United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS, UNITED STATES MAGISTRATE JUDGE
case is before the Court on Defendants University of South
Alabama (“South”), Dr. Franklin Trimm
(“Trimm”), and Dr. Sophia Goslings'
(“Goslings”) Motion to Dismiss Amended
Complaint.(Doc. 20). This motion, which has been
fully briefed and is ripe for resolution, has been referred
to the undersigned for a report and recommendation pursuant
to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c). Upon
consideration of all matters presented, the undersigned
RECOMMENDS, for the reasons stated herein, that
Defendants' Motion to Dismiss (Doc. 20) be granted in
part and denied in part, as set forth below.
Dr. Reza Sadeghian (“Sadeghian” or
“Plaintiff”) commenced this action on January 12,
2018. (Doc. 1). In Plaintiff's amended complaint filed on
March 7, 2018, Plaintiff asserts the following claims against
Defendants: a petition for a writ of mandamus (Count I)
against Trimm and South; a Title IX gender
discrimination/sexual harassment claim (Count Two) against
Goslings, Trimm, and South; a § 1983 equal protection
claim (Count Three) against Goslings, Trimm, and South; and a
Title IX retaliation claim against Trimm (Count Four). (Doc.
17 at ¶¶ 17-39; Doc. 17 at 12 ¶3).
to Plaintiff, on July 1, 2014, he entered into a contract
with South to work and train in South's Pediatric
Residency Program (hereinafter “the Program”).
(Doc. 17 at ¶11). The parties renewed the contract
annually for three years until Plaintiff's completion of
the Program in June 2017. (Id.).
Plaintiff's first year of residency in the Program, Dr.
Sophia Goslings, one of the supervising physicians under
which Plaintiff trained and the Associate Program Director of
the residency program, subjected Plaintiff to unwanted sexual
advances. (Id. at ¶¶13-14). In August
2014, Plaintiff worked an inpatient clinical rotation under
the supervision of Dr. Goslings. (Id.).
that rotation, Dr. Goslings was overly friendly to Plaintiff
and took opportunities to touch him unnecessarily and sit
uncomfortably close to him. (Id.). Dr. Goslings
invited Plaintiff to her house after hours and invited him to
call her. (Id.). Plaintiff was uncomfortable with
Dr. Goslings' conduct. (Id.).
December 1, 2014, Plaintiff met with Dr. Trimm, the Pediatric
Residency Program Director, for his first semiannual
evaluation. At the meeting, Plaintiff received praise from
Dr. Trimm and was told that he had met all of his milestones.
(Id. at ¶¶15-16).
December 2014 and January 2015, Plaintiff again worked under
Dr. Goslings. (Id.). During that time, Dr. Goslings
spent an inordinate amount of time asking Plaintiff questions
about his personal life while touching him; she invited him
to eat with her or to accompany her to other activities,
including a pottery/ceramics class; she continued to invite
him to her house; she touched Plaintiff's hands while
talking about patients; she made a point to sit next to him
and touch his leg; and she put her hand over his shoulder.
attempt to thwart Dr. Goslings' unwanted advances,
Plaintiff told Goslings that he was involved in a
relationship with someone else, and Goslings quizzed him in
detail about that relationship. (Id. at
¶¶17-20). After that conversation, Goslings became
hostile and critical of Plaintiff each time they worked
together, while continuing the unwanted touching.
his second year of residency, Dr. Goslings worked with
Plaintiff for one or two weeks but would not provide an
evaluation of him. (Id.). At the following
semiannual meeting with Dr. Trimm, Trimm treated Plaintiff
much more critically than before. (Id.).
December 2016, Goslings evaluated Plaintiff and provided a
very negative evaluation, after working with him for only
three days. (Id.). In January 2017, Plaintiff worked
with Goslings again for another three days, and Plaintiff
asked for feedback from her, which she refused, claiming that
she had not worked with him long enough. (Id.).
During that time, Goslings subjected Plaintiff to
uncharacteristically and artificially low evaluations, or she
withheld evaluations. (Id.). Goslings also schemed
to taint Plaintiff's performance in the eyes of Trimm,
the Program Director, by supplying Trimm with false and
unwarranted information regarding Plaintiff's
performance. (Id.). Plaintiff understood from
Goslings' words and conduct that his evaluations and
standing in the program would improve if he ceased resisting
her advances. (Id.).
Plaintiff's second year of residency, he had a semiannual
meeting with Trimm wherein Plaintiff asked Trimm about
Gosling's poor evaluations and behavior toward him.
(Id. at ¶¶ 21-22). In response, Trimm
threatened to hit Plaintiff “with a 4x4” or kick
him out of the program. (Id.). Trimm informed
Plaintiff that he was not there to “change the
the semiannual meeting with Trimm in December 2016 or January
2017, Plaintiff told Trimm about Gosling getting too close to
him and touching him and that Gosling's poor evaluations
were reprisals for Plaintiff having declined her advances.
(Id.). Trimm again responded that Plaintiff was
there to listen and not “change the system, ” and
Plaintiff understood from Trimm's response that his
complaints would not be acted upon and that it was not in his
interest to continue to protest. (Id.).
February 8, 2017, Trimm placed Plaintiff on disciplinary
probation for alleged shortcomings in Plaintiff's
performance, purportedly evidenced by his scores during his
first, second, and third years on a practice test called the
In-Training Exam (ITE), which is developed and administered
by the American Board of Pediatrics as a means of
self-assessment for residents to guide their training.
(Id. at ¶¶23-24). Trimm misused the ITE
exam scores as a pretext to institute probation, violating
the admonitions of the American Board of Pediatrics against
such use. (Id.).
meeting on February 8, 2017, Plaintiff asked Dr. Trimm why a
similarly-situated female resident with similar scores was
not placed on probation, and Dr. Trimm told Plaintiff that if
he questioned the system, he would be “dismissed,
” especially given that he was on probation.
(Id. at ¶¶ 24-26). Trimm failed to give
Plaintiff an opportunity to present his own information to
the Program Director prior to the institution of the
successfully completed his probation during his third year of
residency and completed the program. (Id. at
¶¶27-28). Plaintiff applied for a license to
practice medicine in the state of California and was required
to disclose that he was subject to probation while training
in the Program. (Id.). Every jurisdiction in the
United States required similar disclosures as a prerequisite
to licensure, which limited Plaintiff's access to
fellowship training opportunities and licensure to practice
Sadeghian anonymously notified Defendant South's Graduate
Medical Education office about Dr. Gosling's sexual
harassment via an online “New-Innovations”
website. (Id. at ¶¶29-31). The
online complaint was directed to Dr. Samuel A. McQuiston, who
was the Associate Dean for Graduate Medical Education at
South and the Designated Institutional Official charged with
ensuring compliance with ACGME requirements. (Id.).
According to Plaintiff, South failed to investigate or
otherwise address the complaint submitted by Plaintiff.
response to Plaintiff's amended complaint, on March 21,
2018, Defendants South, Trimm, and Goslings moved to dismiss
the amended complaint pursuant to Rule 12(b)(1) and (6), on
the basis of lack of jurisdiction to issue a writ of
mandamus, preemption, Eleventh Amendment immunity, statute of
limitations, and failure to state a claim. This motion has
been fully briefed and is now ready for resolution. (Doc.
Standard of Review
defendant may move to dismiss a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) if the plaintiff has failed
to state a claim upon which relief may be granted. “The
standard of review for a motion to dismiss is the same for
the appellate court as it [is] for the trial court.”
Stephens v. Dep't of Health & Human
Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).
“When considering a motion to dismiss, all facts set
forth in the plaintiff's complaint ‘are to be
accepted as true and the court limits its consideration to
the pleadings and exhibits attached thereto.”
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000) (quoting GSW, Inc. v. Long County,
999 F.2d 1508, 1510 (11th Cir. 1993)). All “reasonable
inferences” are drawn in favor of the plaintiff.
St. George v. Pinellas County, 285 F.3d 1334, 1337
(11th Cir. 2002).
survive a 12(b)(6) motion to dismiss for failure to state a
claim, the complaint “does not need detailed factual
allegations”; however, the “plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do. . . . Factual allegations
must be enough to raise a right to relief above the
speculative level . . ., on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citations omitted). The plaintiff
must plead “enough facts to state a claim that is
plausible on its face.” Id. at 570. Unless a
plaintiff has “nudged [his] claims across the line from
conceivable to plausible, ” the complaint “must
be dismissed.” Id.
conclusions of law or of mixed fact and law” will not
defeat a Rule 12(b)(6) motion for dismissal. Dalrymple v.
Reno, 334 F.3d 991, 996 (11th Cir. 2003) (quoting
Marsh v. Butler County, Ala., 268 F.3d 1014, 1036
n.16 (11th Cir. 2001)). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]' - that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (quoting Fed.R.Civ.P. 8(a)(2)). The U.S. Supreme Court
has suggested that courts adopt a “two-pronged
approach” when considering motions to dismiss:
“1) eliminate any allegations in the complaint that are
merely legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” American Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting
Iqbal, 556 U.S. at 664). Importantly, “courts
may infer from the factual allegations in the complaint
‘obvious alternative explanation[s],' which suggest
lawful conduct rather than the unlawful conduct the plaintiff
would ask the court to infer.” Id. (quoting
Iqbal, 556 U.S. at 682).
their brief in support of their motion to dismiss, Defendants
argue that Count One of Plaintiff's amended complaint is
due to be dismissed because the Court lacks jurisdiction to
issue a writ of mandamus to a state officer, and that Counts
Two through Four are due to be dismissed for a variety of
reasons, including failure to state a claim upon which relief
can be granted, qualified immunity, and expiration of the
applicable statute of limitations. (Doc. 20 at 6-29). For the
reasons that follow, the Court finds that Defendants'
Motion to Dismiss is due to be granted in part and denied in
part, as set forth herein.
Petition for a Writ of Mandamus (Count
their brief, Defendants argue that Count One of
Plaintiff's Amended Complaint must be dismissed because
the Court lacks jurisdiction to issue a writ of mandamus to a
state officer, and, further, that Plaintiff has failed to
show that he has a clear legal right to relief sought and no
other remedy available. (Doc. 20 at 7). Plaintiff responds that
the Court has supplemental jurisdiction to issue a writ of
mandamus to the state officials named as Defendants in this
case, and that, alternatively, the Court may treat the
petition as a request for injunctive relief. (Doc. 27 at
Count One of the Amended Complaint, Plaintiff alleges that
Defendant Trimm, a state official, violated the rules and
regulations of the university in placing Plaintiff on
probation; that Trimm failed to follow the procedure for
placing a resident on probation, as set out in Defendant
South's Graduate Medical Education Policies and
Procedures manual; that Trimm failed to notify Plaintiff of
the proposed probation in writing in a timely manner; that
Trimm violated South's rules and regulations when he
failed to give Plaintiff the mandatory opportunity to give
information to the program director or residency training
committee in defense prior to the imposition of probation;
and that Trimm acted beyond his authority, arbitrarily,
fraudulently, and/or in bad faith with respect to these
actions. (Doc. 17 ¶32). Plaintiff requests that the
Court issue a writ of mandamus directing Defendant Trimm, or
his Program Director successor, to rescind Plaintiff's
probation and remove it from his record (Doc. 17 ¶32)
and that the Court grant equitable relief in the form of an
order requiring Defendant South to remove the probation from
his record. (Id. at 12 ¶5).
is settled that “[f]ederal mandamus is available only
to ‘compel an officer or employee of the United States
or any agency thereof to perform a duty owed to the
plaintiff.'” Bailey v. Silberman, 226
Fed.Appx. 922, 924 (11th Cir. 2007) (quoting 28 U.S.C. §
1361). “Federal courts have no jurisdiction to issue
writs of mandamus directing a state court and its judicial
officers in the performance of their duties where mandamus is
the only relief sought.” Id. (citing Moye
v. Clerk, DeKalb County Superior Court, 474 F.2d 1275,
1276 (5th Cir. 1973)). Because the Defendants named in
Plaintiff's Amended Complaint are not officers or
employees of the United States or any agency thereof, the
Court lacks jurisdiction to grant the mandamus relief
being said, where a Plaintiff's petition is more in the
nature of a request for injunctive relief than mandamus, the
Court may treat the petition as a request for injunctive
relief. See Chandler v. Wiley, 2010 U.S. Dist. LEXIS
141649, *11, 2010 WL 5887799, *4 (M.D. Ga. Nov. 2, 2010),
report and recommendation adopted, 2011 WL 767398
(M.D. Ga. Feb. 25, 2011) (citing Carter v. Hardy,
527 F.2d 314 (5th Cir. 1976); English v. Laidler,
2009 U.S. Dist. LEXIS 88063, 2009 WL 3153749, *1 (M.D. Ga.
Sept. 24, 2009) (construing Plaintiff's request as more
in the nature of a request for injunctive relief than
mandamus, and noting, “[s]ection 1983 authorizes
federal injunctive relief against state officials, whether
executive, legislative, or judicial, to prevent violation of
due process rights.”); Thurman v. Jordan, 2010
U.S. Dist. LEXIS 58326, 2010 WL 2402900, *1 (M.D. Ga. June
14, 2010) (construing Plaintiff's request for mandamus
relief against a state official as one for injunctive relief
and allowing it to proceed).
Plaintiff clearly seeks equitable/injunctive relief against
Defendants South and Trimm with respect to expungement of the
probation from his record. (Doc. 17 at 9-12). Therefore, the
Court finds that Plaintiff's claim is more in the nature
of one for injunctive relief than mandamus, and it will be
allowed to proceed.
Defendants' Motion to Dismiss Count One of the Amended
Complaint is due to be granted, in part, as to
Plaintiff's request for a petition for a writ of mandamus
and denied, in part, as to Plaintiff's request for
injunctive relief, as previously set forth herein.
Title IX Claims (Counts Two and Four).
forth above, Plaintiff alleges in the amended complaint that
he was employed as a medical resident at the University of
South Alabama (Doc. 17, ¶3) and that Defendants Goslings
and Trimm, as officials of the university, deliberately
subjected him to discrimination under 20 U.S.C. §
1681(a) after he refused Goslings' sexual advances and
after he reported Goslings' unlawful conduct to Trimm.
(Doc. 17 at 9-10). Plaintiff alleges that Defendants were
deliberately indifferent to his right to access educational
opportunities, that they knew of Goslings' sexual
harassment and retaliatory conduct and failed to take
corrective action, and that Trimm likewise retaliated against
Plaintiff, at the behest of Goslings, by placing him on
probation after he complained of Goslings' conduct.
their motion to dismiss, Defendants argue that
Plaintiff's complaint fails to state a claim under Title
IX for several reasons. (Doc. 20 at 7). The Court will
address each argument in turn.
Defendants argue that Plaintiff's Title IX sex
discrimination claims are preempted by Title VII. (Doc. 20 at
8-11). Plaintiff counters that the question of whether Title
VII preempts Plaintiff's private cause of action under
Title IX for quid pro quo harassment and retaliation
has not yet been decided in the Eleventh Circuit or by the
Supreme Court, and, more importantly, that courts addressing
such claims by plaintiffs who are both employees and
students of a federally funded educational program, such
as Plaintiff here, have held that their Title IX claims are
not preempted by Title VII. (Doc. 27 at 8, 12).
IX prohibits sex discrimination by recipients of federal
education funding.” Heatherly v. University of Ala.
Bd. of Trs., 2018 U.S. Dist. LEXIS 118869, *62-63, 2018
WL 3439341, *19 (N.D. Ala. July 17, 2018) (citing Jackson
v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005)).
Title IX provides in relevant part that “[n]o person in
the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance.” 20
U.S.C. § 1681(a) (1988). This prohibition on
discrimination is enforceable through an implied cause of
action. See Cannon v. Univ. of Chicago, 441 U.S.
677, 688-89 (1979). Sexual harassment is an actionable form
of discrimination under Title IX, see Franklin v.
Gwinnett County Pub. Schools, 503 U.S. 60, 75 (1992),
and both damages and injunctive relief are available in
private suits under Title IX. See Fitzgerald v.
Barnstable School Comm., 555 U.S. 246, 255 (2009).
“Title IX's broad directive that no person may be
discriminated against on the basis of gender appears, on its
face, to include employees as well as students.”
Heatherly, 2018 U.S. Dist. LEXIS 118869 at *63, 2018
WL 3439341 at *19 (quoting North Haven Bd. of Ed. v.
Bell, 456 U.S. 512, 520, 102 S.Ct. 1912, 72 L.Ed.2d 299
(1982) (internal quotation marks omitted)).
“Title VII prohibits an employer from discriminating
against any individual with respect to her compensation,
terms, conditions, or privileges of employment because of
that individual's sex.” Heatherly, 2018
U.S. Dist. LEXIS 118869 at *63 (citing 42 U.S.C. §
question presented here is whether Title VII preempts a Title
IX action for gender/sex discrimination asserted by a
plaintiff who is both a student and an employee of a
federally funded educational program. As the parties have
pointed out, neither the Supreme Court nor the Eleventh
Circuit has addressed this issue, nor even the separate,
broader issue of whether Title VII preempts a Title IX sex
discrimination claim filed by a plaintiff who is solely an
employee (and not a student) of a federally funded
of background, Defendants correctly point out that the other
Circuits that have addressed the issue of Title VII
preemption in the context of plaintiffs who are solely
employees of a federally funded educational institution
are split on the question. See generally Heatherly,
2018 U.S. Dist. LEXIS 118869, *63-65, 2018 WL 3439341, *20-21
(N.D. Ala. July 17, 2018) (“Neither the Supreme Court
nor the Eleventh Circuit has addressed whether Title VII
preempts Title IX when a plaintiff is alleging employment
discrimination and Title VII provides a parallel remedy. A
circuit split exists among the courts of appeals that have
decided this question.”) (collecting cases). Defendants
also correctly point out that the district courts in this
Circuit addressing the issue, including this Court, have
generally held that Title VII preempts a Title IX employment
discrimination claim filed by a plaintiff who is solely
an employee (and not a student) of a federally funded
educational institution when Title VII provides a parallel
remedy. See, e.g., Morris v. Wallace
Cmty. College-Selma, 125 F.Supp.2d 1315, 1343 (S.D. Ala.
2001) (holding that an athletic instructor's Title IX
claim for employment discrimination was precluded by Title
VII); Drisin v. Florida Int'l Univ. Bd. of
Trustees, 2017 U.S. Dist. LEXIS 100247, *10, 2017 WL
3505299, *5 (S.D. Fla. June 27, 2017) (holding that a former
professor's Title IX claim for gender discrimination was
preempted by Title VII); Blalock v. Dale Cnty. Bd. of
Educ., 84 F.Supp.2d 1291, 1298 (M.D. Ala. 1999) (holding
that “Title VII provides the exclusive remedy for
individuals alleging employment discrimination on the basis
of sex in federally funded educational institutions” in
a Title IX action for discrimination and retaliation filed by
a female coach); Hazel v. School Bd. of Dade Cnty.,
7 F.Supp.2d 1349, 1354 (S.D. Fla. 1998) (holding that
“Title VII is the exclusive remedy for employment
discrimination claims on the basis of sex in federally funded
educational institutions” in a Title IX suit for
discrimination/sexual harassment filed by a student
activities director for a high school); Gibson v.
Hickman, 2 F.Supp.2d 1481, 1484 (M.D. Ga. 1998) (holding
that “Title VII preempts employment discrimination
claims for money damages brought under Title IX” in a
Title IX action for sexual harassment filed by an employee of
the school district).
question presented here, however, is different. Here, the
question concerns whether Title VII preempts a Title IX
action for sex discrimination asserted by a plaintiff who is
both a student and an employee of a federally funded
educational program. While neither the Eleventh Circuit nor
the Supreme Court has addressed this issue either, two
district courts in this Circuit have addressed this issue and
have held that it does not.
Morrison v. University of Miami, 2016 WL 3129490, *1
(S.D. Fla. Jan. 20, 2016), a student in the university's
Ph.D. program, who was also employed by the university as a
research assistant for a professor, filed Title IX claims
against the university and two professors for harassment
based on sex, hostile educational environment, and
retaliation after she refused the sexual advances of one of
the professors and was subjected to retaliation when she
reported the professor's conduct to the university. The
court rejected the defendants' arguments that the
plaintiff's Title IX claims were preempted by Title VII,
The University asserts that although Plaintiff was both a
graduate student and an employee of the University, her Title
IX claims arose in the context of her employment as
McGinn's RA. Id. Therefore, the University
argues, Plaintiff may not circumvent Title VII's
administrative scheme and proceed under Title IX simply
because she failed to exhaust the administrative remedies
under Title VII, which would be fatal to her claims.
Id. In opposition, Plaintiff argues that neither the
United States Supreme Court nor the Eleventh Circuit Court of
Appeals have held that Title VII pre-empts Title IX in all
circumstances. D.E. 36. Plaintiff asserts that all of the
cases relied upon by the University involve plaintiffs who
were solely employees of an educational institution where the
alleged sexual-discrimination and retaliation claims arose.
Id. Plaintiff contends that because Plaintiff was
both a Ph.D. student who was, at times, concurrently employed
by the University, she is entitled to the protections under
both Title VII and Title IX, but she has instead opted to
pursue her claims through Title IX and the Florida Civil
Rights Act (“FCRA”). Id.
According to Plaintiff's Complaint, Plaintiff was both a
graduate student pursuing a Ph.D. in Philosophy and was
employed as a Resident Assistant during the period of the
alleged sexual harassment and retaliation. D.E. 1 ¶ 5.
The Court agrees with Plaintiff that none of the authorities
cited by the University are analogous to the facts of this
case, where a plaintiff was concurrently an employee and a
student. Based upon the lack of controlling authority and in
light of the public policy behind these statutory schemes,
the Court takes note of Plaintiff's argument that
“[t]o deprive [Plaintiff] of the right to pursue her
Title IX claims for the educational detriment she suffered as
a result of Defendant's wrongdoing would unfairly punish
her for being employed by the same institution where she was
also enrolled as [a] student.” Accordingly,
Defendant's Motion to Dismiss Counts I, II, and III is
Morrison, 2016 WL 3129490 at *5.
in Wilborn v. Southern Union State Cmty. Coll., 720
F.Supp.2d 1274, 1304 (M.D. Ala. 2010), a female student in a
summer truck driving program filed a claim for sexual
harassment, discrimination, and retaliation in violation of
Title VII and Title IX against a community college, the
Alabama Department of Education and Community Affairs
(ADECA), the Alabama Department of Postsecondary Education
(ADPE), and certain program instructors. Because the program
involved a combination of classroom instruction and driver
training and ostensibly ...