Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 1 of 29 PageID 542 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JANE DOE NO. 1, JANE DOE NO. 2, AND JANE DOE NO. 3, PLAINTIFFS, v. TEXAS CHRISTIAN UNIVERSITY, DR. DIANE SNOW, DR. ANDREW SCHOOLMASTER, DR. ROB GARNETT, DR. DARRON TURNER, RUSSELL MACK, J.D., LEIGH HOLLAND and AARON CHIMBEL, DEFENDANTS. § § § § § § § § § § § § § § § CIVIL ACTION NO. 3:20-cv-00106-M DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT George C. Haratsis Texas Bar No. 08941000 gch@mcdonaldlaw.com Rory Divin State Bar No. 05902800 rd@mcdonaldlaw.com Jennifer N. Littman Texas Bar No. 00786142 jnl@mcdonaldlaw.com McDONALD SANDERS, A Professional Corporation 777 Main Street, Suite 2700 Fort Worth, Texas 76102 (817) 336-8651 (817) 334-0271 Fax ATTORNEYS FOR DEFENDANT TEXAS CHRISTIAN UNIVERSITY Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 2 of 29 PageID 543 TABLE OF CONTENTS DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT .............................................. I TABLE OF CONTENTS .................................................................................................. II INDEX OF AUTHORITIES .............................................................................................. II I. INTRODUCTION AND BACKGROUND....................................................................... 1 II. ARGUMENT AND AUTHORITIES .............................................................................. 1 A. Doe has not pleaded plausible substantive claims against TCU ...................... 1 1. Doe’s Title VI and Title IX claims should be dismissed .............................. 2 2. Doe’s disparate discrimination claims fail ................................................ 11 3. Doe has not been deprived of any of the benefits of any education program or activity at TCU ....................................................................... 12 4. Doe’s allegations of a hostile educational environment are not actionable as they do not show a negative impact upon her receipt of education benefits and participating in educational programs .................................. 13 5. Doe’s allegations that TCU has an official policy of deliberate indifference by ignoring or discouraging reports of, or insufficiently investigating alleged discriminatory treatment of racial minorities and women is not cognizable and should be dismissed. ...................................................... 14 6. Doe’s claims for punitive damages should be dismissed ......................... 18 7. All of Doe’s negligence theories fail to state a claim ................................ 19 8. Doe’s assault claim against TCU should be dismissed. ........................... 21 B. TCU requests that the Court dismiss Doe’s purported declaratory relief ........ 22 C. TCU requests that the Court decline to exercise supplemental jurisdiction over Doe’s state law claims .................................................................................... 23 III. CONCLUSION ......................................................................................................... 23 CERTIFICATE OF SERVICE ........................................................................................ 24 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE ii Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 3 of 29 PageID 544 INDEX OF AUTHORITIES Cases American Fidelity & Cas. Co. v. Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co., 280 F.2d 453, 461 (5th Cir. 1960) ................................................................ 23 Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) ................................................................ 1, 2 Barnes v. Gorman, 536 U.S. 181, 185 (2002); .............................................................. 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ............................................... 2, 11 Bisong v. Univ. of Houston, 493 F. Supp. 2d 896, 904–05 (S.D. Tex. 2007)................. 11 Boyd v. Tex. Christ. Univ., Inc., 8 S.W.3d. 758, 760 (Tex. App.—Fort Worth 1999, no pet.); ...................................................................................................................... 20 Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393, 397 (5th Cir. 1996). ........................... 3 Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989) ................................... 4 Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001), ....................................... 5, 7 Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648–52 (1999) .................... 3, 8, 9, 13 Doe 1 v. Baylor Univ., 240 F. Supp. 3d 646, 657 n. 3 (W.D. Tex. 2017). .......... 12, 18, 19 Doe v. Univ. of Tenn., 186 F. Supp. 3d 788 (M.D. Tenn. 2016) ............................. 16, 17 Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000).................................. 10 Easley v. Univ. of Tex. at Arlington, 984 F. Supp. 2d 631, 637 (N.D. Tex. 2013). ......... 11 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). .................................................... 5 Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 407–08 (5th Cir. 2015) ........... 3, 4, 13 Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) ............................................ 2 Frederick v. Simpson Coll., 149 F.Supp.2d 826, 840 (S.D. Iowa 2001) ........................ 10 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) ............................. 3, 8 Golden v. Zwickler, 394 U.S. 103, 108 (1969)............................................................... 22 Gossett v. Okla. Ex Rel Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001) ............................................................................................................ 4 Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). .................... 20 Gulf, Colorado and Santa Fe Ry. Co. v. Reed, 80 Tex. 362, 15 S.W. 1105, 1107 (1891)). ...................................................................................................................... 22 Hayut v. St. Univ. of N.Y., 352 F.3d 733.................................................................... 4, 13 Hendrichsen v. Ball St. Univ., 107 F. App’x 680, 684 (7th Cir. 2004). ........................... 13 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-74 (2005). ............................ 14 Lopez v. Webster Cent. Sch. Dist., 682 F. Supp. 2d 274 .............................................. 13 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE ii Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 4 of 29 PageID 545 Lozano v. Baylor Univ., No. 6:16-CV-403-RP-AWA, 2017 WL 4324704, at *7 (W.D. Tex. Sept. 28, 2017) ........................................................................................ 20 Manley v. Tex. S. Univ., 107 F. Supp. 3d 712, 724 (S.D. Tex. 2015) .............................. 3 Mattson v. Caterpillar, Inc., 359 F.3d 885, 889 (7th Cir. 2004). ....................................... 5 Mawle v. Texas A & M Univ./Kingsville, 2010 WL 1782214, *13, (S.D. Tex. April 30, 2010) .................................................................................................................... 11 Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1997) ........................... 11 Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 993 (8th Cir. 2003), .................. 5 Mindy M. v. Flagship Hotel, Ltd., 439 S.W.3d, 551 ...................................................... 20 Moeck v. Pleasant Valley Sch. Dist., 179 F. Supp. 3d 442, 446–50 (M.D. Pa. 2016)(........................................................................................................................... 5 Mohamed for A.M. v. Irving Indep. Sch. Dist., 252 F. Supp. 3d 602, 627–28 (N.D. Tex. 2017) .............................................................................................................. 8, 10 Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993). ....................................................... 23 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) .............................. 5 Pagayon v. Exxon Mobile Corp., 536 S.W.3d 499, 503 (Tex. 2017) ............................. 19 Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89 (2nd Cir. 2011) .......................................................................................................................... 14 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) ............................................. 2 Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 652–55 (5th Cir. 1994) ................. 22 Richards v. JRK Prop. Holdings, 405 F. App’x 829, 831 (5th Cir. 2010)). ..................... 10 Roskin-Frazee v. Columbia Univ., No. 17 Civ. 2032(GBD), 2018 WL 6523721, *1 (S.D.N.Y. Nov. 26, 2018)( .............................................................................. 16, 17, 18 Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011) ............................................................................................................. 10, 13 Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1178 (10th Cir. 2007)(............. 16 Subbiah v. Univ. of Tex. at Dall., No. 3:10-CV-0115-B, 2010 WL 5287530 at *5 (N.D. Tex. Dec. 27, 2010) ...................................................................................... 3, 10 Swanson v. General Servs. Admin, 110 F.3d 1180, 1189 (5th Cir. 1997); .................... 10 Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999) ................................................... 19 Tubbs v. Stony Brook Univ., No. 26 CIV 0517(NSR), 2016 WL 8650463, at *8 (S.D.N.Y. March 4, 2016). .............................................................................. 16, 17, 18 Statutes 20 U.S.C. § 1681(a). ..................................................................................................... 12 28 U.S.C. § 1367(c)(3). ................................................................................................. 23 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE iii Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 5 of 29 PageID 546 28 U.S.C. § 2201 ........................................................................................................... 22 42 U.S.C. § 2000d ......................................................................................................... 12 Rules Rule 12(b)(6) ................................................................................................................... 1 Treatises Texas Pattern Jury Charges: General Negligence, PJC 2.4 (2016) .............................. 20 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE iv Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 6 of 29 PageID 547 TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Texas Christian University (“TCU”) respectfully files this motion to dismiss (“Motion”) all of Jane Doe No. 2’s (“Doe”) claims against TCU in Plaintiffs’ First Amended Complaint [Doc. 19] and brief in support. I. INTRODUCTION AND BACKGROUND Doe 1 is a successful TCU student having graduated from TCU’s Honors College in May 2018. [Compl., ¶ 143]. 2 Doe brings an inadvertent leg-touching case involving Dr. Andrew Schoolmaster which she characterizes as a dehumanizing and degrading sexual assault. [Compl., ¶ 138]. Doe delayed telling an appropriate TCU official of the touching incident for seven days and even then waited to file a formal written complaint with TCU’s Title IX office until after she had graduated. [Compl., ¶¶ 142, 143]. TCU thoroughly investigated her report of sexual assault. Schoolmaster was found to not be in compliance with a TCU policy and received appropriate discipline. [Compl., ¶ 155]. Contending that this single instance of inadvertent touching constitutes actionable sexual harassment, two years later, Doe now sues, alleging race and gender discrimination. TCU denies violating her rights and seeks a dismissal of all of her claims. II. ARGUMENT AND AUTHORITIES A. Doe has not pleaded plausible substantive claims against TCU A plaintiff’s complaint must plead sufficient facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) (quoting Bell Atl. Corp. Doe, along with Jane Doe No. 3, has joined this lawsuit that was initially filed by Jane Doe No. 1. References to Compl., ___ in the Motion are to paragraphs in Jane Doe No. 2’s First Amended Complaint. For example, reference to [Compl., ¶¶ 85-86] is to paragraphs 85-86 of her Amended Complaint. 1 2 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 1 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 7 of 29 PageID 548 v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Courts “do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.” Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citation omitted); see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). Although “a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 697. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557). If “the plaintiffs have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570. TCU moves the Court to dismiss each of Doe’s causes of action for failure to state a claim. 1. Doe’s Title VI and Title IX claims should be dismissed TCU combines its arguments about Doe’s Title VI and Title IX claims, since the two statutes are similar and are interpreted similarly. “Congress modeled Title IX after Title VI of the Civil Rights Act of 1964 and passed Title IX with the explicit understanding that it would be interpreted as Title VI was.” Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009). For Doe to recover under Titles VI and IX, she must establish that the actions about which she complains were motivated by discriminatory intent; these statutes only prohibit intentional discrimination. Fennell v. Marion Indep. Sch. Dist., 804 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 2 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 8 of 29 PageID 549 F.3d 398, 407–08 (5th Cir. 2015)(italics added). “[A] Title VI plaintiff must prove discriminatory intent.” Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393, 397 (5th Cir. 1996). Doe cannot recover damages unless an appropriate person—an official authorized to institute corrective measures—had actual knowledge of the discrimination and fails to adequately respond. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). A complaint that does not “provide specific allegations of acts that were taken with discriminatory intent” does not state a claim for Title VI discrimination. Manley v. Tex. S. Univ., 107 F. Supp. 3d 712, 724 (S.D. Tex. 2015) (quoting Subbiah v. Univ. of Tex. at Dall., No. 3:10-CV-0115-B, 2010 WL 5287530 at *5 (N.D. Tex. Dec. 27, 2010)). Doe has not plead specific facts that, if proven, suggest even a plausible inference of race or gender discrimination. Doe pleads the legal conclusion that she was the victim of intentional sexual assault and has been unlawfully excluded from participation and denied the benefits of TCU’s educational programs and activities due to TCU’s alleged deliberate indifference to her report of being touched by Schoolmaster. [See generally, Compl., ¶¶ 57 (pp. 2526), 134, 138, 140, 149, 156, 177, 181, 183-184, 191, 195, 197-198]. Sexual harassment within a school or school program under Title IX is a form of sex discrimination. But the harassment must be so severe, pervasive and objectively offensive that it bars the victim’s access to an educational opportunity or benefit provided by the school. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999). The school can only be held liable for such harassment if it is deliberately indifferent to harassment of which it has actual knowledge. Id. But such liability is limited to circumstances in which the school has substantial control over the employee harasser and the context in which DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 3 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 9 of 29 PageID 550 the harassment occurs. Id. at 645. Finally, the harassment must have caused a concrete, negative affect such as creating a hostile educational environment. See Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 410 (5th Cir. 2015). a. The April 23, 2018 touching incident is not actionable and/or is not severe, pervasive or objectively offensive Doe pleads the legal conclusion that this single instance of touching constitutes sexual assault or harassment. Actionable harassment must be “more than episodic; [it] must be sufficiently continuous and concerted” to constitute “pervasive” harassment. Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003) (quoting Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989). Doe pleads an encounter with Schoolmaster in which a female TCU staff member was also physically present in the staff member’s office for less than five minutes. [Compl., ¶ 140]. The encounter she relates is inconsistent and confusing. Doe suggests that the touching occurred when the staff member’s back was turned. But the pleading can also be construed that Doe and the staff member were actually talking when Schoolmaster bent over and touched her while apologizing to both for interrupting their conversation. [Id.]. Interestingly, she does not identify which knee or area of leg he touched. Despite alleging he touched her bare knee, she inconsistently alleges that his hand trailed downward to her lower-inner-thigh. [Id.] Courts that have considered instances of similar isolated touching in the context of Title VII 3 actions have not found such limited and brief contact to rise to the level of sexual harassment. Additionally, to support a claim of sexual harassment under Title IX, Courts routinely look to Title VII case law for guidance in evaluating Title IX claims. See, e.g., Gossett v. Okla. Ex Rel Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001) (“Courts have generally assessed Title IX discrimination claims under the same legal analysis as Title VII claims.”). 3 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 4 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 10 of 29 PageID 551 “a plaintiff must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex.” Moeck v. Pleasant Valley Sch. Dist., 179 F. Supp. 3d 442, 446–50 (M.D. Pa. 2016)(citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). In Moeck, the court found that ten (or less) sporadic sexually tinged comments made by a coach to a student over the course of two to three years were not sufficiently pervasive to establish a sexual harassment claim under Title IX. Id. Another court found that a single instance of a female supervisor’s breast touching a male employee’s arm did not as a matter of law constitute sexual harassment nor was the touching so severe and pervasive as to create a hostile working environment. Mattson v. Caterpillar, Inc., 359 F.3d 885, 889 (7th Cir. 2004). The court added that “no reasonable person could believe this constituted sexual harassment.” Id. The Mattson court relied on the Supreme Court’s decision in Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001), stating that sexual harassment is only actionable under Title VII if the conduct is so severe and pervasive that it alters a condition of the victim’s employment and creates an abusive working environment. The court also found support for its analysis in Faragher v. City of Boca Raton, 524 U.S. 775 (1998). There, it held that “offhand comments and isolated incidents (unless extremely serious)” can never amount to discrimination in that they do not change the terms and conditions of employment. Id. at 788. In Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 993 (8th Cir. 2003), the court determined that a lone incident of a male employee walking up behind a female co-worker and grabbing and holding her buttock with force near her upper thigh did not rise to the level of supporting a claim of sex discrimination. DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 5 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 11 of 29 PageID 552 Doe does not allege that Schoolmaster made inappropriate or offensive statements or addressed Doe in a sexual way. Doe does not allege she was sexually propositioned or physically threatened by Schoolmaster before, during or after the meeting. While she describes the encounter in paragraphs 137 through 140 as an uncomfortable visit with Schoolmaster touching her leg, Doe does not allege it was a sexually suggestive touch or that Schoolmaster was expressing sexual interest in her. She pleads prior contact with Schoolmaster that she describes as routine when another TCU female staff member introduced Doe to Schoolmaster and they shook hands. [Compl., ¶ 136]. She does not plead her interaction with Schoolmaster on that occasion was tinged with any type of sexual overtones or comments by him toward her. Further, her allegations do not foreclose the probability that Schoolmaster might have acted similarly with a male student patting him on the leg if Schoolmaster interrupted the male’s conversation with a TCU staff member. Similarly, Doe’s other alleged subsequent contact with Schoolmaster also does not state Schoolmaster made any comments or overtones of a sexual nature to Doe, or that would support an inference of intentional discrimination based on gender or race. Doe pleads that she was forced to shake Schoolmaster’s hand at the graduation ceremony. [Compl., ¶ 142]. She does not plead that Schoolmaster did so in an overly-sexual or inappropriate way such as squeezing her hand. She does not plead he forced her to shake his hand. She pleads she was forced to at the risk of retaliation but admits she was already slated to receive her diploma and had intact her 4.0 grade point average. [Compl., ¶ 155]. Moreover, Doe does not plead facts alleging how Schoolmaster had the authority to change any course grade she would earn in her last semester, or could stop her from DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 6 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 12 of 29 PageID 553 receiving her diploma. Doe pleads she sought to avoid contact with Schoolmaster so he could not deny her further educational opportunities but fails to allege what those opportunities were and whether she was unable to achieve any of those opportunities. [Compl., ¶ 142]. In short, Doe fails to plead any of this conduct or interaction with Schoolmaster altered her education or impacted her graduation. Despite pleading that TCU dehumanized and degraded Doe and allowed a culture of hostility to exist at TCU, Doe willingly attended a going-away party weeks after graduating from TCU, [Compl., ¶ 149] only to be intimidated when she ran into Schoolmaster. She does not allege factual allegations of how she was intimidated and pleads the conclusion that he crashed the party to intimidate Doe. [Id.]. Doe merely speculates that he showed up unannounced. Doe fails to allege that Schoolmaster made any insulting, or sexually-tinged or provocative comments directed to her at any time. She speculates that Schoolmaster’s action in folding his arms and appearing visibly upset was an effort to intimidate Doe and subject her to a hostile environment but none of these allegations are legally sufficient to show Doe was subjected to a hostile environment or that she was effectively deprived access to educational opportunities or benefits provided by TCU. And at that time, assuming they are sufficiently hostile, Doe was no longer enrolled at TCU to take advantage of or participate in any educational benefit of program. To determine whether an environment is sufficiently hostile to support a sexual harassment claim, courts examine the totality of the circumstances including the frequency of the conduct, its severity, whether it is physically threatening or humiliating or merely an offensive utterance and whether it interferes with the victim's performance. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270–271 (2001). Considering all of Doe’s DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 7 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 13 of 29 PageID 554 allegations, these incidents, even taken as true, are too sporadic and not sufficiently pervasive or severe to establish a sexual harassment claim. b. TCU did not have actual knowledge of prior alleged harassment by Schoolmaster Doe’s pleadings are insufficient because she has not plead facts showing a TCU official with authority to take corrective measures to stop discrimination had actual knowledge of the discrimination and responded with deliberate indifference. Mohamed v. Irving Indep. Sch. Dist., 252 F Supp. 3d 602, 628 (N.D. Tex. 2017). Doe makes no allegation that an official at TCU had ever received prior complaints that Schoolmaster acted inappropriately to any TCU student or employee before the complained of touching incident. Doe must show that an “appropriate person,” i.e., an official or employee of the funding recipient with authority to take corrective action to end the discrimination had actual notice. Gebser, 524 U.S. at 290; Davis, 526 U.S. at 648–651. Doe pleads that two women staff members informed Doe that “led [Doe] to understand” this was common behavior by Schoolmaster. [Compl., ¶ 141]. This is pure speculation. Significantly, Doe does not allege that these individuals ever reported or notified anyone at TCU, much less an appropriate reporting official, that Schoolmaster engaged in misconduct to put TCU on notice of his prior alleged sexual misconduct. Only by having actual knowledge and responding in a clearly unreasonable manner can TCU be deemed to have committed intentional discrimination. See Davis, 526 U.S. at 648; Gebser, 524 U.S. at 290 (deliberate indifference ensures that the recipient is liable for “its own official decision” to permit discrimination). Doe’s discrimination claims should be dismissed. c. TCU adequately and timely responded and investigated Doe’s complaint and its response was not clearly unreasonable DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 8 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 14 of 29 PageID 555 Doe’s discrimination claims also fail because she fails to establish through her pleadings that TCU acted with deliberate indifference in responding to her complaint of discrimination. Stated differently, Doe’s pleadings do not establish that TCU’s response to Schoolmaster’s alleged harassment was “clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. Her allegations admit that the Title IX Office investigated the incident. [Compl., ¶ 144, 154]. She admits that TCU’s Title IX Office issued an investigative report. [Compl., ¶ 154]. She makes no allegation that TCU did not interview Doe, Schoolmaster or Scroggins, the staff member with whom Doe was visiting at the time of the incident to discover the facts. Doe does not allege that she was unable to review, comment on or make clarifications, changes, or additions to the investigation report. She readily admits that she had access to and met with several other TCU officials and staff to address her complaint and discuss the status of the investigation. She admits she received regular information from and was updated by these officials, who also arranged to meet with Schoolmaster when he returned from vacation. [Compl., ¶¶ 145,147-148]. Doe does not allege she was shut out or ignored. She admits that Dr. Turner informed her of the status of the complaint and that Doe’s complaint was to be investigated. [Compl., ¶ 152]. She does not contend TCU deviated from its policies or procedures for investigating complaints of sexual harassment or that non-minority females or males reports of sexual harassment would have been handled in a different way. Doe does not allege that no investigation was conducted, or sanction imposed; rather she subjectively believes and alleges the investigation was not correct or the sanction imposed on Schoolmaster was insufficient. [Compl., ¶ 155]. Doe may disagree DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 9 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 15 of 29 PageID 556 with TCU’s response to her report of discrimination, but it was not deliberately indifferent to Doe’s report of harassment. Even ineffective responses are not necessarily clearly unreasonable. Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 168 (5th Cir. 2011). The standard of deliberate indifference “is a high bar, and neither negligence nor mere unreasonableness is enough.” Id. at 167. A school avoids liability under a deliberate indifference standard by responding reasonably to a risk of harm. Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000). Title IX does not give a victim of harassment the right to make “particular remedial demands.” Herndon v. Coll. of Mainland, CIV A.G-06-0286, 2009 WL 367500, at *13–14 (S.D. Tex. Feb. 13, 2009). And courts are to “refrain from second-guessing the disciplinary decisions made by school administrators.” Davis, 526 U.S. at 648. Even if an “investigation could have been more thorough,” courts will not find they have acted with deliberate indifference. Frederick v. Simpson Coll., 149 F.Supp.2d 826, 840 (S.D. Iowa 2001). Doe’s mere belief that TCU’s actions in responding to her complaint were taken for discriminatory reasons is not enough to establish discrimination under Titles VI and IX. See Subbiah, 2011 WL 1771806, at *6 (citing Richards v. JRK Prop. Holdings, 405 F. App’x 829, 831 (5th Cir. 2010)). Doe’s subjective opinion is not sufficient to create a triable issue. See Swanson v. General Servs. Admin, 110 F.3d 1180, 1189 (5th Cir. 1997); see also Mohamed for A.M. v. Irving Indep. Sch. Dist., 252 F. Supp. 3d 602, 627–28 (N.D. Tex. 2017) (holding that a plaintiff’s subjective opinion, without more, is insufficient to establish a claim of discrimination). Even assuming that Doe has plead facts showing unfair treatment by Turner or an DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 10 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 16 of 29 PageID 557 unjust decision by TCU in responding to her report of alleged sexual assault, she does not state a claim; Title VI does not protect individuals from unfair decisions but instead ones made with discriminatory intent. Bisong v. Univ. of Houston, 493 F. Supp. 2d 896, 904–05 (S.D. Tex. 2007) (citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1997). “[N]either Title VI or Title IX proscribes general unfairness—only intentional discrimination on one of the enumerated bases.” See Easley v. Univ. of Tex. at Arlington, 984 F. Supp. 2d 631, 637 (N.D. Tex. 2013). It is simply not sufficient for Doe to allege because she is a black female that reported an alleged sexual assault, that a decision that she regards as unfavorable treatment must automatically be based on her race or gender. Id. Doe fails to sufficiently state a claim of intentional discrimination or deliberate indifference as to her claim of sexual assault and hostile educational environment based on race or gender. Her allegations of alleged racial animus and gender bias are conclusory, and insufficiently plead and hence, under Twombly, are legally insufficient to support claims of discrimination under Title IV and Title IX. 2. Doe’s disparate discrimination claims fail Additionally, to the extent Doe seek to recover under a disparate treatment theory, Doe fails to plead any facts showing any nearly identical white students were treated differently in reporting claims of harassment. “[A] student who is a member of a protected class must show that other students not in the protected class were ‘treated differently under circumstances “nearly identical” to [the student’s].’” Herndon, 2009 WL 367500 at *29 (citation omitted); Mawle v. Texas A & M Univ./Kingsville, 2010 WL 1782214, *13, (S.D. Tex. April 30, 2010)(Title VI claimant must show that he was treated differently from DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 11 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 17 of 29 PageID 558 similarly situated students who are not members of the protected class to raise an inference of intentional discrimination). 4 3. Doe has not been deprived of any of the benefits of any education program or activity at TCU Doe’s discrimination claims should also be dismissed because she cannot show any alleged discrimination resulted in the denial any educational opportunities, programs or that she was otherwise excluded from a program or benefit. 42 U.S.C. § 2000d; 20 U.S.C. § 1681(a). Doe admits she graduated from TCU. [Compl, ¶ 142-143]. While she pleads she had a concern that Schoolmaster might act to bar her graduation or change a grade, she pleads no allegation that happened, or that her grades suffered. In fact, Doe pleads that she graduated with a 4.0 grade point average. [Compl., ¶¶ 136, 155]. While she alleges that she had to file this suit to allegedly remedy “TCU’s depriv[ing Doe] of educational opportunities and benefits,” [Compl., ¶ 167] she asserts no factual allegations that she has in fact been deprived of educational opportunities and benefits while at TCU. Doe is tasked with pleading facts indicating that she was deprived of some benefit in an educational program at TCU. Her pleadings are deficient relative to this requirement. Doe has graduated. She seeks no equitable or prospective relief. Her claims should be dismissed on this basis alone. 4 Doe does not sufficiently allege disparate treatment claims by pleading facts showing students in nearly identical circumstances to Doe were treated more favorably. [Compl., ¶¶ 187, 201]. See Herndon, 2009 WL 367500, at *29. Her generalized disparate treatment allegations [Compl. ¶¶ 174, 181, 195] are not sufficient to prove intentional discrimination. Moreover, to the extent Doe is claiming liability under a disparate impact theory, her case still fails. More recent cases have actually held that disparate impact claims are not viable under Title IX. Doe 1 v. Baylor Univ., 240 F. Supp. 3d 646, 657 n. 3 (W.D. Tex. 2017). To the extent Doe pleads disparate treatment and/or disparate impact claims, TCU moves these claims be dismissed. DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 12 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 4. Page 18 of 29 PageID 559 Doe’s allegations of a hostile educational environment are not actionable as they do not show a negative impact upon her receipt of education benefits and participating in educational programs To maintain a Title VI and Title IX claim for a racially hostile environment, Doe must show that racial harassment was so severe, pervasive, 5 and objectively offensive that it deprived her of access to an educational opportunity; and that TCU acted with deliberate indifference to the harassment. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648– 52 (1999). These elements are judged by a “totality of the circumstances” analysis, including the frequency and severity of the conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the student’s educational opportunities. Hendrichsen v. Ball St. Univ., 107 F. App’x 680, 684 (7th Cir. 2004). “The harassment must have ‘concrete negative effect’ on the victim’s education” Fennell, 804 F.3d at 410, (quoting Davis, 526 U.S. at 654). The severe, pervasive and objectively offensive harassment must be “more than the sort of teasing and bullying that generally takes place in school.” Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011)(citation omitted). For the educational harassment to rise to the level of actionable conduct, courts have required a showing of significant negative impact on the student’s education. See Herndon, 2009 WL 367500 at *26. Here, Doe pleads only that she was unable to focus on schoolwork. [Compl., ¶ 142]. She does not state what the nature of the difficulty was, or how it adversely impacted her education. And even if true, it is admitted that this difficulty existed for only a brief To be pervasive, the alleged harassment must be more than episodic, regardless of the effect the harassment may have on a plaintiff’s mental state, since pervasive “means that the challenged incidents are ‘more than episodic; they must be sufficiently continuous and concerted.’” Lopez v. Webster Cent. Sch. Dist., 682 F. Supp. 2d 274, 285 (W.D.N.Y. 2010) (quoting Hayut v. St. Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003). 5 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 13 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 19 of 29 PageID 560 period according to the dates plead by Doe. This allegation does not plausibly support that the alleged assault incident adversely impacted or interfered with her education. Courts examining a student’s educational difficulties allegedly resulting from discriminatory animus focus on what adverse action a student suffered or how the conditions of the student’s educational environment was changed. See e.g., Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89 (2nd Cir. 2011) (“In the education context, a tangible consequence from the discrimination occurs when ‘some benefit or adverse action’, such as a change in grade” occurs, or the student is “effectively bar[red] ... access to an educational opportunity or benefit”). 6 Here, the most that can be discerned from her pleadings is that for a very brief period of time Doe modified her schedule to avoid Schoolmaster. [Compl., ¶ 142]. Doe’s pleadings, when considering the totality of all of her allegations, do not sufficiently allege that she sustained a negative impact that resulted in the denial of educational benefits at TCU. 5. Doe’s allegations that TCU has an official policy of deliberate indifference by ignoring or discouraging reports of, or insufficiently investigating alleged discriminatory treatment of racial minorities and women is not cognizable and should be dismissed. Interspersed throughout Doe’s amended complaint are allegations that TCU is deliberately indifferent to complaints made by black females who, according to Doe, are discouraged from making reports to TCU’s Title IX office, [Compl., ¶ IX, (p. 27)], and that their complaints are either ignored or are insufficiently investigated [Compl., ¶¶ 57 (pp. A careful examination of Doe’s Amended Complaint reveals that she is not asserting a cause of action for retaliation under Title VI and Title IX. Courts, including the Supreme Court, have held that various antidiscrimination statutes contain an implied cause of action for retaliation based on the general prohibition against intentional discrimination. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-74 (2005). Doe makes a conclusory reference to “retaliation” in paragraph 142. But she makes no specific claims of retaliation in Count I and Count II of the Amended Complaint against TCU. Accordingly, to the extent Doe alleges retaliation under Title VI and Title IX, TCU seek dismissal of any such claim. 6 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 14 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 20 of 29 PageID 561 25-26) ¶¶ XX (p. 66), 131-133]. Doe pleads conclusions that such actions substantially increases the risk that black females will be “subject[ ] to a racially hostile educational environment created by TCU’s lack of appropriate policies and procedures to remedy the same and its failure to properly investigate and/or address reports of discrimination from racial minorities and women.” [Compl., ¶ 181]. She further alleges TCU engages in a pattern or practice and/or follows a policy of discouraging and dissuading black females from having their reports of discrimination fully investigated. [Compl., ¶¶ 183-184, 186]. 7 Though it is not altogether clear, Doe apparently argues that TCU had actual knowledge that Doe was subjected to an increased risk of racial discrimination because it had not sufficiently addressed prior complaints of alleged race discrimination. Doe asserts the conclusory argument that TCU’s alleged lack of commitment and indifference to prior reports or complaints of racial discrimination by Doe 1 or Doe 3 8 create a hostile educational environment due to its alleged policy of deliberate indifference to race Doe points to allegations of complaints made by Doe 1 and Doe 3 as examples of other incidents that were improperly or insufficiently investigated that gave rise to a racially hostile environment and increased the risk that Doe would experience racial discrimination at TCU. [Compl., ¶¶ 181, 183, 195, 197]. But her allegations to not support Doe’s contention. For instance, in the case of Doe 1, Doe’s Amended Complaint admits that Dr. Turner did investigate Doe 1’s report about the Washington, D.C. summer program, interviewed and met with Doe 1 on two occasions and interviewed other witnesses. [Compl., ¶¶ 130-131]. Doe does not allege whether she desired to have further input or participation in the investigative process relative to the D.C. summer program or the investigation that was instituted by TCU’s Title IX Office to investigate Doe 1’s new complaints raised in Doe 1’s original federal complaint. Doe admits Turner offered Doe 1 the opportunity to review the investigation report relative to her D.C. program complaints, and she does not assert this was unwelcome to her. Doe 1 pleads that due to the fact she had filed her lawsuit, a copy of the report should be given to her attorneys. [Compl., ¶ 131]. TCU took action in response to Doe 1’s complaint. Doe 1 may disagree with TCU’s response to Doe 1’s complaint, but it was not deliberately indifferent to Doe 1’s report. In other words, Doe 1’s complaints, which occurred long after the relevant time period of Doe’s alleged instances of mistreatment, were investigated and the TCU’s Title IX Office issued its decision letter. [Compl., ¶ 131]. 8 Doe pleads the conclusion that reports of discrimination “received from other racial minorities and women” were not taken seriously. [Compl., ¶ 167]. This is an apparent reference to unspecified complaints made by a female African American professor in August 2018 and May 2019 and another African American professor in May 2019. [Compl., ¶¶ 132-133]. Doe provides absolutely no factual content “as to these allegations that would allow this court to draw [any] reasonable inference that [TCU] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Such allegations are too attenuated and common-sense dictates that even if true, do not state a plausible claim for relief. 7 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 15 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 discrimination on campus. Page 21 of 29 PageID 562 Doe contends TCU maintains an institutional policy of intentional discrimination which substantially increased the likelihood that Doe would experience discrimination on account of her race. [Compl., ¶¶ 132, 167-168, 186-187, 200-201]. Courts that have considered this novel theory have generally refused to impose Title IX liability based solely on allegations that a university’s official policy is one of intentional discrimination. See Tubbs v. Stony Brook Univ., No. 26 CIV 0517(NSR), 2016 WL 8650463, at *8 (S.D.N.Y. March 4, 2016). Instead, courts require pleading and proof of deliberate indifference, based on officials’ actual knowledge of a heightened risk that is specific enough to allow them to remedy the situation. Id. The few cases that have addressed potential liability based on a school’s prior response to discriminatory conduct have involved serious incidents of sexual assault, not discrimination based on race. See, e.g., Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1178 (10th Cir. 2007)(university allowed a football recruiting program to exist having actual knowledge of a significantly heightened risk of sexual assault by male athletes against females); Stony Brook Univ., 2016 WL 8650463 at *1 (female student sexually assaulted by male student); Roskin-Frazee v. Columbia Univ., No. 17 Civ. 2032(GBD), 2018 WL 6523721, *1 (S.D.N.Y. Nov. 26, 2018)(female student assaulted twice on separate occasions in campus residence hall alleged university maintained a general policy of deliberate indifference leading to a culture of sexual hostility on campus); Doe v. Univ. of Tenn., 186 F. Supp. 3d 788 (M.D. Tenn. 2016) (university was aware of an inordinate number of sexual assaults against male football and basketball student athletes which the athletic department ignored that went well beyond knowledge of a DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 16 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 22 of 29 PageID 563 general risk of student on student harassment). The cases have required a complainant show the university had actual knowledge of discrimination in a particular context, or a particular program or by a particular perpetrator. See Columbia Univ., at *5; Stony Brook Univ., 2016 WL 8650463 at *9; Univ. of Tenn., 186 F. Supp. 3d at 807. Here, Doe pleads a conclusion that complaints of race discrimination made by other black females and how TCU responded created a substantial likelihood that Doe would experience or be subjected to a racially hostile educational environment. But a general level of awareness of an on-campus deficiency or risk of harm is not sufficient for purpose of asserting Title IX liability. Courts addressing pre-assault, or heightened risk cases, have been clear that “something more than [a] general knowledge of assaults campus-wide (i.e.: some greater specificity) is required to satisfy the actual knowledge requirement [for Title IX liability].” Columbia Univ., at *7, citing Stony Brook Univ., 2016 WL 8650463 at *9. Doe does not plead how TCU’s alleged actions in response to Doe 3’s complaints of race discrimination, or that TCU was generally aware of sporadic instances of alleged racial hostility on campus involving racial minority females of the type and character alleged by Doe in the Amended Complaint, has any causal relationship to increase the risk of harm that Doe would experience or be mistreated based on her race. Further, Doe fails to relate how Doe. 1’s complaints about the 2019 Washington D.C. summer program and TCU’s response could have possibly impacted her negative experience with Schoolmaster that she relates happened in April of 2018. Doe 1’s complaints which TCU’s Title IX Office investigated involved events and occurrences long after this time period. Doe alleges TCU created and allowed a racially hostile educational environment DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 17 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 23 of 29 PageID 564 to exist through an alleged general policy of indifference. But cases that have recognized a policy of indifference have limited its application to serious sexual assault cases and not discriminatory treatment based on race. Columbia Univ. involved two aggravated sexual assaults. The court found no Title IX liability on a heightened risk theory and granted the university’s motion to dismiss. Roskin-Frazee v. Columbia Univ., 2018 WL 6523721, *1. The plaintiff in Stony Brook was the victim of a sexual assault who pleaded a plausible claim for deliberate indifference based on the university’s pre-assault response to a heightened risk of sexual assault on campus. Stony Brook Univ., 2016 WL 8650463 at *7. Courts in the Fifth Circuit that have considered this heightened risk theory have done so solely within the context of examining Title IX liability for claims of sexual assault. See Doe 1 v. Baylor Univ., 240 F. Supp. 3d 646, 658, 661-662 (W.D. Tex. 2017). Doe attempts to plead a Title IX official policy theory against TCU that is not premised on sexual assault or sexual harassment but on episodic, separate, distinct, and unrelated incidents comprised of different facts and circumstances that involve race. Accordingly, Doe’s deliberate indifference theory of liability against TCU premised on prior alleged inadequate investigations of race discrimination complaints is not a cognizable theory of recovery. TCU requests that the court dismiss Doe’s claim that seeks to impose Title VI and Title IX liability on this heightened-risk theory. 6. Doe’s claims for punitive damages should be dismissed To the extent that Doe seeks to recover punitive damages pursuant to any federal discrimination statute, TCU seeks dismissal as such damages are not available. Specifically, Doe makes a general reference to an award of exemplary damages without identifying if the damages are sought as a result of a violation of Title VI, Title IX, or other DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 18 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 24 of 29 PageID 565 theory [Compl., ¶ 308, including Section 504 of the Rehabilitation Act and the ADA]. Punitive damages are not available for private actions brought to enforce Title IX as a matter of law or under the other federal discrimination statutes raised by Doe in the Amended Complaint. See Barnes v. Gorman, 536 U.S. 181, 185 (2002); Doe 1 v. Baylor Univ., No. 16-CV-173-RP, 2020 WL 1557742, *6 (W. D. Tex., April 1, 2020). 7. All of Doe’s negligence theories fail to state a claim Doe asserts claims of negligence, gross negligence, negligent hiring, negligent retention, negligent supervision, negligent training and negligent misrepresentation. [Compl., Counts VI–VIII]. Liability for negligence requires a showing that a defendant owes a duty of care, the breach of which proximately causes damages to a plaintiff. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). TCU challenges the sufficiency of Doe’s pleading on duty, breach, causation and damages. If there is no duty, there can be no liability. Id. The existence of a legal duty is a question of law, and the existence of a duty is the threshold inquiry of the court. Pagayon v. Exxon Mobile Corp., 536 S.W.3d 499, 503 (Tex. 2017). Doe makes conclusory assertions that TCU “owed a legal duty” to “possess and apply the knowledge and to use the skill and care that is used by a reasonable and prudent educational institution.” [Compl., ¶¶ 233, 241]. But Doe does not plead specific facts establishing the existence of or the scope of duty of care owed to Doe. Doe complains of unspecified conduct of other TCU students and TCU faculty. But Doe fails to state any specific conduct that would give rise to a legal duty. When considering whether a legal duty exists, courts consider the risk, foreseeability and likelihood of injury weighed against the social utility of the actor’s conduct, the burden of guarding against the injury and the consequences DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 19 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 25 of 29 PageID 566 of placing the burden on the defendant. Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). None of her factual allegations address these necessary legal considerations for determining whether a legal duty exists. Further, courts have declined to hold that the relationship between a private university and its adult students constitutes a special relationship giving rise to a duty. Boyd v. Tex. Christ. Univ., Inc., 8 S.W.3d. 758, 760 (Tex. App.—Fort Worth 1999, no pet.); see also Lozano v. Baylor Univ., No. 6:16CV-403-RP-AWA, 2017 WL 4324704, at *7 (W.D. Tex. Sept. 28, 2017). Nor does TCU have a duty to control the conduct of third person students or TCU agents. Phillips, 801 S.W.2d at 525. Doe does not allege any prior acts of the individual defendants or other TCU agents that might have put TCU on notice of a foreseeable risk of harm to Doe. Doe’s allegations fail to identify specifically how any alleged duty was breached under any negligence theory. [Compl., ¶¶ 234-236]. There is no allegation of how a similarly situated university would have acted differently under the same or similar circumstances. Nor has Doe specifically alleged how any act or omission of a TCU student, faculty or staff was a substantial factor in bringing about any alleged psychological and physiological injury. [Compl., ¶¶ 234-236]. See Texas Pattern Jury Charges: General Negligence, PJC 2.4 (2016). Because TCU owes no duty to Doe based on the allegations in the Amended Complaint, and the allegations fail to state a plausible claim on breach of duty or proximate cause, her negligence and gross negligence claims should be dismissed. TCU also challenges that Doe has adequately plead a viable negligent hiring and supervision claim. While such a duty may be imposed under Texas law, see, e.g., Mindy M. v. Flagship Hotel, Ltd., 439 S.W.3d, 551, 557 (Tex. App.—Houston [14th Dist.] 2014, DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 20 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 26 of 29 PageID 567 pet. dism’d), Doe does not plead sufficient facts to state a claim that TCU breached either of these duties. Doe fails to allege facts showing TCU negligently hired or retained faculty or staff. Doe fails to allege any credentials or qualifications that were lacking on the part of any TCU actors. Doe does not allege that TCU failed to investigate any qualifications, credentials or prior actions in a manner that would have put TCU on notice that hiring, or continuing to employ, would pose an unreasonable risk of harm to Doe, or otherwise breach of a legal duty owed to Doe. Doe fails to allege any different or additional actions TCU should have taken in connection with hiring, retaining, supervising, or training such individuals. Doe also fails to plead sufficient facts concerning causation. Doe generically alleges TCU was aware of some conduct and failed to act, but Doe’s pleadings do not connect any specific conduct toward her to any factually specific act of negligent hiring or retention. Although she complains about certain conduct of individual defendants, she fails to plead facts connecting the dots to identify how this conduct was causally related to any actor’s improper retention or supervision. Doe simply has not provided sufficient allegations that TCU failed to meet the standard of care for a similar situated university in hiring, retaining, supervising and training these particular employees nor how a breach of that standard proximately caused any harm to Doe. 8. Doe’s assault claim against TCU should be dismissed Doe alleges that TCU ratified Schoolmaster’s alleged sexual assault because it did not adequately punish him and thus ratified his conduct thereby making TCU liable for the tort of assault. [Compl., ¶¶ 156, 262]. Doe pleads the legal conclusion that TCU ratified the assault. [Id.]. Under Texas law, an employer may only be held to have ratified an employee’s tortious conduct if it (1) knows about the employee's acts, (2) recognizes that DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 21 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 27 of 29 PageID 568 the employee's acts will continue if he is retained, (3) does nothing to prevent the ongoing tortious acts, and (4) chooses to retain the employee. Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 652–55 (5th Cir. 1994) (citing Gulf, Colorado and Santa Fe Ry. Co. v. Reed, 80 Tex. 362, 15 S.W. 1105, 1107 (1891)). Doe fails to state a ratification claim against TCU. Doe admits that TCU did take disciplinary against Schoolmaster to prevent another future incident or misunderstanding thus making it impossible for Doe to sustain this theory. [Compl., ¶ 155]. Doe’s allegations confirm that TCU took action against Schoolmaster thereby rebutting her allegation that TCU ratified the alleged assault. Further, Doe does not allege that TCU knew or should have had any reason to know that Schoolmaster would commit future assaults against Doe or other students. Thus, TCU did not “ratify” Schoolmaster’s actions. Even accepting her allegations as true, no ratification can be established, and the assault claim should be dismissed. B. TCU requests that the Court dismiss Doe’s purported declaratory relief Because Doe’s causes of actions against TCU should be dismissed as explained above, TCU additionally requests that the Court dismiss Doe’s request for declaratory relief. Furthermore, Doe has set forth no “legal interests of sufficient immediacy and reality” for declaratory relief. Golden v. Zwickler, 394 U.S. 103, 108 (1969) (holding that “the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment”). She has not invoked the federal declaratory judgment act. 28 U.S.C. § 2201. She makes a passing reference to a “declaration” [Compl., ¶ 307] in the prayer of her Amended Complaint. Additionally, declarations are only proper to address past injuries, and Doe’s DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 22 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 28 of 29 PageID 569 request for declaratory relief for alleged “continuing violations” is improper. American Fidelity & Cas. Co. v. Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co., 280 F.2d 453, 461 (5th Cir. 1960). Alternatively, TCU requests that the Court exercise its discretion and deny Doe’s declaratory relief as Doe’s pleadings are insufficient in her request and need for such relief, thereby failing to put TCU on notice of what relief she seeks. C. TCU requests that the Court decline to exercise supplemental jurisdiction over Doe’s state law claims In the event the Court dismisses Doe’s federal claims over which it had original jurisdiction, TCU requests that the Court decline to exercise supplemental jurisdiction over or dismiss Doe’s remaining state law claims. 28 U.S.C. § 1367(c)(3). District courts are given “wide discretion in determining whether to retain supplemental jurisdiction over a state claim once all federal claims are dismissed.” Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993). Doe’s claims against the individual defendants, including Dr. Turner, Ms. Holland and Dr. Schoolmaster in this case for which she seeks to hold TCU vicariously liable, are solely based upon state law. If the Court dismisses Doe’s federal claims against TCU, TCU requests that the Court decline to exercise supplemental jurisdiction over Doe’s claims against TCU and these individual defendants and dismiss them. III. CONCLUSION TCU requests that Doe No. 2’s case be dismissed. DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 23 Case 3:20-cv-00106-M Document 24 Filed 05/20/20 Page 29 of 29 PageID 570 Respectfully submitted, /s/ George C. Haratsis George C. Haratsis Texas Bar No. 08941000 gch@mcdonaldlaw.com Rory Divin State Bar No. 05902800 rd@mcdonaldlaw.com Jennifer Littman Texas Bar No. 00786142 jnl@mcdonaldlaw.com McDONALD SANDERS, A Professional Corporation 777 Main Street, Suite 2700 Fort Worth, Texas 76102 (817) 336-8651 (817) 334-0271 Fax ATTORNEYS FOR DEFENDANT TEXAS CHRISTIAN UNIVERSITY CERTIFICATE OF SERVICE The undersigned counsel certifies that the above and foregoing Defendant Texas Christian University’s Motion to Dismiss Claims of Jane Doe No. 2 and Brief in Support was served on all counsel of record receiving electronic notice from the court’s ECF notification system. /s/ George C. Haratsis George C. Haratsis I:\09300\0102\14J6162.DOCX DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 24