DeMarcus Whitaker v. The Board of Regents of the University System of Georgia

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 14, 2021
• Docket: 20-13618
• Status: Unpublished

Opinion

USCA11 Case: 20-13618 Date Filed: 09/14/2021 Page: 1 of 15

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13618 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cv-00141-JRH-BKE

DEMARCUS WHITAKER,

Plaintiff - Appellant,

versus

THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, BROOKS KEEL, President of Augusta University, in his individual and official capacity, JAMES RUSH, Chief Integrity Officer of Augusta University, in his individual and official capacity, MICHELLE REED, Title IX coordinator of Augusta University, in her individual and official capacity, GINA THURMAN, Assistant Dean of Student Life & Enrollment, in her individual and official capacity, et al.,

Defendants - Appellees. USCA11 Case: 20-13618 Date Filed: 09/14/2021 Page: 2 of 15

________________________

Appeal from the United States District Court for the Southern District of Georgia ________________________

(September 14, 2021)

Before JORDAN, GRANT, and EDMONDSON, Circuit Judges.

PER CURIAM:

DeMarcus Whitaker (“Plaintiff”), proceeding pro se,1 appeals the district

court’s dismissal -- pursuant to Fed. R. Civ. P. 12(b)(6) -- of his amended

complaint for failure to state a claim. No reversible error has been shown; we

affirm.

I. Background

This appeal arises from an allegation of sexual harassment made against

Plaintiff by a former classmate (“Jane Roe”). Briefly stated, these allegations

1 We read liberally briefs filed by pro se litigants. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). 2 USCA11 Case: 20-13618 Date Filed: 09/14/2021 Page: 3 of 15

serve as the facts. During the fall semester of 2016, Plaintiff was a student at

Augusta University (“AU”), a unit of the Board of Regents of the University

System of Georgia (“Board”). Plaintiff and Roe were assigned as lab partners in a

biology class. In September 2016, Roe complained to AU that Plaintiff had

harassed her sexually and had touched her without her consent.

Following Roe’s complaint, AU issued a “no contact” order to both Plaintiff

and to Roe. Plaintiff says Roe violated the university’s no-contact order when she

later spoke to him on three occasions about class-related matters. In November

2016, Plaintiff reported Roe’s no-contact violations to AU’s Title IX coordinator

(Michelle Reed) and to AU’s Dean of Student Life and Enrollment (Gina

Thurman), both of whom were then also involved in investigating Roe’s sexual-

harassment complaint.

Plaintiff says he ultimately stopped attending biology class due to the stress

caused by Roe. When Plaintiff asked Thurman about withdrawing from the class,

Thurman told Plaintiff that Plaintiff would need a doctor’s note to withdraw

without penalty. Plaintiff objected to having to provide a doctor’s note and filed a

bias claim against Thurman and Reed based on the doctor-note requirement.

Following an initial investigation, Thurman formally charged Plaintiff with

sexual harassment in December 2016.

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In January 2017, Plaintiff filed a second bias claim against Thurman and

Reed for their handling of Roe’s claim. Reed and Thurman were later found by an

independent, university factfinder (Tracy Woods) 2 to be unbiased.

In May 2017, AU conducted the hearing on Roe’s claim for sexual

harassment. The hearing panel found Plaintiff “not responsible” for sexual

harassment.

AU later declined to investigate Plaintiff’s earlier complaint about Roe’s

purported violations of the no-contact order because -- by that time -- Roe had

already graduated.

In August 2018, Plaintiff filed this civil action against the Board, Thurman,

Reed, Woods, and four other university employees. Pertinent to this appeal,3

Plaintiff, in his long complaint, asserted claims for sex discrimination and

retaliation, in violation of Title IX of the Education Amendments of 1972, 20

2 Woods was the Title IX Coordinator/Human Resources Director at East Georgia State College: an institution governed by the Board. 3 Plaintiff’s amended complaint asserted a total of 7 federal claims and 27 claims under Georgia law. On appeal, Plaintiff raises no challenge to the district court’s dismissal of his federal claims for conspiracy in violation of 42 U.S.C. § 1985 (Counts III & IV), for violation of substantive and procedural due process (Count V), and for violation of the Fifth Amendment right against self-incrimination (Count VII). Nor does Plaintiff challenge the district court’s decision declining to exercise supplemental jurisdiction over Plaintiff’s state law claims. These claims are thus not properly before us in this appeal. See Timson, 518 F.3d at 874 (explaining that “issues not briefed on appeal by a pro se litigant are deemed abandoned.”). 4 USCA11 Case: 20-13618 Date Filed: 09/14/2021 Page: 5 of 15

U.S.C. § 1681 (“Title IX”), and for violation of the Fourteenth Amendment’s

Equal Protection Clause.

The district court granted defendants’ motions to dismiss. The district court

construed Plaintiff’s complaint as asserting a Title IX sex-discrimination claim

under three separate theories: deliberate indifference, selective enforcement, and

erroneous outcome. The district court determined that Plaintiff failed to state a

claim for sex discrimination based on deliberate indifference because Plaintiff

never alleged that he was the victim of sexual harassment. The district court noted

that this Court has never adopted either the selective-enforcement or erroneous-

outcome theories asserted by Plaintiff. Nevertheless, the district court concluded

that Plaintiff failed to state a claim under either of those two alternative theories:

(1) Plaintiff failed to allege facts sufficient to show that Roe was a similarly-

situated comparator to Plaintiff or that the purported differential treatment was

based on Plaintiff’s sex and (2) Plaintiff was found “not responsible” for sexual

harassment and thus had shown no erroneous outcome.

The district court next determined that Plaintiff failed to state a claim for

unlawful retaliation under Title IX. The district court first concluded that Plaintiff

failed to allege sufficiently that he had engaged in protected expression because --

although Plaintiff complained to university officials that he was being treated

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unfairly and differently from Roe -- Plaintiff never complained that he was being

mistreated because of his sex or because of his participation in a Title IX

investigation. The district court also determined that Plaintiff failed to allege

sufficiently that he suffered an adverse action that was either materially adverse or

that was causally related to Plaintiff’s complaints.

About Plaintiff’s Equal Protection claim, the district court -- based on two

independent grounds -- determined that Plaintiff failed to state a claim for relief:

(1) Plaintiff identified no similarly-situated comparator who was treated more

favorably that he was and (2) Plaintiff failed to allege differential treatment on

account of Plaintiff’s sex.

II. Discussion

We review de novo a district court’s dismissal for failure to state a claim,

accepting all properly alleged facts as true and construing them in the light most

favorable to the plaintiff. Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261,

1265 (11th Cir. 2012).

To survive a motion to dismiss, a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

6 USCA11 Case: 20-13618 Date Filed: 09/14/2021 Page: 7 of 15

P. 8(a)(2). In addition to containing well-pleaded factual allegations, complaints

must also meet the “plausibility standard” set forth by the Supreme Court in Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and in Ashcroft v. Iqbal, 556 U.S.

662 (2009). This plausibility standard requires that a complaint “contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Iqbal, 556 U.S. at 678. To state a plausible claim for relief, plaintiffs must

offer “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “Factual allegations must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S.

at 555. “Threadbare recitals of the elements of a cause of action, supported by

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

A complaint filed by a pro se litigant is construed more liberally than a

formal pleading drafted by a lawyer. Powell v. Lennon, 914 F.2d 1459, 1463 (11th

Cir. 1990). Despite this leniency toward pro se litigants, courts may not step into

the role of de facto counsel or “rewrite an otherwise deficient pleading in order to

sustain an action.” GJR Invs. v. Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir.

1998).

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A. Title IX Sex Discrimination

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.” 20 U.S.C. § 1681(a).

The district court committed no error in dismissing Plaintiff’s claim for sex

discrimination under Title IX. Because Plaintiff was the alleged harasser -- not a

victim of sexual harassment, the district court concluded correctly that Plaintiff

could state no claim for unlawful sex discrimination under a theory of deliberate

indifference. See Williams v. Bd. of Regents, 477 F.3d 1282, 1293 (11th Cir.

2007) (explaining that an institution may be liable under Title IX to a victim of

student-on-student sexual harassment if the institution knew about and was

deliberately indifferent to the harassment).

Nor did the district court err in determining that Plaintiff failed to state a

claim for relief under an erroneous-outcome theory. Under that theory, a student

seeking to challenge a university disciplinary proceeding “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.’” See Doe v.

8 USCA11 Case: 20-13618 Date Filed: 09/14/2021 Page: 9 of 15

Valencia Coll., 903 F.3d 1220, 1236 (11th Cir. 2018) (assuming for purposes of

that appeal that a Title IX violation may be established via the “erroneous

outcome” test recognized in Yusuf v. Vassar Coll., 35 F.3d 709 (2d. Cir. 1994)).

Because Plaintiff was found “not responsible” for sexual harassment, Plaintiff

cannot show that he was “wrongly found to have committed an offense.”

Plaintiff -- relying on the Second Circuit’s decision in Yusuf -- also asserts a

claim for Title IX sex discrimination under a selective-enforcement theory: a

theory that has never been adopted expressly by this Circuit. See Valencia Coll.,

903 F.3d at 1236 n.13. Under that theory, a plaintiff challenging a university

disciplinary proceeding must establish 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 gender.” Yusuf, 35 F.3d at 715. Even if we assume

for purposes of this appeal that a Title IX violation can be established under a

selective-enforcement theory, we see no error in the district court’s determination

that Plaintiff failed to state a claim under that theory.

Plaintiff alleges that defendants “selectively enforced” Title IX when they

investigated fully Roe’s sexual-harassment complaint and ignored Plaintiff’s

complaint about violations of the no-contact order. But Plaintiff and Roe were not

similarly situated as complainants. The conduct underlying Roe’s complaint

9 USCA11 Case: 20-13618 Date Filed: 09/14/2021 Page: 10 of 15

against Plaintiff (sexual harassment and unwanted touching proscribed by federal

law) is clearly of greater severity, degree, and kind than the conduct underlying

Plaintiff’s complaint against Roe (brief statements about class-related matters in

violation of a university-issued no-contact order). Given the substantial

differences between the two kinds of complaints, we cannot draw the reasonable

inference (that is, move beyond speculation) that defendants’ decision to

investigate Roe’s complaint, but not Plaintiff’s complaint was a decision likely

motivated by Plaintiff’s sex.

B. Title IX Retaliation

Plaintiff next challenges the district court’s dismissal of his Title IX

retaliation claim. Retaliation against a person because that person complained of

sex discrimination constitutes intentional sex discrimination in violation of Title

IX. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). To prove

a prima facie case of retaliation, a plaintiff must show (1) that he engaged in

statutorily protected expression; (2) that he suffered an adverse action; and (3) a

causal connection between the two events. See Thomas v. Cooper Lighting, Inc.,

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506 F.3d 1361, 1363 (11th Cir. 2007) (addressing a retaliation claim in the context

of Title VII of the Civil Rights Act of 1964). 4

Plaintiff argues that the district court failed to recognize distinctly each

instance of Plaintiff’s speech about discrimination. Plaintiff, however, raised in his

initial brief no challenge to the district court’s determination that Plaintiff failed to

allege sufficient facts to demonstrate a material adverse act or to show a causal

connection between an adverse act and Plaintiff’s speech.

“While we read briefs filed by pro se litigants liberally, issues not briefed on

appeal by a pro se litigant are deemed abandoned” and we will “not address

arguments raised for the first time in a pro se litigant’s reply brief.” Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (citations omitted). “When an

appellant fails to challenge properly on appeal one of the grounds on which the

district court based its judgment, he is deemed to have abandoned any challenge of

that ground, and it follows that the judgment is due to be affirmed.” Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). Passing references

to the district court’s alternative ruling do not suffice. See id. at 681.

4 In considering Plaintiff’s Title IX retaliation claim, the district court looked to the framework used for examining retaliation claims made under Title VII. Absent an objection from either party, we follow the same approach. 11 USCA11 Case: 20-13618 Date Filed: 09/14/2021 Page: 12 of 15

Because Plaintiff failed to address in his initial appellate brief each of the

district court’s independent grounds for dismissing his retaliation claim, those

issues are abandoned. See Sapuppo, 739 F.3d at 680; Timson, 518 F.3d at 874.

We thus affirm the dismissal of Plaintiff’s Title IX retaliation claim.

C. Equal Protection Clause

To establish a violation of the Equal Protection Clause, a plaintiff must show

that he was “treated differently from other similarly situated individuals,”

Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006), and that the

“challenged action was motivated by an intent to discriminate.” Elston v.

Talladega Cty. Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993). “[D]ifferent

treatment of dissimilarly situated persons does not violate the equal protection

clause.” Campbell, 434 F.3d at 1314. A similarly-situated comparator means a

person who is “similarly situated in all material respects.” Lewis v. City of Union

City, 918 F.3d 1213, 1218, 1220 n.5 (11th Cir. 2019) (noting that sex-related

claims under the Equal Protection Clause are analyzed using the same burden-

shifting framework used to analyze discrimination claims under Title VII).

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In addressing Plaintiff’s Equal Protection claim, the district court construed

Plaintiff’s complaint as asserting three instances of alleged discrimination: (1) that

the people investigating Roe’s sexual harassment claim favored Roe over Plaintiff;

(2) that Plaintiff’s claim of bias against him was not investigated adequately; and

(3) that Plaintiff’s complaint about Roe’s purported violation of the no-contact

order was never investigated. For each alleged act of discrimination, the district

court concluded that Plaintiff failed to identify a similarly-situated comparator who

was treated more favorably than Plaintiff. In the alternative, the district court also

determined that Plaintiff never alleged that the complained-of differential treatment

was on account of his sex and that Plaintiff alleged no facts that tended to show

that defendants’ acts were motivated by Plaintiff’s sex.

We see no error in the district court’s determination that Plaintiff identified

no similarly-situated comparator. For reasons we have already touched upon, Roe

and Plaintiff were not similarly situated. Thus, to the extent Plaintiff says he was

treated differently from Roe -- both during the investigation of Roe’s sexual

harassment claim and with respect to Plaintiff’s complaint about violations of the

no-contact order - Plaintiff has alleged no equal protection violation. Nor has

Plaintiff alleged facts suggesting that he was treated differently than another person

who complained of bias in a sexual-harassment investigation.

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On appeal, Plaintiff raises no challenge to the district court’s determinations

that Roe was not similarly situated or that Plaintiff identified no valid comparator.

Plaintiff argues, instead, that he was not required to identify a similarly-situated

comparator. Plaintiff is mistaken.

We accept that a plaintiff need not allege facts sufficient to prove a prima

facie case under the burden-shifting framework established in McDonnell

Douglas.5 See Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1246 (11th Cir.

2015) (noting that the McDonnell Douglas framework constitutes “an evidentiary

standard, not a pleading requirement”). But to avoid dismissal, a plaintiff must

plead facts (accepted as true) sufficient to state a plausible claim for relief. See

Iqbal, 556 U.S. at 678. Here, Plaintiff has alleged no facts from which we can

draw a reasonable inference that Plaintiff was treated differently from another

similarly-situated person or that the complained-of differential treatment was

motivated by an intent to discriminate on an unlawful ground. Plaintiff identified

no valid comparator and alleged no other specific facts that would raise his equal

protection claim above the speculative level. See Twombly, 550 U.S. at 555.

5 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 14 USCA11 Case: 20-13618 Date Filed: 09/14/2021 Page: 15 of 15

On these pleadings and for these reasons, we affirm the district court’s

dismissal of Plaintiff’s amended complaint pursuant to Fed. R. Civ. P. 12(b)(6).

AFFIRMED.