Thomas Crowther v. Board of Regents of the University System of Georgia

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11037

____________________

MACHELLE JOSEPH,

Plaintiff-Appellant,

versus

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF

GEORGIA,

GEORGIA TECH ATHLETIC ASSOCIATION,

Defendants-Appellees,

GEORGE P. PETERSON, et al.,

Defendants.

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2 Opinion of the Court 23-11037

____________________

Appeals from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:20-cv-00502-VMC

____________________

____________________

No. 23-12475

____________________

THOMAS CROWTHER,

Plaintiff-Appellee,

versus

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF

GEORGIA,

Defendant-Appellant.

____________________

Appeals from the United States District Court

for the Northern District of Georgia

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23-11037 Opinion of the Court 3

D.C. Docket No. 1:21-cv-04000-VMC

____________________

Before WILLIAM PRYOR, Chief Judge, and LUCK and ED CARNES,

Circuit Judges.

WILLIAM PRYOR, Chief Judge:

These consolidated appeals require us to decide a common

question: whether Title IX of the Education Amendments of 1972

provides an implied right of action for sex discrimination in em-

ployment. Thomas Crowther, formerly an art professor at Augusta

University, and MaChelle Joseph, formerly the head women’s bas-

ketball coach at the Georgia Institute of Technology, filed separate

complaints of discrimination and retaliation against the University

System of Georgia. The Crowther appeal also presents a question

about his claim of retaliation under Title IX. And the Joseph appeal

requires us to decide whether her remaining claims of discrimina-

tion and retaliation under Title VII, Title IX, and the Georgia Whis-

tleblower Act survive summary judgment. As to the common ques-

tion, we conclude that Title IX does not provide an implied right

of action for sex discrimination in employment. We reverse the or-

der denying the dismissal of Crowther’s claims and affirm the judg-

ment against Joseph’s complaint.

I. BACKGROUND

We review the background of these appeals in two parts. We

first describe the background of the Crowther appeal. We then ad-

dress the background of the Joseph appeal.

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4 Opinion of the Court 23-11037

A. Thomas Crowther

Thomas Crowther worked as an art professor at Augusta

University from 2006 through spring 2021. During the Spring 2020

semester, several students complained that Crowther had sexually

harassed them. While the University investigated those com-

plaints, the chair of the Department of Art and Design issued

Crowther a negative evaluation of his teaching and tried to negoti-

ate his resignation. After the investigation found that Crowther had

violated the University’s sexual harassment policy, the University

suspended his employment for one semester. Crowther appealed

that decision through several channels to no avail. Before

Crowther’s appeal ended, the interim dean reassigned him to re-

medial tasks and refused to renew his contract for the 2021–2022

academic year.

Crowther later sued the Board of Regents of the University

System of Georgia and several officials for sex discrimination and

retaliation under Title IX and other provisions of federal law. He

requested both damages and injunctive relief. The Board and offi-

cials moved to dismiss Crowther’s complaint. The district court

dismissed the claims against the officials but denied the motion to

dismiss the claims against the Board under Title IX. The district

court also certified the order for interlocutory appeal based on the

question whether Title VII precludes claims for sex discrimination

in employment brought under Title IX. See 28 U.S.C. § 1292(b).

And we granted permission to appeal that order.

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B. MaChelle Joseph

MaChelle Joseph was the head women’s basketball coach at

Georgia Tech from 2003 until 2019. Joseph was responsible for

coaching the team, recruiting new players, hiring and managing as-

sistant coaches, and marketing the team and their games. The head

men’s basketball coach performed the same kinds of duties for the

men’s team. Georgia Tech provided practice and competition facil-

ities, marketing budgets and resources, staffing, travel budgets, and

other resources to both teams and coaches.

During Joseph’s tenure, the men’s basketball program con-

sistently received more money and resources from Georgia Tech

than the women’s program. The women’s locker room was

smaller and had old and broken lockers, limited shower, laundry,

and multipurpose space, and limited access to the practice facility.

The men’s facility had been updated with newer and more appli-

ances and spaces and had direct access to the practice facility. The

women’s coaches’ office space was smaller than the men’s, requir-

ing assistant coaches to share offices or sit at desks in a hallway.

Joseph spent “substantial time” fundraising to improve the locker

room and office conditions. Georgia Tech budgeted approximately

$22,000 to the women’s basketball team for marketing. That

amount was insufficient to hire a full-time marketing professional,

so Joseph had to dedicate other resources—including her own

time—to market the team. The men’s team had more funds and a

full-time marketing professional. The Georgia Tech Athletic Asso-

ciation also paid the men’s head coach for television and radio sets

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6 Opinion of the Court 23-11037

during the season but did not pay Joseph for or provide parallel op-

portunities. Georgia Tech also provided less money for assistant

coach and staff salaries for the women’s team than for the men’s

team. And Georgia Tech provided less money for the women’s

team to travel than for the men’s team.

Joseph learned about these differences during the 2006–2007

academic year and began to raise concerns about the disparity with

Georgia Tech’s Title IX coordinator for athletics. Nonetheless,

most of the budgeting and resource issues remained unchanged

throughout Joseph’s career.

Joseph spent large portions of her time raising over $2 mil-

lion for a locker room upgrade during the 2017–2018 year. Georgia

Tech did not immediately proceed with the upgrade because ad-

dressing the practice facility access concerns—one of the primary

issues with the women’s locker room—required also changing the

men’s locker room. Georgia Tech considered upgrading both

locker rooms simultaneously. But the men’s team had not raised

money for their own renovation, so the women’s upgrade waited

while the Athletic Department decided what to do.

As Joseph continued to complain about the various dispari-

ties to Athletic Department leadership, other and unrelated issues

arose. For example, in 2015 Joseph was reprimanded for appearing

intoxicated at a home football game. In 2016, Joseph’s administra-

tive assistant filed a complaint against her, which resulted in a writ-

ten warning and corrective-action plan. Then in early 2018, the Na-

tional Collegiate Athletic Association informed Georgia Tech that

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23-11037 Opinion of the Court 7

it had received a report that Joseph or her staff paid recruits imper-

missible benefits. Meanwhile, Joseph and the team had not secured

a spot in the National Collegiate Athletic Association tournament

since 2014.

On November 21, 2018, Joseph sent a letter to Georgia

Tech’s president, copying the athletic director and deputy athletic

director. That letter alleged that officials of the Athletic Depart-

ment had retaliated against Joseph because of her repeated com-

plaints about the disparate resources for her team and “differential

treatment of her as a female coach.” The chief of staff for the pres-

ident of Georgia Tech testified that the athletic director appeared

“worn down” by Joseph’s complaints about the women’s basket-

ball team around that time.

Also in the fall of 2018, the personnel administrator for the

women’s basketball team raised concerns about Joseph’s treatment

of the team’s staff. In early 2019, two staff members approached

Human Resources with complaints about Joseph’s bullying. And in

January 2019, an interpersonal conflict arose among Joseph’s play-

ers. That conflict eventually escalated to a meeting with the team’s

personnel administrator and then with Georgia Tech’s interim gen-

eral counsel. At the latter meeting, several players reported con-

cerns about Joseph’s treatment of the athletes, expressing what the

general counsel called “genuine terror.” The general counsel ad-

vised the players to have their parents file letters on their behalf to

initiate a formal investigation.

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8 Opinion of the Court 23-11037

A few days later, the deputy athletic director informed the

athletic director that he planned to resign because he could not deal

with Joseph any longer. The athletic director responded that he had

been “working on” a “path forward” regarding Joseph and discour-

aged the deputy from resigning. On February 7, 2019, the president

instructed the athletic director to begin coordinating with human

resources about the various staff complaints and resignation

threats. The next day, apparently unrelatedly, Joseph filed a formal

internal complaint of discrimination and retaliation. She raised the

same concerns described above and alleged that the athletic direc-

tor and others in the Department had retaliated against her.

Three days later, on February 11, the Athletic Department

received a letter from the parent of a basketball player. The letter

alleged that “Coach Jo and her staff” had isolated the player and

created a “toxic” environment that impacted the player’s “health

and wellness.” At some point, the athletic director received another

letter from another player’s parents. The athletic director and pres-

ident discussed the contents of the letters, and the athletic director

recommended hiring an attorney to investigate the allegations.

Around February 25, 2019, Georgia Tech hired an investiga-

tor for the various complaints about Joseph and the women’s bas-

ketball program. Joseph first learned of the investigation on Febru-

ary 27 when she was placed on administrative leave, but she re-

ceived no details about its subject matter. The athletic director

communicated regularly with an assigned official from Georgia

Tech about the ongoing investigation. That official recommended

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people for the investigator to interview at Georgia Tech, but the

investigator decided who he would contact. On March 11, the in-

vestigator delivered a preliminary report in a meeting, although he

had not yet interviewed Joseph or the assistant coaches. After that

meeting, the president’s chief of staff texted the investigation point

person, “Good meeting. We will have all we need.” The chief of

staff later clarified that the text stated that she believed that the De-

partment would have sufficient evidence to take some kind of dis-

ciplinary action against Joseph.

On March 12, the investigator interviewed Joseph. On

March 15, the investigator delivered an interim report of his find-

ings. After reading that report, the chief of staff texted the general

counsel expressing that she “hope[d] the final report ha[d] more

details” because the interim report was “not as compelling as [she]

had hoped.” She again later clarified that she hoped that the final

report would provide a “clear-cut case” for firing Joseph.

On March 20, the investigator submitted his final report.

The final report revealed that the investigator had interviewed 13

current players, four former players, seven administrative staffers,

five current assistant or graduate assistant coaches, three parents of

current or former players, three consultants hired to work with the

team during the 2018–2019 season, Coach Joseph, and four other

individuals. The report found that the women’s basketball players

felt “insecure, nervous, anxious, and scared at various points in the

season and in their careers,” and described the team environment

as “toxic,” “suffocating,” “draining and miserable,” and

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10 Opinion of the Court 23-11037

“unhealthy.” Eleven of the thirteen current players interviewed

“expressed concerns regarding player emotional and/or mental

well-being.” Players described Joseph “targeting” team members,

engaging in “extreme cursing and yelling,” and throwing items—

possibly even at players. Staff members reported players experienc-

ing “sleep disturbances” and “weight loss during particularly ‘bad

weeks’ with the team.” The report stated that Joseph used insulting

and demeaning language “on a daily basis.” For example, the report

stated that Joseph called “a player a ‘whore’ and accus[ed] her of

having sex with everyone on campus,” and told “a player that she

would be in jail if not for Coach Joseph.” Players also reported

“feeling manipulated by Coach Joseph,” blamed for the team’s

poor performance, and isolated from their teammates.

The report found that it was “more likely than not that

Coach Joseph’s actions f[ell] outside acceptable behavior under the

[University System of Georgia’s] Ethics Policy,” that the students

were credible, and that “[e]very member of the team reported se-

rious concerns regarding player mistreatment.” The report stated

that the players “attributed no [coaching] purpose” to the “bully-

ing” and “verbal abuse.” Staff corroborated the players’ statements,

but Joseph denied anything beyond yelling “on occasion” and

“cursing in games, practices, and team meetings.” The report de-

ferred to Georgia Tech as to what action should be taken.

After receiving the report, the athletic director shared it with

Joseph and allowed her to respond. She produced a 13-page re-

sponse. It denied most if not all the allegations raised in the report,

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23-11037 Opinion of the Court 11

including a line-by-line denial or defense of each of the specific

name-calling allegations.

The athletic director fired Joseph on March 26, 2019. Joseph

then filed a charge of discrimination with the Equal Employment

Opportunity Commission in which she alleged sex discrimination

and retaliation under Title VII. She obtained a right to sue letter,

and she sued the Board of Regents, the Georgia Tech Athletic As-

sociation, and several individuals. She alleged against the Board

and the Athletic Association two claims of sex discrimination under

Title IX (counts 1 and 2), two claims of sex discrimination under

Title VII (counts 3 and 4), and one count each of retaliation under

Title IX, Title VII, and the Georgia Whistleblower Act (counts 9,

10, and 11). Joseph requested damages, declaratory judgments, and

an injunction. The defendants removed the suit to the district

court.

The defendants moved to dismiss and moved for judgment

on the pleadings. The district court dismissed Joseph’s claims of

employment discrimination under Title IX as precluded by Ti-

tle VII. It also narrowed Joseph’s claims under Title VII based on

the applicable limitations period and dismissed those claims insofar

as they relied on a theory that Georgia Tech held her to a higher

standard than her male colleagues. The district court also dismissed

the claim under the Whistleblower Act as to the Athletic Associa-

tion. After extensive discovery, the Board and the Athletic Associ-

ation moved for summary judgment. The district court granted

their motion.

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III. STANDARD OF REVIEW

We review de novo both a dismissal or refusal to dismiss

(when interlocutory review is available) for failure to state a claim

and a summary judgment. See Williams v. Bd. of Regents of the Univ.

Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007); Jefferson v. Sewon

Am., Inc., 891 F.3d 911, 919 (11th Cir. 2018); S & Davis Int’l, Inc. v.

Yemen, 218 F.3d 1292, 1298 (11th Cir. 2000); see also Akanthos Cap.

Mgmt., LLC v. CompuCredit Holdings Corp., 677 F.3d 1286, 1293 (11th

Cir. 2012).

IV. DISCUSSION

We divide our discussion into four parts. First, we explain

that Title IX does not provide Crowther or Joseph a private right

of action for sex discrimination in employment. Second, we explain

that Title IX does not provide Crowther a right of action for retali-

ation where he did not oppose an underlying violation. Third, we

explain that Title VII does not provide Joseph a cause of action for

the associational discrimination she alleged. Finally, we explain

that because Joseph has not rebutted the proffered nondiscrimina-

tory reasons for her termination, her claims of retaliation under Ti-

tle VII, Title IX, and the Georgia Whistleblower Act fail.

A. Title IX Does Not Provide a Private Right of

Action for Sex Discrimination in Employment.

The parties ask us to decide whether the rights and remedies

under Title VII preclude claims for employment discrimination un-

der Title IX. Our sister circuits are split on that question. Compare

Lakoski v. James, 66 F.3d 751, 753 (5th Cir. 1995) (finding preclusion

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23-11037 Opinion of the Court 13

as to individuals seeking money damages under Title IX), and Waid

v. Merrill Area Pub. Schs., 91 F.3d 857, 862 (7th Cir. 1996) (same as to

claims for equitable relief under Title IX or section 1983), abrogated

in part on other grounds by Fitzgerald v. Barnstable Sch. Comm., 555

U.S. 246, 251 (2009), with Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545,

560 (3d Cir. 2017) (finding no preclusion); see also Vengalattore v.

Cornell Univ., 36 F.4th 87, 92 (2d Cir. 2022) (holding that Title IX

right of action was viable without deciding the preclusion ques-

tion); Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 896–97 (1st Cir.

1988) (same); Preston v. Virginia ex rel. New River Cmty. Coll., 31 F.3d

203, 206 (4th Cir. 1994) (same); Hiatt v. Colo. Seminary, 858 F.3d

1307, 1316–17 (10th Cir. 2017) (same). But Supreme Court prece-

dent requires us to ask a more fundamental question: whether Ti-

tle IX provides an implied right of action for sex discrimination in

employment. We hold that it does not.

Whether express or implied, “private rights of action to en-

force federal law must be created by Congress.” Alexander v. Sand-

oval, 532 U.S. 275, 286 (2001). When Congress fails to provide an

express right of action, “[t]he judicial task is to interpret the statute

Congress has passed to determine whether it displays an intent to

create not just a private right but also a private remedy.” Id. (empha-

sis added). An intent to create a remedy is necessary “even where

a statute is phrased in . . . explicit rights-creating terms.” Gonzaga

Univ. v. Doe, 536 U.S. 273, 284 (2002). And even when a statute “was

intended to protect” a certain class, “the mere fact that the statute

was designed to protect [that class] does not require the implication

of a private cause of action . . . on their behalf.” Transamerica Mortg.

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14 Opinion of the Court 23-11037

Advisors, Inc. v. Lewis, 444 U.S. 11, 24 (1979) (emphasis added). “The

dispositive question [is] whether Congress intended to create any

such remedy.” Id.; see also Sandoval, 532 U.S. at 286 (“Statutory in-

tent . . . is determinative.”). Without a clear indication of congres-

sional intent to create a cause of action, “courts may not create one,

no matter how desirable [a cause of action] might be as a policy

matter, or how compatible with the statute.” Sandoval, 532 U.S. at

286–87; see also Gonzaga Univ., 536 U.S. at 280 (“[U]nless Congress

speaks with a clear voice, and manifests an unambiguous intent to

confer individual rights, federal funding provisions provide no basis

for private enforcement.” (alteration adopted) (citation and inter-

nal quotation marks omitted)).

Since the landmark decision in Alexander v. Sandoval, the Su-

preme Court has reminded inferior courts to exercise caution in

implying rights of action. For example, in Gonzaga University v. Doe,

the Court “reject[ed] the notion that [its] cases permit anything

short of an unambiguously conferred right to support a cause of

action.” 536 U.S. at 276, 283 (considering whether Family Educa-

tional Rights and Privacy Act conferred a right that could be vindi-

cated under section 1983). And in Cummings v. Premier Rehab Keller,

PLLC, the Court circumscribed the remedies for implied rights of

action under several statutes prohibiting discriminatory practices.

142 S. Ct. 1562, 1569–70, 1576 (2022) (holding “that emotional dis-

tress damages are not recoverable under the Spending Clause anti-

discrimination statutes”). Where implied rights of action exist, we

must honor them, but we cannot expand their scope without as-

suring ourselves that Congress unambiguously intended a right of

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action to cover more people or more situations than courts have

yet recognized.

Congress enacted Title IX under the Spending Clause and

provided an express remedial scheme for withdrawing federal

funding. See 20 U.S.C. § 1682. For most Spending Clause legisla-

tion, “‘the typical remedy for . . . noncompliance with federally im-

posed conditions is not a private cause of action . . . but rather ac-

tion by the Federal Government to terminate funds.’” Gonzaga

Univ., 536 U.S. at 280 (quoting Pennhurst State Sch. & Hosp. v. Hal-

derman, 451 U.S. 1, 28 (1981)). When deciding whether an implied

right of action exists under Spending Clause legislation, “our con-

sideration of whether a remedy qualifies as appropriate relief must

be informed by the way Spending Clause statutes operate: by con-

ditioning an offer of federal funding on a promise by the recipient.”

Cummings, 142 S. Ct. at 1570 (citation and internal quotation marks

omitted). Even where Spending Clause legislation is phrased in

terms of the “persons” protected, the inclusion of a funding-based

remedial scheme cautions against construing the statute to create

other remedies. See Gonzaga Univ., 536 U.S. at 284, 289 (noting that

the conclusion that a Spending Clause statute did not confer en-

forceable rights was “buttressed by the mechanism that Congress

chose to provide for enforcing [the statute’s] provisions”).

“Unlike ordinary legislation, which ‘imposes congressional

policy’ on regulated parties ‘involuntarily,’ Spending Clause legis-

lation operates based on consent: ‘in return for federal funds, the

recipients agree to comply with federally imposed conditions.’”

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16 Opinion of the Court 23-11037

Cummings, 142 S. Ct. at 1570 (alteration adopted) (quoting

Pennhurst, 451 U.S. at 16, 17). But those conditions are binding only

if they are clear and the “recipient voluntarily and knowingly ac-

cepts the terms of th[e] contract.” Id. (alteration adopted) (citation

and internal quotation marks omitted). The relevant terms of that

“contract” include both the duties imposed and the liabilities cre-

ated because “a prospective recipient would surely wonder not

only what rules it must follow, but also what sort of penalties might

be on the table.” Id. So, if an implied right of action would impose

unclear conditions or remedies for Spending Clause legislation, we

should not recognize that right. Id. (“A particular remedy is . . . ap-

propriate relief in a private Spending Clause action only if the fund-

ing recipient is on notice that, by accepting federal funding, it ex-

poses itself to liability of that nature.” (citation and internal quota-

tion marks omitted)). And for a state recipient of federal funds, the

clarity of the penalty is important because Title IX abrogates any

recipient’s sovereign immunity from claims for damages. See 42

U.S.C. § 2000d-7; Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242

(1985) (requiring that abrogation to be “unmistakably clear in the

language of the statute”).

The Supreme Court has held that Title IX provides an im-

plied right of action for students who complain of sex discrimina-

tion by schools that receive federal funds. In Cannon v. University of

Chicago, the Court held that section 901 of Title IX provided an im-

plied right of action for a prospective student because “the lan-

guage of the statute explicitly conferred a right directly on a class

of persons that included the plaintiff in the case” and was “phrased

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in terms of the persons benefited.” 441 U.S. 677, 690 n.13, 692

(1979). Cannon concluded that the prospective student was clearly

a member of an intended beneficiary class and that Congress in-

tended Title IX not only to ferret out discriminatory uses of federal

funding but also to protect individual students from discrimination.

Id. at 680, 693–94, 709–10 (first interpreting Title IX, then consider-

ing the consequences for university admissions decisions).

In Jackson v. Birmingham Board of Education, the Supreme

Court also held that Title IX provides a private right of action for

retaliation for an employee’s complaint about discrimination

against students. 544 U.S. 167, 171 (2005). There, the male coach of

a high school girls’ basketball team complained that the school re-

taliated against him for complaining that the school discriminated

against the girls’ team. Id. at 171–72. The Court concluded that “the

text of Title IX prohibits a funding recipient from retaliating against

a person who speaks out against sex discrimination, because such

retaliation is intentional ‘discrimination’ ‘on the basis of sex.’” Id.

at 178. The Court explained that the statutory goal of protecting

students from discrimination “would be difficult, if not impossible,

to achieve if persons who complain about sex discrimination did

not have effective protection against retaliation” and that “teachers

and coaches . . . are often in the best position to vindicate the rights

of their students.” Id. at 180–81 (emphasis added) (citation and in-

ternal quotation marks omitted).

Although the Supreme Court has reaffirmed Cannon several

times, it has never extended the implied private right of action

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18 Opinion of the Court 23-11037

under Title IX to claims of sex discrimination for employees of ed-

ucational institutions. To be sure, Title IX empowers administra-

tive agencies to promulgate and enforce regulations that require

educational institutions to avoid sex discrimination against their

employees. See N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 535–

36 (1982). The Supreme Court has held that because “[sec-

tion] 901(a) neither expressly nor impliedly excludes employees

from its reach,” Title IX “cover[s] and protect[s]” employees

through the statute’s funding conditions structure. Id. at 521, 530

(“[E]mployment discrimination comes within the prohibition of

Title IX.”). But that federal funding might be contingent on an ed-

ucational institution’s treatment of its employees—or that an ad-

ministrative agency could issue regulations imposing that contin-

gency—has little bearing on whether Congress intended to create

a private right of action for employees under Title IX. Cf. Sandoval,

532 U.S. at 290 (refusing to imply a right of action under the admin-

istrative enforcement provision of Title VI). To answer that ques-

tion, we must look to congressional intent in creating “not just a

private right but also a private remedy.” Id. at 286. Bell considered

only the administrative remedy evident on the face of Title IX, not

any implied private right of action.

None of these Supreme Court precedents—Cannon, Jackson,

or Bell—speak to whether Title IX created an implied right of action

for sex discrimination in employment. And our sister circuits that

have allowed claims of sex discrimination in employment under

Title IX to proceed have failed to grapple with the inquiry required

by Sandoval (and later Gonzaga); they instead have relied primarily

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23-11037 Opinion of the Court 19

on Bell (and later Jackson) to hold that Title IX prohibits employ-

ment discrimination. See, e.g., O’Connor v. Peru State Coll., 781 F.2d

632, 642 n.8 (8th Cir. 1986); Mabry v. State Bd. of Cmty. Colls. & Oc-

cup. Educ., 813 F.2d 311, 316–17 (10th Cir. 1987); Lipsett, 864 F.2d at

884 n.3, 896; Preston, 31 F.3d at 204 n.1, 205–06; Waid, 91 F.3d at

861; Mercy Cath. Med. Ctr., 850 F.3d at 562; Vengalattore, 36 F.4th at

104–06; see also Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1023

(9th Cir. 2018); Snyder-Hill v. Ohio State Univ., 48 F.4th 686, 708 (6th

Cir. 2022) (non-student, non-employee claims).

It is not enough to say that Cannon and Jackson recognized

an implied right of action under Title IX or that Bell recognized that

Title IX permits agencies to demand that recipients of federal fund-

ing avoid discriminating against employees based on sex. “Because

the private right of action under Title IX is judicially implied, we

have a measure of latitude to shape a sensible remedial scheme that

best comports with the statute.” Gebser v. Lago Vista Indep. Sch.

Dist., 524 U.S. 274, 284 (1998). And when we consider whether a

particular claim falls within the judicially implied right of action,

we “examine the relevant statute to ensure that we do not fashion

the scope of an implied right in a manner at odds with the statutory

structure and purpose.” Cf. id. So, to determine the appropriate

scope of the implied right of action—and whether that scope in-

cludes employment discrimination—we look to the text of Title IX

and its statutory context.

The text of Title IX provides that “[n]o person . . . shall, on

the basis of sex, be excluded from participation in, be denied the

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20 Opinion of the Court 23-11037

benefits of, or be subjected to discrimination under any education pro-

gram or activity receiving Federal financial assistance.” Education

Amendments of 1972, Pub. L. No. 92-318, § 901, 86 Stat. 235, 373

(June 23, 1972) (codified as amended at 20 U.S.C. § 1681) (emphasis

added). True, the Supreme Court construed that language not to

exclude employees from Title IX’s administrative coverage. See

Bell, 456 U.S. at 521, 530. But nothing about that language indicates

congressional intent to provide a private right of action to employ-

ees of educational institutions. In other words, although there can

be little doubt that Title IX’s focus on educational institutions and

programs represents an intent to provide students new protections

from sex discrimination, see Cannon, 441 U.S. at 680, 693–94, 709–

10, that connection is less obvious for employees.

Congress passed Title IX in June 1972 as part of a series of

amendments to the Civil Rights Act of 1964 and other antidiscrim-

ination statutes. The Equal Employment Opportunity Act of 1972

extended first Title VII’s prohibition of employment discrimina-

tion to federal employees and educational institutions. Pub. L.

No. 92-261, § 701–02, 86 Stat. 103, 103–04 (Mar. 24, 1972). That ex-

tension to educational institutions responded to “the widespread

and compelling problem of invidious discrimination in educational

institutions.” Univ. of Pa. v. Equal Emp. Opp. Comm’n, 493 U.S. 182,

190 (1990). The amendment “expose[d]” employment decisions in

educational institutions to the “same enforcement procedures ap-

plicable to other employment decisions” under Title VII—the “in-

tegrated, multistep enforcement procedure that enables the [Equal

Employment Opportunity] Commission to detect and remedy

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23-11037 Opinion of the Court 21

instances of discrimination.” Id. (citation and internal quotation

marks omitted). And Title IX extended next Title VI’s protections

against discrimination in federally funded programs to cover sex

discrimination in educational institutions. Education Amendments

of 1972, Pub. L. No. 92-318, § 901, 86 Stat. 235, 373 (June 23, 1972).

But Title IX’s enforcement mechanism relied on the carrot and

stick of federal funding to combat sex discrimination.

Passed only three months apart, the 1972 amendments

evince a congressional intent to create a comprehensive antidis-

crimination remedial scheme. As amended, Title VII and Title IX

work in tandem: “whereas Title VII aims centrally to compensate

victims of discrimination, Title IX focuses more on protecting indi-

viduals from discriminatory practices carried out by recipients of

federal funds.” Gebser, 524 U.S. at 287 (emphasis added) (citation and

internal quotation marks omitted); see also Lakoski, 66 F.3d at 757.

The two statutes accomplish these goals through different

remedies. Title VII creates an administrative process that requires

claimants first to file a charge of employment discrimination with

the Equal Employment Opportunity Commission and then obtain

a right to sue letter from the Commission before filing a complaint

in a federal court. 42 U.S.C. §§ 2000e-4–2000e-5. Title IX, in con-

trast, empowers administrative agencies to condition federal fund-

ing on compliance with its anti-sex-discrimination mandate. 20

U.S.C. § 1682. Although it also provides an implied right of action

for students—who would otherwise have no statutory remedy to

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22 Opinion of the Court 23-11037

enforce their substantive right under Title IX—the terms of the

statute do not embrace a private right of action for employees.

It is unlikely that Congress intended Title VII’s express pri-

vate right of action and Title IX’s implied right of action to provide

overlapping remedies. Judicially implied rights of action require ex-

pressions of congressional intent to create both a right and a rem-

edy. Sandoval, 532 U.S. at 286. In the light of the complexity of Ti-

tle VII’s express remedial scheme, it would be anomalous to con-

clude that the implied right of action under Title IX would allow

employees of educational institutions immediate access to judicial

remedies unburdened by any administrative procedures. See Cent.

Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S.

164, 180 (1994) (“[I]t would be anomalous to impute to Congress

an intention to expand the plaintiff class for a judicially implied

cause of action beyond the bounds it delineated for comparable ex-

press causes of action.” (citation and internal quotation marks

omitted)); cf. Gebser, 524 U.S. at 289. That conclusion becomes even

weaker when we remember that Congress extended Title VII’s

remedies to employees of educational institutions only three

months before enacting Title IX. And because Title IX was enacted

under the Spending Clause, it is dubious that recipients of federal

funds would understand that they have knowingly and voluntarily

accepted potential liability for damages for claims of employment

discrimination under Title IX when those kinds of claims are ex-

pressly provided for and regulated by Title VII. See Gebser, 524 U.S.

at 286–87 (distinguishing Title IX’s “contractual framework” from

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23-11037 Opinion of the Court 23

Title VII’s express prohibition and limiting the scope of available

remedies under Title IX).

We hold that Title IX does not create an implied right of ac-

tion for sex discrimination in employment. We reverse the order

denying the motion to dismiss Crowther’s claim of employment

discrimination under Title IX and remand with instructions to dis-

miss that claim. And we affirm the dismissal of Joseph’s claims of

employment discrimination under Title IX.

B. Crowther’s Retaliation Claim Based on His Participation

in an Investigation of His Conduct Does Not State a Title IX Claim.

Although Crowther’s case comes before us on interlocutory

appeal, 28 U.S.C. § 1292(b), with a certified question concerning

whether Title IX employment discrimination claims are precluded

by Title VII, interlocutory jurisdiction under section 1292(b) “ap-

plies to the order certified to the court of appeals, and is not tied to

the particular question formulated by the district court.” Yamaha

Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996). “[A]ny issue

fairly included within the certified order” falls within our discre-

tionary jurisdiction under section 1292(b). Id. So, we may also con-

sider whether Crowther’s allegation of retaliation for participating

in the investigation of his conduct states a claim under Title IX. The

Board asks us to hold that it does not. We agree.

Jackson defines the contours of a claim of retaliation under

Title IX. The Supreme Court held that “[r]etaliation against a per-

son because that person has complained of sex discrimination is

another form of intentional sex discrimination encompassed by

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24 Opinion of the Court 23-11037

Title IX’s private cause of action.” 544 U.S. at 173. The Court linked

the act of retaliation to a complaint of sex discrimination against

students. Id. at 174, 180–81. Because Title IX’s remedial scheme de-

pends in large part on people being willing to report Title IX viola-

tions, those reporters are owed protection under the statute. See id.

at 180–81.

Jackson does not contemplate protections for an accused dis-

criminator who participates in a Title IX investigation of his own

conduct. That situation bears none of the features of the Jackson

implied right of action: it does not protect students, and it does not

encourage reporters to come forward. It is unsurprising then that

at least one other circuit has refused to recognize retaliation actions

for participation in an investigation where the would-be plaintiff is

accused of discrimination. See Du Bois v. Bd. of Regents of the Univ.

of Minn., 987 F.3d 1199, 1204–05 (8th Cir. 2021).

Crowther asks us to read Jackson too broadly. He contends

that his Title IX retaliation claim survives even if his claim of em-

ployment discrimination does not because he alleges “retaliation.”

But Crowther’s claim looks nothing like the right of action implied

in Jackson because he seeks to protect only his participation in the

Title IX investigation of complaints against him, not his reporting

of other violations. Under the same logic regarding implied rights

of action that we described above, we decline to extend Jackson in

this way. See Cummings, 142 S. Ct. at 1576–77 (Kavanaugh, J., con-

curring) (“[W]ith respect to existing implied causes of action, Con-

gress, not this Court, should extend those implied causes of action

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23-11037 Opinion of the Court 25

and expand available remedies.”); Du Bois, 987 F.3d at 1204–05. We

reverse the order denying the motion to dismiss Crowther’s retali-

ation claim under Title IX and remand with instructions to dismiss

that claim as well.

C. Title VII Does Not Cover Associational Claims

Unrelated to the Employee’s Sex.

Next, Joseph’s complaint purports to allege two claims of

sex discrimination under Title VII: one based on her sex and an-

other based on her association with the women’s basketball team.

Joseph contends that the Board of Regents and the Athletic Associ-

ation discriminated against her because she is a woman and be-

cause her players are women. But Joseph provides little to no ex-

planation of how her allegations are connected to her sex, beyond

a few conclusory statements that she was treated differently for fail-

ing to conform to sex-based stereotypes. Instead, for both her

claims, she alleges resource disparities between the facilities,

budget, and institutional support of the men’s team and those of

the women’s team.

The district court granted summary judgment against Jo-

seph’s claims of sex discrimination under Title VII on the ground

that she failed to produce evidence that her sex was the but-for

cause of the resource disparity. On appeal, Joseph makes no argu-

ment that her claims of employment discrimination are based on

her sex; instead—under a heading purporting to argue that her

claims were based on her sex—Joseph focuses only on her associa-

tion with the women’s team. She contends that Title VII allows a

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26 Opinion of the Court 23-11037

claim of discrimination based on an employee’s association with a

protected group, instead of the employee’s sex.

Joseph relies on a line of “associational” cases under Title VII

to support her argument that Title VII’s prohibition covers dis-

crimination based on an individual’s association with a protected

group. Under this theory, it does not matter whether Joseph is male

or female. What matters is that the disparate treatment alleged was

based on an associated person’s sex.

Joseph’s argument misconstrues the line of precedents that

support associational claims. We defined the scope of these claims

in Parr v. Woodmen of the World Life Insurance Co., where a company

refused to hire a white man because he was married to a black

woman. 791 F.2d 888, 889 (11th Cir. 1986). We held that “[w]here

a plaintiff claims discrimination based upon an interracial marriage

or association, he alleges, by definition, that he has been discrimi-

nated against because of his race.” Id. at 892. In other words, claims

based on interracial association necessarily implicate the race of

both the complainant and the associate. So, any discrimination

based on that association is based on the race (or sex or religion or

national origin) of both parties. See Matamoros v. Broward Sheriff’s

Off., 2 F.4th 1329, 1335 (11th Cir. 2021) (discussing Parr and its focus

on the individual’s protected trait in the context of a Florida stat-

ute). Bostock v. Clayton County confirms this interpretation. See 140

S. Ct. 1731, 1741 (2020) (“An individual employee’s sex is not rele-

vant to the selection, evaluation, or compensation of employ-

ees. . . . If the employer fires [a] male employee for no reason other

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23-11037 Opinion of the Court 27

than the fact he is attracted to men, the employer discriminates

against him for traits or actions it tolerates in his female colleague.”

(emphasis added) (citation and internal quotation marks omitted)).

And Joseph’s evidence does not suggest that her sex mattered in

association with the women’s team. So, we affirm the summary

judgment against Joseph’s claims of sex discrimination under Ti-

tle VII.

D. Joseph’s Claims of Retaliation Under Title VII, Title IX, and the

Georgia Whistleblower Act Fail.

The parties agree that the common burden shifting frame-

work applies to Joseph’s claims of retaliation under Title VII, Ti-

tle IX, and the Georgia Whistleblower Act. See Patterson v. Ga. Pac.,

LLC, 38 F.4th 1336, 1344 (11th Cir. 2022). And we will assume that

this framework applies here. Under the burden-shifting frame-

work, “[t]he plaintiff must first make out a prima facie case of re-

taliation, showing (1) that she engaged in statutorily protected ac-

tivity, (2) that she suffered an adverse action, and (3) that the ad-

verse action was causally related to the protected activity.” Id. at

1344–45 (citation and internal quotation marks omitted). If the

plaintiff satisfies her burden on those three elements, then “the bur-

den shifts to the employer to articulate a legitimate, non-discrimi-

natory reason or reasons for the retaliation.” Id. at 1345. If the em-

ployer provides legitimate reasons for taking adverse action against

the plaintiff, then “the plaintiff must show that each reason is

merely a pretext.” Id. In sum, “a plaintiff must prove that had she

not engaged in the protected conduct, she would not have been

fired.” Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1135 (11th

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28 Opinion of the Court 23-11037

Cir. 2020) (en banc) (alteration adopted) (citation and internal quo-

tation marks omitted).

Joseph alleges that she engaged in protected activity in her

two letters to the Athletic Department. And she contends that

Georgia Tech opened the investigation and fired her in sufficient

proximity to those letters to raise an inference of causation. See Pat-

terson, 38 F.4th at 1352 (“The general rule is that close temporal

proximity between the employee’s protected conduct and the ad-

verse action is sufficient circumstantial evidence to create a genu-

ine issue of material fact of a causal connection.” (alteration

adopted) (citation and internal quotation marks omitted)). The

Board and Athletic Association responded to Joseph’s allegations

by producing evidence that Joseph’s termination was instead based

on the turmoil surrounding the women’s basketball team and the

findings in the investigation report. Because the pretext question is

decisive, we assume that Joseph established a prima-facie case of

retaliation.

To establish that an employer’s reason for taking an adverse

action is pretextual, a plaintiff must prove “that the reason was

false.” Gogel, 967 F.3d at 1136 (citation and internal quotation marks

omitted). “At least where the proffered reason is one that might

motivate a reasonable employer, an employee must meet that rea-

son head on and rebut it.” Patterson, 38 F.4th at 1352 (citation and

internal quotation marks omitted). “A plaintiff cannot rebut a rea-

son by simply quarreling with the wisdom of that reason or substi-

tuting her business judgment for that of the employer.” Id. (citation

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23-11037 Opinion of the Court 29

and internal quotation marks omitted). “The plaintiff instead must

demonstrate such weaknesses, implausibilities, inconsistencies, in-

coherencies, or contradictions in the employer’s proffered legiti-

mate reasons for its action that a reasonable factfinder could find

them unworthy of credence.” Id. (citation and internal quotation

marks omitted). At summary judgment, “it is the plaintiff’s burden

to provide evidence from which one could reasonably conclude

that but for her alleged protected act, her employer would not have

fired her.” Gogel, 967 F.3d at 1136.

Joseph makes three arguments for pretext. None of them

persuades us. We address each in turn.

First, Joseph contends that the athletic director had already

decided to terminate her before launching the investigation. She

argues that the athletic director’s comments to his deputy that he

had been “working on . . . a path forward,” the president’s chief of

staff’s impression that the athletic director intended to use the par-

ents’ letters to “negotiate” Joseph’s resignation, and the speed with

which the athletic director responded to the first parent letter—in

contrast to a previous, self-reported allegation against the men’s

basketball coach—all point to a predetermined outcome of the in-

vestigation. But the athletic director clearly had a legitimate reason

for initiating the investigation based on the parents’ letters, and Jo-

seph’s suggestions to the contrary establish only that the letters ar-

rived during administrative discussions about Joseph and the

women’s basketball team. See Berry v. Crestwood Healthcare LP, 84

F.4th 1300, 1309 (11th Cir. 2023) (noting that an “intervening

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30 Opinion of the Court 23-11037

discovery of misconduct [can] undercut[]” an inference of retalia-

tion). Moreover, the general counsel recommended conducting an

independent investigation, and the president approved that recom-

mendation. So, even if Joseph’s evidence raised a genuine question

about the athletic director’s motives, independent decisionmakers

agreed that the investigation was necessary.

Second, Joseph attacks the independence of the investiga-

tion and report. She contends that the athletic director “manipu-

lated the investigation” by selecting a “biased” official who recom-

mended witnesses that would criticize Joseph. But again none of

the evidence she points to supports her conclusion.

At most, the evidence suggests that the Athletic Department

supported the investigation and helped the investigator coordinate

witnesses and schedules. And Joseph offers no evidence that bias

infected either the investigation itself or the decision to fire her. See

Pennington, 261 F.3d at 1270 (“Where a decisionmaker conducts his

own evaluation and makes an independent decision, his decision is

free of the taint of a biased subordinate employee.”). Indeed, the

athletic director testified that he did not “oversee the investiga-

tion,” nor did he speak to the investigator before the investigation

began; instead, the general counsel’s office handled coordination of

the investigation. That coordination is insufficient to raise an infer-

ence of manipulation that would undermine the legitimacy of the

investigation report.

Finally, Joseph argues that the athletic director did not hon-

estly believe that the report’s conclusions warranted her

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23-11037 Opinion of the Court 31

termination. Joseph attacks the athletic director’s conclusion that

the report conveyed that “the entire team” had complained about

Joseph’s conduct or the team environment. And Joseph asserts that

the report’s failure to provide the specific context for “certain

words or actions” that interviewees had complained about raised

an inference that the athletic director did not actually conclude that

Joseph “engaged in inappropriate coaching practices.” But the re-

port provides multiple examples of inappropriate behavior, verbal

abuse, and a toxic environment.

The report conveyed that “every [current] member of the

team reported serious concerns regarding player mistreatment.”

That the report did not discuss every possible fact does not under-

mine its conclusion. Cf. Berry, 84 F.4th at 1309. The athletic director

certainly could have believed that conclusion warranted Joseph’s

termination, and he testified that he did believe it. See Alvarez v.

Royal Atl. Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (“The in-

quiry into pretext centers on the employer’s beliefs.”). Joseph

points to no evidence suggesting that the athletic director—or any

of the other decisionmakers involved—disbelieved the report’s

findings, and her arguments that the athletic director should not

have believed the report do little more than “quarrel[] with the wis-

dom” of his belief. See Patterson, 38 F.4th at 1352 (citation and inter-

nal quotation marks omitted).

Patterson is instructive. There, the plaintiff offered evidence

that created a material factual dispute that her employer’s reliance

on a deadline was a false reason for firing her and that her employer

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32 Opinion of the Court 23-11037

did not follow its normal practices in investigating her absences

from work. Id. at 1353. And, immediately before firing her, the

plaintiff’s employer told her that her description of her protected

activity “made things clear” to him about her loyalty to the com-

pany. Id. at 1354 (internal quotation marks omitted). Those facts

raised reasonable inferences of pretext.

In contrast, Joseph has produced no evidence that the behav-

ior in the report was not actually against Georgia Tech policy or

that the investigation and report did not involve many serious com-

plaints. Even her brief discussion of a previous investigation of a

self-reported accusation against the men’s basketball coach proves

nothing about the typical response to the kinds of complaints

lodged against Joseph. Her strained inferences of a predetermined

outcome, manipulation, and disbelief cannot rebut the Board’s le-

gitimate reasons for terminating her. We affirm the summary judg-

ment against Joseph’s claims of retaliation.

V. CONCLUSION

We AFFIRM the judgment against Joseph’s complaint.

We REVERSE the denial of the motion to dismiss

Crowther’s claims and REMAND with instructions to dismiss. SO

ORDERED.