# Weis v. Board of Trustees of Florida Gulf Coast University

> District Court, M.D. Florida · May 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10105082

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105082. Public record. Not legal advice.