Weis v. Board of Trustees of Florida Gulf Coast University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

KRISTEN WEIS, an individual,

Plaintiff,

v. Case No: 2:19-cv-503-FtM-29NPM

BOARD OF TRUSTEES OF FLORIDA

GULF COAST UNIVERSITY, a

political subdivision of the

State of Florida,

Defendant.

OPINION AND ORDER

This matter comes before the Court on defendant’s Motion to

Dismiss (Doc. #27) filed on December 6, 2019. Plaintiff filed a

Response (Doc. #28) on December 17, 2019 and, with leave of Court

(Doc. #30), defendant filed a Reply (Doc. #31) on January 13, 2020.

For the reasons set forth below, the motion is denied.

I.

Plaintiff Kristen Weis (Plaintiff or Weis) initiated this

action against the Board of Trustees of Florida Gulf Coast

University (Defendant) on July 18, 2019. (Doc. #1.) Plaintiff

filed a one-count Amended Complaint (Doc. #20) on November 14,

2019. The Amended Complaint asserts a “teacher-on-student” sexual

harassment claim against Defendant under Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681 et seq.

The events set forth in the Amended Complaint relate to three

distinct time periods: Events prior to Plaintiff’s attendance at

Florida Gulf Coast University (FGCU); events occurring during

Plaintiff’s attendance at FGCU; and events occurring after

Plaintiff was no longer a student at FGCU. According to the

Amended Complaint (Doc. #20):

A. Events Prior to Plaintiff’s Attendance at FGCU

Prior to his employment at FGCU, Rod Chestnutt (Professor

Chestnutt) was a professor at the University of Nebraska. (Doc.

#20, ¶ 14.) Professor Chestnutt has admitted that during his

tenure at the University of Nebraska, he had sexual contact with

three or four students; he was also named in a 2000 lawsuit by one

of his former Nebraska students. (Id. ¶¶ 16-19.)

In 2006, without conducting a criminal background check or a

civil litigation check (id. ¶¶ 21-22), FGCU hired Professor

Chestnutt “as the head of instrumental studies and the Wind

Orchestra conductor.” (Id. ¶ 20.)

Professor William Larsen (Professor Larsen) was an adjunct

professor of music at FGCU’s Bower School of Music & the Arts “from

2006 through the summer of 2012.” (Id. ¶ 28.) The Amended

Complaint asserts that Professor Larsen had “firsthand knowledge”

that FGCU knowingly allowed Professor Chesnutt’s discrimination,

harassment, and retaliation to continue. (Id.)

It is alleged that in 2008, Professor Chestnutt began stalking

a female student by constantly messaging her on social media and

delivering her a bottle of alcohol. (Id. ¶ 24.) No further

details are alleged about this stalking.

The Amended Complaint alleges that, at some unspecified point

after Professor Chestnutt’s hiring but prior to Professor Larsen’s

departure from FGCU, Professor Larsen “began to notice that

[Professor] Chesnutt showed favoritism towards a certain type of

female student.” (Id. ¶ 29.) Professor Larsen is alleged to have

determined that Professor Chestnutt allowed unqualified and

underperforming female students to pass classes when their

performance was not at a passing level, but failed well-qualified

and well-performing male students. (Id. ¶¶ 30-31.) Professor

Chestnutt is alleged to have been having sexual relationships and

other personal interactions with those female students. (Id. ¶¶

32-33.)

Professor Larsen “observed Prof. Chesnutt sexually harass a

female student and then fail her very well-qualified boyfriend.”

(Id. ¶ 34.) “When one female student ended her relationship or

rejected [Professor] Chesnutt’s advances,” Professor Larsen

observed that Professor Chestnutt “retaliated by assigning poor

grades.” (Id. ¶ 35.) Professor Larsen heard Professor Chestnutt

make inappropriate remarks to female students about their

appearance and tight-fitting clothing, and “heard reports from

several female students that they would skip or purposely cancel

meeting with Prof. Chesnutt because they felt that there would be

‘strings attached’ to a one-on-one meeting with him.” (Id. ¶ 36.)

During the 2012 academic year, Professor Larsen “reported

this concerning behavior to FGCU’s administration through his

department chair,” and reported such behavior “several times to

FGCU administration.” (Id. ¶ 37.) Professor Larsen also “advised

two female students and a male student to meet with an FGCU dean

to discuss what was happening, which they did.” (Id.) FGCU’s

“department chair had the authority to take appropriate remedial

action” upon learning of Professor Larsen’s complaint. (Id. ¶

38.) Ultimately, FGCU “took no action,” did not “open an informal

investigation, a Title IX investigation or refer any complainant

to the Title IX coordinator.” (Id.)

Shortly after making his complaints about Professor

Chestnutt’s behavior, Professor Larsen was “informed that his

contract would not be renewed and that his employment with FGCU

would end.” (Id.) Professor Larsen left FGCU in the summer of

2012. (Id. ¶ 28.)

B. Plaintiff’s Attendance at FGCU

Plaintiff was a student at FGCU’s Bower School of Music & the

Arts from the Spring of 2014 through the Spring of 2017. (Doc.

#20, ¶ 11.) Given the dates involved, none of Professor Larsen’s

observations or activities involved Plaintiff as the victim of

Professor Chestnutt’s conduct.

Beginning in 2015, Professor Chestnutt is alleged to have

engaged in continuing misconduct directed at Plaintiff. These

actions are summarized below:

• At some unspecified point in 2015, while Plaintiff “was

working as a stage manager during a concert,” Professor

Chestnutt “put his hand on the small of [Plaintiff’s]

back in a sensual manner,” which made Plaintiff feel

“extremely uncomfortable.” (Id. ¶ 39.)

• On or about October 31, 2016, Plaintiff went to Professor

Chestnutt’s office in a Halloween costume which included

a pink tutu. Professer Chestnutt began leering at

Plaintiff, grinning from ear to ear, and then told her

she looked really good in pink and had picked a nice day

to come to his office. (Id. ¶¶ 40-41.)

• Also in 2015, Plaintiff met with Professor Chestnutt “to

discuss a possible scholarship.” (Id. ¶ 42.) During

that meeting, Professor Chestnutt informed Plaintiff

that to qualify for the scholarship, “there would be

‘incentives,’ that being that if [Plaintiff] acquiesced

to a sexual relationship with him that she would receive

her desired scholarship.” (Id.) Plaintiff “rejected

[Professor] Chesnutt’s proposition and ultimately did

not receive a scholarship that semester.” (Id. ¶ 43.)

Plaintiff received the scholarship the following

semester, “after numerous emails to many other

individuals at FGCU.” (Id.)

• Professor Chestnut would retaliate against Plaintiff

for rejecting his advances by assigning her poor

grades. (Id. ¶ 35.)

• After Plaintiff had rescheduled a “jury” before the

school’s music professors, Professor Chestnutt told her

in front of students and professors that she needed to

make herself “more available” to her husband, which

Plaintiff took to imply that she needed to be more

sexually available. (Id. ¶¶ 44-46.)

• During Plaintiff’s final semester at FGCU in 2017,

Plaintiff excluded Professor Chestnutt from a junior

recital, as was her right. Professor Chestnutt

retaliated by making comments such as “oh, I heard you

actually passed?” (Id. ¶ 48.)

• After Plaintiff rejected these advances, and it became

clear to Professor Chestnutt that she would not engage

in a sexual relationship with him, Plaintiff received an

email threatening to kick her out of the music program

because she was a threat to herself and others. (Id. ¶

49.)

• From 2015 through 2017, Professor Chestnutt frequently

commented on Plaintiff’s appearance. Professor

Chestnutt made remarks “such as ‘good girl, you’re very

good at this, aren’t you?’ when referring to

[Plaintiff’s] ear training skills,” and “would often

interrupt” Plaintiff to “ask her irrelevant personal

questions about her appearance . . . while eyeing her up

and down.” (Id. ¶¶ 52-53.)

• Professor Chestnutt “often call[ed] [Plaintiff] into his

office to discuss issues that could have been handled

via email.” (Id. ¶ 54.)

• For two years in a row, Professor Chestnutt nominated

Plaintiff for a music education scholarship that he

funded, even though Plaintiff “was in a different major

(music therapy)” that did not qualify for the

scholarship. (Id.) Professor Chestnutt “attempt[ed] to

get [Plaintiff] to change her major and take his

scholarship.” (Id.)

Plaintiff withdrew from FGCU in the spring of 2017. (Id. ¶

62.) Plaintiff withdrew because she “needed [Professor

Chestnutt’s] endorsement to pass and thus graduate (which she would

never get because of his retaliation).” (Id.) Plaintiff does not

allege that she, or anyone on her behalf, ever informed any FGCU

official of this conduct by Professor Chestnutt.

C. Events After Plaintiff Left FGCU

In August of 2017, FGCU’s Provost “received a flash drive

from a student with information pertaining to [Professor]

Chesnutt.” (Id. ¶ 64.) The flash drive contained “provocative”

photographs of some of Professor Chestnutt’s students. (Id. ¶

65.) Professor Chestnutt subsequently “admitted to having an

inappropriate relationship with a student while the student was in

his class.” (Id. ¶ 66.) FGCU then placed Professor Chestnutt on

administrative leave and opened an investigation into Professor

Chestnutt’s behavior. (Id. ¶ 67.) Prior to the conclusion of the

investigation, Professor Chestnutt resigned from his position.

(Id. ¶ 68.)

FGCU’s investigation continued and revealed that five female

complainants reported that Professor Chestnutt engaged in

misconduct. (Id. ¶¶ 69-74.) In part, the complainants reported

that Professor Chestnutt made comments about their appearance,

engaged in unwanted touching, enticed them to engage in sexual

relationships, and retaliated against them for rejecting his

advances. (Id. ¶¶ 70-74.) There is no allegation that Plaintiff

was one of the five complainants.

D. The Cause of Action

The Amended Complaint sets forth a one-count claim against

the FGCU Board of Trustees. Plaintiff alleges a violation of Title

IX because FGCU created and/or tolerated a hostile educational

environment caused by Professor Chestnutt’s misconduct and FGCU’s

failure to do anything about it. (Doc. #20, ¶¶ 81-84.) More

specifically, Plaintiff alleges that “FGCU discriminated against

[her] including but not limited to failing to conduct a prompt

investigation of complaints of sexual harassment and failing to

implement measures pending an investigation of those complaints

described herein . . . .” (Id. ¶ 87.)1 As a result, Plaintiff

“suffered indignity and humiliation and seeks monetary damages .

. . .” (Id. ¶ 88.)

II.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

1 The Amended Complaint mentions “retaliation” in several

places, which can be another type of discrimination under Title

IX. The Court does not read the Amended Complaint as asserting a

cause of action for Title IX retaliation, and if Plaintiff intended

otherwise she must seek leave to file another amended complaint.

(citation omitted). To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief

above the speculative level.” Id. at 555. See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth,” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. “Factual allegations that are merely consistent

with a defendant’s liability fall short of being facially

plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted). Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,

a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679.

III.

Put succinctly, “Title IX prohibits sex discrimination by

recipients of federal education funding.” Jackson v. Birmingham

Bd. of Educ., 544 U.S. 167, 173 (2005). The pertinent statute

provides 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.” 20 U.S.C. §

1681(a). The Supreme Court has recognized an implied private right

of action under Title IX, Cannon v. University of Chicago, 441

U.S. 677 (1979), and that money damages are available in such

suits. Franklin v. Gwinnett County Public Schools, 503 U.S. 60

(1992). Among other things, the Supreme Court has held that a

teacher’s sexual harassment of a student can constitute actionable

discrimination under Title IX for which money damages are

available. Franklin, 503 U.S. at 74-75; Gebser v. Lago Vista

Indep. Sch. Dist., 524 U.S. 274, 285 (1998); see also Doe v. Sch.

Bd. of Broward County, Fla., 604 F.3d 1248, 1254 (11th Cir. 2010);

Sauls v. Pierce Cty. Sch. Dist., 399 F.3d 1279, 1283 (11th Cir.

2005).

The Eleventh Circuit has instructed that the Court’s analysis

in a “teacher on student” discrimination case is governed by

Gebser.

In Gebser, the Supreme Court made plain that not all

sexual harassment by teachers is sufficient to impose

liability on a school district. Because “Title IX is

predicated upon notice to an ‘appropriate person’ and an

opportunity to rectify any violation,” id. at 290, 118

S.Ct. at 1999 (citing 20 U.S.C. § 1682), the Court

explained that school districts may not be held liable

on a theory of respondeat superior or mere constructive

notice, id. at 285, 118 S.Ct. at 1997. Rather, Title IX

liability arises only where “an official of the school

district who at a minimum has authority to institute

corrective measures on the district's behalf has actual

notice of, and is deliberately indifferent to, the

teacher's misconduct.” Id. at 277, 118 S.Ct. at 1993.

Therefore, applying the Gebser framework to the summary

judgment context requires three related inquiries.

First, the plaintiff must be able to identify an

“appropriate person” under Title IX, i.e., a school

district official with the authority to take corrective

measures in response to actual notice of sexual

harassment. See Floyd v. Waiters, 171 F.3d 1264, 1264

(11th Cir. 1999). Second, the substance of that actual

notice must be sufficient to alert the school official

of the possibility of the Title IX plaintiff's

harassment. See Gebser, 524 U.S. at 291, 118 S.Ct. at

2000. And finally, the official with such notice must

exhibit deliberate indifference to the harassment. See

Sauls, 399 F.3d at 1284.

Broward, 604 F.3d at 1254; see also J.F.K. v. Troup County School

Dist., 678 F.3d 1254, 1255-56 (11th Cir. 2012). Tweaking Broward

to account for the difference in the motion to dismiss standard,

a plaintiff must plausibly set forth in his or her complaint: (1)

the identity of an “appropriate person,” i.e., a school official

“with the authority to take corrective measures in response to

actual notice of sexual harassment”; (2) that the substance of

that actual notice was sufficient to alert the school official of

the possibility of the Title IX plaintiff's harassment; and (3)

that the school official with such notice exhibited at least

deliberate indifference to the harassment.

IV.

Defendant argues that it is entitled to dismissal of the

Amended Complaint because Plaintiff has failed to plausibly plead

all three of the required elements of a “teacher-on-student” Title

IX cause of action. The Court will address each argument below.

A. “Appropriate Official”

Defendant argues that Plaintiff failed to allege that an

“appropriate official” had knowledge of Professor Chestnutt’s

alleged harassment of Plaintiff. (Doc. #27, p. 8.) Acknowledging

that Plaintiff alleges Professor Larsen complained of Professor

Chestnutt’s behavior to his department chair, Defendant disputes

“that FGCU’s ‘department chair’ is an appropriate person with

authority [to] correct [] harassment” under Title IX. (Id.)

For Title IX purposes,

[a]n “appropriate person” under § 1682 is, at a minimum,

an official of the recipient entity with authority to

take corrective action to end the discrimination.

Consequently, in cases like this one that do not involve

official policy of the recipient entity, we hold that a

damages remedy will not lie under Title IX unless an

official who at a minimum has authority to address the

alleged discrimination and to institute corrective

measures on the recipient's behalf has actual knowledge

of discrimination in the recipient's programs and fails

adequately to respond.

Gebser, 524 U.S. at 290. The official must be “high enough up the

chain-of-command that his acts constitute an official decision by

the [educational institution] itself not to remedy the

misconduct.” Floyd v. Waiters, 171 F.3d 1264 (11th Cir. 1999).

Here, the Amended Complaint alleges that Professor Larsen

made a complaint to his department chair about Professor

Chestnutt’s alleged misconduct, and that the FGCU “department

chair had the authority to take appropriate remedial action.”

(Doc. #20, ¶ 38.) Defendant responds that the allegation regarding

the department chair’s authority is “conclusory . . . [and] cannot

be taken as true.” (Doc. #27, p. 8.) But under the motion to

dismiss standard, Plaintiff is entitled to the benefit of

reasonable inferences from the facts pled. Iqbal, 556 U.S. at

678. While it may turn out otherwise2, it is certainly a reasonable

inference that a department chair at a university has the authority

to take corrective action to end discrimination by one of the

department’s professors against one of the department’s students.

Viewing the facts in the light most favorable to Plaintiff,

the Court finds Plaintiff has plausibly alleged that Professor

Larsen’s department chair at the FGCU Bower School of Music & the

Arts had the authority to institute corrective measures over

2 The ultimate question of who is an appropriate person is

necessarily a fact-based inquiry because officials' roles may vary

among universities. See e.g. Broward, 604 F.3d at 1256.

Professor Chestnutt’s alleged misconduct, and thus was an

“appropriate official” within the meaning of Title IX.3

B. Existence and Substance of Actual Notice

Private damages actions are available only where recipients

of federal funding have had actual and adequate notice that they

could be liable for the conduct at issue. Davis Next Friend

LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 640-42

(1999); Franklin, 503 U.S. at 74.

Defendant correctly argues that the Amended Complaint does

not allege “that any employee of Defendant had knowledge of

[Professor] Chesnutt’s purported harassment of Plaintiff” and that

“Plaintiff never complained about harassment while enrolled [at]

FGCU.” (Doc. #27, p. 8.) Defendant argues that in light of this,

Plaintiff’s conclusory allegations that Defendant was on notice of

Professor Chestnutt’s harassment are insufficient to plausibly

plead satisfaction of the actual notice requirement. While

conceding she made no complaints herself, Plaintiff argues that

based upon the complaints by Professor Larsen and three FGCU

students, Defendant was on notice of Professor Chestnutt’s alleged

harassment of other students prior to Plaintiff’s arrival at FGCU.

3 Plaintiff also argues that a dean also was an appropriate

official who received actual notice. The Court finds that the

allegations as to what the dean was told is not alleged with

sufficient detail to establish actual knowledge even if the dean

is another appropriate person.

This is sufficient, Plaintiff argues, to satisfy the actual notice

requirement. Defendant responds that such complaints, even if

constituting notice regarding Plaintiff, are legally insufficient

“to alert a school official of the possibility of harassment of

Plaintiff.” (Doc. #27, p. 9.)

“There are different ways by which such actual notice may be

satisfied.” J.F.K. v. Troup County Sch. Dist., 678 F.3d 1254,

1260 (11th Cir. 2012). As in J.F.K., there are no facts in the

Amended Complaint suggesting that an appropriate official had

knowledge that Professor Chestnutt was actually sexually harassing

Plaintiff. While notice of sexual harassment provided by or on

behalf of the specific Plaintiff asserting a Title IX claim would

be sufficient, it is not a necessary requirement. “Actual notice”

of a Title IX Plaintiff’s harassment need not be provided by the

Plaintiff herself. Broward, 604 F.3d at 1257 (citations omitted).

Indeed, “no circuit has interpreted [the] actual notice

requirement so as to require notice of the prior harassment of the

Title IX plaintiff herself.” Id. (emphasis in original)(citations

omitted); see also Hansen v. Bd. of Trustees of Hamilton Se. Sch.

Corp., 551 F.3d 599, 605–06 (7th Cir. 2008)(Under Title IX, “a

school district need not possess actual knowledge of a teacher's

[harassment] directed at a particular plaintiff.” (emphasis in

original)(citation omitted)); Escue v. N. OK Coll., 450 F.3d 1146,

1154 (10th Cir. 2006)(“[T]he actual notice standard does not set

the bar so high that a school district is not put on notice until

it receives a clearly credible report of sexual abuse from the

plaintiff-student.” (citation and quotation omitted)).

A second way to satisfy the notice requirement would be to

show that an appropriate official (here, the department chair) had

actual knowledge of sexual harassment by Professor Chestnutt of

students other than Plaintiff sufficient to alert the department

chair of the possibility of Plaintiff’s sexual harassment by

Professor Chestnutt. J.F.K., 678 F.3d at 1260. An educational

institution may be deemed to have “actual notice” of a student-

plaintiff’s harassment in a “teacher-on-student” case when it is

aware of the instructor’s “similar misconduct with other

students.” Bailey v. Orange Cty. Sch. Bd., 222 F. App'x 932, 933

(11th Cir. 2007). Establishing actual notice in such a fashion is

fact-intensive, and is sometimes successful and sometimes

insufficient. See e.g. Broward, 604 F.3d at 1250-54, 1259 (two

prior complaints were enough to satisfy Doe's burden of raising a

material fact about actual notice because “[the two] complaints,

when viewed collectively, provided actual notice to [the

Principal] of a pattern of sexual harassment and a series of

related allegations occurring over a period of nine months in [the

teacher's] math classroom.”); J.F.K., 678 F.3d at 1261 (while

appropriate official knew employee's conduct was “inappropriate,

devoid of professionalism, and reeked of immaturity,” the known

conduct was not of the same type of conduct of a sexual nature as

the teacher in Broward); Davis v. DeKalb County School District,

233 F.3d 1367, 1373 (11th Cir. 2000) (a prior complaint about the

teacher-abuser by a non-party victim was not enough to put

principal and school board on notice).

Defendant argues that even if information from Professor

Larsen and the three students establish the existence of some level

of notice, Plaintiff failed to plausibly allege that Defendant had

sufficient notice “of the possibility of [Professor Chestnutt’s]

harassment of Plaintiff.” (Doc. #27, p. 9.) Defendant reasons

that Plaintiff has “not allege[d] the contents of [Professor

Larsen’s] complaint with any specificity.” (Id.) Alternatively,

Defendant contends that the content of Professor Larsen’s

complaint was not sufficiently similar to Professor Chestnutt’s

alleged misconduct directed at Plaintiff to place Defendant on

actual notice of sexual harassment.

In paragraphs 28-36 of the Amended Complaint, Plaintiff makes

the following allegations concerning information from Professor

Larsen: (1) Professor Chestnutt ”allowed unqualified and

underperforming female students to pass classes when their

performance was not to a passing level,” while failing qualified

male students; (2) Professor Chestnutt was having sexual

relationships with the underperforming students; (3) “[w]hen one

female student ended her relationship or rejected [Professor]

Chesnutt’s advances, [Professor] Larsen observed that [Professor]

Chesnutt retaliated by assigning poor grades”; (4) Professor

Larsen overhead Professor Chestnut comment on the appearance of

female students; and (5) Professor Larsen heard reports from

several female students that they “would skip or purposely cancel”

meetings with Professor Chestnutt because “they felt that there

would be ‘strings attached’ to a one-on-one meeting with him.”

(Doc. #20, ¶¶ 28-36.) In paragraph 37 of the Amended Complaint,

Plaintiff further alleges that Professor Larsen “reported this

concerning behavior” described in the preceding paragraphs to

“FGCU’s administration through his department chair.” (Id. ¶ 37.)

Thus, contrary to Defendant’s assertion, the Amended Complaint

does sufficiently state the contents of Professor Larsen’s alleged

complaint.

As to Professor Chestnutt’s alleged harassment of Plaintiff

specifically, the Amended Complaint alleges in relevant part that:

(1) Professor Chesnutt made remarks about Plaintiff’s appearance;

(2) Professor Chesnutt informed Plaintiff that to qualify for a

scholarship, “there would be ‘incentives,’ that being that if

[Plaintiff] acquiesced to a sexual relationship with [Professor

Chestnutt] that she would receive her desired scholarship”; (3)

after rejecting Professor Chestnutt’s advances, Plaintiff did not

receive the scholarship alluded to by Professor Chestnutt; and (4)

Plaintiff ultimately withdrew from FGCU because she “needed

[Professor Chestnutt’s] endorsement to pass and thus graduate

(which she would never get because of his retaliation).” (Doc.

#20, ¶¶ 41-43, 47, 52, 53, 57, 62.) Such allegations were similar

to the conduct Professor Larsen allegedly reported to his

department chair.4 “Simply put, the actual notice must be

sufficient to alert the decision-maker to the possibility of sexual

harassment by the teacher.” J.F.K., 678 F.3d at 1256. Viewing

the alleged facts in the light most favorable to Plaintiff, the

Court finds that, based upon Professor Larsen’s alleged complaint,

Plaintiff has plausibly stated that Defendant had sufficient

actual notice of Professor Chestnutt’s alleged harassment of

female students.

C. Deliberate Indifference

Lastly, Defendant argues that Plaintiff failed to plausibly

allege that an appropriate person was deliberately indifferent to

Professor Chestnutt’s alleged misconduct. Defendant reasons that

“[b]ecause Plaintiff never complained to Defendant about

4 The Court is unpersuaded by Defendant’s assertion that the

conduct allegedly described by Professor Larsen and Plaintiff are

not similar because Professor Larsen’s complaint “did not involve

[Professor] Chesnutt’s use of scholarships, which is central to

Plaintiff’s Title IX claim.” (Doc. #27, p. 10.) While it appears

Professor Larsen’s alleged complaint did not describe this

particular behavior, the Court finds the overarching content is

nonetheless similar to the conduct Plaintiff describes in the

Amended Complaint.

harassment by [Professor] Chesnutt, Defendant could not have been

deliberately indifferent to the harassment.” (Doc. #27, p. 10.)

Title IX requires “that a recipient of federal education funds

may be liable in damages under Title IX where it is deliberately

indifferent to known acts of sexual harassment by a teacher.”

Davis, 526 U.S. at 641 (citing Gebser, 524 U.S. at 291). Liability

arises from “an official decision by the recipient not to remedy

the violation.” Gebser, 524 U.S. at 290. Defendant essentially

restates its argument that notice of sexual harassment must be

provided by the specific plaintiff asserting a Title IX claim. As

noted supra, however, the Eleventh Circuit has explicitly rejected

such a position. Broward, 604 F.3d at 1257.

Defendant also argues that “[t]o the extent that Plaintiff’s

claim is predicated on . . . [Professor] Larsen’s complaint about

[Professor] Chesnutt,” Plaintiff failed to plausibly assert “that

FGCU’s response was clearly unreasonable.” (Doc. #27, p. 11.)

The Court disagrees.

An official with notice of sexual harassment is deliberately

indifferent “where the [] response to the harassment or lack

thereof is clearly unreasonable in light of the known

circumstances.” Davis, 526 U.S. at 648. The Amended Complaint

alleges that after Professor Larsen and three FGCU students

complained of Professor Chestnutt’s alleged misconduct, “FGCU took

no remedial action and did not even conduct an investigation.”

(Doc. #20, FI 61.) Accepting Plaintiff’s allegations as true and

viewing the facts in the light most favorable to Plaintiff, the

Court finds Plaintiff has plausibly alleged that Defendant was

deliberately indifferent to Professor Chestnutt’s alleged

misconduct.

Accordingly, it is now

ORDERED:

Defendant’s Motion to Dismiss (Doc. #27) is DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 7th day of

May, 2020.

Not & AKL.

JGHE E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Parties of record