Garrett v. University of South Florida Board of Trustees

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SAMANTHA GARRETT,

Plaintiff,

v. CASE NO. 8:17-cv-2874-T-23AAS

UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES,

Defendant.

___________________________________/

ORDER

Samantha Garrett, a female student at USF, accused Andrew Thurston, a

male student and her intimate friend at the time, of violating USF’s student conduct

code by exceeding the bound of her consent to sexual contact. In response to a

formal complaint against him and despite denying the accusation, Thurston accepted

USF’s proposed disposition, including a prohibition against “directed, specific,

targeted contact” with Garrett. USF imposed the agreed restriction, but Garrett

wanted a more severe restriction. In response, USF offered her an appeal that

might have resulted in her achieving a more severe restriction. But, because USF’s

permitting the appeal unilaterally abandoned the agreed disposition, the prospective

appeal would relieve Thurston of his acceptance of USF’s proposed disposition and

would re-open the unadjudicated question of the validity of Garrett’s accusation.

Because she was unwilling to participate in a hearing to test the validity of the

accusation (insisting, instead, on a proceeding that could result only in more severe

punishment for Thurston), Garrett withdrew her appeal. In this action under

Title IX, Garrett alleges that — by imposing only the agreed restrictions and by the

prospective appeal’s resulting in Thurston’s receiving a hearing — USF was clearly

unreasonable and deliberately indifferent to a hostile educational environment. But

imposing a proportionate penalty and offering due process to an accused is neither

“clearly unreasonable” nor “deliberately indifferent.”

Also, after withdrawing her appeal, Garrett illicitly recorded a conversation

with USF’s senior Title IX coordinator. After Garrett admitted recording the

coordinator without permission, a deception prohibited by Florida law, USF charged

Garrett under the student conduct code, which incorporates Florida law. Garrett

alleges that USF charged her as an indirect means to retaliate for her criticizing

USF’s disposition of her formal complaint against Thurston. But USF charged

Garrett only because of her admitted misconduct.

THE REPORT AND RECOMMENDATION

A report by the magistrate judge recommends denying summary judgment.

The report determines that, because Garrett at an off-campus conference “felt

uncomfortable” in Thurston’s presence after issuance of the contact prohibition, “a

reasonable jury could find” that the possibility of Thurston’s entering Garrett’s range

of perception subjects Garrett to a hostile educational environment actionable under

Title IX. The report concludes that USF’s affording Garrett an opportunity for an

appeal is “unavailing” because Title IX contains no administrative exhaustion

requirement. Also, the report finds that USF’s decision to discipline Garrett for

illicitly recording was not “wholly unrelated” to Garrett’s criticizing the disposition

of her formal complaint against Thurston. Consequently, the report recommends

denying summary judgment on the retaliation claim.

Although the report aids in distilling the record and identifying certain

conceptual confusion, a careful review of USF’s objections confirms that the report

has erred. First, Title IX imposes no obligation to eliminate conclusively every trace

of discomfort resulting from student-on-student sexual misconduct. Rather, Title IX

requires a university to respond in a manner not “clearly unreasonable.” As a matter

of law, USF’s choosing not to eliminate — by expulsion or the equivalent — every

occasion on which Thurston might appear inadvertently in Garrett’s range of

perception was not — to say the least — clearly unreasonable. Second, although

USF cannot raise administrative exhaustion as an affirmative defense to a Title IX

claim, the availability of a reasonable appellate remedy argues persuasively for the

reasonableness of the response. The report erroneously fails to consider correctly

both the availability of an appeal and Garrett’s considered refusal to pursue an

appeal. Third, the report’s analysis of retaliation errs by concluding that the filing

of a formal complaint against Thurston constitutes “protected activity,” errs by

applying the wrong standard of causation, and errs by failing to consider USF’s non-

discriminatory reason for charging Garrett under the student conduct code.

BACKGROUND

1. The November 12, 2016 incident

Samantha Garrett and Andrew Thurston, each a doctoral candidate in USF’s

Industrial & Organizational Psychology Program, became friends in 2015. Although

enrolled in the same program, Garrett and Thurston — at all pertinent times —

attended different classes, pursued different research projects, and maintained an

office on different floors of the psychology building. (Doc. 74-1 at 98) From 2015 to

2017, Garrett and Thurston exchanged thousands of text-messages in which Garrett

and Thurston routinely called each other “best friends” and expressed “love” for

each other. (Doc. 76-1)

Three weeks after the alleged November 12, 2016 incident, Garrett filed

with USF’s Title IX office a complaint, which alleges the following: after seeing a

movie together on November 12, 2016, Garrett told Thurston that she felt “buzzed”

from an alcoholic beverage and asked to sleep on a couch at Thurston’s apartment.

(Doc. 82-1 at 52) After arriving at Thurston’s apartment, Thurston and Garrett sat

on the couch together, and Thurston mixed an alcoholic beverage for Thurston and

for Garrett. (Doc. 82-1 at 52) At Thurston’s instance, Thurston and Garrett moved

to Thurston’s bedroom and began watching television. (Doc. 82-1 at 52) About

thirty minutes later, Thurston — with Garrett’s consent — began kissing Garrett and

touching Garrett’s breasts. (Doc. 82-1 at 52) However, after Thurston attempted to

remove Garrett’s shorts, Garrett instructed Thurston to stop. (Doc. 82-1 at 52)

Ignoring Garrett’s instruction, Thurston removed Garrett’s shorts and attempted —

despite Garrett’s resistance — to remove Garrett’s underwear. (Doc. 82-1 at 52)

Although Garrett said “no” and “this is not going to happen,” Thurston engaged

in what a faculty member later described as “non-consensual digital penetration.”

(Doc. 82-1 at 52; Doc. 84-1 at 30) After Thurston stopped, Garrett went to the

bathroom for twenty minutes. Upon Garrett’s return, Thurston asked Garrett to

lie in bed, and Garrett agreed. (Doc. 82-1 at 52) Later that night, Garrett began

dressing and told Thurston that she intended to leave Thurston’s apartment.

Thurston asked Garrett to return to bed, and Garrett returned. (Doc. 82-1 at 53)

Thurston and Garrett slept without further issue. The following morning, Garrett

and Thurston agreed to “never cross the ‘friend line’ again.” (Doc. 82-1 at 53)

2. Thurston and Garrett’s conduct after the incident

In cellular text-messages exchanged the following day, Thurston expressed

dismay about possibly having ruined Thurston and Garrett’s friendship. Garrett

responded, “We made out. It’s not a big deal. Everything’s still the exact same.”

(Doc. 76-1 at 374) However, Garrett wrote that Thurston had acted “forceful[ly]”

and “wouldn’t listen to no.” (Doc. 76-1 at 376) Thurston responded by describing

himself as a “monster.” (Doc. 76-1 at 377)

Twice within a few days after the incident and once at Garrett’s instance,

Garrett slept at Thurston’s apartment after studying with Thurston. (Doc. 74 at 44)

No sexual activity occurred either night. On November 23, 2016 — eleven days after

the incident — Thurston accepted an invitation from Garrett to watch a television

show at Garrett’s apartment, and Garrett accepted an invitation from Thurston to

celebrate Thanksgiving two days later with Thurston’s family. (Doc. 76-1 at 449)

Later that evening Thurston attended a party, and between 5:30 p.m. and

6:30 p.m. Garrett sent Thurston nine text-messages. (Doc. 76-1 at 451–52) After

receiving no response by 8:00 p.m., Garrett wrote, “Ok so since you haven’t told me

anything about [Thanksgiving] I’m going to assume that’s your way of making sure

I don’t come . . . I tried . . . Just do me a favor and if I don’t answer [in] [t]he

mornin[g] come Check on [my dog].” Garrett wrote that the “[l]ast time I did this I

ended up throwing up in my sleep and I’m not trying to leave [my dog] . . . un[fed].”

(Doc. 76-1 at 452) In an 8:21 p.m. text-message, Thurston responded, “What did

you do? I’m on my way.” (Doc. 76-1 at 452) Garrett replied that she was “taking

two more Sleeping pills and another Xanax in [case] you need to kno[w]” and that

“[i]n all honesty, all of this would be a lot easier for me if you just shot me.”

(Doc. 76-1 at 453) Garrett asked Thurston to “just come back, watch me drink,

and make sure I sleep on my back.” (Doc. 76-1 at 453)

After Thurston arrived at Garrett’s apartment, Garrett told Thurston to leave

and locked the door. (Doc. 75 at 15) Thurston, to whom Garrett had given a key to

the apartment, unlocked the door and called the police. (Doc. 75 at 15–16) After

arriving, the police reviewed the text-messages on Garrett’s cellular telephone and

involuntarily committed Garrett under Florida’s Baker Act. (Doc. 75 at 17) After

receiving “stabilization” at a wellness center, Garrett sent to another student a text-

message stating that Thurston “will be dropping out” because “after this there’s no

way I’m ok with him staying in the program.” (Doc. 75-1 at 138)

3. Garrett files a complaint against Thurston.

Eleven days after her release from the wellness center, Garrett told the director

of the psychology doctoral program about the incident. (Doc. 78-1 at 1–5) That

same day, the director sent an incident report to Crystal Coombes, USF’s senior Title

IX coordinator. The director’s report described briefly the incident and stated that

Garrett “wanted the perp removed from the program” and that Garrett “is concerned

that she will be re-victimized by investigators.” (Doc. 78-1 at 4) The next day,

Coombes determined that the incident report warranted an investigation. (Doc. 84-1

at 1) Jonathan Monti, the associate director of USF’s Office of Student Rights and

Responsibilities (OSRR), sent Garrett a letter stating that Garrett could file with

OSRR a complaint against Thurston. (Doc. 84-1 at 26–27) Garrett responded by

e-mail that she intended to file a complaint. (Doc. 84-1 at 2)

On December 8, 2016, Garrett met her victim’s advocate, Megan Deremiah,

whom OSRR had assigned to Garrett throughout the Title IX process. (Doc. 74-1

at 16) After Deremiah explained USF’s Title IX process, Garrett told Deremiah that

Garrett wanted Thurston removed from the psychology program. (Doc. 74-1 at 19)

The next day, Monti explained to Garrett that she could request interim restrictions

against Thurston during the investigation, but Garrett — remarkably — requested

that USF impose no interim restrictions against Thurston. (Docs. 82-1 at 52;

Doc. 84-1 at 30)

The same day, OSRR assigned Joanna Elwood, the assistant director of

OSRR, to investigate the incident. (Doc. 75-1 at 88) Elwood interviewed Garrett

and Thurston, reviewed the text-messages between Garrett and Thurston, and

interviewed two witnesses provided by Thurston. (Docs. 82-1 at 54; 83-1 at 11–12)

During his interview with Elwood, Thurston stated that the sexual touching was

consensual and that the day following the incident Garrett used a social media

platform to send Thurston a sexually suggestive image. (Doc. 83-1) Thurston stated

that he “then texted [Garrett that] he felt bad about engaging in contact because he

wanted to keep things platonic and didn’t want to ruin their friendship.” (Doc. 83-1

at 10) Thurston told Elwood that “only after he rejected her advances did she say he

was forceful the night before.” (Doc. 83-1 at 10) Also, Thurston told Elwood that

Garrett spent the night at Thurston’s apartment on two occasions after the incident

and that Garrett and Thurston “cuddled” together. (Doc. 83-1 at 11) Thurston

stated that he told Garrett that he planned a date with another woman and that in

response Garrett threatened to call the police and forced Thurston to cancel the date.

(Doc. 83-1 at 11) Elwood interviewed a student witness who told Elwood that —

after the alleged incident — the witness saw Thurston and Garrett together and that

“Thurston appeared stiff/non-emotional and Garrett appeared to be physically

leaning into him.” (Doc. 83-1 at 13)

In her investigative report submitted two months after Garrett’s complaint,

Elwood found that Garrett and Thurston “were close, personal friends, who

communicated their love for each other frequently” and that on November 12, 2016,

“Garrett and Thurston were engaged in consensual kissing, removing of the bra and

touching breasts.” (Doc. 83-1 at 13) However, Elwood reported a dispute about

whether Garrett had consented to the remainder of the sexual activity and about

whether Thurston was intoxicated. Elwood concluded that “sufficient evidence”

exists “to substantiate the presence of non-consensual sexual intercourse and non-

consensual sexual contact.”1 (Doc. 83-1 at 13–14) Elwood recommended that

OSRR charge Thurston under the Student Code of Conduct, which prohibits non-

consensual sexual intercourse and non-consensual sexual contact.2 Elwood

submitted the investigative report to Maria Cutsinger, the interim director of OSRR.

(Doc. 83-1 at 8)

1 The meaning of “sufficient evidence . . . to substantiate” remains unclear. In her

deposition, Elwood explained that she “determined if there was enough information to move

forward to the conduct process; not anything beyond that.” (Doc. 83 at 12:1–17) “Moving forward”

and “substantiating” differ, if not conflict; Elwood apparently determined probable cause and

nothing more.

2 The Student Code of Conduct defines “non-consensual sexual intercourse” to include

“vaginal penetration by a penis, object, tongue or finger, anal penetration by a penis, object,

tongue, or finger, and oral copulation (mouth to genital contact or genital to mouth contact), no

matter how slight the penetration or contact” and defines “non-consensual sexual contact” to

include “intentional contact with the breasts, buttocks, groin, or genitals, or touching another with

any of these body parts, or making another touch you or themselves with or on any of these body

parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by

breasts, buttocks, groin, genitals, mouth, or other orifice.” (Doc. 82-1 at 15)

Cutsinger determined that the investigative report showed a “substantial

likelihood” that Thurston had violated the Student Code of Conduct, and OSRR

formally charged Thurston under the Student Code of Conduct. (Doc. 80-1 at 30–

31) In a March 9, 2017 “disposition letter” to Thurston, Cutsinger explained the

charges and stated that Thurston could either (1) accept responsibility for violating

the Student Code of Conduct and accept USF’s proposed restrictions or (2) deny

responsibility, reject the proposed restrictions, and demand a formal hearing.

The proposed restrictions were (1) a “no-contact order,” which both prohibited

Thurston’s “making contact with Samantha Garrett by telephone, in writing,

electronically, by third party, or in person both on and off campus,” and (2) a

deferred suspension, which required Thurston to meet periodically with OSRR

staff and psychology-department faculty and subjected Thurston to an immediate

suspension if Thurston again violated the Student Code of Conduct. The no-contact

order prohibited “directed, specific, targeted contact” by Thurston and entitled

Garrett to report a violation of the no-contact order. (Doc. 76 at 54:38–54:44) The

disposition letter warned Thurston that denying responsibility and demanding a

formal hearing might “result in determinations and measures that are more severe”

than the no-contact order and the deferred suspension. (Doc. 80-1 at 30–31)

In response to the disposition letter, Thurston accepted responsibility for

violating the Student Code of Conduct and, as a result, accepted imposition of both

the no-contact order and the deferred suspension. (Doc. 80 at 11) In a March 20,

2017 letter to Garrett, Cutsinger stated that Thurston had accepted both

responsibility and the proposed restrictions and that Garrett could appeal and

request additional restrictions against Thurston. (Doc. 85-3 at 2)

4. Garrett appeals to request more restrictions against Thurston.

In a March 22, 2017 e-mail to Cutsinger, Garrett stated that she intended to

appeal the restrictions imposed against Thurston. (Doc. 84-1 at 15) Two weeks

later, Garrett met with Monti and Danielle McDonald, the dean of students, to

discuss the appeal. (Doc. 84-1 at 17) McDonald explained that, because USF had

not encountered a circumstance in which the respondent accepts responsibility and

the proposed restrictions but the complainant appeals in pursuit of more punitive

restrictions, McDonald had devised a new procedure to govern Garrett’s appeal.

(Doc. 84-1 at 17) USF created for Garrett a new appellate opportunity, unknown

and undisclosed to Thurston when he accepted USF’s proposed disposition.

Under USF’s new procedure, if Garrett appealed, Thurston could

either demand a hearing before the conduct board or “leave the initial review

determination in place.” If Thurston decided to “leave the initial review

determination in place,” Thurston could respond in writing to Garrett’s appeal,

and McDonald would resolve the appeal without a hearing before the conduct board.

(Doc. 74-1 at 146) However, if Thurston demanded a hearing before the conduct

board, OSRR would use “the established process for hearings,” which would permit

Thurston to contest the charges for which he had accepted responsibility and which

might result in punishment of greater or lesser severity. Both Garrett and Thurston

could appeal the result of the hearing. (Doc. 74-1 at 146)

After hearing McDonald’s explanation, Garrett protested (1) that her

prospective appeal permitted Thurston to contest the charges despite Thurston’s

accepting responsibility, (2) that her appeal permitted Thurston to demand a hearing

before the conduct board even if Garrett opposed a hearing, and (3) that Coombes

(USF’s Title IX coordinator) had stated earlier that Garrett could appeal to

McDonald directly without permitting Thurston to demand a hearing. (Doc. 74-1

at 84)

Disappointed with the prospective appeal, Garrett asked whether — absent

an appeal — the psychology department could unilaterally expel Thurston from

the doctoral program because Thurston had accepted responsibility for violating

the Student Code of Conduct. (Doc. 74-1 at 84) McDonald and Monti suggested

that Garrett meet with Coombes to discuss the availability of “interim measures”

pending resolution of Garrett’s appeal. (Doc. 74-1 at 84) After the meeting, Garrett

complained to Deremiah (the victim’s advocate) that Thurston “held all the power”

in the appeal despite Thurston’s accepting responsibility. (Doc. 74-1 at 84) Garrett

stated that she wanted to avoid a hearing “at all costs” but would attend a hearing if

necessary “to defend herself.” (Doc. 74-1 at 84)

The next day, April 6, 2017, Garrett met with Coombes to discuss the

restrictions that USF could impose against Thurston in the absence of an appeal.

Coombes explained that Garrett could request — without appealing — certain

“alternative measures” against Thurston. (Doc. 74-1 at 87) Garrett stated that these

alternative measures must prohibit Thurston’s accessing the psychology building,

parking in the adjacent lot, and attending department-sponsored events and

conferences. (Doc. 74-1 at 87) Coombes expressed uncertainty about whether

Garrett could obtain those restrictions absent an appeal. (Doc. 74-1 at 87) Also,

Garrett asked whether the psychology department could remove Thurston from the

psychology program because Thurston had accepted responsibility for violating the

Student Code of Conduct. (Doc. 74-1 at 87) Coombes stated that she would consult

with the psychology department about the ability to remove Thurston based on

Thurston’s accepting responsibility. (Doc. 74-1 at 87) After the meeting, Coombes

e-mailed Garrett and stated that Coombes would “be working diligently” to

determine the restrictions that USF could impose absent an appeal and offered to

schedule another meeting to occur within a week. (Doc. 74-1 at 90)

Later that day, Deremiah asked Cutsinger (OSRR’s interim director) about

the psychology department’s ability — absent an appeal — to remove Thurston

based on Thurston’s accepting responsibility for violating the Student Code of

Conduct. (Doc. 74-1 at 89) Citing “double jeopardy,” Cutsinger expressed doubt

about the department’s ability to remove Thurston and stated that expelling Thurston

despite his acceptance of the restrictions proposed in the disposition letter would

subject USF to a Title IX claim from Thurston. (Doc. 74-1 at 89)

5. Garrett withdraws the appeal.

On April 10, 2017, Garrett told Deremiah that Garrett had decided to retract

her appeal because Thurston could demand a hearing even if Garrett opposed a

hearing. (Doc. 74-1 at 91) In an e-mail to McDonald sent the same day, Garrett

stated that she was retracting her appeal “due to the differences between the initial

information [she] was given regarding an appeal of the restrictions and the newly

created procedure after [she] initiated the appeal.” (Doc. 74-1 at 15) Garrett stated

that she intended to pursue “potential remedies through interim measures” and

asked whether “there is anything else [she] need[s] to do for [her] case to be formally

closed with the current charges and sanctions finalized.” (Doc. 74-1 at 15) At the

instance of Coombes, McDonald waited to accept Garrett’s retraction of the appeal

until after Garrett met with Coombes to discuss the “alternative measures” that USF

could impose absent an appeal. (Doc. 74-1 at 98)

During a meeting with Garrett the next day, Coombes stated that McDonald

would defer accepting Garrett’s retraction of the appeal until Coombes had explained

the available “alternative measures.” (Doc. 74-1 at 98) Coombes explained that

absent an appeal USF could not ban Thurston from the psychology building,

from the adjacent parking lot, or from attending campus events. (Doc. 74-1 at 98)

However, Coombes explained that USF could assign a faculty member to supervise

any event that both Thurston and Garrett attended and that Coombes could assign a

schedule to reduce Thurston’s and Garrett’s simultaneous presence on campus.

After hearing Coombes’s explanation, Garrett “was extremely upset” but did not

rescind her retraction of the appeal. (Doc. 74-1 at 98) Garrett requested a remote

research assignment and a leave of absence, and Coombes stated that the psychology

program could assist Garrett in obtaining both. (Doc. 74-1 at 98) In an e-mail to

Garrett the next day, McDonald accepted Garrett’s retraction of the appeal.

(Doc. 74-1 at 96)

6. Garrett and Thurston attend a psychology conference.

Two weeks after McDonald accepted Garrett’s retraction of the appeal, a

psychology organization hosted a three-day off-campus conference in Orlando,

Florida. (Doc. 73-2 at 4; Doc. 74 at 7) The psychology department required

doctoral students to attend the conference. (Doc. 74 at 8) While waiting to register

at the conference, Thurston stood in a line adjacent to Garrett’s line. (Doc. 74 at 7)

For about three minutes, Thurston and Garrett stood within five feet of each other.

(Doc. 74 at 7–8) During the conference, Garrett saw Thurston in hallways, in

communal areas, and at several receptions. (Doc. 74 at 8) Thurston never attempted

to communicate with Garrett during the conference, and Garrett never reported or

otherwise complained to USF about Thurston’s attending the conference. (Doc. 74

at 7–8) No party asserts that Thurston’s conduct at the conference violated the no-

contact order.

7. Garrett illicitly records a meeting with Coombes.

On May 18, 2017, about two weeks after the psychology conference and

a month after Garrett’s retraction of the appeal, Coombes and Garrett again met

to discuss the “alternative measures” that USF could impose against Thurston.

(Doc. 74 at 46) Coombes reminded Garrett that that USF could not — without

Thurston’s consent or an appeal from Garrett — ban Thurston from the psychology

building or the adjacent parking lot. (Doc. 74-1 at 125) Further, Coombes explained

that Thurston had refused to accept a schedule that restricted his presence on campus

and that USF could not restrict his presence without consent. Coombes explained

(1) that Garrett could accept the no-contact order and the deferred suspension in

place, (2) that Garrett could file a complaint about USF’s Title IX management of

the episode, or (3) that Garrett could request to renew the appeal of the restrictions

imposed on Thurston. Garrett chose to accept the no-contact order and the deferred

suspension.

After the meeting, Garrett told Deremiah, “I am so glad I recorded that

conversation” because “I [have] a hard time remembering what is said in these

meetings.” (Doc 74-1 at 125) Later that day, Deremiah reported to OSRR that

Garrett might have violated the Student Code of Conduct by recording the

conversation without Coombes’s permission. (Doc. 81-1 at 181–87)

On June 8, 2017, Monti began investigating Deremiah’s report. During a

June 12, 2017 interview with Monti, Garrett admitted recording the conversation.

(Doc. 81-1 at 182) On June 15, 2017, Monti sent Garrett a letter stating that

sufficient evidence existed to charge Garrett under the Student Code of Conduct,

which prohibits a student’s violating Florida law as determined by USF.3 (Doc. 84-1

at 127) The letter states that Garrett could either (1) accept responsibility and

complete two ethics workshops or (2) demand a hearing before the conduct board.

(Doc. 84-1 at 128) Garrett demanded a hearing, which occurred on August 18, 2017.

(Doc. 84-1 at 133) After the hearing, the conduct board found that — by recording

the conversation with Coombes — Garrett likely violated both (1) Section 934.03,

Florida Statutes, which prohibits a person’s “intentionally intercept[ing] . . . any

wire, oral, or electronic communication” unless “all parties to the communication

have given prior consent . . . .” and (2) the Student Code of Conduct. The conduct

board issued a “Letter of Warning,” which states that “any future disciplinary

referrals to this office may result in formal disciplinary action being taken against you

. . . [and] could seriously impact your student status at the University.” (Doc. 82-1

at 170) Garrett accepted the conduct board’s decision.

3 Entitled “Violation of University Policy and/or Local Ordinance, State, or Federal Law

(as determined by the University),” Section 4.21, Student Code of Conduct, states that “[f]ailure to

adhere or abide by policies including, but not limited to, local ordinance, state law or federal law.

Adjudication by an outside entity is not a prerequisite to a determination of responsibility by the

University.”

DISCUSSION

I. Hostile Educational Environment

Title IX creates a claim for relief against a university that receives federal

money earmarked for education if the university responds with deliberate

indifference to known acts of student-on-student sexual misconduct and if the

misconduct is “so severe, pervasive, and objectively offensive that it effectively bars

the victim’s access to an educational opportunity.” Davis v. Monroe Cty. Bd. of Educ.,

526 U.S. 629, 633 (1999). Proving that a university responded with deliberate

indifference to student-on-student sexual misconduct is “rigorous and hard.” Hill v.

Cundiff, 797 F.3d 948, 975 (11th Cir. 2015). A university responds with deliberate

indifference only if the university’s response to the misconduct is “clearly

unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. The

clearly unreasonable response “must, at a minimum, cause [students] to undergo

harassment or make them liable or vulnerable to it.” Davis, 526 U.S. at 644–45.

However, a university is not “deliberately indifferent” solely because the

university fails to “purge” all future misconduct or eliminate all sources of

discomfort. Davis, 526 U.S. at 648. Title IX affords the victim no right “to make

particular remedial demands” and imposes no obligation to “engage in particular

disciplinary action.” Davis, 526 U.S. at 648. Further, Davis instructs that “courts

should refrain from second-guessing the disciplinary decisions of school

administrators.” Davis, 526 U.S. at 648.

Title IX requires that a university respond in a manner not clearly

unreasonable in response to a credible complaint about sexual misconduct. Neither

Title IX nor any other law requires the imposition of a punitive or draconian remedy,

the establishment of a particular procedure to resolve an allegation of sexual

misconduct, or the suspension of due process for either the accused or the accuser or

both.

Like every other offense, sexual misconduct and the penalty for sexual

misconduct range in severity from trivial to life-altering. Where in this range an

incident and the remedy lie is a determination that requires neutral assessment and

sober evaluation, which the law firmly commits to the university’s discretion and in

which the law requires, at least, the rudiments of due process. Neither the accuser

nor the accused commands unilaterally either the validity of the accusation or the

fashioning of the remedy. The accuser has a right to a remedy for a valid accusation

and the accused has a right to vindication from an invalid accusation; the law and

the university must ensure that the rights remain in equipoise.

In this instance, USF’s creating an opportunity for Garrett to appeal and

USF’s consequent, prospective abandonment (if the appeal continued) of the agreed

resolution required restoration of Thurston’s opportunity to defend. After weighing

the advantages and disadvantages, Thurston elected to relinquish the opportunity

to defend only in exchange for the agreed conclusion to the student disciplinary

proceeding and the opportunity to continue his doctoral program (although subject

to both the deferred suspension and the restriction against “directed, specific,

targeted contact” with his accuser). At the moment he “accepted responsibility,”

Thurston had no idea that USF would create a right for Garrett to appeal and offer

her an opportunity to increase his restrictions or cause his expulsion.

USF argues that as a matter of law the restrictions imposed against Thurston

were not “clearly unreasonable in light of the known circumstances” because the

restrictions prohibited Thurston’s direct, specific, and targeted contact with Garrett

and because USF offered a reasonable appellate procedure — declined by Garrett —

to request additional restrictions against Thurston. Garrett responds that USF’s

failure to restrict Thurston’s proximity to Garrett was “clearly unreasonable,”

that the appeal procedure created by USF unfairly required Garrett to attend a

hearing and permitted Thurston to contest the charges for which he had accepted

responsibility, and that USF misinformed Garrett about the restrictions available

absent an appeal.

A. The reasonableness of USF’s response

Primarily, Garrett argues that USF’s decision to impose a no-contact order,

which prohibits directed, specific, targeted contact but permits him to enter the

psychology building and to remain on campus as a student, constitutes a “clearly

unreasonable” response to Garrett’s complaint against Thurston. Garrett claims

that after the incident she became “intimidated” by the prospect of encountering

Thurston in the psychology building and claims that this sensation compelled Garrett

to request and receive both “incompletes” in her classes and a remote-research

assignment. (Doc. 78 at 8, 12) Garrett contends that USF’s failure to expel

Thurston from the psychology program or ban Thurston from the psychology

building was “clearly unreasonable” because the response “made [Garrett] liable

or vulnerable to harassment” in the form of Thurston’s continued presence in the

psychology building.

In other words, Garrett contends that the mere prospect of Thurston’s entering

Garrett’s range of perception creates a hostile educational environment actionable

under Title IX. However, two distinguishing principles emerge from the decisions

on which Garrett relies for this contention. First, a university’s response constitutes

deliberate indifference if the university refuses to impose any protective restrictions

after receiving a credible complaint about student-on-student sexual misconduct.

Second, the mere prospect of the alleged assailant’s entering the victim’s range of

perception “ma[kes] [the plaintiff] liable or vulnerable to harassment” only if the

university fails to restrict the conduct of an alleged assailant after the sexual

misconduct. That is, the distress a victim might reasonably suffer upon seeing an

alleged assailant whose conduct remains wholly unrestricted is qualitatively different

than the distress a victim might reasonably suffer upon seeing an alleged assailant

against whom the university has imposed and enforced restrictions and against

whom the university has retained the ability to investigate and punish for any

violation of the restrictions.

Unlike the universities in Garrett’s cited decisions, USF promptly restricted

Thurston’s conduct by issuing the no-contact order, which prohibits communication

and “directed, specific, targeted contact.” And, unlike the victims in Garrett’s cited

decisions, Garrett knew that, in the event of a chance sighting, Thurston’s conduct

was restricted by the university and that any violation of the restrictions would

subject Thurston to further investigation and punishment, including possible

suspension or expulsion. In other words, Garrett knew (and so did Thurston) that

even if Thurston happened to appear in her range of perception, USF’s restrictions

precluded any directed, specific, or targeted contact.

Garrett cites Kelly v. Yale University, 2003 WL 1563424, (D. Conn. 2003), in

which a student of the university’s divinity school sexually assaulted another student,

who shared a class with, and lived in the same dormitory as, the alleged assailant.

During the investigation of the assault, the victim complained that the alleged

assailant’s presence in the dormitory and the shared class was “harassing” and

requested that the university both assign the alleged assailant to another class and

assign the victim to another dormitory. Kelly, 2003 WL 1563424 at *3. However,

the university “never responded to the [victim’s] entreaties” for residential and

educational accommodations, and the victim withdrew from classes before the

investigation concluded and before the university imposed any restrictions on the

conduct of the alleged assailant. Kelly, 2003 WL 1563424, at *1–3. Kelly holds

correctly that the university’s failure to impose any restriction — failure to do

anything — constituted deliberate indifference. Kelly, 2003 WL 1563424, at *5

(“[T]he court does not find that [the university’s] refusal to bar [the alleged assailant]

from attending classes was clearly unreasonable. What is substantially less clear,

however, is whether [the university’s] particular course of action — in which

minimal efforts were made to protect [the victim] from further harassment . . .

violated Title IX.”)

Garrett cites Takla v. Regents of the University of California, 2015 WL 6755190,

(C.D. Cal. 2015), in which a faculty advisor sexually assaulted the plaintiff, and

the university’s Title IX coordinator convinced the plaintiff — in violation of the

university’s Title IX policy — to pursue an “Early Resolution” procedure. The

university concluded the procedure “without making any formal findings,” and the

university informed the plaintiff neither about the outcome of the procedure nor

whether the university had imposed a restriction on the advisor’s conduct. Due to

the “[f]ear of running into [the advisor] and being subjected to additional sexual

harassment,” the plaintiff stopped attending classes. Takla, 2015 WL 6755190, at *2.

Takla finds plausible that the university’s failure to impose any restriction constituted

deliberate indifference. Takla, 2015 WL 6755190, at *4 (denying a motion to

dismiss).

And Garrett cites Kinsman v. Florida State University Board of Trustees, 2015 WL

11110848, (N.D. Fla. 2015), in which a student-athlete sexually assaulted another

student at an off-campus apartment. Although the victim, who shared a class with

the alleged assailant, reported the assault, the university neither assigned the alleged

assailant to another class nor imposed a restriction against the alleged assailant’s

conduct. Further, the university delayed the investigation of the alleged assault until

after completion of the student-athlete’s competitive sports season. Kinsman finds

“reasonable and expected” the victim’s decision — absent any protective response

from the university — to withdraw. Kinsman, 2015 WL 11110848, at *4 (denying a

motion to dismiss).

In sum, Kelly, Takla, and Kinsman find deliberate indifference because each

university failed to impose any restriction in the aftermath of the sexual misconduct

and permitted the alleged assailants to remain on the campus without restriction. By

contrast, USF promptly investigated the allegations of Garrett’s Title IX complaint

against Thurston; promptly charged Thurston under the Student Code of Conduct

after concluding the investigation; imposed a no-contact order and a deferred

suspension on the condition of Thurston’s accepting responsibility; manufactured a

new and entirely reasonable appellate remedy by which Garrett could obtain further

restrictions against Thurston; and furnished educational accommodations — a

remote research assignment — after Garrett withdrew her appeal. Unlike the

universities in Kelly, Takla, and Kinsman, USF successfully and promptly eliminated

“directed, specific, targeted contact” between Thurston and Garrett, which

reasonably but aggressively eliminated or minimized the distress Garrett might

suffer if the two randomly passed within the range of perception.

Although Garrett concedes that USF imposed restrictions against Thurston

and that after issuance of the no-contact order Thurston neither communicated with

Garrett nor subjected Garrett to directed, specific, or targeted contact, Garrett argues

that the restrictions remain “clearly unreasonable” because Thurston’s and Garrett’s

concurrent enrollment in the psychology doctoral program entailed a likelihood of

the two frequently entering within each other’s range of perception. Accordingly,

Garrett contends that USF’s refusal to ban Thurston from the psychology building or

to expel Thurston from the psychology program constituted a clearly unreasonable

response to the alleged student-on-student sexual misconduct.

Garrett cites no authority for the proposition that USF’s remedial prohibition

is clearly unreasonable. Although Garrett repeatedly reported to faculty and Title IX

officials that Thurston’s continued presence subjected her to distress and intimida-

tion, Title IX affords a victim of student-on-student sexual misconduct no right

“to demand a particular remedy” and affords the university “flexibility” and

deference in deciding the appropriate response to student-on-student sexual

misconduct. Davis, 526 at 648. If, as Garrett maintains, the prospect of future

proximity between a victim and an alleged assailant creates an irreconcilably

hostile educational environment, a university confronted with an allegation of non-

consensual sexual contact has almost no choice — regardless of the severity of the

contact — other than to expel the accused. In other words, Garrett argues that the

only response not “clearly unreasonable in light of the known circumstances” is

expulsion from the psychology program or banishment from the psychology

building — a punishment tantamount to expulsion. Davis condemns this result.

Davis, 526 U.S. at 648 (rejecting the contention that a university can avoid Title IX

liability only by expelling “‘every student accused of misconduct involving sexual

overtones.’”)

However, the possibility remains that in an “extreme” circumstance a

university might have no choice but to reasonably limit the occasions on which an

assailant and a victim might enter the range of one another’s perception. For

example, in Williams v. Board of Regents of University System of Georgia, 477 F.3d 1282

(11th Cir. 2007), a student-athlete with a record of sexual misconduct “orchestrated”

a “gang rape” of the plaintiff, who withdrew from the university a few days later.

Although promptly receiving a police report about the rape, the university imposed

no restrictions against the alleged assailants and delayed by more than eight months

before investigating.

Williams suggests that the university’s failure to restrict the alleged assailants’

presence on campus “effectively deni[ed] [the victim] an opportunity to continue to

attend [the university].” Williams, 477 F.3d at 1297. Under the “extreme facts”

alleged in the complaint, Williams holds that the university’s inaction — the failure to

restrict the alleged assailants and the protracted delay in investigating the rape —

constitutes deliberate indifference. Williams, 477 F.3d at 1297 (finding “inexplicable

and discriminatory” the university’s failure “to take any precautions that would

prevent future attacks” by the alleged assailants). However, Williams limits the

holding to the “extreme facts” alleged and declines to decide whether a cause of

action would exist “if the facts alleged had been less severe.” Williams, 477 F.3d

at 1299.

USF’s response contrasts dramatically and decisively with the “extreme

facts” and the unreasonable delay in Williams. USF knew when imposing the no-

contact order and deferring the suspension that Thurston had no record of sexual

misconduct, knew that Garrett had consented to some of the sexual activity, and

knew that Garrett and Thurston were friends who voluntarily saw each other after

the alleged non-consensual contact. (Doc. 74-1 at 98) Although USF also knew that

Thurston and Garrett were enrolled in the same doctoral program and occasionally

attended the same academic events and conferences, USF knew when imposing the

no-contact order that Thurston was “all but dissertation” and shared no classes with

Garrett, knew that Thurston and Garrett maintained offices on different floors, and

knew that Thurston and Garrett pursued different research projects. (Doc. 74-1

at 98) In other words, USF knew that Thurston’s and Garrett’s academic obligations

seemed to suggest only, at most, de minimis opportunities for the two to pass within

the range of perception.

Garrett wrongly insists that the no-contact order provides “no protection.”

As Coombes explained to Garrett, the no-contact order prohibits “directed, specific,

targeted contact” by Thurston, and Garrett can report any violation of the order.

(Doc. 76 at 54:38–54:44) Thurston never violated the no-contact order, and Garrett

cites no instance after issuance of the no-contact order that Thurston intentionally

appeared on campus within the range of Garrett’s perception.

In the absence of a shared class schedule, shared living quarters, or an

academic obligation necessitating recurrent and close proximity between Garrett

and Thurston, USF’s decision to prohibit directed, specific, and targeted contact

indisputably was not unreasonable. Yoona Ha v. Northwestern Univ., 2014 WL

5893292, at *2 (N.D. Ill. 2014) (holding “not actionable under Title IX” the

plaintiff’s claim that the mere “knowledge of [the alleged assailant’s] presence

on the campus” continued — despite issuance of a no-contact order against

the alleged assailant — to cause the plaintiff “considerable grief”). Garrett’s

contention that USF must “effectively end[] all interaction between the two students

. . . misunderstands the law.” Gabrielle M. v. Park Forest-Chicago Heights, 315 F.3d

817, 825 (7th Cir. 2003). Although the no-contact order “was not the punishment

[Garrett] wanted, punishment was imposed.” Butters v. James Madison Univ., 208 F.

Supp. 3d 745, 762 (W.D. Va. 2016). As a matter of law, USF’s decision not to ban

Thurston from the psychology building and, instead, to impose the no-contact order

and the deferred suspension was clearly not unreasonable — or even close to

unreasonable.

B. The availability of an appeal

After issuance of the no-contact order and the deferred suspension, Garrett

complained that the mere prospect of seeing Thurston in the psychology building —

even without any directed, specific, targeted contact between the two — caused

Garrett “extreme anxiety” and prevented Garrett’s attending classes and completing

assignments. (Doc. 81 at 22) Garrett argues that by rejecting her pleas to ban

Thurston from the psychology building or to expel Thurston from the psychology

program, USF responded with deliberate indifference to Garrett’s distress.

Again, Title IX affords the victim no right “to make particular remedial

demands,” Davis, 526 at 648, and an educational institution need not — in every

instance — banish someone from the perception of the victim to avoid Title IX

liability, Gabrielle M., 315 F.3d at 824. As a matter of law, USF did not respond

with deliberate indifference after issuance of the no-contact order. As Coombes

and McDonald explained, to ban Thurston from the psychology building required

Garrett to appeal the punishment against Thurston and to permit Thurston an

opportunity for a hearing. This procedure comports with the rudiments of due

process and fairly considers the rights of both Garrett and Thurston. Electing to

relinquish her opportunity to achieve the same remedy that she now sues USF for

not imposing, Garrett both withdrew her appeal because of her reluctance to attend

a hearing before the conduct board and requested “[her] case to be formally closed

with the current charges and sanctions finalized.” (Doc. 74-1 at 15)

Although Title IX contains no requirement to exhaust the administrative

remedy, Garrett’s reluctance to attend a hearing cannot render “clearly

unreasonable” USF’s declining to impose unilaterally the punishment demanded

by Garrett. And, although she reported to USF that Thurston’s presence caused

her distress, Garrett identifies no circumstance in which Thurston attempted to

communicate with her; in which Thurston subjected her to targeted, specific, or

directed contact; or in which Thurston intentionally appeared on campus within her

range of perception. In the absence of targeted conduct by Thurston, USF’s decision

not to unilaterally impose the punishment demanded by Garrett falls comfortably

within the “flexibility” and discretion that Title IX affords. Davis, 526 U.S. at 648.

Further, Thurston already had accepted responsibility and accepted the proposed

restrictions, and a decision to increase unilaterally Thurston’s punishment without

affording Thurston an opportunity for a hearing would violate USF’s Title IX

procedure, would contradict reasonable expectations about the finality of the

punishment that Thurston had accepted, and might expose USF to an action by

Thurston. Davis, 526 U.S. at 649 (“[I]t would be entirely reasonable for a school to

refrain from a form of disciplinary action that would expose it to constitutional or

statutory claims.”).

Garrett argues that requiring her to attend a hearing before imposing

additional sanctions against Thurston was “clearly unreasonable” because an appeal

would subject her to “additional trauma.” (Doc. 107 at 9) Garrett cites no authority

suggesting that Title IX imposes liability on a university because the university

affords the accused the rudiments of due process, that is, notice and an opportunity

for a hearing. Maher v. Iowa State Univ., 915 F.3d 1210, 1213 (8th Cir. 2019)

(acknowledging that a university must respect the due process rights of the accused).

Although Thurston — as part of an agreed disposition — already had accepted

responsibility for violating the Student Code of Conduct, USF reasonably permitted

Thurston to contest these charges if Garrett appealed. Title IX affords a university

the opportunity to fashion a reasonable and effective procedure and remedy and does

not require a university to impose any specific procedure or remedy to resolve a

complaint about student-on-student sexual misconduct. Even if a “more victim-

friendly” process exists in accord with due process (that question is not pertinent

here), USF fairly balanced the due process rights of the accused and the accuser and

was clearly not unreasonable. Butters v. James Madison Univ., 208 F. Supp. 3d 745,

763 (W.D. Va. 2016) (finding not “clearly unreasonable” a process that required the

plaintiff to “testify multiple times, at multiple hearings” and that “permitted several

levels of appeals, which required additional testimony to appeal.”)

Attempting to minimize her refusal to pursue an appeal, Garrett contends

that she “was first assured that she could pursue the additional remedies she needed

without appealing” but learned after withdrawing the appeal “that Thurston was

given veto power over anything she requested . . . .” (Doc. 107 at 9) But McDonald,

the Dean of Students, refused to accept Garrett’s withdrawal of the appeal until after

Garrett met with Coombes to discuss the restrictions that USF could impose

absent an appeal. (Doc. 74-1 at 98; Doc. 90-1 at 96:12–96:25) During the meeting,

Coombes explained that — absent an appeal — USF could not ban Thurston from

the psychology building, from the adjacent parking lot, or from department events.

(Doc. 74-1 at 98) Nonetheless, Garrett persisted in her withdrawal of the appeal.

(Doc. 74-1 at 96; Doc. 90-1 at 94:12–97:1) Although the parties dispute whether

Coombes had erroneously assured Garrett that USF could assign a schedule that

limited Thurston’s and Garrett’s simultaneous presence on campus in the absence

of an appeal, Coombes’s erroneous assurance constitutes — at most — an innocent

mistake because Coombes suggested the possibility of an assigned schedule after

Garrett had instructed USF to withdraw Garrett’s appeal and “finalize” the

restrictions imposed against Thurston.

USF had not before encountered the circumstance in which both the accused

accepts USF’s proposed disposition and the accuser demands punishment beyond

the proposed disposition. Although USF might have better anticipated and prepared

for this circumstance, the record confirms that USF met or exceeded any reasonable

expectation in an attempt to accommodate Garrett’s trepidation about pursuing

the newly established procedure, that is, trepidation about attending a hearing and

affording due process to Thurston. Also, Coombes suggested the possibility of

imposing on Thurston an assigned schedule only after Garrett had instructed USF to

withdraw Garrett’s appeal and “finalize” the restrictions imposed against Thurston,

and Garrett had repeatedly informed USF’s Title IX officials, including Coombes,

that any restrictions shy of Thurston’s expulsion from the psychology program or

banishment from the psychology building was unacceptable.

In this circumstance, the claimed procedural error constitutes at most a trivial,

and innocently benign, mistake and not deliberate indifference. Further, Coombes

informed Garrett that to remedy the claimed procedural error Garrett could file with

USF a complaint about an error in USF’s Title IX procedure or request a renewal of

the appeal. Garrett did neither. The existence of a reasonable procedure to remedy

an innocent procedural error precludes a finding of deliberate indifference.

In sum, USF imposed a reasonable punishment in response to Garrett’s

complaint and provided a reasonable appellate procedure by which Garrett might —

after notice and an opportunity for a hearing — secure Thurston’s expulsion from

the psychology program or exile from the psychology building. As a matter of law,

USF’s response to the alleged sexual misconduct was not “clearly unreasonable.”

Davis, 526 U.S. at 649 (“This is not a mere ‘reasonableness’ standard . . . [and

therefore,] [i]n an appropriate case, there is no reason why courts, on a motion . . .

for summary judgment . . . could not identify a response as not ‘clearly unreasonable’

as a matter of law.”)

II. Retaliation

Garrett claims that USF used the disciplinary action against Garrett as a

means to retaliate against Garrett for criticizing USF’s disposition of the complaint

against Thurston. A claim for retaliation under Title IX is “analyzed under the

framework for claims under Title VII.” Kocsis v. Fla. State Univ. Bd. of Tr., 788 F.

App’x 680, 686 (11th Cir. 2019). To prevail on the retaliation claim, Garrett must

establish a prima facie case of retaliation by showing (1) that she engaged in a

statutorily protected activity, (2) that USF subjected Garrett to a “materially adverse”

action, and (3) that “a causal link” existed between the protected activity and the

adverse action. Bowers v. Bd. of Regents of Univ. Sys. of Ga., 509 F. App’x 906, 911

(11th Cir. 2013). If Garrett establishes a prima facie case of retaliation, USF must

establish a “legitimate, non-discriminatory reason for the adverse action.” Kocsis,

788 F. App’x at 686–67 (citing Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009)).

If USF establishes a non-discriminatory reason, Garrett must demonstrate that the

proffered reason serves as a “pretext to mask discriminatory actions.” Bryant,

575 F.3d at 1308.

A. Prima Facie Case

1. Protected activity

A person engages in statutorily protected activity under Title IX if the person

opposes a practice that Title IX prohibits. Kocsis, 788 F. App’x at 686 (citing Clover v.

Total Sys. Servs., Inc., 176 F.3d 1346, 1350 (11th Cir. 1999)). The person’s opposition

“must be based upon a good faith belief that is objectively reasonable under existing

substantive law.” Kocsis, 788 F. App’x at 687.

The magistrate judge’s report concludes that Garrett’s complaint against

Thurston constitutes protected activity because in the complaint Garrett purportedly

“spoke out” against “sex discrimination.” (Doc. 105 at 23) The report errs. Title IX

prohibits a university’s deliberate indifference to a hostile educational environment

— Title IX does not prohibit student-on-student sexual misconduct. But Garrett’s

complaint against Thurston complains about only Thurston’s conduct — not about

USF’s. That is, Garrett’s complaint against Thurston does not “oppose practices

made unlawful” by Title IX. Kocsis, 788 F. App’x at 686.

Also, the report suggests that Garrett engaged in protected activity by

criticizing USF’s disposition of the complaint. Even if Garrett sincerely perceived

USF’s response as inadequate, a Title IX retaliation claim requires that the plaintiff’s

opposition “be based upon a good faith belief that is objectively reasonable under

existing substantive law.” Kocsis, 788 F. App’x at 686. Because USF’s response

to the alleged non-consensual contact was not — as a matter of law — “clearly

unreasonable,” Garrett lacked an “objectively reasonable” belief that she had

opposed a practice that Title IX prohibits. That is, USF’s decision not to banish

Thurston from Garrett’s range of perception was not clearly unreasonable, and USF

was not clearly unreasonable or deliberately indifferent by declining to impose

unilaterally the remedy that Garrett — after repeated warnings of the consequences

— voluntarily relinquished her opportunity to achieve. USF did not fail to offer the

remedy; Garrett failed to pursue the remedy. Accordingly, Garrett presents no

genuine factual dispute about whether Garrett engaged in a protected activity.

2. Materially adverse action

To constitute a materially adverse action, the action must “dissuade[] a

reasonable [person] from making or supporting a charge of discrimination.” Kocsis,

788 F. App’x at 686 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

68 (2006)). Garrett argues that USF’s investigating the conduct that Garrett

admitted, requiring Garrett to attend a hearing before the conduct board and issuing

a warning letter each constitutes a materially adverse action. Although the

magistrate judge’s report acknowledges that a warning letter cannot constitute a

materially adverse action,4 the report concludes that by requiring “Garrett to undergo

a separate investigation, including a formal hearing,” USF subjected Garrett to a

materially adverse action. (Doc. 105 at 42)

Relying on Entrekin v. City of Panama City Fla., 376 F. App’x 987 (11th Cir.

2010), USF objects that “an investigation, which results in no harm, is not an

adverse action” and that Garrett elected to attend the hearing. (Doc. 106 at 25)

In Entrekin, the plaintiff, a police officer, claimed that the city retaliated against the

plaintiff’s complaint by investigating the complaints of other officers who alleged that

the plaintiff repeatedly engaged in insubordinate behavior. Entrekin finds “likely”

4 See, e.g., Clark v. Potter, 232 F. App’x 895 (11th Cir. 2007), Hawkins v. Potter, 316 F. App’x

957 (11th Cir. 2009), and Barnett v. Athens Reg. Med. Ctr., Inc., 550 F. App’x 711 (11th Cir. 2013)).

that “the initiation of an internal investigation against an employee would dissuade a

reasonable worker from making or supporting a charge of discrimination.” Entrekin,

376 F. App’x at 995. Although the investigation of the plaintiff in Entrekin resulted

in the plaintiff’s termination, Entrekin suggests in a dictum that the initiation of an

investigation constitutes a materially adverse action, even if no discipline results.

Entrekin, 376 F. App’x at 995. However, this order need not resolve whether an

investigation that results in trivial or no discipline constitutes a materially adverse

action because, as discussed above, Garrett never engaged in activity protected by

Title IX and, as discussed below, Garrett fails both to demonstrate causation and to

rebut USF’s non-discriminatory reason for charging Garrett under the Student Code

of Conduct.

3. Causation

To establish a prima facie case, the plaintiff must demonstrate a causal

connection between the statutorily protected activity and the adverse employment

action. Relying on Bowers v. Board of Regents of University System of Georgia, 509

F. App’x 906, 911 (11th Cir. 2013), the magistrate judge’s report determines that to

demonstrate a causal connection, the plaintiff “must show that university decision-

makers knew about her protected conduct and that her protected conduct was not

wholly unrelated to the university’s adverse action.” (Doc. 105 at 42) (citing Bowers,

509 F. App’x at 911). The report finds that the investigation of Garrett was not

“wholly unrelated” to Garrett’s criticizing USF’s disposition of the complaint

because (1) during the recorded meeting Coombes suggested that Garrett could

complain about an error in USF’s Title IX process and (2) after Coombes learned

about the recording Coombes requested that the conduct board respond to Garrett’s

conduct in the “strongest possible manner” and that the sanctions be “hard felt.”

(Doc. 105 at 43) The report finds that “a reasonable jury could conclude —

considering Coombes’s statements and testimony — that USF’s decision to require

Garrett to undergo a separate investigation was not wholly unrelated to her original

Title IX complaint.” (Doc. 105 at 43)

Decided four months after Bowers, which applied the “not wholly unrelated”

standard of causation to a Title IX retaliation claim, University of Texas Southwestern

Medical Center v. Nassar, 570 U.S. 338, 352 (2013), holds that unlike a Title VII

discrimination claim, which requires proof that discriminatory intent served as a

“motivating factor,” a Title VII retaliation claim requires the plaintiff to adduce

“proof that the desire to retaliate was the but-for cause of the challenged . . . action.”

And because “[r]etaliation claims under Title IX are analyzed under the framework

for claims under Title VII,” Kocsis v. Florida State University Board of Trustees, 788 F.

App’x 680 (11th Cir. 2019), requires that a plaintiff claiming retaliation under Title

IX establish causation “according to traditional principles of but-for causation, which

requires ‘proof that the desire to retaliate was the but-for cause of the challenged . . .

action.’” Kocsis, 788 F. App’x at 686 (quoting Nassar, 570 U.S. at 352).

Although (1) Garrett’s criticizing Coombes’s handling of the complaint and

(2) Coombes’s suggesting during the recorded meeting that Garrett could complain

about an error in USF’s Title IX Procedure might have “motivated” Coombes to

request that the conduct board respond “in the strongest possible manner” to

Garrett’s conduct, Garrett adduces no proof from which a reasonable jury could

conclude that either Garrett’s criticism or Coombes’s suggestion served as the “but-

for” cause of USF’s decision to charge Garrett under the Student Code of Conduct.

First, Garrett cites no material in the record suggesting that USF investigated Garrett

at Coombes’s instance. Rather, Monti scheduled a meeting with Garrett after

Deremiah reported to OSRR that Garrett might have violated the Student Code of

Conduct by recording the conversation without Coombes’s permission. (Doc. 84 at

72:4–17) During the meeting, Garrett admitted to Monti that Garrett had recorded

Coombes without permission. (Doc. 81-1 at 183) Second, Garrett cites nothing in

the record suggesting that Coombes demanded that the conduct board sanction

Garrett for a reason other than that Garrett had violated Coombes’s rights under

Florida law. Regardless, the conduct board never considered Coombes’s written

submission, and Coombes did not testify at the hearing. (Doc. 85-4 at 5) No

reasonable jury could conclude that “but-for” Garrett’s criticizing Coombes’s

handling of the complaint and “but-for” Coombes’s suggesting during the

conversation that Garrett could complain about an error in USF’s Title IX process,

USF would not have charged Garrett for her admitted violation of the Student Code

of Conduct.

Also, USF objects that the magistrate judge’s report confuses causation, an

element of the plaintiff’s prima facie case, with pretext, which the plaintiff must

demonstrate to rebut a non-discriminatory reason proffered by the defendant.

Consequently, USF objects that the report errs by failing to consider whether USF

articulates a legitimate, non-discriminatory reason to charge Garrett under the

Student Code of Conduct.

USF is right. The report relies on Bowers v. Board of Regents of University System

of Georgia, 509 F. App’x 906 (11th Cir. 2013), to determine “whether summary

judgment is appropriate with respect to Garrett’s retaliation claim.” (Doc. 105 at 38

n.12) But Bowers resolved an appeal from a motion to dismiss for failure to state a

claim — not a motion for summary judgment. To state a plausible retaliation claim,

the plaintiff need only allege a plausible case of discrimination and need not allege

facts demonstrating that the non-discriminatory reason proffered by the defendant

was pretextual. Accordingly, Bowers discusses the elements of a prima facie case only.

But on summary judgment, if the defendant articulates a non-discriminatory reason

for the adverse action, the plaintiff must adduce record evidence from which a

reasonable jury could find pretext. Kocsis, 788 F. App’x at 687 (applying McDonnell

Douglas to a Title IX retaliation claim). The report erred by failing to consider

whether USF articulates a non-discriminatory reason for the adverse action and

whether Garrett adduces proof from which a reasonable jury could find that the

proffered reason serves as a pretext for discrimination.

B. USF proffers a non-discriminatory reason for investigating Garrett.

After the plaintiff establishes a prima facie case of retaliation, the burden shifts

to the defendant to articulate a legitimate, non-discriminatory reason for the adverse

action. Kocsis, 788 F. App’x at 686–87. USF explains that Garrett was charged

under the Student Code of Conduct because Garrett admitted to her victim’s

advocate that Garrett recorded — illicitly and, of course, without permission — the

May 18, 2017 meeting with Coombes. The Student Code of Conduct prohibits a

student’s violating Florida law (Doc. 84-1 at 127), and Section 934.03, Florida

Statutes, prohibits a person’s “intentionally intercept[ing] . . . any . . . oral . . .

communication” unless “all parties to the communication have given prior consent

. . . .” Because Garrett’s admitted conduct that falls comfortably within the

prohibition of Section 934.03, Florida Statutes, USF has identified a legitimate, non-

discriminatory reason to charge Garrett under the Student Code of Conduct: Garrett

admitted the violation with which Garrett was charged.

C. Garrett fails to demonstrate pretext.

Because USF articulates a legitimate, non-discriminatory reason for the

adverse action, Garrett “must demonstrate that the defendant’s proffered reason was

merely a pretext to mask discriminatory actions.” Kocsis, 787 F. App’x at 687. In

other words, the plaintiff must adduce evidence “sufficient to permit a reasonable

factfinder” to conclude that the proffered reasons for the adverse action “were

not the real reasons.” Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d

1261, 1271 (11th Cir. 2017) (“Retaliation is, by definition, an intentional act.”)

The plaintiff must adduce “concrete evidence in the form of specific facts” —

“conclusory allegations and assertions” are insufficient. Bryant, 575 F.3d at 1308.

The plaintiff can establish pretext by identifying “such weaknesses, implausibilities,

inconsistencies, incoherences or contradictions in [the defendant’s] proffered

legitimate reasons for its actions that a reasonable factfinder could find them

unworthy of credence.” Springer v. Convergys Cust. Mgmt. Grp., 509 F.3d 1344,

1348 (11th Cir. 2007) (per curiam).

Although she admittedly and illicitly recorded the conversation with

Coombes, Garrett argues that USF charged her under the Student Code of Conduct

as a means to retaliate against Garrett’s opposing the disposition of the complaint.

Garrett identifies three purported weaknesses in USF’s decision. First, Garrett

argues that USF’s response was pretextual because USF obtained no legal opinion

before deciding that Garrett’s illicitly recording the conversation with Coombes

violates the Student Code of Conduct. (Doc. 107 at 19) But the Student Code of

Conduct prohibits a student’s violating state law “as determined by the University.”

(Doc. 82-1 at 17) After the hearing, the conduct board determined “that it is more

likely than not the student violated policy 4.21 based on our interpretation of 2016

Florida Statute Chapter 934.” (Doc. 82-1 at 170) Garrett advances neither an

argument that the conduct board incorrectly interpreted the statute nor an argument

that the conduct board’s interpretation was so defiant of, or athwart, common sense

as to demonstrate pretext. Rather, Garrett’s conduct appears to fall easily within the

precise prohibition of Section 934.03, Florida Statutes.

Second, Garrett argues that because Garrett had voiced to Coombes, whom

Garrett illicitly recorded, criticism about USF’s disposition of Garrett’s complaint

and because Coombes drafted a “written submission” requesting that the conduct

board sanction Garrett, USF must have charged Garrett in retaliation for her

criticizing USF. However, the conduct board never considered Coombes’s written

submission and Coombes did not testify at the hearing. (Doc. 85-4 at 5) Regardless,

Garrett identifies no evidence that Coombes requested that the conduct board

sanction Garrett in retaliation for Garrett’s criticizing the Title IX process rather than

in response to Garrett’s allegedly violating Coombes’s rights under Florida law. No

material in the record plausibly suggests that a desire to punish Garrett for criticizing

USF’s Title IX process served as the “real reason” for charging Garrett under the

Student Code of Conduct.

Third, Garrett argues that USF charged Garrett under the Student Code of

Conduct as a pretext to “destroy” Deremiah’s duty of confidentiality to Garrett.

(Doc. 107 at 19) After receiving advice from an outside Title IX consultant,

USF’s associate general counsel determined that Deremiah could disclose without

breaching her duty of confidentiality that Garrett had allegedly violated Florida law

by recording Coombes without consent. (Doc. 90-1 at 27-28) Nothing in the

record plausibly suggests that USF attempted to acquire or intercept or surveil

communications between Deremiah and Garrett unrelated to Garrett’s admitted

misconduct.

No reasonable jury could find that the purported weaknesses identified by

Garrett — whether considered singly or collectively — demonstrate that USF’s

charging Garrett under the Student Code of Conduct was pretextual. Because no

material dispute remains about whether Garrett engaged in a protected activity,

whether causation exists, or whether USF’s proffered explanation was pretextual,

USF is entitled to summary judgment on the retaliation claim.

CONCLUSION

The report’s recommendation (Doc. 105) is DECLINED, USF’s objections

(Doc. 106) are SUSTAINED, and USF’s motion (Doc. 73) for summary judgment is

GRANTED. The clerk is directed (1) to enter judgment on each count for USF and

against Garrett, (2) to terminate the pending motions, and (3) to close the case.

ORDERED in Tampa, Florida, on March 24, 2020.

‘STEVEND.MERRYDAY □□

UNITED STATES DISTRICT JUDGE

-44-