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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                   FILED
                                                                                June 19, 2014
                                      No. 12-11074
                                                                                Lyle W. Cayce
                                                                                     Clerk
JON TIMOTHY CARMICHAEL, Individually and in their representative
capacities in the Estate of JTC, deceased; TAMI CARMICHAEL, Individually
and in their representative capacities in the Estate of JTC, deceased,

                                                 Plaintiffs - Appellants
v.

RONNIE GALBRAITH, President of the School Board of the Joshua
Independent School District, in his Official Capacity; RAY DANE,
Superintendent of the Joshua Independent School District, in his Official
Capacity; KENNETH RANDALL WATTS, Individually; DAYTON
BARRONE, Individually; WALTER STRICKLAND, Individually;
ELIZABETH ROSATELLI, Individually; DAYTON BARONE, Individually,

                                                 Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:11-CV-622


Before DAVIS, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
       This case involves claims under Title IX of the Education Amendments
of 1972, as codified at 20 U.S.C. § 1681, as well as equal-protection claims


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 12-11074
brought under 42 U.S.C. § 1983 and state-law claims raised under 28 U.S.C. §
1367. 1 The Carmichaels appeal the district court’s dismissal of their complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons
set forth below, we reverse in part and affirm in part.
                                       I.
      The Carmichaels’ son, Jon, was a thirteen-year-old student at Loftin
Middle School, who committed suicide after allegedly being bullied by his
fellow students. The defendants-appellees are school officials who, according
to the Carmichaels, demonstrated deliberate indifference to the bullying.
      The Carmichaels’ complaint alleges that Jon was bullied throughout
“[t]he 2009-2010 school year.” According to the complaint, “[o]n numerous
occasions, Jon was accosted by a group of boys in the locker room—oftentimes
having his underwear removed—while Defendant Watts observed.” During
“[t]he last of these incidents . . . just before Spring Break—a few days before
Jon took his life,” members of the football team “stripped [Jon] nude and tied
him up” and “placed [Jon] into a trash can” while calling him “fag,” “queer,”
and “homo.” As the complaint explains, “[a] number of students in the locker
room observed this deplorable behavior,” and one of these students “videotaped
the attack and uploaded it to YouTube.” The harassment against Jon was,
according to the complaint, “based on gender or gender-based stereotypes.”
Shortly thereafter, Jon committed suicide in March 2010.
      The Carmichaels’ complaint further alleges that numerous school
officials were aware of and deliberately indifferent to the bullying, including
numerous teachers, the bus driver, the school counselor, and other staff.
Although the school district had policies in place for addressing bullying, those



      1The Carmichaels also asserted a substantive-due-process claim that has been
abandoned on appeal.
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                                        No. 12-11074
policies were allegedly ignored in Jon’s case. One teacher, after being told by
another teacher that she was concerned about the bullying, “essentially replied
that ‘boys will be boys’ and told the teacher to leave it alone.”
       The district court dismissed the Carmichaels’ claims on September 26,
2012, and the Carmichaels appealed.
                                               II.
       This court reviews de novo a district court’s dismissal of a complaint for
failure to state a claim upon which relief may be granted. 2 Under Rule 8(a)(2)
of the Federal Rules of Civil Procedure, the complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.”
The court must accept as true all facts the plaintiffs allege in support of the
claim and must construe those allegations in the light most favorable to the
plaintiffs. 3 If those allegations “state a claim to relief that is plausible on its
face,” the complaint is adequate and “will survive a motion to dismiss.” 4
                                              III.
       As codified at 20 U.S.C. § 1681, Title IX provides 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 . . . .” This provision
of Title IX may be enforced in a private lawsuit for monetary damages. 5


       2  Gibson v. Tex. Dep’t of Ins., 700 F.3d 227, 233 (5th Cir. 2012).
       3  Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012); Bustos v. Martini
Club Inc., 599 F.3d 458, 461 (5th Cir. 2010).
        4 Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).
        5 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998); Doe ex rel. Doe v.

Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998). We note that the Carmichaels’
complaint, which names some defendants in their “individual capacities” and some in their
“official capacities,” does not make clear which claims are brought against which defendants.
The relevant provision of Title IX “has consistently been interpreted as not authorizing suit
against school officials, teachers, and other individuals,” as opposed to the institution that

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                                       No. 12-11074
According to the Carmichaels, the bullying experienced by Jon from 2009 to
2010 constituted a “severe, pervasive, and objectively offensive” pattern of
student-on-student sexual harassment in violation of 20 U.S.C. § 1681 under
Davis Next Friend LaShonda D. v. Monroe County Board of Education, 526
U.S. 629, 633 (1999).
       The district court rejected this argument based on its conclusion that,
essentially, the sexual harassment alleged by the Carmichaels was not
pervasive and the pervasive bullying alleged was not sexual harassment. That
is, the district court agreed with the Carmichaels that “on one occasion,” which
was the incident in March 2010 where Jon was “stripped nude” and
“videotaped” in the locker room shortly before Jon’s suicide, “the harassers and
bullies spoke words that had a sexual connotation.” The district court was not
persuaded, however, that the allegations in the complaint supported the
inference that “all of the numerous instances of harassment and bullying
alleged” were instances of sexual harassment. The district court therefore
dismissed the Carmichaels’ claim under 20 U.S.C. § 1681.
       To the extent that the district court interpreted Davis, 526 U.S. at 650-
54, to foreclose claims under 20 U.S.C. § 1681 based on “a single instance” of
student-on-student sexual harassment, we agree with the district court’s
analysis.    The Supreme Court explicitly limited Title IX claims based on
student-on-student sexual harassment to encompass only “pervasive” and
“widespread” conduct with the “systemic effect of denying the victim equal



receives the federal funds. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009).
We therefore assume for purposes of this appeal that the Carmichaels have brought their
Title IX claim against the school district (through the official-capacity defendants) and not
the individual-capacity defendants. When raising such a claim, “a Title IX plaintiff can
establish school district liability by showing that a single school administrator with authority
to take corrective action responded to harassment with deliberate indifference.” Id.

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                                       No. 12-11074
access to an educational program or activity.” 6 In that respect, we consider
that the district court’s reasoning was sound.
       The district court failed to take note, however, of sexual-harassment
allegations in the complaint that do satisfy Title IX’s requirement of
pervasiveness. In addition to the videotaped incident, in which the football
team “stripped [Jon] nude and tied him up,” the complaint also refers to other
“numerous occasions” on which “Jon was accosted by a group of boys in the
locker room—oftentimes having his underwear removed—while Defendant
Watts observed.” The complaint later refers collectively to these occurrences
in the plural as “incidents of sexual assault.” 7 The district court did not
analyze or even mention these portions of the Carmichaels’ complaint.
       The removal of a person’s underwear without their consent on numerous
occasions plausibly constitutes pervasive harassment of a sexual character.
Indeed, “depend[ing] on [the] constellation of surrounding circumstances,
expectations, and relationships,” 8 uninvited contact with the private parts of
either the victim’s or harasser’s body has often been held to constitute sexual
harassment under Title IX. 9 Moreover, it is irrelevant that both the victim and
the harassers in the present case were male because, as we recognized in
Sanches v. Carrollton-Farmers Branch Independent School District, 647 F.3d
156, 165 (5th Cir. 2011), it is settled law that “[s]ame-sex sexual harassment



       6 Davis, 526 U.S. at 652-54.
       7 Compl. ¶¶ 51, 61, 89 (Rec. Doc. 23) (emphasis added).
       8 See Davis, 526 U.S. at 651 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 82 (1998)).
       9 See id. at 633-34. See also Papelino v. Albany Coll. of Pharmacy of Union Univ., 633

F.3d 81, 85, 89-90 (2d Cir. 2011) (permitting such contact to serve as the basis for a claim
under Title IX); Trentadue v. Redmon, 619 F.3d 648, 650, 653 (7th Cir. 2010) (describing such
an incident in a Title IX case as sexual abuse, although affirming dismissal on other grounds);
Patterson v. Hudson Area Sch., 551 F.3d 438, 442-43, 450 (6th Cir. 2009) (permitting a case
to proceed under Title IX based on such contact between students).

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                                      No. 12-11074
is actionable under title IX.” Depending on the evidence at trial or summary
judgment, the series of incidents where Jon’s underwear was forcibly removed
could plausibly constitute “numerous acts of objectively offensive touching.” 10
Such acts plausibly fall outside the list of simple “insults, banter, teasing,
shoving, pushing, and gender-specific conduct” which are “understandable . . .
in the school setting” and are not actionable under Title IX. 11
       We therefore reverse the district court’s dismissal of the Carmichaels’
Title IX claim on this narrow basis. We also note that the Carmichaels suggest
in their complaint that Jon’s harassers were motivated by animus related to
“gender-based stereotypes.” For the reasons set forth above, however, we have
no need at the present time to address the applicability of decisions under Title
VII, such as Price Waterhouse v. Hopkins, 490 U.S. 228, 235, 250-51 (1989), or
EEOC v. Boh Brothers Construction Co., LLC, 731 F.3d 444, 453-57 (5th Cir.
2013) (en banc), to Title IX claims involving acts of harassment committed by
students in middle school. We also need not address any of the other elements
of the Carmichaels’ Title IX claim, such as the adequacy of the school’s
responses to Jon’s complaints, 12 because neither the district court’s opinion nor
the defendant-appellees’ briefs in the present appeal have addressed those
aspects of this case.
                                            IV.
       We now turn to the equal-protection claims. The district court held that
the equal-protection claims asserted against the defendants sued in their
individual capacities should be dismissed because, among other reasons, those



       10 See Davis, 526 U.S. at 653-54.
       11 See id. at 651-52.
       12 See Sanches, 647 F.3d at 168; Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d

380, 384 (5th Cir. 2000).

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                                       No. 12-11074
defendants were entitled to qualified immunity. The Carmichaels challenge
the district court’s other reasons for dismissing the claims but they are silent
regarding qualified immunity. Accordingly, the Carmichaels have not shown
reversible error. 13
       The Carmichaels also asserted equal-protection claims against several
officers of the school district in their official capacities. “Official-capacity suits
generally represent only another way of pleading an action against an entity
of which an officer is an agent.” 14 In other words, the complaint here asserted
the equal-protection claims against the school district itself. “Under § 1983, a
municipality or local governmental entity such as an independent school
district may be held liable only for acts for which it is actually responsible,”
i.e., the school district’s policies and customs. 15            And in this regard, the
complaint is threadbare. We hold that the facts alleged in the complaint are
too scarce to make out a plausible claim that the school district is responsible
for any sort of policy or custom resulting in the denial of equal protection. The
district court is therefore affirmed as to the equal-protection claims.
                                              V.
       After the district court dismissed the Carmichaels’ federal-law claims, it
then declined to exercise supplemental jurisdiction over the remaining state-
law claims under 28 U.S.C. § 1367(c)(3). 16 Because we reverse the district
court’s dismissal of the Title IX claims, we likewise reverse dismissal of the
state-law claims.


       13 See Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (“[T]he plaintiff has the
burden to negate the [qualified-immunity] defense once properly raised.”).
       14 Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 483 (5th Cir.

2000) (internal quotation marks, alterations, and citation omitted).
       15 Doe, 153 F.3d at 215-16 (analyzing Monell v. Dep’t of Social Servs., 436 U.S. 658

(1978)).
       16 See Sibley v. Lemaire, 184 F.3d 481, 490 (5th Cir. 1999); Wong v. Stripling, 881 F.2d

200, 204 (5th Cir. 1989).
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                                No. 12-11074
                                     VI.
      As explained above, the Carmichaels adequately allege a Title IX claim
against the school district. Therefore, insofar as the district court dismissed
that claim and declined to exercise supplemental jurisdiction over the state-
law claims, the district court’s judgment is REVERSED and REMANDED for
further proceedings in accordance with this opinion. In all other respects, the
district court’s judgment is AFFIRMED.
      REVERSED and REMANDED in part, and AFFIRMED in part.




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                                  No. 12-11074
JAMES L. DENNIS, Circuit Judge, adding additional reasons and concurring
in the judgment:
      Plaintiffs-appellants Jon Timothy and Tami Carmichael, on behalf of
themselves and the estate of their deceased son, Jon Thomas Carmichael, who
they claim committed suicide as a result of school bullying, allege in their
complaint that school officials were deliberately indifferent to a pattern of
sexual assault against Jon. Specifically, the Carmichaels allege that students
forcibly removed Jon’s underwear on numerous occasions and one time
videotaped an incident in which they stripped Jon nude, tied him up, and
placed him in a trash can while calling him a “fag,” “queer,” and “homo.” I
agree fully with the panel’s conclusion that these allegations “plausibly
constitute[] pervasive harassment of a sexual character.” Ante, at 5. I thus
join the panel’s judgment reversing the district court’s dismissal of the Title IX
claim. However, I also join in reversing the district court for an additional
reason urged by the Carmichaels and, as amicus curiae, the United States,
which I write separately to explain.
      In addition to the above-described bullying against Jon, the complaint
further alleges that Jon was the victim of other “incessant bullying” that
occurred in the school’s hallways, in class, on the football field, and in the
locker room. In the hallways, he was “bumped and hit almost every day.” On
the football field, he was pushed onto the ground “on an almost-daily basis.”
In the locker room, he was “frequently accosted.” Other harassment included,
on some occasions, students picking him up and putting him in garbage bins
and, on other occasions, destroying his personal property. This harassment is
not alleged to have been “bas[ed] on sex,” 20 U.S.C. § 1681(a), in the sense that
it involved bodily contact “of a sexual character.” Cf. ante, at 5. It is, however,
alleged to have been harassment that was “bas[ed] on sex” because it was
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                                      No. 12-11074
motivated by Jon’s perceived failure to satisfy “gender-based stereotypes,”
specifically, that he was not sufficiently “masculine.”              See generally Price
Waterhouse v. Hopkins, 490 U.S. 228, 235, 250-51 (1989). Thus, the question
is, when harassment against a student is motivated by that student’s perceived
failure to satisfy gender-based stereotypes, is such harassment “bas[ed] on sex”
under Title IX? 1 The Carmichaels and the United States urge us to answer
“yes.”
         The persuasive authority of which I am aware is uniform in suggesting
that such harassment is indeed “bas[ed] on sex” in the meaning of the statute.
Two of our sister circuits have stated, although one in an unpublished opinion
and both with little analysis, and no circuit of which I am aware has said
otherwise, that, under Title IX, harassment may be “bas[ed] on sex” when it is
motivated by the victim’s failure to satisfy his peers’ pre-conceived gender
stereotypes. See Wolfe v. Fayettville, Ark. Sch. Dist., 648 F.3d 860, 867 (8th
Cir. 2011) (stating that the plaintiff was required to prove that the “harasser
intended to discriminate against him ‘on the basis of sex,’ meaning the
harassment was motivated by either [his] gender or failure to conform with
gender stereotypes”); Doe v. East Haven Bd. of Educ., 200 F. App’x 46, 48 (2d
Cir. 2006) (unpublished) (similar). A number of district courts have held the
same. See, e.g., N.K. v. St. Mary’s Springs Acad. of Fond Du Lac Wisc., Inc.,
965 F. Supp. 2d 1025, 1034 (E.D. Wis. 2013); Doe v. Brimfield Grade Sch., 552
F. Supp. 2d 816, 823 (C.D. Ill. 2008); Seiwert v. Spencer-Owen Cmty. Sch. Corp.,
497 F. Supp. 2d 942, 953 (S.D. Ind. 2007); Theno v. Tonganoxie Unified Sch.
Dist No. 464, 377 F. Supp. 2d 952, 965 (D. Kan. 2005); Howell v. N. Cent. Coll.,


         In addition to the harassment being “bas[ed] on sex,” an actionable Title IX claim
         1

requires the other elements to be met too, of course. See generally Davis ex rel. LaShonda D.
v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999).
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                                 No. 12-11074
320 F. Supp. 2d 717, 722 (N.D. Ill. 2004); Montgomery v. Indep. Sch. Dist. No.
709, 109 F. Supp. 2d 1081, 1092 (D. Minn. 2000).
      Likewise, the U.S. Department of Education’s Office for Civil Rights,
which is charged with enforcing Title IX, agrees that
            gender-based harassment, including that predicated
            on sex-stereotyping, is covered by Title IX if it is
            sufficiently serious to deny or limit a student’s ability
            to participate in or benefit from the program. Thus, it
            can be discrimination on the basis of sex to harass a
            student on the basis of the victim’s failure to conform
            to stereotyped notions of masculinity and femininity.
U.S. DEP’T OF EDUC., OFFICE FOR CIVIL RIGHTS, REVISED SEXUAL HARASSMENT
GUIDANCE: HARASSMENT OF STUDENTS BY SCHOOL EMPLOYEES, OTHER
STUDENTS, OR THIRD PARTIES (2001); see also Davis ex rel. LaShonda D. v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 647-48 (1999) (turning to OCR
guidance in construing Title IX); Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d
1006, 1015 n.20 (5th Cir. 1996) (“When interpreting title IX, we accord the
OCR’s interpretations appreciable deference.”), disapproved of on other
grounds by Davis, 526 U.S. at 637-38; Riccio v. New Haven Bd. of Educ., 467
F. Supp. 2d 219, 226 & n.8 (D. Conn. 2006).
      I find additional support for this authority in the law of Title VII of the
Civil Rights Act of 1964, which prohibits certain employment discrimination,
including workplace harassment “because of . . . sex.” 42 U.S.C. § 2000e-2. In
construing Title IX’s meaning of harassment “bas[ed] on sex,” courts, including
the Supreme Court and this court, frequently rely on case law construing Title
VII’s prohibition on workplace harassment “because of . . . sex.” See, e.g.,
Franklin v. Gwinnet Cnty. Pub. Schs., 503 U.S. 60, 75 (1992) (relying on
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) (Title VII case));
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 616 n.1 (1999) (Thomas, J.,
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                                  No. 12-11074
dissenting) (citing Franklin and noting that the Supreme Court has “looked to
its Title VII interpretations of discrimination in illuminating Title IX”); Doe ex
rel. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998) (relying
on Title VII precedent to construe Title IX); Lipsett v. Univ. of P. R., 864 F.2d
881, 897 (1st Cir. 1988) (“[T]he Title VII standard for proving discriminatory
treatment should apply to claims of sex discrimination arising under Title
IX.”).
         In that tradition, I now turn to this court’s recent decision in Equal
Employment Opportunity Commission v. Boh Brothers Construction Co., 731
F.3d 444 (5th Cir. 2013) (en banc), which explicated the meaning of harassment
“because of . . . sex” under Title VII and is highly relevant here. Boh Brothers
involved a male manager harassing a male employee. Much of the manager’s
harassment originated from his learning that the employee used “Wet Ones,”
a moist, antibacterial wipe, rather than ordinary dry toilet paper, and the
manager thought that such election was “kind of gay” and “feminine.” Id. at
450. The manager called the employee a “‘pu—y,’ ‘princess,’ and ‘fa—ot,’ often
‘two to three times a day.’” Id. at 449. Numerous times each week, when the
employee “bent over to perform a task,” the manager “approached him from
behind and simulated anal intercourse with him.” Id. The manager showed
his penis to the employee not infrequently and once threatened to put his “d—
ck” in the employee’s mouth while the employee was sleeping. Id. at 449-50.
         In holding that the manager’s harassment was actionable under Title
VII, we held that “a plaintiff may establish a sexual harassment claim with
evidence of sex-stereotyping,” or, in other words, “with evidence of a plaintiff’s
perceived failure to conform to traditional gender stereotypes.” Id. at 454, 456
(citing Price Waterhouse, supra). Thus, the EEOC, litigating the case on behalf
of the employee, could—and did—“rely on evidence that [the manager] viewed
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                                    No. 12-11074
[the employee] as insufficiently masculine to prove its Title VII claim.” Id. at
456. The evidence showed that the manager’s harassment was motivated by a
perception that the employee was not sufficiently masculine—i.e., the
employee “fell outside of [the manager’s] manly-man stereotype”—and such
harassment, as so motivated, constituted unlawful discrimination “because of
. . . sex.” Id. at 459.
      For the same reasons Title VII prohibits harassment based on gender
stereotypes at work, as we held in Boh Brothers, I think Title IX does the same
for children at school. Title VII’s prohibition on harassment because of sex is
aimed at affording equal opportunity for workers to thrive in the marketplace
based on their abilities and without respect to gender identity. Similarly, Title
IX aims for equal educational opportunity. In both the workplace and school,
tolerance of harassment for failure to satisfy gender stereotypes stifles the
opportunity for success based on merit rather than gender identity
characteristics unrelated to ability.     I see no rational reason why severe
harassment motivated by a failure to satisfy gender stereotypes should be
unlawful when carried out against adult workers but permitted when targeted
against children. In short, I see no reason for Title VII and Title IX to diverge
with respect to the issue of whether severe harassment motivated by a failure
to satisfy gender stereotypes is actionable. Thus, I join every court of which I
am aware to have addressed the question and I would hold that, when severe,
pervasive, and objectively offensive harassment is motivated by the victim’s
failure to satisfy gender stereotypes, it is “bas[ed] on sex” in the meaning of
Title IX and, so long as the other requirements of a Title IX claim are satisfied,
there is an actionable claim.
      In conclusion, I join the majority in reversing the district court because
the Carmichaels’ complaint plausibly alleges actionable harassment of a
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                                No. 12-11074
sexual nature involving bodily contact. And, I further join in reversing the
district court because, in my view, the complaint also plausibly alleges
actionable harassment that was motivated by Jon’s perceived failure to satisfy
gender-based stereotypes.




                                     14
