Smith v. The Florida Gulf Coast University Board of Trustees

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

KELLI SMITH, an individual,

Plaintiff,

v. Case No: 2:23-cv-840-JES-KCD

THE FLORIDA GULF COAST

UNIVERSITY BOARD OF

TRUSTEES, a political

subdivision of the State of

Florida,

Defendant.

OPINION AND ORDER

This matter comes before the Court on a Motion for Summary

Judgment (Doc. #36) filed by Defendant the Florida Gulf Coast

University Board of Trustees (Defendant or FGCU Board) on March

28, 2025. Plaintiff Kelli Smith (Plaintiff or Smith) filed a

Response (Doc. #45) on May 2, 2025. Defendant filed a Reply to

Plaintiff’s Response (Doc. #48) on May 30, 2025.

In May 2021, Smith was hired by Florida Gulf Coast University

(FGCU) as its chief of police pursuant to an at-will contract.

FGCU asserts that over the course of less than a year it determined

that Smith was not a good fit for the position due to her acerbic

management and communication style. FGCU terminated Smith’s

employment without cause, providing her with all the contractual

benefits required for such a termination.

Smith sued the FGCU Board asserting several claims of

employment discrimination and retaliation pursuant to Title VII of

the Civil Rights Act of 1964 (Title VII), the Florida Civil Rights

Act of 1992 (FCRA), and/or Title IX of the Education Amendments of

1972 (Title IX). The FGCU Board now seeks summary judgment on all

counts because “Plaintiff cannot marshal sufficient evidence to

create any genuine dispute of material fact...” as to any count.

(Doc. #36 at 1.) Smith asserts there are sufficient facts to allow

three of the five counts to be decided by a jury. For the reasons

set forth below, the motion for summary judgment is granted in

part and denied in part.

I.

Summary judgment is appropriate only when a movant shows that

“there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A genuine issue of material fact exists when the evidence

is such that a reasonable trier of fact could return a verdict for

the non-moving party. McCreight v. AuburnBank, 117 F.4th 1322,

1329 (11th Cir. 2024) (citation omitted). A fact is “material” if

it may affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A

court must decide ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’”

Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th

Cir. 2004) (quoting Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, a court views all

evidence and draws all reasonable inferences in favor of the non-

moving party. Scott v. Harris, 550 U.S. 372, 378 (2007); Tana v.

Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). Even if facts are

undisputed, a court should deny summary judgment if reasonable

minds might differ on inferences arising from those facts. St.

Charles Foods, Inc. v. America’s Favorite Chicken Co., 198 F.3d

815, 819 (11th Cir. 1999). “If a reasonable fact finder evaluating

the evidence could draw more than one inference from the facts,

and if that inference introduces a genuine issue of material fact,

then the court should not grant summary judgment.” Allen v. Bd.

of Pub. Educ. Of Bibb County, 495 F.3d 1306, 1315 (11th Cir. 2007).

While it has not always been so, “the summary judgment rule

applies in job discrimination cases just as in other cases.”

Chapman v. AI Transp., 229 F.3d 1012, 1026 (11th Cir. 2000) (en

banc). An employee may prove discrimination or retaliation with

direct or circumstantial evidence. Desert Palace, Inc. v. Costa,

539 U.S. 90, 99 (2003); Jefferson v. Sewon Am., Inc., 891 F.3d

911, 921 (11th Cir. 2018). An employee opposing summary judgment

with circumstantial evidence must present enough to create a

triable issue of material fact. Smith v. Lockheed-Martin Corp.,

644 F.3d 1321, 1328 (11th Cir. 2011). A triable issue exists if

the evidence, viewed in the light most favorable to the employee,

would allow a reasonable jury to infer that the employer has

engaged in intentional discrimination or retaliation. Lewis v.

City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019).

II.

Unless otherwise stated, the following material facts are

derived from the Statement of Material Facts (Doc. #36, pp. 3-16),

the Response to Statement of Material Facts (Doc. #45, pp. 3-7),

and specified depositions. Additional facts will be discussed

later as necessary for specific issues.

In January or February 2021, Smith applied for the position

of chief of police at FGCU to replace its retiring chief. (Doc.

#37, pp. 60, 63-64.) FGCU formed a search committee which

ultimately interviewed six applicants, three males and three

females. The search committee recommended two finalists, Smith

and another female, who were interviewed by FGCU President Michael

Martin (President Martin), the final decisionmaker. President

Martin offered Smith the position as the FGCU Chief of Police.

Smith asked for a $135,000 salary, which was greater than the

$125,000 top end of the advertised salary range and was the

equivalent of the retiring chief’s salary. (Doc. #37 at 79.) Smith

had only three years’ experience as a police chief. FCGU hired

Smith at the $125,000. (Id. at 79-80.)

On May 3, 2021, Smith started her employment as the police

chief at FGCU pursuant to an at-will contract under which she

served at the pleasure of the FGCU President. Smith’s first year

of employment was a probationary period during which she could be

separated without cause and would receive one-month of severance

pay.

Smith understood that the chief of police position required

fostering an environment of collaboration, outreach, and

professional services for the community, and building

relationships throughout the University. Smith also understood

that having a collaborative leadership style was important to her

role as police chief. Smith recognized she would be accountable

for failing to meet job requirements and knew she could be

terminated based on management and communication style.

Smith concedes that her management and communication style

was different than the lower-key style of the retiring chief of

police but nonetheless viewed herself as being collaborative and

a good partner. Smith was not aware if others viewed her as

difficult to work with and was not aware of a tense relationship

with other administrators or staff. (Doc. #37 at 211, 214.)

However, President Martin received complaints from a broad range

of persons – students, faculty, and police officers within the

department - about Smith’s management and communication style.

On March 9, 2022, President Martin met with five FGCU police

officers at his weekly open-door meetings protocol. Smith believes

it included Kittleson, Rispoli, Anderson, Jones, and Slapp. (Doc

#37 at 229.) The officers complained about Smith’s management and

communication style. After this meeting, Smith’s supervisor and

the supervisor’s supervisor met with Smith regarding the low morale

in the university’s police department. Smith asserts that she was

told during a meeting with human resources on a five-year plan

that there were complaints about low morale in the department but

was also told not to worry. Smith thought there was a concern and

that she was in trouble and could be terminated. (Id. at 164-167.)

Nonetheless, Smith did not make any changes to her management or

communication style.

In March 2022, Smith was given a $10,000 pay increase. The

increase, as Smith understood it, was for performance and for being

assigned parking services as an additional division to run. (Doc.

#37 at 80, 219.)

On March 28, 2022, another complaint about Smith was

submitted, this time to the university’s hotline. This complaint

asserted that Smith’s management style remained unchanged, and

that the police department’s environment was toxic. It was

reported that approximately forty percent of the department’s

officers were considering leaving or retiring.

The university’s female general counsel and its female Title

IX coordinator brought the March 28, 2022, complaint to President

Martin’s attention. Both recommended that President Martin, the

final decisionmaker, terminate Smith’s employment without cause

and without a formal investigation. President Martin agreed with

the recommendation and terminated Smith without cause. President

Martin explained the reasons for termination of Smith’s employment

as being in the best interests of FGCU:

It was largely style and personal

interactions, the sense that there was not a

respectful relationship meaning from the

interactions by the chief. And, as I say, it

sort of - it violates the collegiality of the

culture of the university. And I have worked

with chiefs at other places, and so I came to

understand how important that kind of

relationship is to the credibility and the

effectiveness of the police department. And so

when you fracture relationships with the other

major leaders across the campus, I just don’t

believe you can be as effective. And when you

can’t be optimally effective, you can no

longer fully serve the mission and the people

of the institution, and that’s where it came

down in the end.

(Doc. #36 at ¶ 31) (quoting Martin deposition). Because Smith’s

employment termination was without cause, she received severance

pay and remained eligible for rehire. (Doc. #37 at 26-27, 29-30,

135.)

III.

Smith filed a five-count Complaint (Doc. #1) against the FGCU

Board based on the termination of her employment. Count I alleges

disparate treatment based on gender in violation of Title VII;

Count II alleges disparate treatment based on gender in violation

of the Florida Civil Rights Act (FCRA); Count III alleges

retaliation for protected activity in violation of Title VII; Count

IV alleges retaliation for protected activity in violation of the

FCRA; and Count V alleges retaliation for protected activity in

violation of Title IX.

FGCU seeks summary judgment on all five counts for various

reasons. The Court discusses each claim.

A. FCRA Claims Barred by Eleventh Amendment

Counts II and IV allege that FGCU violated the FCRA when it

terminated Smith’s employment. The FGCU Board argues that the

FCRA claims are barred by the sovereign immunity provided by the

Eleventh Amendment to the United States Constitution. (Doc. #36,

p. 17.) Plaintiff agrees that the Eleventh Amendment bars the

FCRA claims and that dismissal of Counts II and IV is appropriate.

(Doc. #45, p. 7 n.2.) The Court agrees with the parties.

The Eleventh Circuit has found that Florida colleges and

universities act as arms of the State. Univ. of S. Fla. Bd. of

Trs. v. CoMentis, Inc., 861 F.3d 1234, 1235-37 (11th Cir. 2017);

Williams v. Dist. Bd. of Trs. of Edison Cmty. Coll., Fla., 421

F.3d 1190, 1194-95 (11th Cir. 2005); Crisman v. Fla. Atl. Univ.

Bd. of Trs., 572 F. App'x 946, 949 (11th Cir. 2014). The Board of

Trustees of FGCU is an arm of the State of Florida entitled to

Eleventh Amendment immunity. The Middle District of Florida has

frequently held that the FGCU Board of Trustees is an arm of the

state. See Doe v. Florida Gulf Coast Univ. Bd. of Trustees, No.

2:23-CV-245-SPC-KCD, 2023 WL 5834865, at *2 (M.D. Fla. Sept. 8,

2023); Wells v. Bd. of Trustees of Florida Gulf Coast Univ., No.

2:19-CV-859-JLB-NPM, 2021 WL 883333, at *2 (M.D. Fla. Feb. 8,

2021), report and recommendation adopted, No. 2:19-CV-859-JLB-NPM,

2021 WL 878879 (M.D. Fla. Mar. 9, 2021); Parfitt v. Florida Gulf

Coast Univ., No. 2:19-CV-727-FTM-38NPM, 2020 WL 1873585, at *2–3

(M.D. Fla. Apr. 15, 2020); Brown v. Fla. Gulf Coast Univ. Bd. of

Trs., No. 2:18-cv-157-FtM-29MRM, 2019 WL 2084522, at *3 (M.D. Fla.

May 13, 2019); Brown v. Florida Gulf Coast Univ. Bd. of Trustees,

No. 2:18-CV-157-FTM-29MRM, 2018 WL 5971661, at *3–4 (M.D. Fla.

Nov. 14, 2018). Accordingly, the FGCU Board is entitled to

Eleventh Amendment sovereign immunity as to Smith's FCRA claims in

Counts II and IV. Summary judgment in favor of the FGCU Board is

granted, and these two FCRA counts are dismissed without prejudice.

B. Title VII Sex Discrimination Claim

Count I of the Complaint sets forth a claim of sex (gender)

discrimination in violation of Title VII. Under Title VII, it is

unlawful for an employer “to discharge any individual, or otherwise

to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1). Count I of the

Complaint asserts that FGCU discriminated against Smith based on

gender when it terminated her employment as chief of police. (Doc.

#1, ¶¶ 53-62.)

FGCU seeks summary judgment on Count I. (Doc. #36, pp. 17-

21.)1 FGCU argues that Smith has not presented any direct evidence

of discrimination and therefore must satisfy the burden-shifting

analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792, (1973). FGCU continues that Smith has not established a prima

facie case of discrimination; that even if Smith has done so, FGCU

has articulated a legitimate business reason for the termination,

i.e., President Martin’s belief that Smith had an ineffective

management and communication style; and that Smith was therefore

required to establish that this reason was a pretext for

discrimination, which she has not done. Additionally, FGCU argues

Smith has not adduced sufficient evidence to infer sex

discrimination.

(1) Title VII Discrimination Principles

Title VII claims of employment discrimination are typically

analyzed according to the evidentiary framework set out in

McDonnell Douglas, which shifts the burden of production between

the parties to determine the true reason for an adverse employment

action. This framework is not, however, a set of elements that

the employee must prove to survive summary judgment or prevail at

1 While the three sections of the FGCU Board’s Motion are captioned

that Smith “Cannot State” the specific claim being discussed (Doc.

#36, pp. 17, 21, 24), the arguments do not address the sufficiency

of the pleading but the sufficiency of the evidence.

trial. Tynes v. Fla. Dep't of Juv. Just., 88 F.4th 939, 941 (11th

Cir. 2023).

The McDonnell Douglas framework first requires plaintiff to

show a prima facie case of discrimination, which requires: (1)

membership in a protected class; (2) adverse employment action;

(3) qualification for the job; and (4) “that [the] employer treated

‘similarly situated’ employees outside [the plaintiff's] class

more favorably.” Lewis v. City of Union City, 918 F.3d 1213, 1220-

21 (11th Cir. 2019) (en banc). If plaintiff meets that burden, the

burden then shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its actions. Id. at 1221. If the

employer carries that burden, then the burden shifts back to the

plaintiff to “demonstrate that the defendant's proffered reason

was merely a pretext for unlawful discrimination.” Id.

In evaluating pretext, the Court considers all the evidence

and determines whether plaintiff has created sufficient doubt to

allow a reasonable jury to determine that defendant's legitimate

reason was not “what actually motivated its conduct.” Silvera v.

Orange Cnty. Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001). “To

show pretext, the employee must confront the employer's seemingly

legitimate reason ... head on and rebut it.” Kidd v. Mando Am.

Corp., 731 F.3d 1196, 1206 (11th Cir. 2013) (citation omitted). “A

reason is not pretext for discrimination ‘unless it is shown both

that the reason was false, and that discrimination was the real

reason.” Brooks v. Cnty. Comm'n of Jefferson Cnty., Ala., 446

F.3d 1160, 1163 (11th Cir. 2006) (quoting St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 515 (1993) (emphasis in original)). It is

important to keep in mind that an employer may make an employment

decision “for a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as long as its action is

not for a discriminatory reason.” Phillips v. Legacy Cabinets, 87

F.4th 1313, 1325 (11th Cir. 2023) (internal quotation marks and

citation omitted).

Complying with McDonnell Douglas, however, “is not, and never

was intended to be, the sine qua non for a plaintiff to survive a

summary judgment motion in an employment discrimination case.”

Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.

2011). Plaintiff may defeat a summary judgment motion by

presenting a “convincing mosaic of circumstantial evidence that

would allow a jury to infer intentional discrimination by the

decisionmaker.” Id. (quotation marks and citation omitted). “[T]he

McDonnell Douglas framework and the convincing mosaic approach are

two paths to the same destination—the ordinary summary judgment

standard.” McCreight v. AuburnBank, 117 F.4th 1322, 1335 (11th

Cir. 2024) (citing Tynes, 88 F.4th at 943-47). The convincing

mosaic approach is simply a metaphor for the summary judgment

standard and is “a helpful reminder that McDonnell Douglas is not

the only game in town” for employees who lack comparator evidence

but can provide other circumstantial evidence of discriminatory

animus. Id. (citations omitted). Plaintiff must, however, present

enough evidence for a reasonable jury to infer intentional

discrimination.

A plaintiff may prove a Title VII gender discrimination claim

under either a single-motive standard or a mixed-motive standard.

The single-motive standard requires plaintiff to prove that bias

against a protected class was the true reason for the adverse

employment action, while the mixed-motive standard requires

plaintiff to prove that bias against a protected class was a

motivating factor for an adverse employment action even though

other factors also motivated the action. Akridge v. Alfa Ins.

Companies, 93 F.4th 1181, 1193 n.6 (11th Cir. 2024) (citing Quigg

v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016));

Breeding v. Integrated Behav. Health Inc., No. 22-10374, 2023 WL

3735341, at *2 (11th Cir. May 31, 2023); 42 U.S.C. § 2000e-2(m).

“[S]ingle-motive claims—which are also known as “pretext” claims—

require a showing that bias was the true reason for the adverse

action.” Quigg, 814 F.3d at 1235 (citation omitted). On the other

hand, “[a]n employee can succeed on a mixed-motive claim by showing

that illegal bias, such as bias based on sex or gender, ‘was a

motivating factor for’ an adverse employment action, ‘even though

other factors also motivated” the action.’ Id. (citations

omitted).

(2) Application of Title VII Discrimination Principles

Smith satisfies some, but not all, of the prima facie elements

for a Title VII discrimination claim. It is undisputed that Smith,

as a female, is a member of a protected class. There was clearly

an adverse employment action – Smith’s employment as police chief

was terminated. It is undisputed that Smith was qualified for the

job – FGCU has never challenged her qualifications nor asserted

that she was not qualified to be police chief. It is also

sufficiently established that President Martin had terminated male

administrators for the same reasons Smith was terminated. Smith

therefore can satisfy the first three elements of a prima facie

case, but not the fourth element.

Whether or not Smith had established a prima facie case, FGCU

articulated a legitimate reason for Smith’s termination of

employment. Deciding that a new employee is not a good fit and is

not working out at the position is a legitimate, non-gender-based

reason to terminate employment. Under the McDonnell Douglas

framework, this shifts the burden to Smith to show the reason for

termination was a pretext for gender discrimination.

At this point, the McDonnell Douglas framework and the

convincing mosaic standard merge with the usual summary judgment

standard. “This final question of pretext ‘merges with the

plaintiff’s ultimate burden of persuading the factfinder that she

has been the victim of intentional discrimination.’ [] In other

words, the pretext prong of McDonnell Douglas is just the ordinary

summary judgment standard.” McCreight, 117 F.4th at 1335

(citations omitted). Smith may defeat the summary judgment motion

if she has established sufficient evidence for a reasonable jury

to infer intentional discrimination. “A plaintiff proving her case

through the convincing mosaic standard may point to any relevant

and admissible evidence.” Tynes, 88 F.4th at 946 n.2.

Smith cites a litany of facts which she argues both establish

pretext and create a basis to reasonably infer gender

discrimination. For example, Smith points to her lack of any prior

disciplinary record, her receipt of a $10,000 performance-based

raise just 23-days before termination, her exceptional performance

appraisal by a university vice president, who stated Smith was

“100% the right person for the job” just days before termination,

and Dr. Thomas’s warning against “rash” decisions. Additionally,

Smith argues that there are multiple instances where she was

treated less favorably than her male counterparts, thus allowing

an inference of intentional discrimination: (1) she was hired at

a lower salary than her male predecessor; (2) male administrators

received progressive discipline and coaching opportunities, while

she did not; (3) five male officers bypassed the all-female police

department chain of command to complain directly to President

Martin; (4) she experienced targeted harassment after initiating

an internal investigation of two male officers; (5) after her

termination, four of the five male officers who complained received

favorable treatment; (6) she was replaced by a male with no prior

experience as a police chief; (7) a male administrator remained

employed despite numerous complaints, while she was terminated

after receiving a raise and getting positive performance reviews;

and (8) her supervisor stated that the termination was highly

unusual. (Doc. #45, pp. 10-12.)

The Court’s function at this stage of the proceedings does

not include weighing whether the evidence is sufficient to prove

plaintiff’s case. The Court must simply decide whether Smith has

pointed to enough relevant and admissible evidence which, when

viewed in her favor, allows a reasonable jury to infer intentional

discrimination. Tynes, 88 F.4th at 946 n.2. The Court finds that

collectively this evidence is sufficient to survive a summary

judgment motion as to the Title VII discrimination claim. The

motion is therefore denied as to Count I.

C. Title VII Retaliation Claim

Count III of the Complaint (Doc. #1, ¶¶ 73-85) sets forth a

claim of retaliation in violation of Title VII. In relevant part,

Title VII makes it unlawful for an employer to retaliate against

an employee “because [she] has opposed any ... unlawful employment

practice.” 42 U.S.C. § 2000e-3(a). Smith asserts that her

employment as police chief was terminated in retaliation for her

complaints to the FGCU administration about discrimination based

on gender.

The FGCU Board seeks summary judgment on this claim. (Doc.

#36, pp. 21-24.) FGCU argues that Smith did not show she engaged

in any protected activity; did not establish causation between her

identified activities and her termination of employment; did not

establish that FGCU’s reasons for termination were pretextual; and

did not show any other evidence from which retaliation may properly

be inferred. Smith sees it otherwise on all points.

(1) Title VII Retaliation Principles

A Title VII retaliation claim based on circumstantial

evidence is analyzed under the same McDonnell Douglas burden-

shifting framework and convincing mosaic approach discussed

earlier. Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d

1280, 1289 (11th Cir. 2021); Berry v. Crestwood Healthcare LP, 84

F.4th 1300, 1313 (11th Cir. 2023). A prima facie case of

retaliation under the McDonnell Douglas framework requires showing

that: (1) plaintiff engaged in statutorily protected conduct --

that is, conduct protected by Title VII; (2) she suffered an

adverse action; and (3) ‘there is some causal relationship between

the two events.’” Tolar, 997 F.3d at 1289 (citing Johnson v. Miami-

Dade Cnty., 948 F.3d 1318, 1325 (11th Cir. 2020)). “If the

plaintiff can establish that, the burden shifts to the employer to

articulate a legitimate, non-discriminatory reason or reasons for

the retaliation. [] If the employer does, the plaintiff must show

that each reason is merely a pretext and that the real reason was

retaliation.” Patterson v. Georgia Pac., LLC, 38 F.4th 1336, 1345

(11th Cir. 2022) (internal citations omitted).

The first requirement is that plaintiff establish that she

engaged in conduct protected by Title VII. To establish that she

engaged in statutorily protected activity, plaintiff “must show

that [she] had a good faith, reasonable belief that the employer

was engaged in unlawful employment practices.” Weeks v. Harden

Mfg. Corp., 291 F.3d 1307, 1311–12 (11th Cir. 2002) (citation and

internal quotation marks omitted). Title VII does not, however,

protect against retaliation resulting from complaints about non-

employment related practices. Logan v. City of Chicago, 4 F.4th

529, 539 (7th Cir. 2021) (“Title VII is not a general bad acts

statute rather, the conduct it prohibits is specially set forth.”

(citation and internal quotation marks omitted)). See Shed v. Univ.

of S. Florida Bd. of Trustees, No. 23-13746, 2025 WL 1540573, at

*4 (11th Cir. May 30, 2025) (Title VII is limited to protecting

employees from the unlawful actions of employers).

The second requirement is that plaintiff has suffered an

adverse action. Termination of employment is clearly an adverse

action under the retaliation provision of Title VII.

Finally, plaintiff must establish there is a sufficient

causal relationship between the protected activity and the adverse

action. Plaintiff must show that the decisionmaker actually knew

about the employee's protected conduct, Martin v. Fin. Asset Mgmt.

Sys., Inc., 959 F.3d 1048, 1053 (11th Cir. 2020), although this

may be established by circumstantial evidence, Clover v. Total

Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999) (citing

Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)).

Plaintiff may demonstrate a causal relationship “‘by showing close

temporal proximity between the statutorily protected activity and

the adverse employment action.’” Martin, 959 F.3d at 1054 (quoting

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2020)). But without additional evidence, mere temporal proximity

must be very close to establish causation. See Jefferson v. Sewon

Am., Inc., 891 F.3d 911, 926 (11th Cir. 2018) (citing Thomas at

1364 (“A three to four month disparity between the statutorily

protected expression and the adverse employment action is not

enough.”); Johnson, 948 F.3d at 1328 (a two-week disparity can be

evidence but the proximity is “‘probably insufficient to establish

pretext by itself.’”) (quoting Hurlbert v. St. Mary’s Health Care

Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006))).

Unlike a Title VII discrimination claim, a mixed-motive

theory does not apply to Title VII retaliation claims. Yelling v.

St. Vincent's Health Sys., 82 F.4th 1329, 1338 (11th Cir. 2023)

(citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360

(2013)). Rather, plaintiff must show that her “‘protected activity

was a but-for cause’” of the termination. Id. (quoting Nassar at

362).

(2) Application of Title VII Retaliation Principles

It is undisputed that Smith suffered an adverse employment

action – she was terminated from her position as police chief.

The parties disagree, however, as to whether the other two elements

for a prima facie case are sufficiently alleged.

(a) Protected Activity

In the Complaint, Smith alleges that she complained about

“gender discrimination and retaliation,” and defendant “clearly

observed her growing discomfort concerning the same.” (Doc. #1 at

¶ 77.) Plaintiff’s position in her Response to Defendant’s First

Set of Interrogatories was that her countless “demands for Clery

Act compliance and complaints of gender discrimination caused the

[defendant] to terminate [her] employment and was fueled by an

institutional history of gender discrimination in an environment

dominated by white males.” (Doc. #37-8, Exh. 77 at 104.)

FGCU argues that Smith did not show she engaged in protected

activity because her concerns about Clery Act compliance were not

protected under Title VII and, in any event, her complaints were

too vague and general to establish protected activity. In her

Response (Doc. #45, pp. 14-20) to the summary judgment motion,

Smith argues that she “consistently advocated for female safety

and institutional compliance throughout her tenure at the

university.” (Id. at 14.) Smith identifies specific events which

she asserts constituted protected activity under Title VII. (Doc.

#45, pp. 14-16.) The Court discusses each in turn:

(1) When Smith began her employment as FGCU chief of police,

she had one-on-one conversations with all university

police department staff. During her conversation with

communications manager Dianna Sandora (Sandora), Sandora

reported that male officers routinely disrespected

female dispatchers and staff. Smith advised Sandora of

the ability to address the matter under Title IX and

other resources. (Doc. #37 at 122.) Smith reported

this to her supervisor Sara Strensrud (Strensrud), but

there was no other complaint or follow up. (Id. at 122-

123, 124.) Reporting Sandora’s information to Strensrud

was clearly protected activity under Title VII.

(2) Smith identified a pattern of sexual assaults targeting

female students at fraternity events between August and

October 2021. Smith reported these incidents through

“proper channels,” Doc. #45, pp. 14-15, expressing

concern that FGCU’s inadequate response created ongoing

safety risks for students. (Doc. #45-1 at ¶ 3.) FGCU

asserts that the treatment of students is not an

employment practice and therefore does not constitute

protected activity under Title VII. See Shed v. Univ. of

S. Florida Bd. of Trustees, No. 23-13746, 2025 WL

1540573, at *4 (11th Cir. May 30, 2025) (“See Edwards v.

Ambient Healthcare of Ga., Inc., 674 F. App'x 926, 930

(11th Cir. 2017) (per curiam) (‘The driver's alleged

actions toward non-employee patients of Ambient and

their caregivers (while reprehensible) is not an

employment practice made unlawful by Title VII.’)

(citation and internal quotation marks omitted); Jackson

v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1006 n.16

(11th Cir. 1997) (noting that employees’ retaliation

claim based on opposition to unlawful discrimination

against motel customers ‘could not proceed under the

familiar Title VII retaliation statute’ because the

plaintiffs did not allege that they were discriminated

against for ‘opposing an unlawful employment practice.’)

(emphasis removed)”). Smith was not engaged in Title

VII protected activity by expressing a general concern

about female students.

(3) In a November 19, 2021, meeting with university

leadership, Smith “connected” Clery Act non-compliance

to Title IX violations and sexual harassment and assault

prevention. (Doc. #45-1 at ¶ 5.) Smith expressed

“concerns” during the meeting about non-compliance and

how FGCU was not doing enough. (Id.) Smith was not

engaged in Title VII protected activity when she did so.

(4) In November 2021, after Captain Rispoli was assigned to

conduct an internal investigation of two male officers

(Palmer and Winning) and the officers were notified they

were under investigation, she began experiencing

harassment during the shift rotation of the same two

officers. (Doc. #45-1 at ¶ 8.) Specifically, Smith

found feces and urine in the women's restroom, while the

men's restroom was always found clean. Smith reported

this to Stensrud and purchased cleaning supplies to

address the issue. (Id.) Reporting the condition of her

restroom was at least plausibly a protected activity

under Title VII.

(5) Smith received information from Dr. April Palmer that

her colleague Deontre Whitaker (from student conduct)

had identified patterns of discriminatory treatment by

FGCU officers. Whitaker stated that officers would

“elect to send attractive white female students through

university conduct (administrative rather than criminal)

for the same offenses that males would commit.” (Doc.

#45-1 at ¶ 9.) Whitaker reported about officers using

gender, attractiveness, and race for disparate

treatment. Whitaker refused to provide any information

when contacted and Dr. Palmer resigned. (Doc. #37 at

128-129.) As discussed earlier, the officers’

interaction with students is not an employment practice

within the meaning of Title VII, so Smith was not

engaging in protected activity when she reported it to

Stensrud.

(6) In early December 2021, Smith expressed concerns to

Stensrud about implicit bias at the highest ranks of

FGCU police department after Captain Rispoli made an

insensitive comment about a Dominican male officer

“looking like a landscaper” and the captain was

disciplined. Smith also connected her implicit bias

concern to the women's restroom incidents. (Doc. #45-1

at ¶ 8.) Reporting such concerns was a protected

activity under Title VII.

(7) On January 21, 2022, Smith recommended bringing in an

external Clery Compliance Subject Matter Expert to

address systematic deficiencies at FGCU. On March 22,

2022, Smith presented her Clery Act compliance concern

at a formal meeting of FGCU administrators, asserting

there was a disparate impact based on gender. (Doc.

#45-1 at ¶ 6.) As discussed above, discussing Clery Act

compliance was not a protected activity under Title VII.

(8) In March 2022, five male officers bypassed Smith and

Stensrud to complain directly to President Martin during

one of his open-door time periods. Smith was notified of

the meeting and advised that it was part of the “all

boys club”. Stensrud offered to be a resource to assist

with leadership coaching. (Doc. #37 at 164; Doc. #45-1

at ¶ 7.) Smith does not state that she reported the

activity, but rather just that she found out about the

meeting. Therefore, this cannot be a protected

activity.

(b) Causation

FGCU also argues that Smith failed to establish that her

activities, even if protected, were the “but-for-cause” of her

employment termination. FGCU argues that it had a legitimate,

non-pretextual reason for the termination, and the retaliation

claim lacks temporal proximity because the termination of

employment on March 29, 2022, occurred more than three months after

the last alleged protected activity in December 2021, as noted

above. There is no evidence that plaintiff’s gender was the but-

for cause for the termination. Smith herself states that she never

connected any of the events reported to her sex until after her

termination.

There is no temporal proximity to the report by the dispatcher

Sandora, the comments by Rispoli, or the incident in the woman’s

bathroom to her eventual termination by President Martin. Summary

judgment will be granted as to Count III for retaliation under

Title VII.

D. Title IX Retaliation Claim

Count V of the Complaint (Doc. #1, ¶¶ 99-110) sets forth a

claim of retaliation under Title IX. Smith alleges that the

termination of her employment was retaliation for her complaints

about FGCU’s compliance with the Clery Act.

The FGCU Board seeks summary judgment as to the Title IX

claim. FGCU argues that a Title IX retaliation claim must be

linked to a complaint of sex discrimination against a student,

which Smith failed to do. Rather, FGCU argues, Smith complained

about FGCU’s compliance with the Clery Act, which is not a

complaint of sex discrimination and is precluded from

consideration as such by statute. 20 U.S.C. § 1092(f)(14)(A).

Additionally, FGCU argues there is no proof of retaliation since

another employee raised the issue of Clery Act compliance and her

employment was not terminated. (Doc. #36, pp. 24-25.) Smith

argues that she consistently tied her Clery Act compliance concerns

to gender-based discrimination and violence against female

students and that “[h]er advocacy for proper reporting and response

to sexual assaults falls squarely within Title IX's scope of

protected activity.” (Doc. #45 at 15 n.5.) Smith responds that

there is sufficient evidence to survive a summary judgment motion.

(1) Title IX Retaliation Principles

Title IX 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). It is undisputed that FGCU

receives Federal financial assistance and therefore is subject to

the mandates of Title IX.

Title IX does not expressly permit private enforcement suits,

but the Supreme Court has found an implied private right of action

for some individuals to enforce Title IX, Cannon v. Univ. of Chi.,

441 U.S. 677, 717 (1979); Alexander v. Sandoval, 532 U.S. 275, 280

(2001), and to obtain monetary damages, Franklin v. Gwinnett County

Pub. Sch., 503 U.S. 60, 76, (1992). While Title IX “provides an

implied right of action for students —who would otherwise have no

statutory remedy to enforce their substantive right under Title

IX— the terms of the statute do not embrace a private right of

action for employees.” Joseph v. Bd. of Regents of the Univ. Sys.

of Ga., 121 F.4th 855, 868 (11th Cir. 2024). In other words, Title

IX does not “create an implied right of action for sex

discrimination in employment” or an end-run around the

requirements imposed by Title VII. Id. at 869. See also Joseph

v. Bd. of Regents of Univ. Sys. of Ga., 133 F.4th 1284, 1285 (11th

Cir. 2025) (“Title IX does not provide a duplicative implied

private right of action for sex discrimination against employees.”

(emphasis in original)). Nonetheless, Title IX does provide a

cause of action of retaliation for complaining about sex

discrimination against students. Id.; Jackson v. Birmingham Bd.

of Educ., 544 U.S. 167, 173 (2005).

Where Title IX provides a claim for retaliation, the claims

“are analyzed under the framework for claims under Title VII of

the Civil Rights Act of 1964 (“Title VII”).” Kocsis v. Fla. State

Univ. Bd. of Trs., 788 F. App'x 680, 686 (11th Cir. 2019). Examples

of protected activity for a Title IX retaliation claim include

where a principal sexually harasses a student and a teacher

complains to the school board that is indifferent, or the unequal

treatment of the girls’ basketball team. Yegidis v. Bd. of Trs.

of Fla. Gulf Coast Univ., No. 2:09-CV-353-FTM-36DNF, 2011 WL

13294516, at *6 (M.D. Fla. Jan. 21, 2011) (collecting cases).

“Where the retaliation occurs because the complainant speaks out

about sex discrimination, the “on the basis of sex” requirement is

satisfied.” Jackson, 544 U.S. at 179.

The Clery Act is “a federal statute that requires American

colleges and universities to disclose statistics and information

relating to crime in and around their campuses. Under the Act,

colleges and universities are required to publish and distribute

annual campus crime reports to students and employees, keep logs

of reported crimes and records of crime statistics, and provide

timely warnings to students and employees of recent crimes that

represent a threat to the safety of students or employees.” Emery

v. Talladega Coll., 688 F. App'x 727, 729 (11th Cir. 2017).

“[T]he Clery Act expressly does not contain a private cause

of action against educational institutions, and courts prohibit

private litigants from attempting to enforce the Clery Act through

other causes of action….” Doe v. Emory Univ., Inc., No. 1:21-CV-

4859-TWT, 2022 WL 17419555, at *7 n.3 (N.D. Ga. Dec. 5, 2022)

(collecting cases). See also Emery, 688 F. App'x at 730 n.1

(collecting cases).

(2) Application of Title IX Principles

It is undisputed that Smith suffered an adverse employment

action – she was terminated from her position as police chief.

Applying the same framework for claims under Title VII, the Court

considers whether there was protected activity and causation.

(a) Protected Activity

FGCU had a sexual harassment under Title IX policy in effect

during plaintiff’s employment. (Doc. #37 at 109.) Plaintiff never

used any of the methods available to report sexual harassment.

(Id. at 110.) Plaintiff did not report discrimination to President

Martin, or Vee Leonard, or about Clery compliance. (Id. at 173.)

Plaintiff was not aware if President Martin had knowledge about

plaintiff’s concern regarding Clery compliance. (Id. at 173-174.)

President Martin also confirmed no knowledge of any claims of

discrimination. (Doc. #39 at 2.) Complaints were made to Sara

Stensrud, and it is unknown what if anything was passed along to

President Martin.

When Smith started her employment, FGCU had already had an

audit in 2019 by the Department of Education regarding non-

compliance with the Clery Act, and Smith immediately started

expressing concern. (Doc. #45-1 at ¶ 3.) Between August and

October 2021, there were several off campus sexual assault reports

alleging members of fraternities were drugging female students and

sexually assaulting them. In most instances, Title IX staff were

aware but did not notify the Police Department or the Division of

Children and Family Services. (Id.; Doc. #37-8 at 94.)

(1) At a meeting held on November 19, 2021, Smtih expressed

concerns about FGCU’s Clery non-compliance with

leadership, but her concerns were dismissed. (Doc. #37

at 204.) The failure to report cases of sexual

harassment, including assault and domestic violence,

placed FGCU in on-compliance with federal mandates.

Internally, Smith still required staff to become more

compliance focused and to document. (Doc. #37-8 at 94-

95.) Again, expressing concern about compliance with

the Clery Act does not fall under the protected activity

of Title IX.

(2) On January 21, 2022, Stensrud sent an email to General

Counsel and Cabinet Member Vee Leonard explaining

Smith’s recommendation of an external Clery compliance

expert for training, and Smith continued to advocate for

training and compliance until her termination. Smith

included Clery compliance in her final formal agenda on

March 22, 2022, but FGCU refused stating “we all know

about the 2019 audit and it’s old news.” Smith expressed

concern that it was placing female students and

employees at risk in violation of Title IX. (Doc. #45-

1 at ¶ 6.) Leonard was angry that someone was contacted

outside of her authorization regarding Clery compliance

training and Smith was advised about overstepping bounds

without consent. (Doc. #37-8 at 102.) This arguably

was protected activity under Title IX.

(3) Smith participated in a March 28, 2022, Title IX training

that revealed a significant increase in

discrimination/harassment complaints at FGCU between

2016 and 2020. Smith was terminated the next day. (Doc.

#45-1 at ¶¶ 12-13). A slide show showed a 200% increase

in 4 years. (Doc. #37-8 at 105.) There was no protected

activity by Smith by her participation in the training.

(b) Causation

Smith knew she had to review and follow FGCU policies and

procedures, as well as enforce them. (Doc. #37 at 86-87.) Smith

requested that the University hire a Clery Act compliance

coordinator. The request was granted even though it had been

denied under the previous chief police. Diania Tsenekos was hired

as the Clery compliance coordinator, and Tsenekos also raised

concerns about Clery compliance. Tsenekos continued to be employed

by the University and no action was taken against her employment.

(Doc. #37 at 201-202.) A Clery Act policy was created by FGCU

after Smith’s termination, signed on June 14, 2022. (Id. at 116.)

President Martin signed a Clery Act policy on December 7, 2022.

(Doc. #37-3 at 59-64.)

Defendant’s argument that Smith's Clery Act complaints about

FGCU’s compliance were not Title IX protected activity ignores the

substantial overlap between Clery requirements and Title IX

obligations regarding sexual assault reporting. Smith consistently

tied her Clery compliance concerns to gender-based discrimination

and violence against female students. Her advocacy for proper

reporting and response to sexual assaults falls squarely within

Title IX's scope of protected activity.

While Smith can show some protected activity and some temporal

proximity, there remains no factual showing of causal connection

to the adverse action by President Martin. Summary judgment will

be granted as to Count V for retaliation under Title IX.

Accordingly, it is now

ORDERED:

1. Defendant’s Motion for Summary Judgment (Doc. #36) is

GRANTED IN PART AND DENIED IN PART.

2. The Motion for Summary Judgment is denied as to Count I of

the Complaint.

3. The Motion for Summary Judgment is granted as to Counts II

and IV of the Complaint, which are dismissed without

prejudice.

4. The Motion for Summary Judgment is granted as to Counts

III and V of the Complaint, and judgment will be entered

in favor of Defendant The Florida Gulf Coast University

Board of Trustees and against Plaintiff Kelli Smith, who

shall take nothing as to these counts.

5. The Clerk of the Court shall delay entry of judgment until

the conclusion of the case.

DONE AND ORDERED at Fort Myers, Florida, this 22nd day of

September 2025.

Q =e pf

: le hy » ZAK Look

adi EF. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Parties of record

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