaintiffs argue that the temporal proximity between the protected expression and the players’ dismissals support their claims of retaliation. ECF No. 94 at 48 (citing Thomas v. Cooper Lighting, Inc. , 506 F.3d 1361, 1364 (11th Cir. 2007) ). But Plaintiffs misstate the law in this respect.
As this Court previously noted, there must also be knowledge of the protected activity when arguing that temporal proximity is evidence of causation. See Clark Cnty. Sch. Dist. v. Breeden , 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) ("The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.’ ") (emphasis added). It bears repeating that "a jury finding that a decisionmaker was aware of [a player's] protected conduct ‘must be supported by reasonable inferences from the evidence, not mere speculation.’ " Martin , 959 F.3d at 1053 (quoting Clover v. Total Sys. Servs., Inc. , 176 F.3d 1346, 1355 (11th Cir. 1999) ).
To be clear, there need not be direct evidence that Coach Gibson knew of the protected activity before she dismissed a player. Like any fact, there can be circumstantial evidence from which a jury could infer that Coach Gibson had such knowledge. See Brungart v. BellSouth Telecomms., Inc. , 231 F.3d 791, 799 (11th Cir. 2000). But a three-to four-month delay, on its own, between knowledge of the protected expression and the adverse action is insufficient to establish a causal connection. See Clark Cnty. Sch. Dist. , 532 U.S. at 273-74, 121 S.Ct. 1508 (citations omitted).
As for Ms. Whitlow, Plaintiffs identify undisputed testimony that Ms. Whitlow's mother met with school officials in early January 2017 and continued to email Coach Rashad and Mr. Charles regarding her daughter's treatment following this meeting. Assuming, without deciding, that Ms. Whitlow's mother's complaints suffice as protected expression to support Ms. Whitlow's retaliation claims, the three-month delay between her meeting with school officials and Ms. Whitlow's dismissal is insufficient, on its own, to establish causation.
Ms. Whitlow's mother's primary concern for this meeting was the fact that Ms. Whitlow was left behind with another player when the team returned to travel for games during the winter break before the start of the spring semester. Ms. Whitlow's mother was most concerned about her daughter's safety as one of the few students staying at her apartment complex while the team was traveling, and the apparent disregard for her financial planning or ability to buy a plane ticket home on such short notice. Importantly, though, Ms. Whitlow's mother testified that during this meeting and in an earlier conversation with Coach Gibson, she expressed concerns that her daughter was being retaliated against for her friendship with individuals who were considered homosexual. ECF No. 91-1 at 49-50, 55. Without dispute, these complaints were made within the first two weeks of January 2017 and Ms. Whitlow was dismissed from the team on April 5, 2017.
While neither party addresses whether Plaintiffs’ parents’ complaints could constitute statutorily protected activity, other courts have explicitly recognized judicially cognizable claims of retaliation under Title IX based on parental complaints on their child's behalf. See, e.g., T.L. ex rel. Lowry v. Sherwood Charter Sch. , 68 F. Supp. 3d 1295, 1314 (D. Or. 2014) ("[B]ecause parents commonly advocate on behalf of their children in schools, it is reasonable to conclude that [Title IX] protects the students from retaliation for the parent's protected activity.")
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Moreover, when viewing the evidence in the light most favorable to Plaintiffs, a jury cannot reasonably infer that Coach Gibson knew about Ms. Whitlow's mother's follow-up emails to athletic department staff members Rashad and Charles. Plaintiffs cite no evidence from which a jury could reasonably draw such an inference. Nor have Plaintiffs identified evidence from which a jury may reasonably infer that Coach Gibson knew of the anonymous complaint prior to Ms. Whitlow's dismissal. As explained above, a jury could reasonably infer that Coach Gibson became aware of this anonymous complaint over the course of Ms. Gavin's Title IX investigation—which ranged from February to late-June 2017—as it's undisputed that Ms. Gavin communicated with Coach Gibson as part of her investigation. But there is nothing cited by the Plaintiffs from which a jury could reasonably infer that Ms. Gavin communicated with Coach Gibson regarding the complaint before Coach Gibson dismissed Ms. Whitlow in April 2017. Indeed, the undisputed evidence points to the opposite conclusion.
Specifically, Ms. Gavin testified that she first reached out to individual players upon commencing her investigation in late February 2017, and their responses to Ms. Gavin's request for information apparently trickled in starting in late March 2017. See ECF No. 91-15 at 24-26; see also ECF Nos. 90-9 and 97-12. The fact that Ms. Gavin allowed players to come forward confidentially remains undisputed. See ECF No. 97-12. In addition, Plaintiffs cite to an email response from Coach Rashad which shows Ms. Gavin had not reached out to this coach until May 1, 2017—several weeks after Ms. Whitlow had been dismissed. See ECF No. 92-14. Accordingly, based on Plaintiffs’ cited evidence, a jury may reasonably infer that Ms. Gavin communicated with players first, then with the coaches, but nothing about this timeline establishes that Coach Gibson was aware of the investigation prior to Ms. Whitlow's dismissal. Moreover, Plaintiffs do not cite evidence from which a jury could reasonably infer that Ms. Gavin communicated with others who would have alerted her to the existence of the investigation prior to Ms. Whitlow's dismissal. Accordingly, Plaintiffs have not identified any evidence—in addition to the three-month proximity between Ms. Whitlow's mother's complaints in early January 2017 and Ms. Whitlow's dismissal from the team on April 5, 2017—from which a jury could reasonably infer Ms. Whitlow's dismissal was in retaliation for her mother's complaints or any participation in the Title IX investigation that followed. The same analysis applies to Ms. Burks's claim of Title IX retaliation and the proximity between the anonymous complaint in February 2017, Ms. Burks's dismissal in April 2017, and Ms. Burks's participation in the Title IX investigation. In other words, there is no evidence cited by the Plaintiffs from which a jury can reasonably infer that Coach Gibson knew of the anonymous complaint or Ms. Burks's participation in the Title IX investigation prior to Ms. Burks's dismissal. Moreover, evidence of Ms. Burks's mother's communication with Ms. Gavin does not support Plaintiff Burks's retaliation claims as this communication occurred after Ms. Burk was dismissed from the team. A jury can only speculate that Coach Gibson knew of the anonymous complaint or Ms. Burks's participation in the investigation prior to dismissing her from the team; but a jury is not permitted to speculate. Rather, at this stage in the case, it's the nonmoving party's job to provide sufficient evidence of an element for which it bears the burden of proof at trial to avoid summary judgment for the moving party, "since a complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In sum, each Plaintiff has failed to cite sufficient evidence of causation to support their claims for retaliation under Title IX. Accordingly, Defendant is entitled to summary judgment on these claims.
V. Remaining Claims
The balance of Plaintiffs’ remaining claims arise under state law. The parties are not diverse. See ECF No. 63 at 2-3. Therefore, the only basis for this Court's exercise of jurisdiction over Plaintiffs’ claims is supplemental jurisdiction under 28 U.S.C. § 1367. "A district court may decline to exercise supplemental jurisdiction over a claim after dismissing all claims over which it has original jurisdiction." Cromartie v. Ala. State Univ. , 693 F. App'x 852, 853 (11th Cir. 2017) (per curiam). "In fact, [the Eleventh Circuit] ‘encourage[s] district courts to dismiss any remaining state claims when, as here, the federal claims have been dismissed prior to trial.’ " Id. (quoting Raney v. Allstate Ins. Co. , 370 F.3d 1086, 1089 (11th Cir. 2004) ). This Court finds that the factors of economy, convenience, fairness and comity each weigh in favor of a remand. See Estate of Owens v. GEO Grp., Inc. , 660 F. App'x 763, 775–777 (11th Cir. 2016) (citing United Mine Workers of Am. v. Gibbs , 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ). Without remanding Plaintiffs’ state-law claims, this Court would be called upon to interpret issues of state law that are best suited for determination by a state court, and remand to a state court would merely effectuate Plaintiffs’ original choice of state forum. Accordingly, this case is remanded to the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida.
VI. Conclusion
Based on the reasons set out above, Defendant is entitled to summary judgment as to Plaintiffs’ Title IX claims. Accordingly,
IT IS ORDERED:
1. Defendant's motion for summary judgment, ECF No. 84, is GRANTED as to Counts I-III, IX, XI, XV-XVII, XXIII, XXV XXIX-XXXIV, XLIII, XLV, XLVII, XLIX, LIII-LVIII, LXVII, LXIX, LXXI, LXXIII, LXXVII-LXXIX, LXXXV, LXXXVII (Title IX theories of discrimination) and Counts IV, XIII, XVIII, XXVII, XXXV, LI, LIX, LXXV, LXXX, LXXXIX (Title IX retaliation claims) in the Fourth Amended Complaint, ECF No. 63. The Clerk is directed to enter judgment stating: "Plaintiffs’ Title IX claims against Defendant Board of Trustees of Florida Agricultural and Mechanical University are dismissed with prejudice."
2. The balance of Plaintiffs’ claims arising under state law are remanded to the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida.
3. The Clerk shall take all steps necessary to effect the remand and close the file.