Brown v. Florida Gulf Coast University Board of Trustees et al

Filing 73

OPINION AND ORDER granting 51 motion to dismiss without prejudice to filing a Second Amended Complaint within 14 days of this Opinion and Order; denying as moot 18 Motion for Preliminary Injunction. See Opinion and Order for details. Signed by Judge John E. Steele on 11/14/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
L YVONNE BROWN,
Plaintiff,
v.

Case No:

2:18-cv-157-FtM-29MRM

FLORIDA
GULF
COAST
UNIVERSITY
BOARD
OF
TRUSTEES,
KEN
KAVANAGH,
individually and in official
capacity,
KARL
SMESKO,
individually and in official
capacity, RODERICK ROLLE,
individually and in official
capacity, and KELLY BROCK,
individually and in official
capacity,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendants’
Motion to Dismiss Plaintiff's First Amended Complaint (Doc. #51)
filed

on

October

12,

2018.

Plaintiff

Opposition (Doc. #65) on November 1, 2018.
is

plaintiff’s

Motion

for

Preliminary

Expedited Discovery (Doc. #18).

filed

a

Response

in

Also before the Court

Injunction

Hearing

and

For the reasons set forth below,

the Court grants defendants’ Motion to Dismiss Plaintiff’s First
Amended

Complaint

and

denies

as

moot

plaintiff’s

Motion

Preliminary Injunction Hearing and Expedited Discovery.

for

I.
This

case

(Plaintiff)

arises

dismissal

out
from

of
the

Plaintiff
Florida

L.

Gulf

Yvonne
Coast

Brown’s

University

(FGCU) women’s basketball team. According to the Amended Complaint
(Doc. #43): In the fall of 2017, Plaintiff enrolled at FGCU and
was a member of the FGCU women’s basketball team.

(Id. ¶ 8.)

During the spring 2018 semester at FGCU, Plaintiff was a student
in a Biology II lab class taught by Professor Roderick Rolle
(Defendant Rolle). (Id.) As was customary in the class, Defendant
Rolle assigned Plaintiff a lab partner with whom she collaborated
on lab assignments. (Id. ¶¶ 17, 22.) Soon thereafter, Plaintiff’s
relationship with Defendant Rolle “took a dramatic turn for the
worse . . . .”

(Id. ¶ 9.)

On January 29, 2018, Plaintiff approached Defendant Rolle and
asked him if there was anything she and her lab partner could do
to make up for a low grade they received on a previous assignment.
(Id. ¶ 35.)

Defendant Rolle responded by informing Plaintiff that

it would “be impossible for her, as a woman, to pass his lab class
and play basketball [because] basketball and his . . . class ‘do
not coincide.’”
because

he

(Id.)

believed

Defendant Rolle further stated that,

Plaintiff

was

negatively

affecting

her

partner’s performance in class, he intended to partner Plaintiff
with a student who had never attended class.

(Id.)

Plaintiff

rejected that arrangement and “strongly rebuked Rolle for saying

2

she couldn't pass his class and play basketball and for implying
that [Plaintiff] was the reason for the low grade . . . as opposed
to [Plaintiff’s] lab partner . . . .”

(Id.)

Defendant Rolle then

told Plaintiff that he was not going to give Plaintiff credit for
assignments she completed if she was not “physically present in
his

class

for

assignment.”

his

instruction

given

on

that

particular

[]

(Id.)

On January 29, 2018, after her dispute with Defendant Rolle,
Plaintiff met with Dr. Clifford Renk, the Chair of the Biology
Department at FGCU, and “complained about the treatment she had
just received” in Defendant Rolle’s class.

(Id. ¶ 36.)

From

January 30, 2018 through February 1, 2018, Defendant Rolle changed
the grade of an assignment Plaintiff completed when she was not
present in class for Defendant Rolle’s instructions: Defendant
Rolle changed the grade on lab assignment #2 from 100% to 0%, and
then from 0% to “No Grade.” 1

(Id. ¶¶ 32, 44, 45.)

On February 5,

2018, Plaintiff asked Defendant Rolle how she could complete two
assignments (lab assignments #4 and #5) because “these assignments
became due while [Plaintiff] was in the midst of a road trip with
the FGCU women's basketball team. . . .”

(Id. ¶ 51.)

Rolle then “walked away without answering [Plaintiff].”

1

Defendant
(Id.)

Plaintiff additionally alleges that her grade on lab assignment
#3 was changed from 100% to 0%. However, it is unclear to the
Court whether Plaintiff alleges her grade on lab assignment #3 was
also then changed from 0% to “No Grade.” (Id. ¶ 79.)
3

On February 5, 2018, Plaintiff “was forced to submit her
grades to” Kelly Brock (Defendant Brock), the Assistant Athletic
Director at FGCU.

(Id. ¶ 52.)

On February 7, 2018, Karl Smesko

(Defendant Smesko), the head-coach of the FGCU women’s basketball
team,

informed

Plaintiff

that

she

“was

being

suspended

immediately” from the women’s basketball team because of her “‘poor
academic performance. . . .’”

(Id. ¶ 54.)

On February 7, 2018, Plaintiff emailed Defendant Rolle her
completed

submissions

for

lab

assignments

#4

and

#5,

which

Defendant Rolle previously “refused” to instruct Plaintiff on how
to complete them “under [the] FGCU Authorized Absence Policy” when
he

“walked

away

without

answering

[Plaintiff’s]”

question

on

February 5, 2018. (Id. ¶¶ 51, 55.) On February 11, 2018, Defendant
Rolle responded to Plaintiff’s email, stating that he would not
give Plaintiff any credit for the late assignments because she
could have completed them before her athletic event and did not
“‘have to wait until the last day, and at the last hour,’” to turn
them in.

(Id. ¶ 56.)

assignments #4 and #5.

Plaintiff received grades of 0% on lab
(Id.)

On February 14, 2018, Defendant Smesko informed Plaintiff
that she was being dismissed from the women’s basketball team
because her grades “had not improved since the suspension . . .
and ‘because he had received some additional emails about th[e]
situation with [Defendant] Rolle since February 7, 2018.’”

4

(Id.

¶ 58.)

On February 15, 2018, Defendant Brock informed Plaintiff

that she “would no longer have access to the Athletic Academic
Training

Center”

basketball team.

because

she

was

(Id. ¶ 60.)

dismissed

from

the

women’s

On February 16, 2018, Plaintiff

sent Defendant Smesko an “Apology Letter” and requested that
Defendant Smesko reinstate Plaintiff to the women’s basketball
team; Defendant Smesko denied Plaintiff’s request.
63.)

Plaintiff

then

requested

that

Ken

Kavanagh

(Id. ¶¶ 61,
(Defendant

Kavanagh), the FGCU Athletic Director, reinstate Plaintiff to the
women’s

basketball

request.

team;

Defendant

Kavanagh

also

denied

her

(Id. ¶ 62.)

On February 22, 2018, Defendant Kavanagh informed Plaintiff
“that

he

upheld

[Defendant]

Smesko's

decision

[Plaintiff] from the FGCU women's basketball team.”

to

dismiss

(Id. ¶ 68.)

Plaintiff then informed Defendant Kavanagh that he had “skipped a
step in the appeal process and made a final determination, as
athletic

to

appeal

[Defendant] Smesko’s decision to the Sport Coordinator.”

(Id. ¶

69.)

director,

before

allowing

[Plaintiff]

On February 27, 2018, Defendant Kavanagh informed Plaintiff

that he “was the Sport Coordinator for FGCU women's basketball and
that he, as Sport Coordinator, was also denying [Plaintiff’s]
appeal seeking reinstatement to the FGCU women's basketball team.”
(Id. ¶ 72.)

This lawsuit followed.

5

II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

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

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

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

than

accusation.”

an

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

liability

fall

6

short

of

being

facially

plausible.”

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

Cir. 2012) (citations omitted).

Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”

Iqbal, 556

U.S. at 679.
A pleading drafted by a party proceeding pro se, like the
Amended Complaint at issue here, is held to a less stringent
standard than one drafted by an attorney, and the Court will
construe the allegations contained therein liberally.
Fla.

Parole

Comm’n,

787

F.3d

1105,

1107

(11th

Jones v.

Cir.

2015).

Nevertheless, “a pro se pleading must suggest (even if inartfully)
that there is at least some factual support for a claim; it is not
enough just to invoke a legal theory devoid of any factual basis.”
Id.

Put simply, even a pro se complaint must set forth claims the

Court has the power to resolve and allege facts showing that each
cause of action is facially plausible.
III.
The Amended Complaint asserts seven claims against the FGCU
Board of Trustees (the FGCUBOT) and Defendants Kavanagh, Smesko,
Rolle, and Brock in their official and individual capacities for
violation of Plaintiff’s procedural due process rights under 42
U.S.C. § 1983 (Count I), violation of Plaintiff’s equal protection
rights

under

Section

1983

(Count

7

II),

hostile

educational

environment in violation of Title IX of the Education Amendments
of 1972, 20 U.S.C. § 1681, et seq. (Count III), retaliation in
violation of Title IX (Count IV), breach of contract (Count V),
specific performance (Count VI), and injunctive relief (Count
VII). 2
Defendants now move to dismiss all Counts in the Amended
Complaint.

Defendants argue the entire Amended Complaint should

be dismissed because (1) Plaintiff’s claims are barred by sovereign
immunity; and (2) the Amended Complaint otherwise fails to state
a legally sufficient cause of action. 3
analysis differs

depending

on

whether

The sovereign immunity
the

claim

at

issue

is

asserted against Defendants Kavanagh, Smesko, Rolle, and Brock in
their official or individual capacities.
the

Court

separately

addresses

the

Thus, where appropriate,
official

and

individual

capacity claims below.
A.

The Section 1983 Claims (Counts I and II)
Sovereign immunity “is the privilege of the sovereign not to

be sued without its consent.”

Va. Office for Prot. & Advocacy v.

2

Although the Amended Complaint does not number each claim against
Defendants, the Court treats each identifiable claim asserted
against Defendants as an individual Count and has numbered them
accordingly.
3

Defendants also argue that the claims against Defendants
Kavanagh, Smesko, Rolle, and Brock in their individual capacities
should be dismissed on the basis of qualified immunity. For the
reasons discussed infra, however, the Court need not reach that
issue.
8

Stewart, 563 U.S. 247, 253 (2011).

A component of this sovereign

immunity is set forth in the Eleventh Amendment to the United
States Constitution, which provides that:
The Judicial power of the United
construed to extend to any suit
commenced or prosecuted against one
by Citizens of another State, or by
of any Foreign State.
U.S. Const. amend. XI.

States shall not be
in law or equity,
of the United States
Citizens or Subjects

This Eleventh Amendment sovereign immunity

“bars federal courts from entertaining suits against states” and
arms of the state.

Abusaid v. Hillsborough Cty. Bd. of Cty.

Comm'rs, 405 F.3d 1298, 1302 (11th Cir. 2005).

However, “[t]he

Eleventh Amendment bar to suit is not absolute.” Port Auth. TransHudson Corp. v. Feeney, 495 U.S. 299, 304 (1990).

“States may

consent to suit in federal court . . . and, in certain cases,
Congress may abrogate the States' sovereign immunity.”

Id.

“[G]iven how tightly Florida's government controls its public
education

system,”

boards

of

trustees

of

universities are “arms of the State of Florida.”

Florida’s

state

Univ. of S. Fla.

Bd. of Trustees v. CoMentis, Inc., 861 F.3d 1234, 1237 (11th Cir.
2017) (internal quotation omitted); Crisman v. Fla. Atl. Univ. Bd.
of Trs., 572 F. App’x 946 (11th Cir. 2014) (per curiam).

As such,

absent waiver or abrogation by Congress, the FGCUBOT is entitled
to

Eleventh

Amendment

Section 1983 claims.

sovereign

immunity

against

Abusaid, 405 F.3d at 1302.

9

Plaintiff’s

1.

The Section 1983 Claims against the FGCUBOT

As to Plaintiff’s Section 1983 claims against the FGCUBOT,
“Congress has not abrogated states' immunity from § 1983 suits.”
Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282,
1301 (11th Cir. 2007) (citation omitted).

Further, “Florida has

not waived its immunity with regard to such suits.”

Wusiya v.

City of Miami Beach, 614 F. App'x 389, 393 (11th Cir. 2015).

Thus,

the FGCUBOT is entitled to Eleventh Amendment sovereign immunity
against Plaintiff’s Section 1983 claims.

Counts I and II are

therefore dismissed with prejudice as to the FGCUBOT.
2.

The Section 1983 Claims against Defendants Kavanagh,
Smesko, Rolle, and Brock in their Official Capacities

Where an arm of the state is entitled to Eleventh Amendment
sovereign immunity, that immunity also generally extends to claims
against its officials in their official capacities.
Abston, 841 F.3d 1207, 1233 (11th Cir. 2016).

Melton v.

State officials are

not entitled to such immunity, however, when a plaintiff seeks
“prospective injunctive or declaratory relief. . . .”

Fla. Ass'n

of Rehab. Facilities, Inc. v. State of Fla. Dep't of Health &
Rehab. Servs., 225 F.3d 1208, 1220 (11th Cir. 2000).
To determine whether this exception applies, the Court “need
only

conduct

a

straightforward

inquiry

into

whether

[the]

complaint alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective.”

10

Verizon Md., Inc.

v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) (citation
and quotation omitted).

“[R]equests for reinstatement constitute

prospective injunctive relief . . . and, thus, are not barred by
the Eleventh Amendment.”

Lane v. Cent. Ala. Cmty. Coll., 772 F.3d

1349, 1351 (11th Cir. 2014).
Here,

Plaintiff

alleges

that,

because

of

ongoing

constitutional violations, she is entitled to benefits wrongly
terminated (her membership on the FGCU women’s basketball team and
access to the Athletic Academic Center) and seeks to have those
benefits

reinstated.

Thus,

Plaintiff’s

Section

1983

claims

against Defendants Kavanagh, Smesko, Rolle, and Brock in their
official capacities are not barred by the Eleventh Amendment.
Lane, 772 F.3d at 1351.

The Court therefore addresses the merits

of Plaintiff’s procedural due process and equal protection claims
below.
a.

The Procedural Due Process Claim Against Defendants
Kavanagh,

Smesko,

Rolle,

and

Brock

in

their

Official Capacities (Count I)
Plaintiff alleges she was deprived of procedural due process
when she was (1) suspended and later dismissed from the FGCU
women’s basketball team and barred from accessing the Athletic
Academic Training Center without notice and a hearing; and (2)
deprived of an opportunity to appeal her suspension and dismissal
from the FGCU women’s basketball team pursuant to the FGCU Student-

11

Athlete Handbook.

Defendants argue Count I should be dismissed

because Plaintiff failed to allege she sought all available state
remedies before filing the instant procedural due process claim.
The Court agrees.
To state a Section 1983 claim for the denial of procedural
due process, a plaintiff must allege (1) a deprivation of a
constitutionally protected property or liberty interest; (2) state
action;

and

(3)

constitutionally

inadequate

process.

J.R.

v.

Hansen, 736 F.3d 959, 965 (11th Cir. 2013); Miccosukee Tribe of
Indians v. United States, 716 F.3d 535, 559 (11th Cir. 2013).
A claim for denial of procedural due process is actionable
under Section 1983 “only when the state refuses to provide a
process

sufficient

to

remedy

the

procedural

deprivation.”

McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc).
“It is the state's failure to provide adequate procedures to remedy
the

otherwise

procedurally

flawed

deprivation

of

a

protected

interest that gives rise to a federal procedural due process
claim.” Cotton v. Jackson, 216 F.3d 1328, 1331 (11th Cir. 2000)
(citations omitted).

Thus, “the mere failure to follow state

procedures does not necessarily rise to the level of a violation
of federal procedural due process rights.”

Maddox v. Stephens,

727 F.3d 1109, 1124 n. 15 (11th Cir. 2013).
Here, Plaintiff asserts that she was deprived of procedural
due process because she was (1) suspended and later dismissed from

12

the FGCU women’s basketball team and prohibited from accessing the
Athletic Academic Center without notice and a hearing; and (2)
deprived of an opportunity to appeal her suspension and dismissal
from the FGCU women’s basketball team pursuant to the FGCU StudentAthlete Handbook.

Plaintiff, however, has failed to allege that

she sought state court judicial review or that no adequate state
remedies were otherwise available.
In her Response in Opposition, Plaintiff argues that while
she may seek certiorari review of her dismissal from the FGCU
women’s basketball team in Florida state court, she is unable to
seek certiorari review of her suspension from the team and, thus,
there are no adequate state remedies available to her.

Plaintiff

contends such certiorari review is unavailable to her because
“[a]ccording to FGCU Athletics, [] Plaintiff has no right to appeal
any decision made by FGCU Athletics because [] Plaintiff has
nothing but a privilege to participate in FGCU Athletics and thus
. . . [t]here are no state court remedies for [] Plaintiff to
exhaust.”

(Doc. #65, p. 4.)

Plaintiff, however, cites to no legal

authority to support her contention that she may not seek state
court certiorari review of her suspension from the FGCU women’s
basketball team for the reasons asserted in this case.

Thus,

because

state

Plaintiff

has

not

plausibly

alleged

that

the

“refuse[d] to provide a process sufficient to remedy the procedural
deprivation,” Plaintiff has failed to state a procedural due

13

process claim under Section 1983.

McKinney, 20 F.3d at 1557.

Count I is therefore dismissed without prejudice as to Defendants
Kavanagh, Smesko, Rolle, and Brock in their official capacities.
b.

The

Equal

Kavanagh,

Protection
Smesko,

Claim

Rolle,

Against

and

Brock

Defendants
in

their

Official Capacities (Count II)
In Count II, Plaintiff alleges that Defendants violated her
equal protection rights.

Defendants argue Count II should be

dismissed because Plaintiff failed to allege that she was treated
differently from a comparator similarly situated to her. The Court
agrees.
Count II asserts a claim based upon the “class of one” theory
of equal protection.

A class of one claim is implicated “where

the plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no
rational

basis

for

the

difference

in

treatment.”

Vill.

of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam);
Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1201 (11th Cir.
2007).
In a class of one equal protection claim, a plaintiff must
allege the existence of a similarly situated individual who was
treated more favorably than the plaintiff herself. Griffin Indus.,
Inc.,

496

F.3d

at

1204–05.

This

requires

a

plaintiff

to

demonstrate that she was treated differently than a comparator who

14

is “prima facie identical in all relevant respects.” Id. at 1204
(citation and quotation omitted).
Here, Plaintiff alleges that Defendants violated her equal
protection rights by suspending and later dismissing Plaintiff
from the FGCU women’s basketball team and terminating her access
to the FGCU Athletic Academic Center without notice and a hearing.
Plaintiff,

however,

has

not

identified

a

comparator

who

is

similarly situated to her in all relevant respects, nor has she
alleged how she was treated differently from that comparator.
Thus, Plaintiff has failed to plausibly state an equal protection
claim under Section 1983 and Count II is therefore dismissed
without prejudice as to Defendants Kavanagh, Smesko, Rolle, and
Brock in their official capacities.
3.

The Section 1983 Claims against Defendants Kavanagh,
Smesko, Rolle, and Brock in their Individual Capacities

As to Plaintiff’s Section 1983 claims against Defendants
Kavanagh, Smesko, Rolle, and Brock in their individual capacities,
the individual Defendants “are not entitled to sovereign immunity
when they are sued in their individual capacities under Section
1983.”

Melton, 841 F.3d at 1234 (emphasis in original) (citation

omitted).

However, because Plaintiff has failed to state a claim

for procedural due process and equal protection violations as
discussed supra, Counts I and II are dismissed without prejudice

15

as to Defendants Kavanagh, Smesko, Rolle, and Brock in their
individual capacities.
B.

The Title IX Claims (Counts III and IV)
1.

The Title IX Claims Against the FGCUBOT and Defendants
Kavanagh, Smesko, Rolle, and Brock in their Official
Capacities

“Congress validly abrogated the states' immunity from Title
IX suits.”

Williams, 477 F.3d at 1301.

Accordingly, Plaintiff’s

Title IX claims against the FGCUBOT and Defendants Kavanagh,
Smesko, Rolle, and Brock in their official capacities are not due
to be dismissed on the basis of Eleventh Amendment sovereign
immunity.

The Court therefore addresses their merits below.
a.

The Hostile Educational Environment Claim (Count
III)

Count III is a hostile educational environment claim, which
the Court construes as arising under Title IX.
Defendants

created

a

improperly

penalizing

hostile

educational

Plaintiff

for

It alleges that

environment

utilizing

the

by

(1)

Authorized

Absence policy; (2) suspending and later dismissing Plaintiff from
the

FGCU

access

to

women’s
the

basketball

Athletic

team

Academic

and

terminating

Center

without

Plaintiff’s

notice

and

a

hearing; and (3) having Defendants Rolle and Brock file false
complaints

about

Plaintiff’s

conduct

with

the

FGCU

Athletic

Department. Defendants argue Count III should be dismissed because

16

Plaintiff

failed

environment claim.

to

plausibly

state

a

hostile

educational

The Court agrees.

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).

To state a hostile educational

environment claim under Title IX, a plaintiff must demonstrate a
university’s
harassment.

“deliberate

indifference

to

known

acts”

of

Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of

Educ., 526 U.S. 629, 648 (1999).

The harassment must be “so

severe, pervasive, and objectively offensive that it can be said
to deprive the victims of access to the educational opportunities
or benefits provided by the school.”

Id. at 650.

Here, Plaintiff has failed to plausibly allege that she
suffered from such harassment for two reasons.

First, the Title

IX

discussed

hostile

educational

environment

standard

supra

applies where a university is “deliberately indifferent to sexual
harassment” perpetuated against a student.

Id.

In this case,

Plaintiff has not alleged that she was the victim of sexual
harassment or that she otherwise suffered from any sex-based
harassment actionable under Title IX. 4

4

Similarly, Plaintiff has not plausibly stated that Defendant
Rolle’s or Defendant Brock’s allegedly false complaints about her
are actionable under Title IX because she has not plausibly alleged
17

Second, Plaintiff’s hostile educational environment claim
stems from Defendants’ alleged failure to permit Plaintiff to
complete

assignments

under

the

Authorized

Absence

policy.

Plaintiff contends that because she was not allowed to turn in
assignments

pursuant

to

the

Authorized

Absence

policy,

she

unfairly received failing grades for those assignments and was
then improperly dismissed from the women’s basketball team and
prohibited from accessing the Athletic Academic Center.

According

to the Amended Complaint, the Authorized Absence policy provides
that:
An authorized absence is an absence due to participation
in a university sponsored activity that has been
approved in advance by the director and the appropriate
student affairs officer. Such an absence permits the
student to make up the work missed when practical or to
be given special allowance to [sic] that he/she is not
penalized for the absence.
(Doc. #43, ¶ 86.)
from

Defendant

Plaintiff has not alleged whether her absences

Rolle’s

class

or

her

late

submissions

of

the

contested assignments to Defendant Rolle were “approved in advance
by the director and the appropriate student affairs officer” as
the Authorized Absence policy requires.
Plaintiff

has

not

plausibly

alleged

(Doc. #1, ¶ 68.)
that

Defendants

Thus,

harassed

Plaintiff by refusing to allow her to utilize the Authorized
Absence policy, because it is unclear whether she even received

they were filed “on the basis of [Plaintiff’s] sex. . . .”
U.S.C. § 1681(a).
18

20

the requisite approval under the policy.

Moreover, as discussed

supra, Plaintiff has stated no facts indicating that such alleged
harassment

is

actionable

under

Title

IX

because

she

has

not

plausibly alleged that it occurred “on the basis of [Plaintiff’s]
sex. . . .”

20 U.S.C. § 1681(a).

Count III is therefore dismissed

without prejudice as to the FGCUBOT and Defendants Kavanagh,
Smesko, Rolle, and Brock in their official capacities.
b.

The Retaliation Claim (Count IV)

Count IV is a retaliation claim, which the Court construes as
arising under Title IX.

It asserts that (1) Defendant Rolle

changed Plaintiff’s grades in retaliation for Plaintiff rebuking
him for calling her “dumb” and telling her “she can't pass his
class and play basketball”; (2) Defendants retaliated against
Plaintiff by suspending and later dismissing Plaintiff from the
FGCU women’s basketball team and terminating her access to the
FGCU Athletic Academic Center; and (3) Defendants Rolle and Brock
retaliated against Plaintiff by filing false complaints against
Plaintiff with the FGCU Athletics Department.

Defendants argue

Count IV should be dismissed because Plaintiff failed to plausibly
state a claim for retaliation.

The Court agrees.

To state a claim for retaliation under Title IX, a plaintiff
“must show (1) [s]he engaged in statutorily protected expression;
(2) the [defendant] took action that would have been materially
adverse to a reasonable person; and (3) there was a causal link

19

between the two events.”

McCullough v. Bd. of Regents of the Univ.

Sys. of Ga., 623 F. App'x 980, 982 (11th Cir. 2015). 5

To “engage

in protected activity” a plaintiff must, “at the very least,
communicate her belief that [sex] discrimination is occurring . .
. and cannot rely on the [defendant] to infer that discrimination
has occurred.”

Demers v. Adams Homes of Nw. Fla., Inc., 321 F.

App'x 847, 852 (11th Cir. 2009) (citation and quotation omitted).
Here, Plaintiff has not alleged that she engaged in protected
activity under Title IX because she has not stated whether she
“communicate[d]

her

occurring . . . .”

belief

that

[sex]

discrimination

Demers, 321 F. App'x at 852.

[was]

Thus, Plaintiff

has not plausibly stated a retaliation claim and Count IV is
therefore

dismissed

without

prejudice

as

to

the

FGCUBOT

and

Defendants Kavanagh, Smesko, Rolle, and Brock in their official
capacities.
2.

The Title IX Claims Against Defendants Kavanagh, Smesko,
Rolle, and Brock in their Individual Capacities (Counts
III and IV)

Plaintiff also asserts her hostile educational environment
and

retaliation

Title

IX

claims

5

against

Defendants

Kavanagh,

The Eleventh Circuit has not explicitly outlined the elements of
a Title IX retaliation claim. The Eleventh Circuit has, however,
stated that Title VII and Title IX are construed in pari materia.
Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1170 n.12 (11th
Cir. 2003).
Thus, the Court applies the Title VII retaliation
framework to the instant Title IX retaliation claim.
20

Smesko, Rolle, and Brock in their individual capacities.

Title

IX, however, “does not allow claims against individual school
officials; only funding recipients can be held liable for Title IX
violations.”

Williams, 477 F.3d at 1300.

Moreover, a plaintiff

may not use Section 1983 to assert a Title IX claim against
university officials in their individual capacities.

Id.

The

Court therefore dismisses with prejudice Counts III and IV as to
Defendants Kavanagh, Smesko, Rolle, and Brock in their individual
capacities.
C.

The Breach of Contract Claim (Count V)
Count V asserts a claim for breach of contract. Specifically,

it alleges that Defendants breached their contractual obligations
to Plaintiff by (1) failing to enforce the FGCU Authorized Absence
policy; and (2) suspending and subsequently dismissing Plaintiff
from the FGCU women’s basketball team and terminating her access
to the Athletic Academic Center without notice and a hearing.
The Florida Supreme Court has recognized an implied waiver of
Florida’s sovereign immunity for breach of contract claims.

Pan-

Am Tobacco Corp. v. Dep't of Corr., 471 So. 2d 4, 5-6 (Fla. 1984).
That waiver, however, only applies “to suits on express, written
contracts into which the state agency has statutory authority to
enter.” Id. at 6.

Absent a written contract, sovereign immunity

bars breach of contract claims against the State of Florida.

21

City

of Gainesville v. State, Dep't of Transp., 778 So. 2d 519, 530
(Fla. 1st DCA 2001).
Here, Plaintiff has not alleged that she entered into a
written

contract

with

Defendants.

Thus,

as

currently

pled,

Plaintiff’s claim for breach of contract is barred by sovereign
immunity and Count V is therefore dismissed without prejudice as
to the FGCUBOT and Defendants Kavanagh, Smesko, Rolle, and Brock
in their official capacities. 6

Further, Plaintiff has not alleged

that she entered into a contract with any of the individual
defendants.

Accordingly, Plaintiff has failed to state a claim

against Defendants Kavanagh, Smesko, Rolle, and Brock in their
individual capacities.

See Rollins, Inc. v. Butland, 951 So. 2d

860, 876 (Fla. 2d DCA 2006) (citation omitted) (“The elements of
an action for breach of contract are: (1) the existence of a
contract, (2) a breach of the contract, and (3) damages resulting
from

the

breach.”).

Thus,

Count

V

is

also

dismissed

without

prejudice as to Defendants Kavanagh, Smesko, Rolle, and Brock in
their individual capacities.

6

In her Response in Opposition, Plaintiff argues that “[t]he FGCU
Student Code of Conduct is a contract between [Plaintiff] and
FGCU.” (Doc. #65, p. 6.) Under Florida law, a university handbook
constitutes a “contract implied in fact,” not an express written
contract. Jallali v. Nova Se. Univ., Inc., 992 So. 2d 338, 342
(Fla. 4th DCA 2008). When a “contract is merely implied . . .
sovereign immunity protections remain in force.”
City of Fort
Lauderdale v. Israel, 178 So. 3d 444, 447-48 (Fla. 4th DCA 2015).
22

D.

The Specific Performance Claim (Count VI)
Count VI is a claim for specific performance.

The Court is

aware of no statute or legal authority – and Plaintiff does not
cite to any - as the basis for her specific performance claim in
Count VI. Indeed, in Florida, specific performance is an equitable
remedy for a breach of contract, not an independent cause of
action.

See, e.g., Bay Club, Inc. v. Brickell Bay Club, Inc., 293

So. 2d 137, 138 (Fla. 3d DCA 1974).
Nonetheless, even if specific performance were an independent
cause

of

action,

Plaintiff

has

not

demonstrated

that

she

is

entitled to the equitable remedy in this case because she must
first establish she entered into a “valid and enforceable” contract
with Defendants.
2006).

Free v. Free, 936 So. 2d 699, 702 (Fla. 5th DCA

Further, “specific performance is granted only where the

parties have actually entered into an agreement that is definite
and certain in all of its essential elements.”
293 So. 2d at 138.

Bay Club, Inc.,

Because Plaintiff has not alleged that she

entered into such a contract with Defendants, Count VI is dismissed
without prejudice as to the FCGUBOT and Defendants Kavanagh,
Smesko,

Rolle,

and

Brock

in

their

official

and

individual

capacities.
E.

The Injunctive Relief Claim (Count VII)
Plaintiff asserts a claim for injunctive relief against the

FGCUBOT and Defendants Kavanagh, Smesko, Rolle, and Brock in their

23

official and individual capacities. The Court construes this claim
as a request for a preliminary injunction.
A preliminary injunction “is an extraordinary and drastic
remedy . . . .”

Zardui-Quintana v. Richard, 768 F.2d 1213, 1216

(11th Cir. 1985) (citation and quotation omitted).
to

a

preliminary

injunction,

a

movant

must

To be entitled

establish

(1)

“a

substantial likelihood of success on the merits; (2) irreparable
injury will be suffered unless the injunction issues; (3) the
threatened injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing party; and (4) if
issued,

the

interest.”

injunction

would

not

be

adverse

to

the

public

Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade

Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009) (citation and
quotation omitted).
As discussed supra, Plaintiff has failed to state a claim
upon

which

relief

may

be

granted.

Thus,

Plaintiff

has

not

established a substantial likelihood of success on the merits and
is

therefore

not

entitled

to

a

preliminary

injunction.

Id.

Plaintiff has also failed to address any of the four factors to
warrant the issuance of a preliminary injunction as required by

24

Local Rule 4.05(b)(4).
Cir. 2005). 7

Wall v. Ferrero, 142 Fed. Appx. 405 (11th

Thus, Count VII is dismissed without prejudice. 8

Accordingly, it is now
ORDERED:
1.

Defendant’s Motion to Dismiss Plaintiff's First Amended

Complaint (Doc. #51) is GRANTED.
2.

Counts I and II are:
a.

Dismissed with prejudice as to the Florida Gulf
Coast University Board of Trustees; and

b.

Dismissed without prejudice as to defendants Ken
Kavanagh, Karl Smesko, Roderick Rolle, and Kelly
Brock in their official and individual capacities.

3.

Counts III and IV are:
a.

Dismissed

with

prejudice

as

to

defendants

Ken

Kavanagh, Karl Smesko, Roderick Rolle, and Kelly
Brock in their individual capacities; and
b.

Dismissed without prejudice as to the Florida Gulf
Coast University Board of Trustees and defendants

7

Local Rule 4.05(b)(4) provides that a party seeking a preliminary
injunction “must address the following issues: (i) the likelihood
that the moving party will ultimately prevail on the merits of the
claim; (ii) the irreparable nature of the threatened injury and
the reason that notice cannot be given; (iii) the potential harm
that might be caused to the opposing parties or others if the order
is issued; and (iv) the public interest, if any.”
8

Because Plaintiff is not entitled to a preliminary injunction,
the Court denies as moot her Motion for Preliminary Injunction
Hearing and Expedited Discovery (Doc. # 18).
25

Ken

Kavanagh,

Karl

Smesko,

Roderick

Rolle,

and

Kelly Brock in their official capacities.
4.
Gulf

Count V is dismissed without prejudice as to the Florida

Coast

University

Board

of

Trustees

and

defendants

Ken

Kavanagh, Karl Smesko, Roderick Rolle, and Kelly Brock in their
official and individual capacities.
5.
Gulf

Count VI is dismissed without prejudice as to the Florida

Coast

University

Board

of

Trustees

and

defendants

Ken

Kavanagh, Karl Smesko, Roderick Rolle, and Kelly Brock in their
official and individual capacities.
6.

Count VII is dismissed without prejudice as to the

Florida Gulf Coast University Board of Trustees and defendants Ken
Kavanagh, Karl Smesko, Roderick Rolle, and Kelly Brock in their
official and individual capacities.
7.

Plaintiff’s Motion for Preliminary Injunction Hearing

and Expedited Discovery (Doc. #18) is denied as moot.
8.

Plaintiff may file a Second Amended Complaint within

FOURTEEN (14) DAYS of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
November, 2018.

Copies:
Parties and Counsel of Record
26

14th

day of