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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11571 ________________________
D.C. Docket No. 8:19-cv-00772-VMC-JSS
SAMANTHA RING,
Plaintiff-Appellant,
versus
BOCA CIEGA YACHT CLUB INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida _______________________
(July 12, 2021)
Before WILLIAM PRYOR, Chief Judge, LUCK, Circuit Judge, and MARKS, * District Judge.
WILLIAM PRYOR, Chief Judge:
* Honorable Emily Coody Marks, Chief United States District Judge for the Middle District of Alabama, sitting by designation. USCA11 Case: 20-11571 Date Filed: 07/12/2021 Page: 2 of 32
This appeal involves the private-club exception to the Americans with
Disabilities Act and the Civil Rights Act of 1964. A member of a yacht club asked
to bring her service dog into the clubhouse and argued that she was entitled to do
so under the Americans with Disabilities Act. The club responded that it was
covered by an exception for “private clubs or establishments exempted from
coverage under title II of the Civil Rights Act of 1964,” 42 U.S.C. § 12187, and it
refused the member’s request for an exception to its pet policy. The relationship
between the member and the club deteriorated from there. The member filed an
administrative complaint with a local civil rights authority, and the club suspended
her and then expelled her from its membership. The member sued for
discrimination and retaliation under the Americans with Disabilities Act and the
Florida Civil Rights Act. The district court granted summary judgment in favor of
the club. Because the record does not establish that the club is a “private club”
under the Americans with Disabilities Act, we vacate the summary judgment on
the discrimination claims. But we affirm the summary judgment on the retaliation
claim because the member failed to rebut the club’s nondiscriminatory
justifications for expelling her.
I. BACKGROUND
Samantha Ring is a middle-school teacher in St. Petersburg, Florida. She has
severe allergies to bees and sunflower seeds and a history of anaphylactic reactions
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to both. Ring carries an EpiPen, and she used it twice within a year of initiating
this lawsuit after being exposed to sunflower seeds.
Piper is a dog. Ring acquired Piper in 2015 with the intention of giving her
basic obedience training and rehoming her. But she quickly discovered that Piper
had a talent for killing bees. Piper saved Ring’s life by killing a bee while Ring
was out on her boat without her EpiPen, so Ring decided to keep Piper and train
her to be a service dog. She has since trained Piper to retrieve her EpiPen and to
seek help upon command, and she is in the process of training Piper to detect
sunflower seeds. Ring testified that Piper has protected her from being stung by
bees on seven separate occasions.
The Boca Ciega Yacht Club is located in Gulfport, Florida. It is a tax-
exempt nonprofit organization. It is run by volunteers and headed by a volunteer
Commodore, who is elected by the general membership. The Club’s bylaws
include the following mission statement: “1. To promote safe boating activities[;]
2. To promote instruction and education in safe boating and all nautical activities[;]
3. To promote fellowship and camaraderie among the members[;] 4. To be an
integral part of the Community of Gulfport.” The Club conducts its business at
monthly board meetings and general membership meetings. It also conducts some
business at “Special Board Meeting[s],” including the suspension of membership
privileges. The Club’s meetings are not conducted behind closed doors. In fact,
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non-members are encouraged to attend a general meeting to learn more about the
Club and express interest in joining.
“Membership in Boca Ciega Yacht Club is open to any natural person,
regardless of gender, race, or religion, who is a person of good character and 21
years of age or older.” Membership applications are submitted using a form
available on the Club’s website. The form asks applicants for their name, address,
and contact information, for information about family members to include on the
membership, for boat information (if the applicant owns a boat), and for two
personal references, information about any felony convictions, and consent to a
background check. The membership form does not ask applicants for member
references or about any qualification other than age. Familiarity with boats is not a
membership requirement. After an application is submitted, the Club’s
membership committee vets the applicant to determine whether she is “of good
moral character, financially responsible, and [willing] to actively participate in the
welfare of the Club.” Vetted applications are read at the next board meeting so that
objections may be raised, and applicants are introduced for approval by a majority
vote at the next general meeting. In the five years before this litigation, 94.6
percent of applications were approved. Neither of the Club’s two immediate past
commodores, Commodore Southard and Commodore Brown, could recall a time
when an application was not approved after making it to the vote by the general
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membership. The Club’s membership is not formally limited, but it has remained
steady for years at around 200 members. Membership dues are $145 a quarter, and
members are also required to participate in workdays that are organized each
month.
The Club is located on property leased from the City of Gulfport for $1 a
year. The lease gives Club members priority to rent the boat slips on the premises
but provides that unleased slips will be leased by the City to members of the
public. It also requires the Club to allow members of certain community
organizations and other City invitees to use the beach area on the premises. And
under the lease, the Club is permitted to have one vessel docked at the facility as a
liveaboard vessel. Otherwise, members are not allowed to live on their boats. The
leased property includes a clubhouse building. The Club regulates the use of the
clubhouse building through a “Clubhouse Policies” document. The document
provides that the clubhouse is “[n]ot for use by [the] general public,” and that “[n]o
pets or animals are allowed inside the clubhouse at any time” except for “the
‘club’s cat[,]’ which is a working position in the club to limit unwanted wild
animals.”
The Club hosts numerous programs for its members and the public. Annual
member events include the “Raft Up” party, at which members tie their boats
together in Boca Ciega Bay to create a giant party raft, and a Christmas boat
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parade. The Club operates a sailing school that is open to the public and comes
with a 90-day non-voting membership. And the Club hosts social events like “Paint
Your Own Wine Glass Night” that non-members are welcome to attend as “guests”
of the members organizing the events. The Club highlights its activities in a
monthly member newsletter that is publicly available on the Club’s website.
Ring joined the Club in 2007. She found out about the Club after dropping
by unannounced on Easter weekend and receiving a sales pitch from a friendly
member about how affordable membership was. But her relationship with the Club
has been rocky. In 2016, the Board drafted a motion to expel Ring from the
membership based in part on the fact that she was living on her boat without
permission. But the motion was set aside, and Ring remained a member.
Ring and the Club leadership butted heads again in 2018. The clubhouse is
often open to the elements, and bees and wasps sometimes come inside. So in the
summer of 2018, Ring sent Commodore Brown a note from her doctor
“support[ing] [her] decision to have her service animal [Piper] accompany her at
all times.” Brown understood the note to be a request for an exemption from the
clubhouse pet policy, but he refused to grant an accommodation without some
proof that Piper was a real service dog. When Ring argued that she was allowed to
bring Piper into the clubhouse under the Americans with Disabilities Act, Brown
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told her that he had researched the Act and concluded that the Club was exempt as
a private club.
Ring continued to bring Piper into the clubhouse. In December 2018, Brown
issued Ring a written warning and told her she would be fined for any later
violations of the pet policy. Ring threatened to file a complaint with the Pinellas
County Office of Human Rights, and Brown told her to feel free to do so. Ring
filed the complaint, and the Club received the charge from the Pinellas County
Office of Human Rights on January 22. On that same day, the Club fined Ring
$150 for bringing Piper into the clubhouse the day before.
On January 27, Ring received notice that a member of the Board had filed an
emergency motion to suspend her membership. The motion explained that “Ms.
Samantha Ring has lived for three (3) years in Gulfport waters as a non-sanctioned
‘liveaboard’ despite the provision in [the Club]’s lease with the City prohibiting
such liveaboards.” And it said that “Ms. Ring has also been stealing City electricity
by keeping an extension cord plugged into the City’s 110v electrical outlet . . . . As
Ms. Ring is well aware, the City strongly objects to boat owners using that
electrical power on a constant or ongoing basis.” Finally, the motion explained that
Ring’s actions threatened the Club’s future survival by creating a hurdle to the
Club’s renegotiation of its lease with the City.
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The Board suspended Ring’s membership on January 31. After Ring was
suspended, the Board sent Ring a list of reasons for the initiation of the expulsion
procedure. The Club completed the process of expelling Ring with a majority vote
from the general membership on April 19.
Ring sued the Club on March 29. She alleged one claim of failure to make
reasonable modifications under Title III of the Americans with Disabilities Act
based on the Club’s refusal to let her bring Piper into the clubhouse. She alleged
one claim of retaliation under Title V of the Americans with Disabilities Act based
on the Club fining, suspending, and targeting her for expulsion after she filed a
complaint with the Pinellas County Office of Human Rights. And she alleged one
claim of discrimination in violation of the Florida Civil Rights Act. She requested
a declaratory judgment as well as an injunction reinstating her membership,
dismissing the Club’s fines against her, allowing her access to the clubhouse with
Piper, and prohibiting the Club from discriminating against disabled people. She
also requested compensatory and punitive damages under the Florida Civil Rights
Act. See Fla. Stat. § 760.11(5).
After both parties moved for summary judgment, the district court granted
summary judgment in favor of the Club. Regarding Ring’s Title III discrimination
claim, the district court concluded that the Club was a private club exempt from
Title III. 42 U.S.C. § 12187. Regarding Ring’s Title V retaliation claim, the district
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court concluded that the Club’s exemption from Title III meant that the Club was
also not covered by Title V. Alternatively, it rejected Ring’s retaliation claim on
the merits because she failed to prove that the Club’s adverse membership actions
against her were causally related to her complaint to the Pinellas County Office of
Human Rights, and because Ring did not rebut the legitimate nondiscriminatory
reasons the Club offered to explain the adverse membership actions. Regarding
Ring’s state-law claim, the district court concluded that the Florida analogue to the
private-club exception was coextensive with the federal exception, and that Ring’s
state-law claim failed due to the Club’s private-club status.
II. STANDARD OF REVIEW
We review a summary judgment de novo, viewing all evidence in the light
most favorable to the nonmoving party. Al-Rayes v. Willingham, 914 F.3d 1302,
1306 (11th Cir. 2019). “Whether or not an institution is a ‘club’ within the
meaning of [the private-club exception] is a question of law once the underlying
facts have been determined.” United States v. Richberg, 398 F.2d 523, 526 (5th
Cir. 1968).
III. DISCUSSION
We divide our discussion in two parts. First, we address Ring’s
discrimination claims under the Americans with Disabilities Act and the Florida
Civil Rights Act, and we conclude that the district court erred in granting the Club
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summary judgment based on its status as private club. Second, we address Ring’s
retaliation claim, and we affirm the summary judgment against that claim based on
Ring’s failure to rebut one of the Club’s proffered nondiscriminatory reasons for
its adverse actions against her.
A. The Record Does Not Establish That the Club Is a “Private Club” Exempt from Federal and Florida Anti-Discrimination Laws.
Ring sued the Club for discrimination under Title III of the Americans with
Disabilities Act. Title III provides the following “[g]eneral rule” against
discrimination:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
42 U.S.C. § 12182(a). Title III also lists “[s]pecific prohibitions” that follow from
the general rule, which make clear that “[d]iscrimination” includes “a failure to
make reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford . . . facilities . . . to individuals with
disabilities.” Id. § 12182(b)(2)(A)(ii). Ring alleges that the Club discriminated
against her by failing to modify its pet policy to afford her access to the clubhouse
with a service animal as necessitated by her disabilities.
The district court assumed for the purpose of summary judgment that Ring
has a “disability” covered by the Act. The Act defines a “disability” as “a physical
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or mental impairment that substantially limits one or more major life activities,” id.
§ 12102(1)(A), and it defines “major life activities” to include “breathing” and
“respiratory . . . functions,” id. § 12102(2)(A)–(B). The Act further clarifies that
“[a]n impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.” Id. § 12102(4)(D). The Club
does not contest that Ring’s severe allergies are a disability.
Ring also sued for discrimination under the Florida Civil Rights Act, which
provides that “[a]ll persons are entitled to the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, and accommodations of any
place of public accommodation without discrimination or segregation on the
ground of race, color, national origin, sex, pregnancy, handicap, familial status, or
religion.” Fla. Stat. § 760.08. It provides a private cause of action for violations of
that right. Id. § 760.07. Ring alleges that the Club violated the Florida Civil Rights
Act by denying her full and equal enjoyment of its facilities based on handicap.
Florida courts “construe the [Florida Civil Rights Act] in conformity with the
federal Americans with Disabilities Act.” City of Delray Beach v. DeSisto, 197 So.
3d 1206, 1209 (Fla. Dist. Ct. App. 2016) (alteration adopted) (internal quotation
marks omitted). Because the Florida Civil Rights Act does not define the term
“handicap,” Florida courts look to the Americans with Disabilities Act’s definition
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of a “disability.” Byrd v. BT Foods, Inc., 948 So. 2d 921, 926 (Fla. Dist. Ct. App.
2007) (internal quotation marks omitted).
Both the Americans with Disabilities Act and the Florida Civil Rights Act
include exceptions for private clubs. Title III of the Americans with Disabilities
Act does not apply to “private clubs or establishments exempted from coverage
under title II of the Civil Rights Act of 1964.” 42 U.S.C. § 12187. Title II of the
Civil Rights Act exempts from coverage “private club[s] or other establishment[s]
not in fact open to the public.” Id. § 2000a(e). Neither statute defines any of the
terms used in the exception. The Florida Civil Rights Act includes a similar
exception for “lodge halls or other similar facilities of private organizations which
are made available for public use occasionally or periodically.” Fla. Stat. § 760.07.
As with the federal exception, the Florida Civil Rights Act does not define any of
the terms in the exception. And no reported Florida decision discusses the scope of
Florida’s private-club exception.
We read the Florida private-club exception to be coextensive with the
federal exception. Florida courts “construe the [Florida Civil Rights Act] in
conformity with the federal Americans with Disabilities Act,” City of Delray
Beach, 197 So. 3d at 1209 (alteration adopted) (internal quotation marks omitted),
including in situations where the two acts use similar but not identical language,
see Byrd, 948 So. 2d at 926 (interpreting “handicap” in the Florida Civil Rights
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Act in the light of the definition of “disability” in the Americans with Disabilities
Act). We apply that same approach to the Florida private-club exception. Because
“disability-discrimination claims under the Florida Civil Rights Act are analyzed
under the same framework as [Americans with Disabilities Act] claims, [we]
consider[] both sets of claims together.” D’Angelo v. ConAgra Foods, Inc., 422
F.3d 1220, 1224 n.2 (11th Cir. 2005) (citation omitted).
The Americans with Disabilities Act borrows the private-club exception
from Title II of the Civil Rights Act of 1964, which provides for “Injunctive Relief
Against Discrimination in Places of Public Accommodation.” Pub. L. No. 88-352,
§ 201(e), 78 Stat. 241, 243. The exception is codified under the heading “Private
establishments.” 42 U.S.C. § 2000a(e). It provides, “The provisions of this
subchapter shall not apply to a private club or other establishment not in fact open
to the public, except to the extent that the facilities of such establishment are made
available to the customers or patrons of an establishment within the scope of
subsection (b),” id., including an inn, restaurant, gas station, theater, or other place
of public accommodation, id. § 2000a(b). The Civil Rights Act does not define any
of the terms used in section 2000a(e), but the text of the statute and our precedents
guide us to a comprehensive definition of a “private club.”
A few things are obvious from the context of the words “private club.” A
“private club” is a kind of “establishment not in fact open to the public.” Id.
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§ 2000a(e). The phrase “not in fact open to the public” connotes that a private club
must be private in ways beyond mere private ownership. Id. It also suggests that an
organization’s private-club status be assessed based on how the organization
relates to the public “in fact,” not just on paper. Id. And because the exception is
about “[p]rivate establishments,” id., and is part of the title of the Civil Rights Act
covering “[p]laces of [p]ublic [a]ccommodation,” § 201(e), 78 Stat. at 243, we
know to focus our attention on a club’s physical facilities, not attributes unrelated
to the facilities.
The ordinary meaning of the words “club” and “private” bring us closer still
to a definition. When the Civil Rights Act was passed, a “club” was understood to
be “[a]n association of persons for the promotion of some common object, as
literature, science, politics, good-fellowship, etc., esp. one jointly supported and
meeting periodically,” in which “[m]embership is usually conferred by ballot, and
carries the privilege of exclusive use of club quarters.” Club, Webster’s New
International Dictionary (2d ed. 1959). And the adjective “private” meant
“unconnected with others” and “[s]equestered from company or observation.”
Private, Webster’s New International Dictionary (2d ed. 1959). Both words
retained those meanings when the private-club exception was later incorporated by
the Americans with Disabilities Act. Club, Webster’s Third New International
Dictionary (1993); Private, Webster’s Third New International Dictionary (1993).
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The Supreme Court and our predecessor circuit have never endeavored to
provide a general definition of a “private club,” but their decisions sharpen our
understanding. In Daniel v. Paul, the Supreme Court concluded that a lakeside
recreation area open only to 100,000 white members was “simply a business
operated for a profit,” not a private club, because it lacked “the attributes of self-
government and member-ownership traditionally associated with private clubs.”
395 U.S. 298, 301–02 (1969). Daniel illustrates the requirement that a “private
club” be a “club”—a “jointly supported” “association of persons for the promotion
of some common object.” Club, Webster’s New International Dictionary (2d ed.
1959). Similarly, in United States v. Richberg, our predecessor circuit considered
“whether the Dixie Diner Club, hastily established on the premises of Richberg’s
Cafe subsequent to the initiation of [the litigation], [was] a bona fide club excepted
from the [Civil Rights] Act.” 398 F.2d at 525. After reviewing facts that made
clear the club was a sham, including that some members were not even aware of
the name of the club, id. at 526–27, the Court concluded that “the Dixie Diner Club
was a club in name only, and a facade to permit Richberg’s Cafe to continue in its
racially discriminatory ways of yesterday,” id. at 529.
Supreme Court precedent also illustrates the requirement that a “private
club” be “private”—“unconnected with others” and “[s]equestered from company
or observation.” Private, Webster’s New International Dictionary (2d ed. 1959). In
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Tillman v. Wheaton-Haven Recreation Ass’n, the Supreme Court concluded that a
swimming club with membership open to white families within a defined
geographical area was not a private club under the Civil Rights Act because it
lacked a “plan or purpose of exclusiveness.” 410 U.S. 431, 432–34, 438 (1973)
(internal quotation marks omitted). The Supreme Court has further explained that,
to pursue a “plan or purpose of exclusiveness,” an organization must act to ensure
“seclusion from others in critical aspects of the relationship[s]” between its
members. Roberts v. U.S. Jaycees, 468 U.S. 609, 620–21 (1984) (internal quotation
marks omitted).
The decisions of our predecessor circuit further clarify that an organization
is not a private club if it allows outsiders easy access to its facilities through loose
membership criteria or guest policies. In Stout v. Young Men’s Christian Ass’n of
Bessemer, for example, our predecessor circuit rejected an assertion of private-club
status by a membership organization because “membership [was] open to the
general public” with no requirement of “a formal membership application.” 404
F.2d 687, 688 (5th Cir. 1968) (internal quotation marks omitted). Likewise, in
Smith v. Young Men’s Christian Ass’n of Montgomery, Inc., our predecessor circuit
rejected a private-club argument because the organization “freely admit[ted] to
membership without question almost all who appl[ied].” 462 F.2d 634, 648 (5th
Cir. 1972). And in Anderson v. Pass Christian Isles Golf Club, Inc., our
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predecessor circuit said that a golf course’s “arrangements . . . with several local
hotels for use of the course by [non-member hotel] patrons [were] sufficient, as a
matter of law, to destroy full ‘private’ club status.” 488 F.2d 855, 857 (5th Cir.
1974).
Based on the text of the statute and binding precedent, we can discern a
general rule: A “private club” is an organization that uses “self-government and
member-ownership,” Daniel, 395 U.S. at 301, and pursues a “plan or purpose of
exclusiveness,” Tillman, 410 U.S. at 438 (internal quotation marks omitted), by
acting to ensure “seclusion from others in critical aspects of the relationship[s]”
between members at its facilities, Roberts, 468 U.S. at 620. And our precedents
make clear that this general rule is judicially administrable.
The district court took a different approach. Rather than derive a general rule
from text and precedent, it borrowed a multifactor balancing test from another
court. See United States v. Lansdowne Swim Club, 713 F. Supp. 785, 795–805
(E.D. Pa. 1989). The district court discussed the following several factors to be
balanced:
(1) the genuine selectivity of the group in the admission of members; (2) the membership’s control over the operations of the establishment; (3) the history of the organization; (4) the use of the facilities by non- members; (5) the purpose of the club’s existence; (6) whether the club advertises for members; (7) whether the club is for profit or not for profit; and (8) the formalities observed by the club, e.g., bylaws, meetings, and membership cards.
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It concluded that the factors weighed in favor of private-club status. Other courts
have also adopted balancing tests or a totality-of-the-circumstances approach to
evaluate assertions of private-club status. See, e.g., Welsh v. Boy Scouts of Am.,
993 F.2d 1267, 1276–77 (7th Cir. 1993) (citing Lansdowne Swim Club, 713 F.
Supp. at 796–97); Durham v. Red Lake Fishing & Hunting Club, Inc., 666 F. Supp.
954, 960 (W.D. Tex. 1987) (discussing, “in order of relative importance, . . .
(1) the extent membership is genuinely selective on some reasonable basis;
(2) measure of control the members have over the operations of the establishment;
(3) manner in which the membership corporation was created; (4) purpose of the
membership corporation existing; (5) formalities which many private clubs
observe; and (6) general characteristics which many private clubs possess”); cf.
Nesmith v. Young Men’s Christian Ass’n of Raleigh, 397 F.2d 96, 101 (4th Cir.
1968) (“In determining whether an establishment is in fact a private club, there is
no single test. A number of variables must be examined[.]”).
We reject that approach. Our precedents hold that “[w]hether or not an
institution is a ‘club’ within the meaning of [the private-club exception] is a
question of law once the underlying facts have been determined.” Richberg, 398
F.2d at 526. Reweighing the totality of the circumstances is ordinarily not a
preferable way to approach a question of law. “If we are to have multiple factors,
we also should have a trial.” Sec’y of Lab., U.S. Dep’t of Lab. v. Lauritzen, 835
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F.2d 1529, 1542 (7th Cir. 1987) (Easterbrook, J., concurring). “[A]t the point
where an appellate judge says that the remaining issue must be decided on the
basis of the totality of the circumstances, or by a balancing of all the factors
involved, he begins to resemble a finder of fact more than a determiner of law.”
Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182
(1989). “To reach such a stage is, in a way, a regrettable concession of defeat—an
acknowledgment that we have passed the point where ‘law,’ properly speaking, has
any further application.” Id. Basing a decision on the totality of the circumstances
is “an empty incantation—a mere conjurer’s trick that serves to hide” the court’s
real reasons for its decision. Holder v. Hall, 512 U.S. 874, 943–44 (1994)
(Thomas, J., concurring in the judgment). The rule of law demands more.
Wherever possible, a general rule is better than “[a] fact-bound approach
calling for the balancing of incommensurables.” Lauritzen, 835 F.2d at 1542
(Easterbrook, J., concurring). Turning to such an approach “when there still
remains a good deal of judgment to be applied” invites “unfortunate practical
consequences”: “equality of treatment is difficult to demonstrate and . . .
impossible to achieve; predictability is destroyed; judicial arbitrariness is
facilitated; judicial courage is impaired.” Scalia, 56 U. Chi. L. Rev. at 1182.
Accordingly, “personal rule, whether it be exercised by a single person or a body
of persons, should be sovereign only in those matters on which law is unable,
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owing to the difficulty of framing general rules for all contingencies, to make an
exact pronouncement.” Id. (quoting The Politics of Aristotle bk. III, ch. xi, § 19, at
127 (Ernest Barker trans., Oxford Univ. Press 1946)). Multifactor balancing tests
are “a regrettable concession of defeat” in part because “[i]t is rare . . . that even
the most vague and general text cannot be given some precise, principled
content—and that is indeed the essence of the judicial craft.” Id. at 1182–83. With
a general rule discerned from the text and precedent, we turn our attention to
whether the Club is exempt from federal and state anti-discrimination law based on
the private-club exception.
The record reveals genuine issues of material fact about the Club’s assertion
of private-club status. An organization that claims the benefit of the private-club
exception bears the burden of proof. Richberg, 398 F.2d at 529. Viewed in the light
most favorable to Ring, the record does not establish that the Club acts to ensure
“seclusion from others in critical aspects of the relationship[s]” between members
at club facilities. Roberts, 468 U.S. at 620. Because the Club failed to develop an
undisputed record that it pursues a plan or purpose of exclusiveness, it is not
entitled to the benefit of the private-club exception. The district court erred in
granting summary judgment.
To identify the critical aspects of the relationships between Club members,
the Club’s mission statement and official history are helpful. The Club’s stated
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mission is as follows: “1. To promote safe boating activities[;] 2. To promote
instruction and education in safe boating and all nautical activities[;] 3. To promote
fellowship and camaraderie among the members[;] 4. To be an integral part of the
Community of Gulfport.” Three of the Club’s goals—to promote safe boating, to
promote nautical education, and to be a part of the local community—are
inclusive, public-facing endeavors that do not support private-club status. See Bd.
of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 546–47 (1987)
(“[A]n inclusive fellowship for service based on diversity of interest . . . does not
suggest . . . [a] private or personal relationship[.]” (internal quotation marks
omitted)).
The Club’s goal of “promot[ing] fellowship and camaraderie among [its]
members” is consistent with a plan or purpose of exclusiveness. And the Club
focuses on that goal in its official version of its origin story. The Club’s Facebook
profile says the Club was started in the 1940s when a “bunch of characters who
wouldn’t take no for an answer” tricked the city of St. Petersburg by installing an
unpermitted dock under cover of darkness, “while (probably) sipping rum.” That
story still informs the Club’s self-image. In the same section of its profile, it boasts
that its members have “been known to throw a party or two (or ten).” We focus on
the mutual enjoyment of “fellowship and camaraderie” as a critical aspect of the
relationships between Club members.
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To qualify for the private-club exception, the Club must prove that it ensures
its members’ seclusion from others as they enjoy fellowship and camaraderie at its
facilities, and viewed in the light most favorable to Ring, the record suggests that it
does not. For parts of its leased property other than the clubhouse, the Club does
not have the authority to exclude members of the public. According to the terms of
its lease with the City, the Club “shall allow members of the Gulfport Lions Club,
Gulfport Yacht Club, Inc., Gulfport Youth Sailing, Inc., the Sea Scouts[,] and [the
City’s] authorized invitees and their guests access to the beach area” of the
property. The lease contemplates the possibility that slips in the marina not rented
by Club members will be leased by the City to members of the public, and the Club
recognizes that it does not have the right to keep anyone from getting to her boat
on the property.
To be sure, the Club sometimes exercises its ability to exclude non-members
from its events. For example, Commodore Southard testified in his deposition that
the Club verifies the membership status of people who want to tie up to members’
boats at the Club’s “Raft Up” event. But the record also contains examples of the
Club allowing non-members at social events, including in the clubhouse. The
minutes of the board meeting following the Club’s 2018 Christmas boat parade
reflect that the parade featured “23 boats plus one that called in and asked if they
could just crash the parade[,] for a total of 24 boats!” The minutes even mention a
22 USCA11 Case: 20-11571 Date Filed: 07/12/2021 Page: 23 of 32
non-member “who just came by to find out about the club and membership and
stayed and help[ed] cook and clean all night without knowing a soul here—
amazing . . . let’s make sure to thank her in person when she finally joins the club.”
Ring testified that it is not unusual for members to spend time at the Club on a
weekend and not know anybody there, even in the clubhouse.
In fact, there are numerous ways for members of the public to gain approved
access to the clubhouse without even applying for membership. The Club’s sailing
school is open to the public, and everyone who pays the fee and signs up for
lessons receives a 90-day non-voting membership that gives them access to the
clubhouse. Non-member parents of participants in the Club’s youth sailing
programs are allowed in the clubhouse during their children’s events. And the Club
hosts social events like “Paint Your Own Wine Glass Night” that non-members are
welcome to attend. The Club explains that the presence of these non-members in
the clubhouse in connection with its programs is consistent with private-club status
because non-members are considered guests of the member responsible for the
program. But an organization may not preserve its private-club status by labelling
the strangers it invites to use its facilities as member “guests.” See Anderson, 488
F.2d at 857–58. And some Club members are apparently unaware of the Club’s
interpretation of its guest policy. In a letter the Board attached to the document
recommending Ring’s expulsion, a youth sailing instructor described an incident
23 USCA11 Case: 20-11571 Date Filed: 07/12/2021 Page: 24 of 32
where—to Ring’s chagrin—the mother of a student brought her dog into the
clubhouse, and he told Ring the woman “wasn’t my guest but a mother of a sail
school student that didn’t know the rules” about pets in the clubhouse.
Non-members might not even need these official backdoors to enjoy use of
the clubhouse. Ring submitted three statements from non-members who stated they
have used the Club’s facilities, including the clubhouse, without doing so. The
district court discounted these statements, but their descriptions of the lax
enforcement of the Club’s policies are consistent with other evidence in the record.
The Club’s member newsletter—which includes members’ phone numbers
and email addresses—is available to the public through its website. After the
initiation of this litigation, the Club considered moving the newsletter to a
members-only section of the site out of concern that more could be done to
“protect [its] members from outside people.” The practice of publishing summaries
of members’ activities alongside their contact information runs contrary to the goal
of ensuring members’ seclusion from others as they enjoy fellowship and
camaraderie.
Some evidence suggests the Club does not even ensure its members’
seclusion from others as they participate in the Club’s internal governance, an
activity that is surely central to fostering fellowship and camaraderie in a
volunteer-run organization. The Club’s general meetings are held at the clubhouse
24 USCA11 Case: 20-11571 Date Filed: 07/12/2021 Page: 25 of 32
and open to the public so that non-members can attend to learn more about the
Club and express their interest in joining. And visitors are apparently welcome
even at more sensitive Club meetings. The special board meeting at which the
Board recommended Ring’s expulsion opened with a board member asking: “Are
there any Visitors? If so, please identify yourself and your reason for visiting.”
Finally, the record suggests that the Club’s membership application process,
at least as it operates in actual practice, gives the membership little control over
who is admitted. A club cannot ensure its members’ seclusion from others when it
freely allows others to become members. See Smith, 462 F.2d at 648. People
interested in joining the Club fill out a written application available online. The
Club does not have a cap on membership. Other than being able to pass a
background check designed to weed out criminals, potential liveaboards, and
people unable to pay dues, there are no standards by which applicants are
evaluated; applicants are not required to have a boat or even know how to sail one.
At no point must applicants be sponsored by current members or provide member
references of any kind. Once an application is reviewed, the applicant meets with
the Club’s Membership Committee, which brings up applicants’ names to the
Board to see if there are any objections before their applications are put to a vote
by the membership. Fully vetted applications are approved or denied by a vote at
the next general meeting. Commodore Southard was unaware of any application
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being denied at a general meeting during his 16 years as a member, and the Club
pointed the Pinellas County Office of Human Rights to only four applications that
were screened out at earlier stages of the process, resulting in a 94.6 percent
acceptance rate. The Club’s practice of admitting virtually every interested person
to the membership is not consistent with a practice of ensuring the seclusion of
existing members from others.
In summary, the record contains substantial evidence that the Club fails to
ensure the seclusion of its members on much of its property and often fails to do so
even in its clubhouse. Strangers often mix with members in the clubhouse, and the
Club embraces the presence of non-members at social events and even governance
meetings. The Club’s membership criteria are lax, and it appears from the record
that any member of the public who is interested in boating and able to pass a
criminal background check is almost guaranteed acceptance. As Commodore
Southard put it, Boca Ciega Yacht Club is a “different type of yacht club[].” That
news is great for Gulfport residents looking for a way to connect with fellow
boating enthusiasts without the fuss and expense associated with some yacht clubs.
But it is not great news for the Club’s claim to private-club status.
Viewed in the light most favorable to Ring, the record does not support the
conclusion that the Club is a private club exempt from Title III of the Americans
with Disabilities Act or the Florida Civil Rights Act. The district court erred by
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granting summary judgment in favor of the Club on Ring’s claims of
discrimination. On remand, the district court should resolve any disputed issues of
material fact and apply the general definition of a “private club” to resolve, as a
matter of law, whether the Club enjoys private-club status. Richberg, 398 F.2d at
526.
B. The District Court Did Not Err by Granting the Club a Summary Judgment on the Retaliation Claim. Ring sued the Club for retaliation under Title V of the Americans with
Disabilities Act. 42 U.S.C. § 12203(a). She alleged that the Club retaliated against
her for filing an administrative complaint with the Pinellas County Office of
Human Rights. She also alleged that she contacted the City about “the illegal
disability discrimination she was experiencing on city-owned land,” but she never
identified her communications with the City as a basis for the Club’s alleged
retaliation. According to her complaint, the Club’s retaliatory actions against her
included a fine, a suspension, and ultimately an expulsion for pretextual reasons.
We confine our analysis to Ring’s suspension-and-expulsion theory of
retaliation. In her complaint, Ring alleged that the Club issued a $150 fine for
bringing Piper into the clubhouse in retaliation for her filing an administrative
complaint with the County Office of Human Rights. But she made no mention of
the fine—or of her Title V claim at all—in her motion for summary judgment or in
her opposition to the Club’s motion for summary judgment. Because she never
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made arguments about the fine, the district court focused exclusively on the Club’s
suspension and expulsion of Ring. Nor did Ring discuss the fine as an adverse
action in her opening brief. At most, Ring makes “passing references” to the fine
“in the argument section of [her] opening brief,” as “mere background to [her]
main arguments” about the Club’s adverse membership actions. Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014) (internal quotation
marks omitted). Ring abandoned her retaliation argument about the $150 fine, so
we do not consider it.
Title V of the Act provides: “No person shall discriminate against any
individual because such individual has opposed any act or practice made unlawful
by this chapter or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
chapter.” 42 U.S.C. § 12203(a). The retaliation prohibition in Title V is like the
prohibition in Title VII of the Civil Rights Act, so we evaluate retaliation claims
under Title V in the same way as claims under Title VII of the Civil Rights Act.
Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir.
1997).
Ring’s retaliation claim is not based on direct evidence of the Club’s
discriminatory motive; as she acknowledges, “[s]eldom is retaliation quite so
blatant.” Nor does she rely on a “convincing mosaic” theory. See Smelter v. S.
28 USCA11 Case: 20-11571 Date Filed: 07/12/2021 Page: 29 of 32
Home Care Servs. Inc., 904 F.3d 1276, 1288 n.4 (11th Cir. 2018). Because Ring
relies only on circumstantial evidence, we evaluate her retaliation claim under the
McDonnell Douglas burden-shifting framework. Brungart v. BellSouth
Telecomms., Inc., 231 F.3d 791, 798 (11th Cir. 2000) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)).
Under the McDonnell Douglas framework, “[t]o avoid summary judgment, a
plaintiff must establish a prima facie case of retaliation.” Farley v. Nationwide
Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999). “To establish a prima facie
case of retaliation under the [Americans with Disabilities Act], a plaintiff must
show that (1) she engaged in statutorily protected expression; (2) she suffered an
adverse action; and (3) the adverse action was causally related to the protected
expression.” Higdon v. Jackson, 393 F.3d 1211, 1219 (11th Cir. 2004) (alteration
adopted) (internal quotation marks omitted). After a plaintiff establishes a prima
facie case, the burden shifts to the defendant to articulate legitimate
nondiscriminatory reasons for the adverse action. Farley, 197 F.3d at 1336. If the
defendant meets that burden, the plaintiff must “produce sufficient evidence for a
reasonable factfinder to conclude that each of the [defendant’s] proffered
nondiscriminatory reasons is pretextual” to avoid summary judgment. Chapman v.
AI Transp., 229 F.3d 1012, 1037 (11th Cir. 2000) (en banc) (emphasis added). “[A]
reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both
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that the reason was false, and that discrimination was the real reason.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). “[A] plaintiff’s failure to rebut
even one nondiscriminatory reason is sufficient to warrant summary judgment[.]”
Smelter, 904 F.3d at 1290–91.
Even if we assume that Ring established a prima facie case of retaliation, her
retaliation claim fails because she made no effort to rebut one of the Club’s
nondiscriminatory reasons for suspending and expelling her. The Club says that it
suspended and expelled Ring in part because she “was living on her boat as an
unsanctioned liveaboard.” In the motion to suspend Ring’s membership, the Board
noted that the Club’s lease with the City “prohibits club members from living
aboard their boats,” and that the Club’s by-laws provide that “[m]embership in [the
Club] is restricted by the lease agreement with the City,” with “[a]ll provisions in
the lease . . . [to] be enforced by the Board.” Concerns about Ring’s status as an
unsanctioned liveaboard featured prominently in the Board’s resolution to
recommend Ring’s expulsion by the general membership. And the Club pointed to
Ring’s liveaboard status in its motion for summary judgment as a reason for her
suspension and expulsion. The district court credited the Club’s liveaboard
justification, citing Ring’s failure to rebut the charge as an alternative reason for
granting the Club summary judgment on the retaliation claim.
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Ring never attempted to rebut the liveaboard justification for her suspension
and expulsion before the district court. In response to the Club’s motion for
summary judgment, she denied that her “membership privileges were suspended
by the . . . Board for committing fraud on the City of Gulfport by living aboard her
boat without permission and stealing electricity from the City’s public supply” and
that “an overwhelming majority of the general membership voted to expel [her]
from [the Club], on the basis that she had been living on her boat without
permission and violating club rules for years.” But the email and deposition she
cited in support of her denials went only to the charge that she had been stealing
electricity. And the portion of the report from the Pinellas County Office of Human
Rights she cited discussed only “the prima facie elements of retaliation,” with no
mention of Ring’s alleged liveaboard status.
Nor does Ring attempt to rebut the liveaboard justification on appeal. Most
of her retaliation argument is directed at the ruling that she failed to establish a
prima facie case, not the alternative holding that she failed to rebut the Club’s
proffered nondiscriminatory reasons. To the extent Ring attempts to rebut the
Club’s justifications for her suspension and expulsion, she re-characterizes the
liveaboard justification as an accusation that she was “spending too much time on
her boat,” and then ignores it in favor of rebutting the charges that she stole
electricity from the City and provided a false address.
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Ring never proved that the Club’s accusation that she was living on her boat
in violation of the lease with the City and Club rules was false. In fact, the medical
records produced by Ring confirm that by July 2018 she had “move[d] [to] live on
her boat house.” Under the McDonnell Douglas framework, “a plaintiff’s failure to
rebut even one nondiscriminatory reason is sufficient to warrant summary
judgment.” Smelter, 904 F.3d at 1290–91. Because Ring did not rebut the Club’s
liveaboard justification for her suspension and expulsion, the district court
correctly granted the Club summary judgment on the retaliation claim.
IV. CONCLUSION
We VACATE the summary judgment for the Club on Ring’s discrimination
claims under Title III of the Americans with Disabilities Act and the Florida Civil
Rights Act and REMAND for further proceedings consistent with this opinion. We
AFFIRM the summary judgment for the Club on Ring’s retaliation claim.