Roobina Zadoorian v. Gwinnett Technical College, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14206
Non-Argument Calendar
____________________
ROOBINA ZADOORIAN,
Plaintiff-Appellant,
versus
GWINNETT TECHNICAL COLLEGE,
KIMBERLY STRONG,
Director of Sonography Program,
JIM SASS,
Dean of Health Imaging & Informatics,
REBECCA ALEXANDER,
VP of Academic Affairs,
DEREK DABROWIAK,
Executive Director, Student Affairs - TCSG, et al.,
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2 Opinion of the Court 22-14206
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cv-00922-LMM
____________________
Before BRASHER, ABUDU, and ANDERSON, Circuit Judges.
PER CURIAM:
Roobina Zadoorian appeals the district court’s order dis-
missing her Title VI discrimination lawsuit against Gwinnett Tech-
nical College (“GTC”), the Technical College System of Georgia
(“TCSG”), and a number of school administrators and staff (collec-
tively with GTC and TCSG, the “State Defendants”). She also ap-
peals the district court’s dismissal of her Administrative Procedures
Act (“APA”) claim against the U.S. Department of Education’s Of-
fice of Civil Rights (“OCR”).
She argues that the district court erroneously dismissed her
Title VI claims of intentional discrimination and retaliation against
the State Defendants as time-barred because it incorrectly: (1) de-
termined that her limitations period began before she alleges that
she was aware of a similarly situated comparator; (2) failed to toll
the limitations period due to State Defendants’ fraud; and (3) relied
on Georgia’s two-year limitations period for personal injury claims,
rather than the six-year period for contract claims.
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22-14206 Opinion of the Court 3
Next, she argues that the district court erroneously dis-
missed her APA claim against OCR due to sovereign immunity be-
cause: (1) she had no adequate alternative remedy beyond an APA
suit, because her OCR complaint related to disparate impact and
not intentional discrimination; and (2) OCR failed to properly in-
vestigate her complaint pursuant to its own regulations.
We write only for the parties who are already familiar with
the facts. Accordingly, we include only such facts as are necessary
to understand our opinion.
I. DISCUSSION
A. With respect to the State Defendants, did the district court err in its
application of the statute of limitations?
“[W]e review de novo the district court’s interpretation and
application of the statute of limitations.” United States v. Frediani,
790 F.3d 1196, 1199 (11th Cir. 2015) (quotation marks omitted). “A
finding that equitable modification does not apply is subject to de
novo review; however, this [C]ourt is bound by the district court’s
factual findings unless they are clearly erroneous.” Sturniolo v.
Sheaffer, Eaton, Inc., 15 F.3d 1023, 1024 (11th Cir. 1994). Plaintiffs
may “plead [themselves] out of court” by alleging facts inconsistent
with the timeliness of their complaint. See Villareal v. R.J. Reynolds
Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016) (en banc).
Issues not raised in an initial brief are forfeited and generally
deemed abandoned. United States v. Campbell, 26 F.4th 860, 871-72
(11th Cir. 2022) (en banc), petition for cert. denied, 143 S. Ct. 95 (2022).
“[F]orfeiture is the failure to make the timely assertion of a right;
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4 Opinion of the Court 22-14206
waiver is the intentional relinquishment or abandonment of a
known right.” Id. at 872 (quotation marks omitted). “Waiver di-
rectly implicates the power of the parties to control the course of
the litigation; if a party affirmatively and intentionally relinquishes
an issue, then courts must respect that decision.” Id.
Title VI states that “[n]o person in the United States shall, on
the ground of race, color, or national origin, be excluded from par-
ticipation in, be denied the benefits of, or be subjected to discrimi-
nation under any program or activity receiving Federal financial
assistance.” 42 U.S.C. § 2000d. Claims under Title VI are appropri-
ately subjected to constitutional analysis. Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265, 286-87 (1978); accord Grutter v. Bollinger, 539
U.S. 306, 343 (2003). Further, standards that govern claims under
Title VII are instructive in Title VI cases. Ga. State Conf. of Branches
of NAACP v. State of Ga., 775 F.2d 1403, 1417 (11th Cir. 1985).
“Title VI itself directly reaches only instances of intentional
discrimination.” Alexander v. Sandoval, 532 U.S. 275, 281 (2001)
(quotation marks omitted, alterations adopted). “A plaintiff may
prove a claim of intentional discrimination through direct evi-
dence, circumstantial evidence, or through statistical proof.” Rioux
v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008).
We have consistently applied iterations of the McDonnell
Douglas burden-shifting framework to evaluate claims of inten-
tional discrimination and retaliation that rely on circumstantial ev-
idence and done so even when such claims arise in contexts other
than employment. See Johnson v. Miami-Dade, 948 F.3d 1318, 1325
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(11th Cir. 2020) (applying the framework to Title VII claims of un-
lawful employment discrimination and retaliation); see also Alvarez
v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1264 (11th Cir. 2010) (relying
on the framework for a Title VII discrimination claim based on cir-
cumstantial evidence); Branches of NAACP, 775 F.2d at 1417 (apply-
ing the framework to a Title VI disparate impact claim raised in an
educational context).
“[A] Title VII plaintiff proceeding under McDonnell Douglas
must prove, as a preliminary matter, not only that she is a member
of a protected class, that she suffered an adverse . . . action, and that
she was qualified for the [benefit] in question, but also that she was
treated less favorably than similarly situated individuals outside her
class.” Lewis v. City of Union City, Ga., 918 F.3d 1213, 1224 (11th Cir.
2019) (en banc) (quotation marks omitted).
“To establish a prima facie case of retaliation, a plaintiff must
show: (1) that [s]he engaged in statutorily protected expression;
(2) that [s]he suffered an adverse . . . action; and (3) that there is
some causal relationship between the two events.” Johnson, 948
F.3d at 1325 (quotation marks omitted) (employment context).
Although the McDonnell Douglas framework is regularly em-
ployed in discrimination cases, we have also explained that, to sur-
vive a motion to dismiss, a complaint alleging discrimination “need
not allege facts sufficient to make out a classic McDonnell Douglas
prima facie case.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239,
1246 (11th Cir. 2015) (quotation marks omitted) (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). “This is because
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6 Opinion of the Court 22-14206
McDonnell Douglas’s burden-shifting framework is an evidentiary
standard, not a pleading requirement.” Id.
Under this Circuit’s prior-panel-precedent rule, “a prior
panel’s holding is binding on all subsequent panels unless and until
it is overruled or undermined to the point of abrogation by the Su-
preme Court or by this [C]ourt sitting en banc.” United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). To constitute “over-
ruling” under this rule, the intervening “Supreme Court decision
must be clearly on point” and “actually abrogate or directly conflict
with, as opposed to merely weaken, the holding of the prior panel.”
United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (quota-
tion marks omitted).
In Guardians Ass’n v. Civ. Serv. Comm’n of City of New York, the
Supreme Court noted that Title VI’s “legislative history clearly
shows that Congress intended Title VI to be a typical ‘contractual’
spending power provision.” 463 U.S. 582, 599 (1983). Thus, the
Court reasoned “that compensatory relief, or other relief based on
past violations of the conditions attached to the use of federal
funds, is not available as a private remedy for Title VI violations
not involving intentional discrimination.” Id. at 602-03.
In Barnes v. Gorman, the Supreme Court “applied [a] con-
tract-law analogy . . . [to] defin[e] the scope of conduct for which
[federal] funding recipients may be held liable for money dam-
ages.” 536 U.S. 181. 186-89 (2002). Because “punitive damages,
unlike compensatory damages and injunction, are generally not
available for breach of contract,” the Court held that “punitive
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22-14206 Opinion of the Court 7
damages may not be awarded in private suits brought under Title
VI.” Id. at 187-89.
We have held that Georgia’s two-year statute of limitations
for personal injury claims applies to claims under Title VI. Rozar v.
Mullis, 85 F.3d 556, 560-61 (11th Cir. 1996) (citing O.C.G.A.
§ 9-3-33). We reasoned that claims under 42 U.S.C. §§ 1983 and
1981 are subject to states’ personal injury limitations periods, and
thus, “[c]haracterizing section 2000d claims as personal injury ac-
tions for limitations purposes promotes a consistent and uniform
framework by which suitable statutes of limitations can be deter-
mined for civil rights claims, and serves Congress’ objectives by
avoiding uncertainty and creating an effective remedy for the en-
forcement of federal civil rights.” Id. at 561 (quotation marks omit-
ted, alterations adopted). By contrast, “[w]ritten contract claims
have a six-year statute of limitations under Georgia law.” Anthony
v. Am. Gen. Fin. Servs., 626 F.3d 1318, 1322 (11th Cir. 2010) (citing
O.C.G.A. § 9-3-24).
The Georgia Supreme Court issued emergency orders in the
wake of COVID-19 which tolled limitations periods for all civil
claims during a 122-day period between March 14, 2020, and July
14, 2020. Ga. Sup. Ct. Orders of March 14, 2020, and June 12, 2020.1
1 See Court Information Regarding The Coronavirus, SUPREME COURT OF
G EORGIA , https://www.gasupreme.us/court-information/court_co-
rona_info (last visited March 1, 2024).
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8 Opinion of the Court 22-14206
Equitable modification generally applies when a plaintiff al-
leges that a defendant was actively misleading as to the reasoning
behind the adverse action taken against the plaintiff. See Villarreal,
839 F.3d at 972. Where a plaintiff does not allege that the defendant
was actively misleading, “[t]he general test for equitable tolling”
applies, which “requires the party seeking tolling to prove (1) that
he has been pursuing his rights diligently, and (2) that some ex-
traordinary circumstance stood in his way and prevented timely fil-
ing.” Id. at 971-72 (quotation marks omitted); see also Cocke v. Mer-
rill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987) (“Equitable
tolling is a type of equitable modification, which often focuses on
the plaintiff’s excusable ignorance of the limitations period and on
the lack of prejudice to the defendant.” (quotation marks omitted,
alteration adopted)).
“Under equitable modification, a limitations period does not
start to run until the facts which would support a charge of discrim-
ination are apparent or should be apparent to a person with a rea-
sonably prudent regard for his rights.” Sturniolo, 15 F.3d at 1025
(citing Reeb v. Econ. Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th
Cir. 1975)); accord Rozar, 85 F.3d at 561-62; Villarreal, 839 F.3d at
971-72. “Plaintiffs must know or have reason to know that they
were injured, and must be aware or should be aware of who in-
flicted the injury.” Rozar, 85 F.3d at 562. In practice, “[t]his rule
requires a court first to identify the alleged injuries, and then to
determine when plaintiffs could have sued for them.” Id.
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22-14206 Opinion of the Court 9
“It is not necessary for a plaintiff to know all the facts that
support [her] claim in order to file a claim.” Sturniolo, 15 F.3d at
1025. For example, a plaintiff in an age-based employment discrim-
ination case “who is aware that he is being replaced in a position
he believes he is able to handle by a person outside the protected
age group knows enough to support filing a claim.” Id. (alterations
adopted).
“A corollary of [equitable modification], often found in cases
where wrongful concealment of facts is alleged, is that a party re-
sponsible for such wrongful concealment is estopped from assert-
ing the statute of limitations as a defense.” Reeb, 516 F.2d at 930.
This principle is evident in the Georgia statutes, which tolls the in-
itiation of limitations periods until the plaintiff discovers a defend-
ant’s fraud in cases where such fraud deterred the plaintiff from
bringing an action. O.C.G.A. § 9-3-96.
In Sturniolo, we reversed and remanded a district court’s or-
der granting summary judgment in favor of the defendants on the
basis that Sturniolo’s age-based employment discrimination claim
was time-barred. 15 F.3d at 1024, 1026. We reasoned that it was
improper for the district court to initiate the limitations period on
the date of Sturniolo’s firing because, at the time, Sturniolo be-
lieved that his employer had legitimate, business-related reasons
for firing him, and he did not learn that his employer had replaced
him with a younger individual “until several months after his dis-
charge.” Id. at 1025-26. We explained that “[t]he date when Stur-
niolo knew or should have known that [his employer] had hired a
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10 Opinion of the Court 22-14206
younger individual to replace him is the date upon which the toll-
ing period should commence.” Id. at 1026.
In Reeb, our predecessor circuit reversed and remanded a dis-
trict court’s order dismissing Reeb’s employment discrimination
claim for lack of jurisdiction on the basis that her complaint before
the Equal Employment Opportunity Commission was untimely.2
516 F.2d at 925, 931. The Court highlighted that Reeb alleged that
her employer actively sought to mislead her as to its reasons for
firing her and that she believed her employer’s proffered reasoning
for some six months. Id. at 930. When Reeb learned that she had
been replaced by an allegedly less qualified male, “she immediately
filed charges” that very same week. Id. at 926. The Court vacated
and remanded the district court’s judgment, noting that the district
court “did not make any findings with respect to the allegations
that [Reeb’s employer] misled [her] or attempted to conceal the al-
leged discrimination . . . , nor did it make findings with respect to
when a person similarly situated with a prudent regard for his
rights would have discovered the discrimination in the absence of
misleading statements or concealment” by the employer. Id. at
931.
As an initial matter, we address only Zadoorian’s intentional
discrimination and retaliation claims raised in Counts 1 and 4 of her
2 Here, unlike Reeb, Plaintiffs need not exhaust administrative reme-
dies prior to filing suits under Title VI. Cone Corp. v. Fla. Dep’t of Transp., 921
F.2d 1190, 1200 n.30 (11th Cir. 1991).
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22-14206 Opinion of the Court 11
complaint before the district court, as she expressly waived any
challenge to her Title VI claims alleged in Counts 2, 3, and 5.
Here, the district court did not err in finding that Za-
doorian’s claims of intentional discrimination and retaliation under
Title VI were time-barred. First, the district court appropriately
applied Georgia’s two-year personal injury limitations period to
Zadoorian’s Title VI claims, pursuant to this Court’s holding in
Rozar. 85 F.3d at 560-61; O.C.G.A. § 9-3-33. Rozar remains good
law because both Barnes and Guardians related to what remedies
are available to Title VI plaintiffs and did not address what statute
of limitations applies to such claims. Barnes, 536 U.S. at 186-89;
Guardians, 463 U.S. at 599, 602-03. Thus, neither case constitutes
an intervening Supreme Court decision that is clearly on point or
directly in conflict with Rozar such that this Court may decline to
apply that case. Archer, 531 F.3d at 1352; Kaley, 579 F.3d at 1255.
Second, the district court did not err in determining that the
limitations period for Zadoorian’s Title VI claims began running by
July 11, 2017, because Zadoorian had reason to believe that GTC
had subjected her to intentional discrimination and retaliation by
this date. This determination is supported by Zadoorian’s July 12,
2017, email to TCSG’s executive director, Dabrowiak. In that mes-
sage, the following statements by Zadoorian show that she had the
requisite knowledge to initiate the limitations period by that time:
(1) that she had been discriminated against in the Program’s admis-
sions process; (2) that the process had been subject to “manipula-
tion” by Director Strong in order to aid “white Americans;” and
(3) that her interaction with Dean Sass “show[ed] his hostile inten-
tion and discrimination towards [her].” Further, Zadoorian had
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12 Opinion of the Court 22-14206
received the final selection criteria—that she alleges was altered af-
ter applications had been submitted in order to intentionally dis-
criminate against her—approximately one month before she sent
her email to Dabrowiak.
Therefore, because she knew of her alleged injury and who
caused it, she could have sued for intentional discrimination based
on these facts, and the district court did not err in determining that
the limitations period for Zadoorian’s intentional discrimination
claim began running when she had her interaction with Dean Sass
on July 11, 2017. See Rozar, 85 F.3d at 562.3
Similarly, the district court did not err in determining that
the limitations period for Zadoorian’s retaliation claim had begun
running by this same date. Sass’s allegedly retaliatory conduct took
place on July 11, 2017, when he explicitly linked his demand for Za-
doorian to leave the college to her complaint.4 The very next day,
she labeled this interaction as “[r]etaliation” in a complaint filed
with OCR. Because she was aware that Sass had caused her alleged
injury of retaliation immediately after the interaction occurred, she
3 Thus, the district court properly held that Zadoorian’s limitations
period expired on July 11, 2019, more than two and one-half years before she
filed suit on March 4, 2022. The limitations period also expired before the
Georgia Supreme Court issued its emergency order tolling the 122 days be-
tween March 14, 2020, and July 14, 2020.
4 Although it not clear whether Sass was aware that Zadoorian had
complained of discrimination to GTC staff or to OCR, Zadoorian told Sass on
June 14, 20217, that she had a complaint and set up an appointment with Sass
for the next day to talk about it.
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22-14206 Opinion of the Court 13
could have sued on July 11, 2017, and thus, the district court did not
err in determining that her limitations period began running by this
date. Rozar, 85 F.3d at 562.
There is no merit in Zadoorian’s argument that the limita-
tions period did not begin running until November 19, 2019 (when
she asserts she first learned of a similarly situated comparator).
First, as to her retaliation claim, a plaintiff need not identify a com-
parator to demonstrate a prima facie case of retaliation. See Johnson,
948 F.3d at 1325. Thus—even accepting as true Zadoorian’s erro-
neous assertion that a limitations period does not initiate until the
plaintiff is aware of all facts necessary to establish a prima facie
claim—the date she performed her calculations and became aware
of a comparator would not be dispositive of the initiation of the
limitations period for her retaliation claim.
Next, as to Zadoorian’s claim of intentional discrimination,
it was not necessary for Zadoorian to be able to identify a discrete
comparator to initiate this claim’s limitations period. A complaint
alleging discrimination “need not allege facts sufficient to make out
a classic McDonnell Douglas prima facie case” in order to survive the
motion to dismiss stage. Surtain, 789 F.3d at 1246; see also Sturniolo,
15 F.3d at 1025 (“It is not necessary for a plaintiff to know all the
facts that support his claim in order to file a claim.”). In evaluating
when a limitations period began to run, courts look to whether a
plaintiff could have sued for the alleged injury. Rozar, 85 F.3d at 562.
As described above, the allegations from Zadoorian’s July 12, 2017,
email to Dabrowiak, as well as the portion of her OCR complaint
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14 Opinion of the Court 22-14206
labeled “[r]etaliation,” “plausibly suggest that [Zadoorian] suffered
an adverse . . . action due to intentional . . . discrimination,” and
thus, she could have sued for intentional discrimination immedi-
ately after her July 11, 2017, interaction with Sass such that her lim-
itations period began running on this date. Surtain, 789 F.3d at
1246.
Even if identification of a comparator were necessary to in-
itiate the limitations period—i.e. even if the comparator infor-
mation from OCR’s September 30, 2019, letter were necessary for
Zadoorian to learn of the requisite facts to initiate the limitations
period5 —her filings before the district court concede that she re-
ceived this letter on October 4, 2019. Zadoorian fails to explain
why “a person with a reasonably prudent regard for his rights”
could not have performed the necessary calculations that same
month. See Sturniolo, 15 F.3d at 1025. Thus, even if the information
from OCR’s September 30, 2019, letter were necessary for Za-
doorian to learn of a comparator, and thus, to file a lawsuit, the
limitations period would have initiated on October 4, 2019, when
5 Zadoorian does not clearly explain why the OCR’s letter dated Sep-
tember 30, 2019, was necessary for her to identify a similarly situated compar-
ator. Zadoorian already had access to the final selection criteria and believed
that the criteria had been manipulated so that less-qualified applicants outside
of her protected group could be admitted to the program instead of her. Thus,
even if awareness of a comparator were necessary to initiate the limitations
period, Zadoorian likely could had identified the comparator as “the low-
est-scoring applicant outside of her protected group” after she received the
final selection criteria and could have provided additional detail as necessary
following discovery.
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22-14206 Opinion of the Court 15
she received the letter and when a reasonably prudent person con-
cerned for their rights would have performed the necessary calcu-
lations. See id.; accord Rozar, 85 F.3d at 561-62. Even accounting for
the 122-day pause in limitations periods pursuant to emergency or-
ders from Georgia Supreme Court, Zadoorian had until February
2, 2022, such that her March 4, 2022, complaint was not timely. Ga.
Sup. Ct. Orders of March 14, 2020, and June 12, 2020; Rozar, 85 F.3d
at 560-61; O.C.G.A. § 9-3-33.
Zadoorian’s reliance on Sturniolo is misplaced. For the rea-
sons stated supra, it was not necessary for Zadoorian to be aware
of a specific comparator in order for the limitations period to begin
running. Surtain, 789 F.3d at 1246. In any event, in Sturniolo, this
Court explained that a plaintiff in an age-based employment dis-
crimination case “who is aware that he is being replaced in a posi-
tion he believes he is able to handle by a person outside the pro-
tected age group knows” the necessary facts to initiate the limita-
tions period. 15 F.3d at 1025 (alterations adopted). Here, Za-
doorian’s June 19, 2017, email to Alexander, and July 12, 2017, email
to Dabrowiak, demonstrate that Zadoorian was aware of facts that
would support her claims following her July 11, 2017, interaction
with Sass. For example, just days after she was rejected from the
Program, Zadoorian emailed Alexander stating that she was re-
jected, despite her higher qualifications, so that less-qualified appli-
cants outside of her protected group would be admitted. Za-
doorian’s case is therefore unlike Sturniolo, where the plaintiff ini-
tially believed that he was fired for a legitimate reason and only
learned several months after his firing that he was replaced by
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16 Opinion of the Court 22-14206
someone outside of his protected group. 15 F.3d at 1025-26. Thus,
Sturniolo supports the district court’s determination that the limi-
tations period for Zadoorian’s Title VI claims began to run by July
11, 2017.
Finally, Zadoorian’s assertion that the district court errone-
ously failed to consider if her claims should be subject to the prin-
ciple of equitable modification fails. The district court did apply
this principle when it determined that—despite her assertions that
she was blocked from accessing necessary information—Za-
doorian’s limitations period nevertheless began running by July 11,
2017, when a person with a reasonably prudent regard for his rights
would have become aware of the facts necessary to support the
claims. Sturniolo, 15 F.3d at 1025. In other words, even if there
were fraud, it didn’t prevent Zadoorian from becoming aware of
the facts necessary to support her claims. For fraudulent conceal-
ment to toll the statute of limitations, a plaintiff must show “suc-
cessful concealment of the cause of action.” Fedance v. Harris, 1
F.4th 1278, 1287 (11th Cir. 2021).
Zadoorian points to Reeb in support of her contentions that:
(1) the State Defendants should be estopped from asserting the stat-
ute of limitations; or (2) that her case should be remanded for lack
of sufficient findings by the district court. Such reliance is mis-
placed. Here, unlike Reeb, the district court addressed: (1) Za-
doorian’s assertions that the State Defendants misled her in order
to conceal their discriminatory intent; and (2) when Zadoorian be-
came aware of the facts supporting her claim such that her
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22-14206 Opinion of the Court 17
limitations period began running. Reeb, 516 F.2d at 925-26, 930-31.
The district court ultimately determined that the State Defendants
did not conceal their alleged discrimination because Zadoorian be-
came aware of the facts to support her claim on July 11, 2017. Ac-
cordingly, her argument that her case requires remand to address
the issue of the State Defendants’ alleged fraud fails.
Accordingly, we affirm as to this issue.
B. With respect to the APA claim against OCR, did the district court err
in dismissing Zadoorian’s claim for lack of jurisdiction because of sover-
eign immunity?
“We review de novo a district court’s dismissal of a complaint
for sovereign immunity.” Contour Spa at the Hard Rock, Inc. v. Sem-
inole Tribe of Florida, 692 F.3d 1200, 1203 (11th Cir. 2012) (quotation
marks omitted). The federal government and its agencies are enti-
tled to sovereign immunity from civil lawsuits, except to the extent
it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538
(1980). The plaintiff has the burden of showing an unequivocal
waiver of sovereign immunity as to the specific claims that he seeks
to bring against the government. Id. Further, we may affirm on
any ground supported by the record. Wright v. City of St. Petersburg,
Fla., 833 F.3d 1291, 1294 (11th Cir. 2016).
Chapter 5 of the APA contains a waiver of the immunity for
claims that allows for judicial review for “[a] person suffering legal
wrong because of agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant statute” but lim-
its the waiver to claims “seeking relief other than money damages.”
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18 Opinion of the Court 22-14206
5 U.S.C. § 702. The APA expressly provides, however, that this
waiver does not “affect[] other limitations on judicial review or the
power or duty of the court to dismiss any action or deny relief on
any other appropriate legal or equitable ground” or “confer[] au-
thority to grant relief if any other statute that grants consent to suit
expressly or impliedly forbids the relief which is sought.” Id.
Significant for this appeal, judicial review under the APA is
available only for an “[a]gency action made reviewable by statute
and final agency action for which there is no other adequate rem-
edy in a court.” 5 U.S.C. § 704. Where there is no private right of
action otherwise, parties can seek review under either a “specific
authorization in the substantive statute” or under the general re-
view provisions of the APA. Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 882 (1990); see also Ouachita Watch League v. Jacobs, 463 F.3d
1163, 1173 (11th Cir. 2006) (noting that, because the statute at issue
did not provide for a private right of action, any challenge to
agency action must be brought under the APA).
In Cannon v. Univ. of Chicago, 441 U.S. 677 (1979), the Su-
preme Court stated that “lawsuits to end discrimination [] would
be the preferable and more effective remedy” for discrimination in
federally funded programs than placing on individual plaintiffs “the
burden of demonstrating that an institution’s practices are so per-
vasively discriminatory that a complete cut-off of federal funding is
appropriate.” 441 U.S. at 688-89, 704-06 & n.38 (holding that a
plaintiff could raise a claim of discrimination directly against a med-
ical school).
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22-14206 Opinion of the Court 19
In Guardians, the Supreme Court held “that compensatory
relief, or other relief based on past violations of the conditions at-
tached to the use of federal funds, is not available as a private rem-
edy for Title VI violations not involving intentional discrimina-
tion.” 463 U.S. at 602-03. In Alexander v. Sandoval, the Supreme
Court held that Title VI prohibits intentional discrimination only,
and thus, there is no private right of action to enforce disparate im-
pact claims under Title VI. 532 U.S. at 281, 285-86.
The district court properly held that Zadoorian’s claim
against OCR was barred by sovereign immunity because her claim
against the State Defendants is an adequate alternative remedy. Za-
doorian argues on appeal that her administrative claim against
OCR was for disparate impact, not intentional discrimination. And
because there is no private cause of action for disparate impact un-
der Title VI, she argues that there was no alternative remedy and
therefor, there was no sovereign immunity bar to her claim against
OCR. We disagree; the district court correctly read Zadoorian’s
OCR complaint as one for intentional discrimination—not one for
disparate impact. Thus, the district court properly held that her
claim against the State Defendants was an adequate alternative
remedy and properly dismissed Zadoorian’s APA claim against the
OCR due to sovereign immunity. Although Zadoorian’s adminis-
trative complaint to the OCR alleged that the Program’s admission
criteria benefited “white Americans” to the detriment of non-na-
tive English speakers, her OCR complaint averred that this effect
was intentional, rather than the unintended consequence of other-
wise neutral admissions criteria. For example, Zadoorian
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20 Opinion of the Court 22-14206
contended that GTC “manipulated the data” and implied that her
rejection and ranking as the highest-scoring non-alternate was “in-
tentional.” Further, although Zadoorian’s OCR complaint re-
quested a mandate that GTC “try to fix the problem and correct
the selection process” as relief, she tied this remedy to her personal
rejection and even requested OCR “to send the wrongly selected
students home” so that she could study in the program.
Additionally, OCR made clear in its January 9, 2018, letter
that it would only investigate Zadoorian’s claim of “different treat-
ment,” and Zadoorian replied with her consent signature. It is true
that Zadoorian sent a follow-up email to OCR highlighting the dis-
parate impact of—what was purportedly intentionally discrimina-
tory—selection criteria. However, she made this assertion in fur-
therance of her own claim of intentional discrimination, alleging
that Strong intentionally designed the discriminatory criteria to
benefit “her favorite white American students[],” and explicitly rais-
ing the disparate impact of the criteria “[i]n defending [her] case
against [State Defendants’] claim” that they did not intentionally
discriminate because the same scoring criteria was used for all ap-
plicants.
As further evidence that Zadoorian’s complaint before the
OCR related to intentional discrimination, the APA claim that she
raised before the district court alleged that OCR ignored the asser-
tions from her OCR complaint that: (1) Strong changed the admis-
sions criteria after applications had been submitted; (2) her
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22-14206 Opinion of the Court 21
evidence constituted “proof of [GTC’s] intention”; and (3) GTC
“never intended to get the higher qualified students in their pro-
gram.”
Contrary to Zadoorian’s assertion, the OCR’s September 30,
2019, letter to her did not suggest that her OCR complaint had as-
serted a disparate impact claim. Rather, it expressly stated that
OCR had interpreted her complaint as one for disparate treatment,
Doc. 35-3 at 1, and it expressly found insufficient evidence to sus-
tain such a claim. “Based on the preponderance of evidence, OCR
has determined that there is insufficient evidence to support a find-
ing that the Complainant was subjected to different treatment on
the basis of national origin as alleged in this complaint.” Id. at 5.
Also, OCR’s explicit recognition that her complaint “alleged that
the College subjected [her] to different treatment on the basis of
national origin in its Sonography Program,” as well as OCR’s ear-
lier indication that it would only investigate a claim of intentional
discrimination, undercuts any argument that the OCR understood
her complaint as—or that the complaint, in fact, was—related to
disparate impact.
Therefore, because Zadoorian’s OCR complaint related to
intentional discrimination, she had an adequate alternative remedy
in the form of a private suit against GTC. Guardians, 463 U.S. at
602-03. This precluded Zadoorian from filing a claim under the
APA due to sovereign immunity. 5 U.S.C. § 704; Cannon, 441 U.S.
at 704-06 & n. 38. Thus, this Court need not reach Zadoorian’s
additional arguments as to the merits of her jurisdictionally
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22 Opinion of the Court 22-14206
barred-APA claim. See Wright, 833 F.3d at 1294. Accordingly, we
affirm.
AFFIRMED.
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