# Doe v. Florida Gulf Coast University Board of Trustees

> District Court, M.D. Florida · September 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10113873

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10113873

## How later opinions describe it (automated extraction)

- finding legitimate reasons to discharge someone did not necessarily foreclose a discrimination claim because the jury could still find these reasons were pretext and termination would not have occurred absent illegitimate reasons
- finding Title IX does not abrogate states’ immunity from § 1983 and a plaintiff cannot use § 1983 to bring a Title IX claim
- finding district court did not err in taking judicial notice of pleadings and orders in a prior case

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

JOHN DOE,

Plaintiff,

v. Case No.: 2:23-cv-245-SPC-KCD

FLORIDA GULF COAST
UNIVERSITY BOARD OF
TRUSTEES,

Defendant.
/
OPINION AND ORDER
Before the Court is Defendant Florida Gulf Coast University Board of
Trustees’ (“FGCU”) Motion to Dismiss (Doc. 14), and Plaintiff John Doe’s
Response in Opposition (Doc. 22). The Court grants in part and denies in part
FGCU’s motion.
BACKGROUND
This is a sex discrimination case. John Doe and Jane Roe attended
FGCU, a public university. In the early morning hours of October 6, 2019, Doe
and Roe had sexual intercourse. About ten months later in August 2020,
FGCU’s Senior Deputy Title IX Director, Jessica Homer, notified Doe that Roe
alleged the sexual encounter was nonconsensual. Roe said she had been
drinking alcohol before she met Doe and thus was too intoxicated to consent to
sex. Homer investigated. She concluded that Roe lacked the capacity to
consent because she was intoxicated.

Doe requested reconsideration. FGCU denied Doe’s request. FGCU then
held a hearing over Zoom, which Roe did not attend. It found Doe responsible
for sexual harassment. FGCU issued Doe an administrative counseling
referral, and gave him an 8-month disciplinary probation, and a 4-month

suspension from school. Doe appealed to the Dean, who upheld the suspension.
Doe then sought a Writ of Certiorari in the Circuit Court for the Twentieth
Judicial Circuit, Lee County. The complaint is silent about the outcome.
Doe sues claiming FGCU violated his due process rights under 42 U.S.C.

§ 1983 (Count 1) and Title IX (Count 2), and breached its contract with Doe
(Count 3). Doe raises many issues with FGCU’s investigation and
administrative process: (1) the investigation was not completed in the required
time, (2) Homer demonstrated bias against him, (3) Doe never received the

complaint or any evidence submitted by Roe, (4) FGCU did not apply new Title
IX policies that went into effect during the investigation that would have given
Doe the ability to inspect the investigative report and right to submit a written
response to it, (5) prior to his hearing, Doe received no evidence or other

documents to review, and (6) Doe was not afforded the right to cross examine
Roe.
FGCU moves to dismiss. It argues Doe’s claims are barred by Eleventh
Amendment immunity, res judicata, and collateral estoppel. FGCU further

claims Doe failed to plead facts to establish plausible claims. Doe opposes.
LEGAL STANDARD
“The Eleventh Amendment restricts the judicial power under Article
III.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996). So asserting

Eleventh Amendment immunity tests subject-matter jurisdiction. Seaborn v.
State of Fla., Dep’t of Corr., 143 F.3d 1405, 1407 (11th Cir. 1998). Rule 12(b)(1)
governs motions to dismiss for lack of subject matter. E.g., Meyer v. Fay
Servicing, LLC, 385 F. Supp. 3d 1235, 1238 (M.D. Fla. 2019). These challenges

take two forms—facial and factual. Id. at 1239. On facial attacks (like this
one) “the Court takes the allegations in the complaint as true.” Id.
Motions to dismiss for failure to state a claim follow the familiar 12(b)(6)
standard. A complaint must recite “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A facially plausible claim allows a “court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. Like under Rule 12(b)(1) facial attacks, courts must accept all
factual allegations in the complaint as true and draw all reasonable inferences
in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d

1282, 1284 (11th Cir. 2008).
DISCUSSION
The Court begins with FGCU’s argument the Court lacks subject matter
jurisdiction for Doe’s § 1983 (Count 1) and breach of contract (Count 3) claims

because of Eleventh Amendment sovereign immunity. Then the Court turns
to Doe’s Title IX erroneous outcome claim (Count 2), which FGCU argues is
precluded by res judicata or collateral estoppel and for which Doe failed to state
a plausible claim.

A. Eleventh Amendment Sovereign Immunity (Counts 1 & 3)
FGCU is correct that the Court lacks subject matter jurisdiction for Doe’s
§ 1983 (Count 1) and breach of contract (Count 3) claims. Florida’s Eleventh
Amendment sovereign immunity bars these claims.

The Eleventh Amendment grants states immunity from suits by private
individuals in federal court unless the state consented to be sued, waived its
immunity, or Congress abrogated the states’’ immunity. Henry v. Fla. Bar, 701
F. App’x 878, 880 (11th Cir. 2017). Suits for money damages against a state–

Doe’s case here—is “the heart of the Eleventh Amendment’s concern.” Lapides
v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 620 (2002). To receive
Eleventh Amendment immunity, a defendant “need only be acting as an ‘arm
of the state.’” Henry, 701 F. App’x at 880 (quoting Manders v. Lee, 338 F.3d
1304, 1308 (11th Cir. 2003) (en banc)).

As a preliminary matter, FGCU is an arm of Florida. Doe sues
Defendant “Florida Gulf Coast University Board of Trustees,” and pleads,
“Defendant is a public university…part of the State University System of
Florida…” (Doc. 1 at 2). It is well settled that Florida’s universities, and their

boards of trustees, are arms of the state for purposes of Eleventh Amendment
immunity. E.g., Souto v. Fla. Int’l Univ. Found., Inc., 446 F. Supp. 3d 983, 990
(S.D. Fla. Mar. 3, 2020) (collecting cases). So Doe’s suit against FGCU is a suit
against an arm of Florida—and no party disputes this.

Turning to Doe’s § 1983 claim, it is barred under the Eleventh
Amendment. Congress has not abrogated Eleventh Amendment immunity in
§ 1983 cases, and Florida has not waived such immunity in federal civil rights
actions. Henry, 701 F. App’x at 880-81; Will v. Michigan Dep’t of State Police,

491 U.S. 58, 66 (1989).
Doe argues that FGCU is not immune from his § 1983 claim because
FGCU receives Title IX funding, and such funding requires a general waiver
of Eleventh Amendment immunity. This is wrong. With Title IX, Congress

validly abrogated states’ immunity from Title IX suits. But even states that
accept Title IX funding retain immunity from § 1983 claims unless some other
exception applies. See, e.g., Williams v. Bd. of Regents of Univ. Sys. of Georgia,
477 F.3d 1282, 1301 (11th Cir. 2007) (finding Title IX does not abrogate states’
immunity from § 1983 and a plaintiff cannot use § 1983 to bring a Title IX

claim). So, the Court dismisses Doe’s § 1983 (Count 1) claim.
Doe’s breach of contract state-law claim fares no better. While Florida
has waived its Eleventh Amendment immunity for breach of contract claims
in its own state courts, this wavier does not extend to federal court. Maynard

v. Bd. of Regents of Div. of Universities of Fla. Dep’t of Educ. ex rel. Univ. of S.
Fla., 342 F.3d 1281, 1287 (11th Cir. 2003); see also Sossamon v. Texas, 563 U.S.
277, 285 (2011) (“[A] State’s consent to suit in its own courts is not a waiver of
its immunity from suit in federal court.”)

Doe focuses his argument in opposition on the existence of a valid
contract between Doe and FGCU. That is not the issue. Even assuming Doe
and FGCU have a valid contract, the issue remains whether Doe may sue
FGCU for breach of that contract in federal court. He may not—the Eleventh

Amendment prohibits it.
Given FGCU’s Eleventh Amendment immunity, the Court dismisses
Doe’s § 1983 (Count 1) and breach of contract (Count 3) claims.
B. Title IX (Count 2)

FGCU makes two arguments for dismissal of Doe’s Title IX erroneous
outcome (Count 2) claim. First, FGCU claims Doe’s appeal of FGCU’s decision
to state court triggers res judicata or collateral estoppel, preventing this Court
from considering Doe’s Title IX claim. Second, FGCU argues Doe fails to state
a plausible claim for relief under Title IX. The Court begins where it must—

the requirements of a Title IX erroneous outcome claim.
Title IX states, “[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). “Title IX bars the imposition of
university discipline where gender is a motivating factor in the decision to
discipline.” Doe v. Rollins Coll., No. 21-11081, 2023 WL 5199469, at *8 (11th
Cir. Aug. 14, 2023) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir.

1994)).
At a motion to dismiss stage, courts ask whether the alleged facts, if true,
permit a reasonable inference that the university discriminated against Doe
based on sex. Doe v. Samford Univ., 29 F.4th 675, 687 (11th Cir. 2022).

Specifically for an erroneous outcome claim, a plaintiff must plausibly allege
“both that he was innocent and wrongly found to have committed an offense
and that there is a causal connection between the flawed outcome and [sex]
bias.” Rollins, 2023 WL 5199469 at *8 (citing Doe v. Valencia Coll., 903 F.3d

1220, 1236 (11th Cir. 2018)).
FGCU argues res judicata or collateral estoppel dictates dismissal. After
FGCU’s final decision, Doe sought a writ of certiorari in the Circuit Court for
the Twentieth Judicial Circuit, Lee County. (Doc. 1 at 61). FGCU attaches
Doe’s petition for writ of certiorari and the state court’s denial to its motion to

dismiss.
As a preliminary matter, the Court can consider these attachments at
the motion to dismiss stage. Typically, a district court “must convert a motion
to dismiss into a motion for summary judgment if it considers materials outside

the complaint.” Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005); see
Fed. R. Civ. P. 12(d). But an exception exists for documents that are “public
records…not subject to reasonable dispute.” Horne v. Potter, 392 F. App’x 800,
802 (11th Cir. 2010) (finding district court did not err in taking judicial notice

of pleadings and orders in a prior case). Doe’s petition for writ of certiorari and
the state court’s denial are such documents and the Court takes judicial notice
of them.
Doe’s state court appeal claimed FGCU did not afford him procedural

due process and failed to follow the essential requirements of the law. The
state court used a three-part standard of review: (1) whether procedural due
process was afforded; (2) whether the essential requirements of law were
observed; and (3) whether the decision is supported by competent substantial

evidence—evidence a reasonable mind would accept as adequate to support a
conclusion. (Doc. 14-2 at 5). The state court denied certiorari relief. (Doc. 14-
2).
The Court now turns to preclusion. “Section 1738 requires federal courts
to give the same preclusive effect to state court judgments that those

judgments would be given in the courts of the State from which the judgments
emerged.” Kremer v. Chem. Const. Corp., 456 U.S. 461, 466 (1982). The
Eleventh Circuit affords preclusive effects to judicial appeals following state
administrative proceedings in accordance with that state's preclusion law.

Carlisle v. Phenix City Bd. of Educ., 849 F.2d 1376, 1378 (11th Cir. 1988),
certified question answered, 543 So. 2d 194 (Ala. 1989) (“A plaintiff need not
seek reversal of an adverse administrative decision through state judicial
appeals, but once that course is taken, federal relitigation is foreclosed.”). If

Florida would grant preclusive effect to the state court judgment and Doe had
a full and fair opportunity to litigate his claims in the state proceeding,
preclusion applies. Barrington v. Fla. Dep’t of Health, 112 F. Supp. 2d 1299,
1303 (M.D. Fla. 2000) (citing Kremer, 456 U.S. at 463). The movant—FGCU

here—bears the burden of proving preclusion applies. Lozman v. City of
Riviera Beach, Fla., 713 F.3d 1066, 1076 (11th Cir. 2013).
Under Florida law1, res judicata applies when there is: (1) identity of the
thing sued for; (2) identity of the cause of action; (3) identity of the persons and

1 The parties incorrectly cite some federal preclusion law but the outcome under either federal
or Florida preclusion law is the same.
parties to the action; (4) identity of the quality [or capacity] of the persons for
or against whom the claim is made; and (5) the original claim was disposed on

the merits. Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 1074–75
(11th Cir. 2013) (cleaned up). Identity of the cause of action is a question of
whether the facts or evidence necessary to maintain the suit are the same. Id.
Collateral estoppel principles apply to a subsequent proceeding only if: (1) the

identical issues were presented in a prior proceeding; (2) there was a full and
fair opportunity to litigate the issues in the prior proceeding; (3) the issues in
the prior litigation were a critical and necessary part of the prior
determination; (4) the parties in the two proceedings were identical; and (5)

the issues were actually litigated in the prior proceeding. Id. at 1078–79.
Collateral estoppel is not res judicata by another name but applies when the
two causes of action are different but issues—points and questions—are
common to both actions. Id. at 1079 (cleaned up).

FGCU rests its argument for preclusion on its assertion that the issues
and claim here are identical to those presented in state court. (Doc. 14 at Pg.
13) (“The exact issues and claim that Plaintiff presented to state court forms
the crux of Plaintiff’s…’erroneous outcome’ Title IX claim.”). Not so. The crux

of Doe’s Title IX claim is that FGCU discriminated against him because of his
gender. Doe did not raise in state court whether FGCU’s decision was based
on impermissible gender discrimination nor did the state court address this.
(Doc. 14-1; Doc. 14-2). It is possible, though perhaps not probable, that the
procedural issues Doe complains of were minor enough to accord with due

process but, combined with other evidence, could show an impermissible
gender bias was a motivating factor in FGCU’s decision. The same is true for
the state court’s finding that competent substantial evidence supported the
agency’s decision—assuming there was competent substantial evidence for

FGCU’s decision, the Court with a Title IX claim could still evaluate whether
the reason was that evidence or impermissible discrimination. See Floyd v.
Amite Cnty. Sch. Dist., 495 F. Supp. 2d 619, 627 (S.D. Miss. 2007) (finding
legitimate reasons to discharge someone did not necessarily foreclose a

discrimination claim because the jury could still find these reasons were
pretext and termination would not have occurred absent illegitimate reasons);
see Carlisle, 849 F.2d at 1379 (finding state court’s decision that board had
legitimate reasons for transferring school principal would collaterally estop

him from asserting there were no legitimate reasons for his transfer but did
not estop him from asserting there were illegitimate reasons). So FGCU has
not met its burden to show preclusion bars Doe’s Title IX claim.
But the Court agrees with FGCU that Doe’s Title IX claim must be

dismissed under Fed. R. Civ. P. 12(b)(6). The alleged facts do not permit a
reasonable inference that the university discriminated against Doe based on
sex. While the facts taken in the light most favorable to Doe may show he was
innocent and wrongly found to have committed an offense, Doe fails to
plausibly allege a causal connection between the flawed outcome and gender

bias.
Doe’s issues with FGCU boil down to: (1) FGCU did not provide him with
the complaint or investigative findings; (2) FGCU failed to require Roe’s
presence at the administrative hearing and thus failed to allow Doe to cross-

examine Roe; (3) FGCU failed to meaningfully investigate by failing to
interview witnesses or review physical evidence; (4) FGCU’s investigator
(Homer) had a prior relationship with Roe—she had met with Roe about a prior
complaint Roe made against a faculty member—and was thus biased in Roe’s

favor and against Doe; (5) Homer did not complete the investigative findings
report within the required time frame per FGCU’s policy (Homer took at least
90 days to investigate rather than within the required 60); and (6) when Doe
asked about the delay in investigation Homer failed to provide a reason and

told him, “I stayed locked in my house to finish your report today…I am sorry
the process has been so long for you.” Also, during FGCU’s investigation, its
policy “Sexual Harassment Under Title IX” changed. Doe questions FGCU’s
failure to apply the new policy to his case. Applying the new policy would have

meant giving Doe access to the investigative report, and not relying on Roe’s
statements as she did not attend the hearing. This is not enough for a plausible
gender discrimination claim.
First, Doe’s allegations of procedural insufficiencies fall short. As a
preliminary matter, Doe has not raised facts that show FGCU should have

applied the new policy to him—he just says they did not. And even if FGCU
should have applied the new policy to him, Doe presents no allegations FGCU
did not apply the new policy to him, but applied it to women, indicating gender
bias.

Further, even if FGCU did deviate from its policies in taking longer than
the required time to investigate with no reason, Doe presents nothing tying
these deviations to gender bias. “A deviation from a Title IX policy is not, in
and of itself, a violation of Title IX.” Doe v. Samford Univ., 29 F.4th 675, 688

(11th Cir. 2022). While a deviation from a Title IX policy may be consistent
with gender discrimination, “allegations that are merely consistent with
liability stop short of the line between possibility and plausibility.” Id.
(citations omitted). The procedural insufficiencies Doe alleges are markedly

like those alleged in Doe v. Samford (“Samford”), where the Eleventh Circuit
affirmed a motion-to-dismiss stage dismissal of a similar Title IX case. 29
F.4th 675 (11th Cir. 2022). As in Samford, “Doe’s bare assertion that the
procedural irregularities are attributable to his sex does not make his

speculation plausible.” Id. at 688-89.
What’s more, Doe’s allegations about Homer permit obvious alternative
explanations that suggest lawful rather than unlawful conduct. See Doe v.
Samford Univ., 29 F.4th 675, 689 (11th Cir. 2022) (describing how lawful
alternative explanations for sex bias include ineptitude, inexperience, and pro-

complainant bias). Doe acknowledges Homer met with Roe previously about a
different complaint Roe filed against a faculty member and Homer thought
from that interaction Roe was upset about something unrelated to the
encounter with the faculty member. (Doc. 1 at 35). Homer’s previous

experience with Roe may have informed her opinion—not sex bias. Even if
Homer was biased towards Roe and against Doe, that does not mean it was sex
bias. See Doe v. Samford Univ., 29 F.4th 675, 690 (11th Cir. 2022) (finding
even a reasonable inference that a decision to suspend Doe was motivated by

pro-complainant, anti-respondent bias did not mean it was a sex bias
motivation). So the Court dismisses Doe’s Title IX claim (Count 2) without
prejudice and gives Doe leave to amend.
One final note. Doe moved to proceed anonymously. (Doc. 21). Given

the Court’s recent decision denying that motion (Doc. 29), Doe must file any
amended complaint under his real name.
Accordingly, it is now
ORDERED:

1. Defendant’s Motion to Dismiss (Doc. 14) is GRANTED in part and
DENIED in part. Plaintiff’s Complaint (Doc. 1) is DISMISSED.
a. Counts 1 and 3 are dismissed with prejudice.
b. Count 2 is dismissed without prejudice.
2. Plaintiff may file an amended complaint in compliance with this
Order on or before September 19, 2023. Failure to file an
amended complaint will result in the Court closing this case
without further order/notice.
DONE and ORDERED in Fort Myers, Florida on September 8, 20238.

UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113873. Public record. Not legal advice.