By Doriyon Glass, of Jackson Lewis
(Editor’s Note: The following appears in Title IX Alert, a sister periodical of Hackney Publications. More content related to Title IX can be viewed there.)
The United States District Court for the Northern District of Florida, granted a motion for summary judgement in favor of Florida Agricultural and Mechanical University’s (“FAMU”) in a lawsuit brought by five former FAMU women’s basketball players, alleging Title IX discrimination and retaliation, as well as several state law claims.
In Burks v. Bd. of Trs. of Fla. Agric. & Mech. Univ., former women’s basketball players Kennedy Burks (“Burks”), Jessica Njoku (“Njoku”), Mariah Reynolds (“Reynolds”), London Holland (“Holland”), and Deann Whitlow (“Whitlow”) (collectively “Plaintiffs”) sued the Board of Trustees of Florida Agricultural and Mechanical University (“Defendant”). Plaintiffs alleged that they each “faced disparate treatment, harassment, and retaliation from certain members of the FAMU women’s basketball coaching staff” based on their “gender, sexual orientation, association with non-heterosexual players, nonconformance with gender norms, complaints about discrimination, participation in a Title IX investigation, or some combination of these.” Each Plaintiff also alleged that they were wrongfully dismissed from the team and FAMU did not properly respond to the Title IX complaints about their coaches’ conduct.
During the relevant period, LeDawn Gibson (“Coach Gibson”) was FAMU’s head women’s basketball coach. The Court record conveyed that Coach Gibson often humiliated and insulted players beyond acceptable “limits of ‘tough love’ or ‘old school’ coaching techniques.” It was undisputed that Coach Gibson and some of her coaching staff used profanity, commented on players’ personal relationships and private behavior, critiqued the way players dressed and spoke, and disapproved of same sex relationships. Coach Gibson also called Burks a “dummy” and other players “whores” and “nasty girls.” Some of the Plaintiffs’ parents raised concerns about the treatment of their daughter to school officials in early 2017.
Holland, who is openly gay and was in a relationship with Reynolds while Holland was still on the team, was dismissed from the basketball team, but the record was unclear on when. There was a voluntary withdrawal form with Holland’s signature dated March 28, 2016, however, Holland testified that she was dismissed from the team in February 2017. In February 2017, Ms. Holland’s parents also emailed a list of several complaints about the basketball coaching staff to FAMU’s Deputy Athletic Director, Elliot Charles (“Deputy AD Charles”). Reynolds, who is also openly gay, was dismissed from the team in the summer of 2016, and later graduated from FAMU.
Njoku, Whitlow, and Burks were “friendly with and openly associated with gay teammates.” Njoku was dismissed from the team on March 28, 2016 and graduated from FAMU in 2017. Burks testified that Coach Gibson bullied her and dismissed her from the team on April 4, 2017. Whitlow’s mother, who was concerned with how the coaches treated her daughter, set up a meeting with FAMU’s Athletic Director, Milton Overton (“AD Overton”), in January 2017. During the meeting, she alleged that Whitlow was being retaliated against based on the friends she hung out with because they were “considered to be bad influences and homosexual.” Following the meeting, Whitlow’s mother continued to send emails to AD Overton, Deputy AD Charles, and Coach Erik Rashad (“Coach Rashad”). Whitlow was dismissed from the team on April 5, 2017.
In February 2017, Deputy AD Charles received an email with an anonymous complaint about certain members of the women’s basketball coaching staff, which included allegations about Title IX violations and bullying. The complaint alleged that Coach Gibson and Coach LaTasha Ganus abused their power, bullied and verbally abused players, and had violated Title IX when they dismissed two players because they disliked the players’ sexual orientation. Deputy AD Charles forwarded the email to FAMU’s Title IX Coordinator, Carrie Gavin (“Gavin”), who initiated an investigation. Gavin communicated with current and former players, players’ parents, and coaching staff during her investigation. Njoku, Holland, Burks, and Whitlow participated in the investigation on their own or through their parents.
The investigation ran from late February 2017 through late June, and Gavin completed a report dated June 30, 2017. The report provided that the same-sex allegations were unsubstantiated based on conflicting information received during the investigation. Gavin advised that the interaction between female and male coaches needed improvement and she recommended that all coaches attend training dealing with appropriate motivational skills. FAMU received a second similar complaint about Coach Gibson in February 2019, and promptly terminated her employment in response.
To analyze Plaintiffs’ Title IX discrimination claim, the Court assumed without deciding that each of Plaintiffs’ theories of discrimination—discrimination based on sexual orientation, association with non-heterosexual students, and nonconformance with gender norms—fell within Title IX’s broader prohibition against sex-based discrimination. Title IX discrimination requires a showing of two elements: (1) an official with authority to take corrective measures had actual notice of the alleged discrimination; and (2) the official with that knowledge was deliberately indifferent to the misconduct.
Title IX requires that an appropriate person receive notice of and a chance to remedy any violation. As a result, the Court explained that Plaintiffs could not rely on the argument that it was “common knowledge” of many players and their parents that certain coaches were homophobic or bullies to establish the actual notice element. The parties agreed that the February 2017 anonymous complaint constituted actual notice, but Defendant argued that the anonymous complaint did not provide sufficient detail to give FAMU notice of each theory of discrimination raised in Plaintiffs’ lawsuit. Plaintiffs disagreed and argued that FAMU also had actual notice from complaints by them and their parents to Coach Rashad, AD Overton, and Deputy AD Charles.
The Court explained that any Complaint made to Coach Rashad, who had less authority than Coach Gibson, could not establish actual notice because there was no evidence that Coach Rashad had authority to take corrective measures under Title IX. The Court also explained that although the anonymous complaint did not provide each allegation in Plaintiffs’ lawsuit, the lack of necessary detail was provided through supplemental complaints to AD Overton, Deputy AD Charles, and Ms. Gavin around the date the anonymous complaint was received and during the Title IX investigation. As a result, the Court held that FAMU had actual notice in the spring of 2017.
Moving to the deliberate indifference element, under Title IX, this occurs “when the official’s response to the [harassment or discrimination] or lack thereof is clearly unreasonable in light of the known circumstances.” According to the Court, Plaintiffs cited no evidence that would allow a reasonable jury to find FAMU’s response to the alleged discrimination was deliberately indifferent. It was undisputed that following receipt of the anonymous complaint, Gavin launched a months-long investigation, which included requesting additional information from Deputy AD Charles and communicating with current and former players (including several Plaintiffs), as well as players’ parents and colleagues of Coach Gibson. Gavin concluded the investigation with a report stating that the same-sex allegations were unsubstantiated and recommended training for all coaching staff.
Plaintiffs argued that Gavin’s investigation was mediocre, and her conclusions did not match the facts gathered. The Court stated that Plaintiffs were ignoring the undisputed fact that besides hearing from Plaintiffs and their parents, Gavin also heard from other players who had no disagreement with the coaches at issue or their conduct. Plaintiffs also argued that FAMU did not take any actual action to rectify the situation. The Court, however disagreed and pointed to the immediate Title IX investigation, the resulting training recommendation, and that FAMU terminated Coach Gibson’s employment following the second similar complaint against her.
The Court emphasized that the question was whether FAMU acted with deliberate indifference to its Title IX obligations once it received actual notice, not whether FAMU could have done better. The Court held that Defendant was entitled to summary judgement on Plaintiffs’ Title IX discrimination claims because FAMU’s actions were not clearly unreasonable under the known circumstances, nor was FAMU deliberately indifferent to its Title IX obligations.
Similarly, to Title VII retaliation claims, Title IX retaliation claims require each Plaintiff to establish that: (1) she engaged in statutorily protected activity; (2) Defendant took action that would have been materially adverse to a reasonable player; and (3) a causal link existed between the two events.
Plaintiffs identified their dismissals from the basketball team as their adverse action. The Court explained that even if the February 2017 anonymous complaint and Plaintiffs’ participation in the Title IX investigation constituted statutorily protected activity, Plaintiffs could not establish that these activities were causally linked to their dismissals. It was undisputed that Njoku and Reynolds’ dismissals occurred months before the anonymous complaint and resulting Title IX investigation. Njoku and Reynolds argued that Njoku made complaints to her conditioning coaches and Reynolds’ mother made complaints to Coach Rashad before the anonymous complaint. The Court explained that Plaintiffs cited no evidence that would allow a jury to infer that these complaints were the reason Coach Gibson dismissed the players or that she even knew of these complaints before she dismissed them.
Similarly, the Court held that Holland, who alleged she was dismissed from the team in February 2017, failed to identify evidence that would allow a jury to infer a causal connection between her dismissal and any protected activity. The Court explained that the complaint causing FAMU’s actual notice was anonymous, and there was no evidence that Coach Gibson learned of it when it was first received. A jury could infer that Coach Gibson learned about the complaint during the Title IX investigation, which ranged from late February to late June 2017, but there was no evidence to infer that this happened before Coach Gibson dismissed Holland. Moreover, Holland did not participate in the Title IX investigation until after her dismissal.
Although Burks and Whitlow’s dismissals occurred in April 2017, about two months after FAMU received the anonymous complaint and began its investigation, the Court also concluded that there was insufficient evidence of a causal link between their dismissals and any protected activity. Plaintiffs’ pointed to Whitlow and Burks’ mothers’ communications with school officials, the anonymous complaint, and Burks’ participation in the Title IX investigation as protected activities that occurred around the time of their dismissals. Here again, however, the Court held that Plaintiffs lacked evidence that Coach Gibson knew of these alleged protected activities before she dismissed the players. As a result, the Court also dismissed the Plaintiffs’ Title IX retaliation claim, and it declined to exercise supplemental jurisdiction over their state law claims.
