JOHN DOE, Plaintiff-Appellant, Cross-Appellee, versus ROLLINS COLLEGE, Defendant-Appellee, Cross-Appellant.
No. 21-11081
United States Court of Appeals For the Eleventh Circuit
Date Filed: 08/14/2023
Appeal from the United States District Court for the Middle District of Florida, D.C. Docket No. 6:18-cv-01069-RBD-LRH
JORDAN, Circuit Judge:
Jane Roe, a student at Rollins College, accused John Doe, a fellow student, of sexual assault. Following an investigation, Rollins determined that Doe violated its sexual misconduct policy. Doe was able to graduate and receive his undergraduate degree but was not allowed to participate in commencement/graduation ceremonies. Rollins imposed a sanction of dismissal, resulting in permanent separation of Doe without the opportunity for readmission; privilege restrictions, including a prohibition on participating in alumni reunion events on or off campus; and a contact restriction as to Roe.
Doe sued Rollins in federal court, asserting two claims under Title IX,
On the Title IX claims, the district court concluded that there was “no evidence by which a reasonable juror could conclude [that] Rollins[‘] conduct toward Doe was motivated by his gender.”
The district court did not enter judgment in favor of Doe on the contract claim because it concluded that a jury had to decide whether Rollins’ breach was material and caused harm. See id. at 26-27. The district court also ruled that there were factual questions as to whether Rollins’ inquiry into Doe‘s sexual history was relevant and whether Rollins responded fairly and equitably to Roe‘s allegations. See id. at 27–28.
After a three-day trial, the jury returned a verdict in favor of Rollins on the breach of contract claim. The jury found that Rollins’ breach of the 60-day provision was not material; that Rollins did not breach a contractual obligation to not have irrelevant prior sexual history considered in the investigation of Roe‘s allegations; and that Rollins did not breach a contractual obligation to reach a timely and fair resolution of Roe‘s allegations.
This is Doe‘s appeal. Following oral argument and a review of the record, we affirm. We conclude that the district court did
I
In his Title IX claims, Doe asserts that Rollins—based on its gender bias—selectively prosecuted him and erroneously found him to be in violation of its sexual misconduct policy. To provide the necessary context for these claims, we set out the different versions of events presented by Roe and Doe.
A
From 2014 to 2017, Doe was a student at Rollins. During that time, he met Roe, another student at Rollins, and the two became friends. They “hung out around campus, did homework” and “spent time together.” D.E. 61-4 at 5. On February 17, 2017, Doe invited Roe to his fraternity‘s “Grab-a-Date” event. The event was “champagne and shackles themed,” which meant that dates were “zip-tie[d]” to one another until a shared “bottle of
Later, in the early morning hours of February 18, Doe and Roe, along with others from the party, walked to a local bar. Eventually, Doe and Roe left the bar together and went to Doe‘s room. But Doe‘s and Roe‘s recollections of how they ended up at Doe‘s room, and what happened once there, differ.
Roe stated that her “intention was to go to [her] own room to go to sleep, by [herself], because [she] was incoherently drunk and incredibly tired” but “in between ‘blackouts’ somehow [she] ended up in [Doe‘s] dorm and room.” Id. at 20–21. She told Doe “multiple times that [she] wanted to leave and just go to bed in [her] own room but [Doe] insisted [they] hang out and to just wait [there in his room] because he had to go to the bathroom.” Id. at 21. Roe—“too tired to argue, and too confused to want to go elsewhere“—saw Doe‘s couch, laid down, and “fell asleep for what felt like 5 or 10 min[utes].” Id. When Doe returned, he picked a movie and Roe fell asleep again. While Roe was on the couch and as the movie was playing, Doe “started making out with [Roe] and touching [her] near [her] chest/bra area,” then “started touching [her] underwear and moved it aside and began penetrating [her] with his finger.” Id.
Roe recounted “saying ‘[n]o’ and objecting [to] his advances through multiple parts of the beginning of this assault, but [her] right hand was trapped in the fold of the couch, and [her] left
As he was touching my thighs I said no, as he was touching my vagina I said no, and as he began penetrating me I said no[.] I do think during these no‘s I was kissing him (in the sense where kissing means my lips were on his) at this point but I was intoxicated, falling in and out of sleep, and felt as though I was unable to move my own body. I remember seeing his penis out as he was on top of me and my right hand at my sides, trapped between the couch and my body, and my left hand under him, which he was now moving towards his penis as I was saying no. This part of the contact was only for about 4 seconds at most (that my hand was touching his penis).
Id.
According to Roe, Doe asked “what[‘]s wrong” multiple times and “discouraged [Roe] from leaving when [she] would express that [she] wanted to be in [her] own room.” Id. When Doe had “shifted off” of Roe to ask what was wrong, she sat up and “finally stood up in an attempt to get out and head towards the door.” Id. at 21–22. Doe “stopped [Roe] and was holding [her] arms and was saying things like ‘no, just stay’ and ‘we don‘t have to have sex’ and ‘you can just sleep here’ and would keep trying to kiss [Roe]
Doe provided a very different account of the evening. While at the local bar, he and Roe sat “in the outdoor section” by themselves and “had normal conversation.” D.E. 61-2, Exh. C at 26. “It started getting late” and they “decided to return to [his] dorm room . . . to watch a movie.” Id. They “began walking and talking on the way back, and ultimately started holding hands until [they] arrived to [their] building on campus.” Id. Once they got to Doe‘s room, Doe went downstairs to the water fountain with his roommate, who “asked if anything was going on between [Roe] and [Doe], as [Roe] appeared to be interested in [Doe] over the course of the night and was knowledgeable that the two of [them] had been talking regularly for quite some time.” Id. Doe “was not sure what to expect and was going to see where the night would take [him].” Id.
Afterwards, in Doe‘s room, Doe and Roe “played a movie on Netflix and sat next to each other.” Id. Doe described what happened next as follows:
I put my arm around [Roe], in which she was comfortable with. . . . we started kissing. We continued on and I started touching her intimate parts, in which she showed no resistance. I penetrated her digitally and there were no signs of her being uncomfortable. Eventually she paused, and I asked if everything was okay. I asked because I knew we had been friends for an extended period of time and perhaps getting
intimate was not worth losing a friendship over. She said that everything was fine and then continued to unbuckle my belt, unbutton my pants, and then exposing and touching my penis. In no way, shape or form did I cause her to touch my intimate body parts. We continued with kissing and forms of petting until [Roe] paused again. I asked if everything was okay, and this second time, she indicated that she wanted to stop. We stopped immediately and continued watching the movie for a little while longer. It had gotten late (after 2 AM) and I wanted to go to bed. I said that she was welcome to spend the night on the futon or to go home (right next door) if she wanted to. She stated that she wished to go home and I walked her out.
Id. at 26–27.
B
A few days later, on February 22, 2017, Roe went to Rollins’ Title IX office and met with the Title IX Coordinator, Oriana Jimenez Guevara, to discuss what happened on February 17—an incident that she believed to be in violation of the Rollins Title IX sexual misconduct policy. See D.E. 56-5 at 2-3. Roe “chose not to exercise her right to request an investigation” at that time, but she “filed a report” and requested “interim measures” such as housing accommodations—moving to a different building and to a single room—as well as academic accommodations. See D.E. 56-2 at 117, 123-124.
On November 20, 2017, Ms. Jimenez Guevara called Doe and advised him that she needed to meet with him regarding a Title IX case he was involved in. Doe met with Ms. Jimenez Guevara that day and was informed that a complaint alleging sexual misconduct had been made against him by Roe. Doe was also advised of “some of the rights that [he] had[,]” including the right to an advisor. See D.E. 61-4 at 24. According to Doe, during the meeting Ms. Jimenez Guevara said “something to the effect of, ‘[w]hen it‘s all said and done, I will make sure that you appeal this case.‘” Id. Doe understood that to mean “that the decision of [the Title IX] case had already been predetermined before [he] even had a single question asked of [him].” Id.
Rollins selected Deena Wallace as the outside independent investigator. Ms. Wallace, an attorney, had previously served as a sex-crimes prosecutor at the state attorney‘s office. See D.E. 228 at 88-89.
Ms. Wallace interviewed Roe and 22 other witnesses (including 20 currently-enrolled Rollins students) as part of her investigation. She interviewed Doe on December 7, 2017. During the interview, Doe had a lawyer hired by his mother present as his
In the report, Ms. Wallace summarized each witness’ testimony, considered additional evidence (e.g., text messages), made credibility determinations, explained those determinations, and applied Rollins’ sexual misconduct policy to the evidence. Using a preponderance of the evidence standard, she found that Roe‘s account was more credible than Doe‘s, and concluded that Doe had violated Rollins’ sexual misconduct policy by digitally penetrating Roe without her consent.
Ms. Jimenez Guevara reviewed the report, made some stylistic edits, and concluded that Ms. Wallace‘s “process, and what she wrote in the report, was permissible” and “followed guidelines.” D.E. 56-2 at 183–84. Doe then submitted an appeal to Rollins. Mamta Accapadi, Rollins’ Vice-President for Student Affairs, reviewed the appeal and determined that Rollins had “followed [its] process.” D.E. 61-9 at 15. Because the investigation was completed after Doe had already earned his undergraduate degree, it did not impact that degree. See D.E. 61-9 at 17.2
II
We begin with Doe‘s challenge to the district court‘s order limiting the testimony of his expert, Professor Robert K.C. Johnson, to the history of Title IX and excluding his opinions on “the gender bias and fairness of Rollins[‘] procedures.” D.E. 109 at 7. This is our starting point because the summary judgment record on the Title IX claims changes if the district court erred in excluding Professor Johnson‘s opinions.
A
We review the exclusion of Professor Johnson‘s expert opinions for abuse of discretion. See General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997). The abuse of discretion standard allows for a range of choice, and that means that sometimes we will affirm even though we might have decided the matter differently in the first instance. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). Inherent in this “deferential standard is a certain ‘play in the joints’ that permits divergent results on the same evidence, depending on the [court‘s] explanation for the exercise of discretion.” Thomas D. Schroeder, Toward a More Apparent Approach to Considering the Admission of Expert Testimony, 95 Notre Dame L. Rev. 2039, 2043 (2020).
These Rule 702 requirements are necessarily set out in general terms. As we have observed, the rules relating to expert testimony “are not precisely calibrated and must be applied in case-specific evidentiary circumstances that often defy generalization.” United States v. Alabama Power Co., 730 F.3d 1278, 1285 (11th Cir. 2013) (internal quotation marks and citation omitted).
B
Professor Johnson holds a bachelor‘s degree from Harvard, a master‘s degree from Chicago, and a Ph.D. from Harvard. All three degrees are in history, and he teaches that subject at Brooklyn College and the City University of New York Graduate Center. See D.E. 58-6 at 2; D.E. 109 at 6. He is, “first and foremost, a professor of history.” D.E. 228 at 65. He does not have any experience or education in higher education administration, human resources, student affairs, gender studies, psychology, sociology, behavioral science, neurological science, statistical analysis, mental health counseling, forensic psychology, or psychiatry. See id. at 61–62.
The district court allowed Professor Johnson to testify about the history of Title IX. But it excluded three of his opinions because Doe “failed to show Professor Johnson [wa]s qualified to reach [his] conclusions on fairness or gender bias by comparing past lawsuits against the facts in this Title IX case. See D.E. 109 at 6–9. The first excluded opinion was that Rollins failed to provide Doe with a fair process. The second was that gender bias was a motivating factor behind Rollins’ erroneous findings. And the third was that Rollins acted in a manner that favored female reporting parties and disadvantaged male responding parties. See Br. for Appellant at 55.3
C
The “principles set out in Daubert apply to soft-science expert testimony” of the kind offered by Professor Johnson; “[s]ocial science testimony, like other expert testimony . . ., must be tested to be sure that the person possesses genuine expertise in a field and that her court testimony adheres to the same standards of intellectual rigor that are demanded in her professional work.” Carrizosa v. Chiquita Brands Int‘l, Inc., 47 F.4th 1278, 1317 (11th Cir. 2022) (internal quotation marks and citation omitted).
Professor Johnson sought to opine on Rollins’ discriminatory conduct and behavior (i.e., its purported Title IX gender bias). Generally speaking, federal courts do not allow experts to testify about such motives or biases in discrimination cases unless there is some rational connection between the methodology and the opinion—something that explains how the application of the methodology permits the conclusion(s) reached. See, e.g., Chadwick v. WellPoint, Inc., 561 F.3d 38, 48 (1st Cir. 2009) (affirming the
Consider Downing v. Abbott Laboratories, 48 F.4th 793 (7th Cir. 2022), an employment discrimination case. The plaintiff in that case sought to use an expert, who was a “legal academic with a background in social psychology,” to opine that the employer‘s conduct was “consistent with how stereotyping and biases (either implicit or explicit) manifest and affect people in employment settings.” Id. at 802. The Seventh Circuit upheld the district court‘s decision to exclude the expert‘s testimony on various grounds, including lack of reliability. It explained that the expert had reviewed “literature concerning stereotyping and discrimination” and then, without discussing her methodology, pivoted to her opinion that the employer‘s conduct was “consistent with the possibility of stereotyping or bias.” Id. at 809. The district court properly exercised its discretion with respect to reliability because the expert had not “‘bridge[d] the analytical gap’ by showing a ‘rational connection’ between the data and the . . . contested conclusion.” Id.
The circumstances here are similar. Professor Johnson based his unfair process and gender bias opinions on a review of hundreds of Title IX lawsuits against colleges and universities brought by persons who had been accused of sexual misconduct. See D.E. 228 at 12-14, 67. But he never explained why that comparative review allowed him to reach his gender-bias opinions.
First, in conducting his review of post-2011 Title IX cases by accused students against colleges and universities, Professor Johnson assumed that complaints that survived the motion-to-dismiss stage were indicative of gender discrimination. See, e.g., D.E. 58-6 at 17-18, 24. But, as he later acknowledged, the courts in those cases had merely ruled that the factual allegations pled in the complaints, accepted as true, had made out plausible claims of gender bias. See D.E. 228 at 72-73.
Second, Professor Johnson determined that Rollins’ single-investigator model was not the “best practice” or the optimum method for getting at the truth, and that schools were moving away from such a model. See id. at 26–27, 29, 84-86. Yet disagreement with the single-investigator model, no matter how sincere or well-grounded, says nothing about why the use of that model suggests gender bias on the part of Rollins in conducting Title IX investigations generally or in conducting the investigation of Roe‘s allegations specifically.
Third, Professor Johnson pointed to sex stereotypes in some of Rollins’ Title IX training materials. See id. at 22–23. But he acknowledged that the training materials he criticized were prepared for students and not for investigators like Ms. Wallace. Moreover, he conceded that Ms. Wallace had not been shown any of the stereotyped training materials and disavowed any suggestion
Fourth, Professor Johnson relied on Rollins’ failure to investigate two possible cases of sexual misconduct by females when both the females and males were intoxicated. See id. at 34-36. In these two cases, however, the males did not file Title IX complaints. See id. at 36–37.
Doe argues that Professor Johnson‘s “academic research makes him fully qualified to comment on gender bias in Title IX matters” because a “witness’ expertise generally allows the witness to offer an expert opinion reasonably within the confines of that expertise.” Br. for Appellant at 56–57. Even where experience is the basis for an expert‘s qualification, however, there can sometimes be “too great an analytical gap between the data and the opinion proffered.” Joiner, 522 U.S. at 146. “If an expert is relying solely or primarily on experience, then [he] must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Carrizosa, 47 F.4th at 1322 (internal quotation marks omitted).
It is not enough for Doe to point to Professor Johnson‘s academic research and review of other Title IX cases—he “must put forth sufficient indicia of reliability and demonstrate that [Professor Johnson‘s] expertise permits the opinion(s) rendered.” Id. Doe does not explain in his brief how Professor Johnson‘s expertise allowed him to opine that Rollins’ Title IX investigation was infected
According to Doe, “because [Professor Johnson] maintain[ed] a database of litigation documents involving Title IX, he has on record this enormous array of material of how other colleges and universities handled these matters and could compare Rollins to how other institutions had done so.” Reply Br. for Appellant at 46 (internal quotation marks omitted). We still cannot discern any abuse of discretion. Though this collection of data may demonstrate how Professor Johnson could opine on how Rollins’ handling of Title IX matters differed from that of other colleges and universities and maybe why the single-investigator model was not the optimal system under current industry practices—Doe does not explain how the data provided a basis for concluding that Rollins had a Title IX process that was based on or infected with gender bias. Indeed, when asked about how his “education, training, and experience as a historian assist[ed] [him] in drawing conclusions from [his] database,” Professor Johnson answered only that “[t]his is the kind of research that [he‘d] always done, which is [to] study primary sources and especially primary sources that help to illustrate how institutions make procedural decisions behind the
III
Our review of the district court‘s grant of summary judgment on Doe‘s Title IX claims is plenary. See Marbury v. Warden, 936 F.3d 1227, 1232 (11th Cir. 2019). Summary judgment is warranted “when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and compels judgment as a matter of law in favor of the moving party.” Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1307 (11th Cir. 2013) (citation omitted).
A
Under Title IX, “[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.”
Last year, in a case arising at the Rule 12(b)(6) stage, we addressed the “framework for analyzing Title IX challenges to university disciplinary proceedings.” Doe v. Samford Univ., 29 F.4th 675, 686 (11th Cir. 2022). We examined the tests set forth by the Second Circuit in Yusuf, 35 F.3d at 715—the “erroneous outcome” test and the “selective enforcement” test—as well as “a test first developed by the Seventh Circuit: ‘do the alleged facts, if true, raise a plausible inference that the university discriminated against [the plaintiff] ‘on the basis of sex‘?‘” Samford Univ., 29 F.4th at 686 (quoting Doe v. Purdue Univ., 928 F.3d 652, 667–68 (7th Cir. 2019)).
Under the “erroneous outcome” test, “a student must show both that he was innocent and wrongly found to have committed an offense’ and that there is a causal connection between the flawed outcome and gender bias.” Doe v. Valencia Coll., 903 F.3d 1220, 1236 (11th Cir. 2018) (quoting Yusuf, 35 F.3d at 715). And under the “selective enforcement” test, “a student must allege and ultimately prove ‘that, regardless of the student‘s guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student‘s [sex].‘” Samford Univ., 29 F.4th at 686 (quoting Yusuf, 35 F.3d at 715). We explained in Samford University that these two tests “do not capture the full range of conduct that could lead to liability under Title IX,” but instead “simply describe [two] ways in which a plaintiff might show that sex was a motivating factor in a university‘s decision.” Id. at 687 (internal quotation marks omitted).
Because “[t]he Seventh Circuit‘s test hew[ed] more closely to ‘the text of the statute and binding precedent’ than . . . Yusuf,” we agreed with that approach in Samford University, albeit with one modification. See id. at 686. Namely, rather than asking
Although the procedural posture of the appeal in Samford University was different—that case involved the dismissal of a complaint at the pleading stage—the analysis on the appropriate framework still holds. See, e.g., Doe v. Univ. of Denver, 1 F.4th 822, 830 (10th Cir. 2021) (reframing the Seventh Circuit‘s test for summary judgment review). Here we simply modify the inquiry to fit review of a grant of summary judgment: could a jury presented with the record evidence, viewed in Doe‘s favor, reasonably find that Rollins discriminated against Doe on the basis of sex? See id. (“[W]e reframe the operative question for summary judgment and ask: Could a reasonable jury—presented with the facts alleged—find that sex was a motivating factor in the University‘s disciplinary decision?“).
B
To state a Title IX claim for selective enforcement, a plaintiff “must plausibly allege ‘an inconsistency’ between his treatment by the university and the university‘s treatment of a similarly-situated member of the other sex.” Samford Univ., 29 F.4th at 693. Applied at the summary judgment stage, this standard requires a plaintiff to present sufficient evidence for a jury to find that the institution‘s treatment of similarly-situated male and female students was inconsistent. See Univ. of Denver, 1 F.4th at 830.
The district court concluded that these similarities were not enough because Doe, unlike Roe, did not allege any misconduct and did not file a complaint. It explained that “[c]omparing . . . Roe and Doe does not eliminate a non-discriminatory reason for Rollins[‘] decision not to investigate . . . Roe – Doe‘s failure to allege misconduct.” D.E. 156 at 24. As explained below, we agree with the district court‘s conclusion that Doe was not similarly situated to Roe, and as a result “[n]othing about the different[ial] treatment of [Doe and Roe] suggests [that sex] had anything to do with it.” Anthony v. Georgia, 69 F.4th 796, 808 (11th Cir. 2023) (Hinkle, J., concurring).
It is undisputed that Doe (unlike Roe) did not allege any misconduct. He acknowledged in his deposition that he did not make a complaint that Roe had sexually assaulted him.
Although Doe does not claim that he lodged a complaint, he asserts that Roe never initiated a complaint either. This is simply
Doe asserts that “[t]he obligation of Rollins to investigate turned on the school‘s knowledge of potential misconduct, not on whether someone filed a formal complaint.” Br. for Appellant at 33. According to Doe, Rollins “failed to initiate a disciplinary process with respect to Roe after receiving credible information that Roe may have violated the [s]exual [m]isconduct [p]olicy by initiating sexual activity with Doe while [he] was incapacitated due to alcohol.” Id. at 31. On this record, that contention fails.
Under Rollins’ policy, “incapacitation constitutes a circumstance where a person would not be able to consent.” D.E. 56-2 at 58–60. See also D.E. 56-1 at 7–8 (“An individual who is physically incapacitated from alcohol or other drug consumption (voluntarily or involuntarily), or is unconscious, unaware or otherwise physically helpless is considered unable to given consent. For example, one who is asleep or passed out cannot give consent.“). Rollins’
For Doe‘s argument to succeed, the record must contain evidence sufficient for a jury to find that Rollins learned that Doe was incapacitated—and therefore unable to consent—but nonetheless chose not to investigate the matter or initiate disciplinary proceedings against Roe. The record does not contain such evidence. Although Roe said that she believed Doe was drunk at certain points during the evening, she thought he was not as intoxicated as she was, and she did not think that he was incapacitated. See D.E. 56-5 at 8–9.
Ms. Wallace, the Title IX investigator, testified similarly:
Q. Did you have any – after you received information that the respondent may have been drunk, did you
have any concerns that he was incapacitated due to the use of alcohol? A. No. There w[ere] no allegations that – and even I believe reporter or responding party himself told me that he wasn‘t incapacitated. I don‘t want to misquote him, but I believe he told me he wasn‘t even drunk at the time of the incident.
Q. But the reporting party told you he was drunk, right?
A. No. The reporting party told me that he was drunk earlier in the night during the – I believe like the sorority serenade event.
D.E. 56-9 at 106.
Critically, Doe never claimed that he was incapacitated. When asked whether she made “any efforts to determine whether [Doe] was able to consent to [ ] sexual activity,” Ms. Wallace answered that “[t]here was absolutely no mention of [Doe] being victimized by [Roe.]” Id. at 107–108. According to Ms. Wallace, Doe “never brought that up. Had he brought that up, had he said – had he told me [he] was in an – even if he didn‘t allege incapacitation, even if he said intoxication, [she] would have inquired further as to his intoxicated state; however, that is not what he said at all.” Id. at 108.
Indeed, Doe‘s own statements belie any claim of incapacitation. Doe submitted two statements to Ms. Wallace in response to allegations made against him. See D.E. 61-2, Exh. C at 25–31. In the first statement, Doe did not say or suggest that he was
The record, as we have noted, contains some evidence of Doe drinking alcohol on the night in question. But this was not enough to create a genuine issue of material fact as to whether Rollins discriminated against Doe on the basis of sex by failing to investigate Roe. Given that Doe did not file a complaint against Roe, and that Doe disclaimed any incapacity, no reasonable jury could find that Rollins’ failure to investigate Roe was based on sex.
Doe‘s reliance on Doe v. Amherst College, 238 F. Supp. 3d 195 (D. Mass. 2017), falls short for this very reason. In Amherst College, the operative complaint alleged that the college learned that the alleged female victim “may have initiated sexual activity” with the male student subject to the disciplinary proceedings “while he was ‘blacked out,’ and thus incapable of consenting” but
C
To state a Title IX erroneous outcome claim, a plaintiff must plausibly allege “both that he was innocent and wrongly found to have committed an offense and that there is a causal connection between the flawed outcome and [sex] bias.” Samford Univ., 29 F.4th at 686 (internal quotation marks omitted). At the summary judgment stage, a plaintiff must present sufficient evidence for a jury to make both of these findings. See Univ. of Denver, 1 F.4th at 830.
Doe denied that he engaged in sexual activity with Roe without her consent. We agree with the district court that his first-hand version of events, if believed, was sufficient to create an issue of fact on the first prong of the erroneous outcome standard. See United States v. Stein, 881 F.3d 853, 857–58 (11th Cir. 2018) (en banc).
Before discussing the evidence Doe relies on, we briefly summarize the allegations presented, and found to be insufficient to make out a claim of gender bias, in Samford University. Although Samford University arose in a
The plaintiff in Samford University alleged that “procedural irregularities at the investigation and hearing stages, ‘public pressure [ ] to comply with Title IX,’ public statements by university officials, and ‘statistics revealing numerous allegations against male students’ raise[d] a reasonable inference of sex discrimination.” 29 F.4th at 687. Specifically, the plaintiff‘s allegations of procedural
These and other allegations, accepted as true and viewed in the light most favorable to the plaintiff, fell short in Samford
Doe identifies four types of evidence which he says shows (or creates an issue of fact on) Rollins’ gender bias: (1) evidence of stereotyped views of gender; (2) evidence of procedural flaws in the investigation; (3) evidence of external pressure from the Department of Education; and (4) evidence on patterns of decision-making at Rollins. We assess this evidence collectively because “the whole is often greater than the sum of its parts.” District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (discussing the “totality of the circumstances” standard for assessing probable cause). Cf. Lewis v. City of Union City, 918 F.3d 1213, 1220 n.6 (11th Cir. 2019) (en banc) (explaining that a plaintiff may show discriminatory intent by presenting a “convincing mosaic” of circumstantial evidence that would allow a jury to infer intentional discrimination). But to understand what Doe‘s evidence means collectively, we first discuss each component of the mosaic and its limitations. See Samford Univ., 29 F.4th at 687–92.
Stereotyped Views of Gender. Doe points to two emails sent by Rollins’ Title IX Coordinator in October and November of 2015, as well as certain information set out in some of Rollins’ training materials. According to Doe, the email from October of 2015 “misrepresented the definition of consent . . . indicating a female-centric view where consent could not be implied by ‘a few too
The October 2015 email includes the “short skirt” comment, but the rest of its content is gender neutral with respect to the matter of consent: “To make a mutual, voluntary, informed decision between clear-minded, of age participants before ANY and EVERY sexual act. Consent can be withdrawn at ANY time and you are NOT ENTITLED.” D.E. 74-8 at 1. It also states, with bullet points, that “[c]onsent is an enthusiastic, unequivocal, voluntary, verbal and passionate – YES!“; that “[c]onsent is not an interpretation“; that “[t]here are no grey areas“; that consent “is not unsure, or implied, after a few too many drinks or by a short skirt, it‘s not drugged, it‘s never a ‘maybe’ or an ‘okay’ and it sure isn‘t coerced or convinced“; and that a “person cannot consent if they are asleep or incapacitated by alcohol, drugs, or any other cause!” See id.
The November 2015 email states that “[m]en are an integral part of moving campus culture away from tolerance of sexual violence,” and that “[w]hile most men do not commit acts of violence, males perpetrate the majority of sexual assaults on women and other men.” D.E. 74-7 at 1. It also says that “[m]en act in a hyper-
One set of training materials from the Office of the Title IX Coordinator, which were used for student orientation, defines sexual assault as “[h]aving or attempting to have sexual intercourse or sexual contact with another individual without consent” and in a bullet point mentions “[t]hreat, force, coercion, incapacitation.” D.E. 74-12 at 14. The slide for “consent” states the following: “The decision to engage in sexual activity must be informed, knowing, and voluntary. It exists when all parties exchange mutually understandable affirmative words or behavior indicating their agreement to freely participate in mutual sexual activity.” Id. at 17. Additional slides about “consent” and “coercion” are gender-neutral. See, e.g., id. at 18 (explaining that a person who is “physically incapacitated” is “considered unable to give consent“). One of the “scenario” discussions employs a hypothetical in which a male student harasses a female student; another uses a hypothetical in which one male student engages in the sexual assault of another male student; and a third uses a hypothetical in which a male student touches the breast of a female student without her consent. See id. at 36–38.5
Doe contends in his brief that the former statistic is “questionable” and that the latter is “false.” Br. for Appellant at 40. But he does not cite to any evidence in the record indicating the respective statistics are questionable or false, and it is not appropriate for us on our own to try to figure out if the figures are accurate or not even assuming we could. If Doe asserts that Rollins used allegedly questionable or false statistics about sexual assaults to suggest or show gender bias on the part of Rollins, it is his responsibility to point us to a source which questions the validity of those statistics.
First, although Rollins exceeded its own 60-day deadline, “[a] deviation from a Title IX policy is not, in and of itself, a violation of Title IX.” Samford Univ., 29 F.4th at 688. Ms. Jiménez Guevara explained that she did not open up an investigation at the time of Roe‘s initial report in February of 2017 because she “didn‘t have enough information to supersede [Roe‘s] wishes at that time.” D.E. 56-2 at 117. Choosing not to begin an investigation against Doe for dearth of information (and/or because of Roe‘s decision not to proceed) is not evidence of sex discrimination.
Second, Doe asserts that Ms. Wallace interviewed Roe four times—three in-person interviews and one phone call—but interviewed him only once. But Doe submitted two written statements in addition to his interview. So Ms. Wallace still heard from Doe several times, albeit in a different format. Moreover, Ms. Wallace testified that Doe “was interviewed at the end” and after she “interviewed [Doe] and re-interviewed [Roe], there were no outstanding questions in [her] mind that gave [her] any reason to re-interview him for any reason.” Id. at 34. Additionally, Ms. Wallace interviewed the witnesses Doe submitted and they did not provide any additional information or leave any outstanding questions in her mind “that would have called for him to be re-interviewed.” Id.7
Fourth, it is true that Ms. Wallace inquired about Doe‘s past sexual history but not about Roe‘s past sexual history. In a vacuum, that might permit some inference of gender bias. But the evidence cannot be viewed in isolation, and here there was an anonymous allegation that Doe had sexually assaulted three other
Pressure from the Department of Education. Doe points to the Department of Education‘s issuance of its 2011 “Dear Colleague” letter—which discussed, among other things, schools’ obligations to respond to sexual harassment and sexual violence, procedural requirements pertaining to such harassment and violence, and steps to prevent and correct its discriminatory effects on the complainant and others—and maintains that Rollins changed its Title IX policies in response to “pressure” from the Department. See Br. for Appellant at 44–45; Reply Br. for Appellant at 36–38. Doe also cites to the testimony of Ms. Jiménez Guevara, who said that “[p]art of [her] job was ensuring that [Rollins was] following the mandates of Title IX, as an institution” and that the “Dear Colleague letter and the government was very clear on what the consequences are for any institution that doesn‘t follow the mandates of Title IX.” D.E. 56-2 at 114.
In Samford University, we explained that the Department of Education‘s 2011 “Dear Colleague Letter” was not indicative of gender bias on the part of the university because it was rescinded in September of 2017 and because new regulations, e.g.,
Patterns of Decision-Making at Rollins. Doe maintains that Rollins “never investigated a female for sexual misconduct while Doe was a student at the school despite the fact that the Rollins student body at that time was 60% female.” Br. for Appellant at 47. He also argues that Rollins’ investigations “show[ ] actions consistent with gender bias“—for example, “[m]any of the reports delved into the sexual history of the male respondents.” Id. at 48.
Statistics are often illuminating, but they sometimes do not tell the whole story. Maybe that is why Benjamin Disraeli, the British statesman, once remarked that there are three kinds of lies: “lies, damned lies, and statistics.” The Yale Book of Quotations 208 (Yale Univ. Press 2006).
Doe‘s statistical presentation is misleading. Of the 12 reported cases of alleged sexual misconduct at Rollins between 2011 and 2018, none included complaints against a female student—11 were female students complaining about male students, and the other was a male student complaining about a male student. Doe therefore has not cited any evidence of Rollins choosing not to investigate complaints against female students. See Samford Univ., 29 F.4th at 692.
The Evidence Viewed Collectively. As noted, Doe‘s evidence of procedural deficiencies and patterns of enforcement must be viewed collectively. But even when taken as a whole, and viewed in Doe‘s favor, the evidence does not create a jury issue as to whether there was a causal connection between the purported erroneous outcome in Doe‘s case and gender bias on the part of Rollins. See Yusuf, 35 F.3d at 715 (explaining that the record must contain enough evidence to create a genuine issue of fact as to whether “gender bias was a motivating factor behind the erroneous finding” in the plaintiff‘s case). First, although some of the 2015 emails and the various training materials Doe highlighted do contain some problematic language—for example, as Doe notes, the hypothetical example scenarios included only male perpetrators—they were geared toward student orientation and training and
The cases Doe relies on exemplify the shortcomings of this record. For example, in Doe v. Marymount University, 297 F. Supp. 3d 573, 586 (E.D. Va. 2018), the district court had before it allegations specifically regarding the adjudicator of the sexual misconduct proceedings—the person “ultimately responsible for determining [the student‘s] guilt or innocence.” Because the district court was considering a motion to dismiss, it accepted as true the
Here, the record is markedly different. Doe has not pointed to any evidence showing that Ms. Wallace, the Title IX investigator in his case, had or acted on gender bias. Ms. Wallace was selected as a Title IX investigator for Rollins around April of 2017 and the first training she attended was on May 31, 2017. See D.E. 61-7 at 6-7. Doe does not argue that Ms. Wallace attended any of the problematic training sessions he cites to, and it is unclear from the record whether they even took place while Ms. Wallace was serving as an investigator-some of the presentations appear undated, but at least one appears to be from August 14, 2014, which was years before Ms. Wallace was even selected by Rollins. For the same reason, Ms. Wallace could not have received the October and November 2015 emails Doe references.
We are likewise unpersuaded by Doe‘s reliance on Doe v. Purdue University, 928 F.3d 652 (7th Cir. 2019). The allegations in Purdue University-which, again, had to be accepted as true at the
Finally, we have considered Doe v. William Marsh Rice University, 67 F.4th 702, 714 (5th Cir. 2023) (2-1 decision reversing
In Rice University, a student-we‘ll call her Student A-alleged that “she became infected with herpes after a consensual sexual encounter with another student who knew he had herpes” but failed to sufficiently inform her of that during their relationship. See 67 F.4th at 705. After Student A submitted a written complaint to Rice University, the other student-we‘ll call him Student B-was placed on an interim suspension. See id. at 706. The investigation against Student B was to determine whether he violated Rice University‘s prohibition from “intentionally inflicting or attempting to inflict mental or bodily harm on any person” and “taking reckless disregard, from which mental or bodily harm could result to any person” and “whether his conduct may qualify as dating violence under the [u]niversity‘s [s]exual [m]isconduct [p]olicy.” Id. (internal quotation marks omitted).
Roe and Student A are alike in that each submitted a complaint to their university alleging sexual misconduct, and Doe and Student B are alike in that each filed lawsuits against their university alleging gender bias. But that‘s really where the relevant
Based on these facts, a divided panel of the Fifth Circuit concluded that the district court did not view the record in the light most favorable to Student B, and that material fact issues remained as to whether the university‘s proceedings were motivated by gender bias. Rice University does not establish that the district court here erred; it shows how a different record can lead to a different result.8
IV
Doe argues that he was entitled to summary judgment on the liability aspect of his breach of contract claim. To recap, the district court partially granted Doe‘s motion for summary judgment, concluding that Rollins breached the 60-day provision of its Title IX sexual misconduct policy. That provision typically required the process for sexual misconduct and harassment reports to be completed within 60 days. Doe challenges the district court‘s
There was “a full trial and judgment on the merits” of the materiality issue. As a result, Doe‘s challenge to the district court‘s denial of summary judgment is not properly before us. See Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1286 (11th Cir. 2001) (“We . . . hold that this Court will not review the pretrial denial of a motion for summary judgment after a full trial and judgment on the merits.“); Am. Builders Ins. Co. v. S.-Owners Ins. Co., 56 F.4th 938 (11th Cir. 2023) (“[W]e have repeatedly and broadly held that ‘this Court will not review the pretrial denial of a motion for summary judgment after a full trial and judgment on the merits.‘“) (quoting Lind, 254 F.3d at 1286); Carrizosa, 47 F.4th at 1339 (“In our circuit . . . ‘a party may not appeal an order denying summary judgment after there has been a full trial on the merits.‘“) (citation omitted).
The Supreme Court recently held in Dupree v. Younger, 143 S. Ct. 1382, 1389 (2023), that a “post-trial motion under
Dupree does not apply here. The reason is that under Florida law-which governs Doe‘s breach of contract claim-
V
Doe also challenges the district court‘s denial of his
During trial, Doe moved for partial judgment as a matter of law under
The district court reserved ruling on Doe‘s partial
In his renewed motion, Doe argued that the district court had “misapplied the material breach rule” by focusing on whether the delay impacted Rollins’ investigator, rather than himself, the non-breaching party. See D.E. 210 at 4. The district court denied Doe‘s
Under Florida law, “[t]o constitute a vital or material breach, a defendant‘s non-performance must be such as to go to the essence of the contract.” Marchisio v. Carrington Mortg. Servs., LLC, 919 F.3d 1288, 1313 (11th Cir. 2019) (internal quotation marks omitted). See also Burlington & Rockenbach, P.A. v. L. Offs. of E. Clay Parker, 160 So. 3d 955, 960 (Fla. 5th DCA 2015) (“To establish a material breach, the party alleged to have breached the contract must have failed to perform a duty that goes to the essence of the contract and is of such significance that it relieves the injured party from further performance of its contractual duties.“). “A party‘s failure to perform some minor part of his contractual duty cannot be classified as a material or vital breach.” Covelli Fam., L.P., 977 So. 2d at 752 (internal quotation marks omitted). See also JF & LN, LLC v. Royal Oldsmobile-GMC Trucks Co., 292 So. 3d 500, 509 (Fla. 2d DCA 2020) (“A trivial noncompliance or minor failure to perform is not a material breach.“).
As the district court explained, “the jury had to determine whether [Rollins‘] failure to comply with the [60]-day provision
Doe points to testimony from Eric Barker, the lawyer who served as his advisor during the Title IX proceedings, to support his claim that the breach was material. Mr. Barker testified that Doe was placed at a disadvantage, that witnesses “may forget over nine months all of the details or some of the important details,” and that surveillance videos may disappear. See Br. for Appellant at 59 (citing D.E. 230 at 215-16). Doe also relies on his own trial testimony, where he “noted he would have taken ‘several different acts’ had he been informed of the investigation in a timely manner.” Id. (citing D.E. 234 at 33). Specifically, Doe testified that he “probably would have thoroughly looked through any text messages that [he] may have had over that nine-month period . . . and collect any posts from social media from the time that could have been relevant[.]” D.E. 234 at 33. He also stated that he “[c]ould have [gone] to any local businesses with security footage to help provide more context” and “could have written down a lot of [his] thoughts from that evening, from that current time period instead of letting this sit over the course of nine months and potentially allowing or risking the ability to recover a lot of that information.” Id.
For example, Rollins cites to testimony from Ms. Jiménez Guevara that “immediately following . . . Roe‘s report in February [of] 2017, she attempted to obtain footage of Doe and . . . Roe on campus from the night in question, but no surveillance footage existed.” Br. for Appellee at 57-58 (citing D.E. 234 at 281-85). Ms. Jiménez Guevara explained that she “contacted Campus Safety to ask if there was any video footage of any of the areas where [Roe] described that she had been located walking with . . . Doe.” D.E. 234 at 284. Ms. Jiménez Guevara also testified that she asked Roe “to provide [her] with any documentation, with a statement, with any text messages, or anything that she could provide [her] with at that point in time.” Id. at 283.
There was also the investigation report, which was admitted into evidence. The report shows that, as part of her investigation, Ms. Wallace was able to review text messages from February of 2017, including messages Roe sent to different persons-some as immediate as 3:29 a.m. and 3:31 a.m. the morning of the incident that was the subject of the Title IX investigation-as well as the text exchange between Roe and Doe on February 18, 2017, which Roe reported to be the last time she spoke with Doe. See D.E. 201, Exh. 16 at 10-11. And although Ms. Wallace acknowledged that the memories of witnesses could fade over time, she also said that
In sum, although Rollins breached the 60-day provision, “reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions” on whether that breach was material. See Christopher v. Florida, 449 F.3d 1360, 1364 (11th Cir. 2006). Cf. Universal Prop. & Cas. Ins. Co. v. Motie, 335 So. 3d 205, 206-07 (Fla. 5th DCA 2022) (reversing directed verdict and holding that jury had to decide whether homeowner‘s failure to report storm damage for 103 days was a material breach of the insurance contract). We therefore affirm the district court‘s denial of Doe‘s motions for judgment as a matter of law.9
VI
The district court did not abuse its discretion in excluding the gender bias and unfair process opinions of Doe‘s expert, and properly granted summary judgment in favor of Rollins on Doe‘s Title IX claims for selective enforcement and erroneous outcome. On the breach of contract claim, the district court did not err in denying Doe‘s
AFFIRMED.