Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 1 of 30 PageID 571 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. 3 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 25 Filed 05/20/20 Page 2 of 30 PageID 572 TABLE OF CONTENTS DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT .............................................. I TABLE OF CONTENTS .................................................................................................. II INDEX OF AUTHORITIES ............................................................................................. III 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 has not been deprived of any of the benefits of any education program or activity at TCU ....................................................................... 11 3. 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 .................................. 12 4. 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 5. Doe’s Rehabilitation Act and the ADA claims are not plausible ............... 18 6. Doe’s ADA Title III claim for monetary damages and Rehabilitation Act claim for money damages for mental anguish should be dismissed ........ 20 7. Doe’s claims for punitive damages should be dismissed ......................... 20 8. All of Doe’s negligence theories fail to state a claim ................................ 21 B. TCU requests that the Court dismiss Doe’s purported declaratory relief ......... 23 C. TCU requests that the Court decline to exercise supplemental jurisdiction over Doe’s state law claims .................................................................................... 24 II. CONCLUSION .......................................................................................................... 25 CERTIFICATE OF SERVICE ........................................................................................ 25 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE ii Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 3 of 30 PageID 573 INDEX OF AUTHORITIES Cases American Fidelity & Cas. Co. v. Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co., 280 F.2d 453, 461 (5th Cir. 1960) ................................................................ 24 Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) .......................................................... 1, 2, 15 Barnes v. Gorman, 536 U.S. 181, 185 (2002); .............................................................. 21 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ................................................. 2, 5 Boyd v. Tex. Christ. Univ., Inc., 8 S.W.3d. 758, 760 (Tex. App.—Fort Worth 1999, no pet.); ...................................................................................................................... 22 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) .................................... 6 Cummings v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673, 680 (5th Cir. 2020) ......... 20 Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648–52 (1999) .................... 5, 7, 8, 13 Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 190 (2d Cir. 2015) ................................................................................................................... 20 Doe v. Univ. of Tenn., 186 F. Supp. 3d 788 (M.D. Tenn. 2016) ................................... 16 Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000).................................. 15 DT v. Somers Central Sch. Dist., 348 Fed. Appx. 697, 699–700, (2d Cir. 2009)............. 7 Easley v. Univ. of Tex. at Arlington, 984 F. Supp. 2d 631, 636 (N.D. Tex. 2013) ............ 9 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1988)( ............................................ 8 Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 407–08 (5th Cir. 2015) ............... 3, 13 Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) ............................................ 2 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) ............................. 3, 7 Golden v. Zwickler, 394 U.S. 103, 108 (1969)............................................................... 24 Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). .................... 22 Green v. Medco Health Sols. of Tex., L.L.C., 560 Fed. Appx. 398 (5th Cir. 2014)( ....... 19 Green v. Medco Health Sols. of Tex., LLC, 947 F. Supp. 2d 712, 725–27 (N.D. Tex. 2013), ................................................................................................................. 19 Hayut v. St. Univ. of N.Y., 352 F.3d 733.................................................................... 6, 13 Hendrichsen v. Ball St. Univ., 107 F. App’x 680, 684 (7th Cir. 2004). ........................... 13 Herndon v. Coll. Of Mainland, No. G-06-0286, 2009 WL 367500, *29 (S.D. Tex. Feb. 13, 2009)........................................................................................................ 9, 13 Iqbal, 556 U.S. at 678.................................................................................................... 10 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-74 (2005) ............................. 14 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE iii Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 4 of 30 PageID 574 King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 759-61 (5th Cir. 2015). ............. 3 Klocke v. Univ. of Tex. at Arlington, 938 F.3d 204, 210 (5th Cir. 2019) .......................... 11 Lopez v. Webster Cent. Sch. Dist., 682 F. Supp. 2d 274 .............................................. 13 Lozano v. Baylor Univ., No. 6:16-CV-403-RP-AWA, 2017 WL 4324704, at *7 (W.D. Tex. Sept. 28, 2017) ........................................................................................ 22 Manley v. Tex. S. Univ., 107 F. Supp. 3d 712, 724 (S.D. Tex. 2015) .............................. 3 Mawle v. Texas A & M Univ./Kingsville, No. CC-08-64, 2010 WL 1782214, *13, (S.D. Tex. 2010)( ......................................................................................................... 9 Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1997) ............................. 9 Mesa v. City of San Antonio .......................................................................................... 20 Mindy M. v. Flagship Hotel, Ltd., 439 S.W.3d, 551 ...................................................... 23 Mohamed for A.M. v. Irving Indep. Sch. Dist., 252 F. Supp. 3d 602, 627–28 (N.D. Tex. 2017) .............................................................................................................. 5, 10 Neely v. Pseg Tex. Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013)................................ 19 Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993). ....................................................... 25 Pagayon v. Exxon Mobile Corp., 536 S.W.3d 499, 503 (Tex. 2017) ............................. 21 Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89 (2nd Cir. 2011) .......................................................................................................................... 14 Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App’x 180, 183 (5th Cir. 2015) .......................................................................................................................... 20 Pinkerton v. Spellings, 529 F.3d 513, 516–10 (5th Cir. 2009). ...................................... 18 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) ............................................. 2 Plummer v. Univ. of Houston, 860 F.3d 767, 778 (5th Cir. 2017). .................................. 11 Richards v. JRK Prop. Holdings, 405 F. App’x 829, 831 (5th Cir. 2010)). ....................... 5 Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011) ............................................................................................................. 13, 15 Scott v. Shoe Show, Inc., 38 F. Supp. 3d 1343, 1360–61 (N.D. Ga. 2014) ................... 19 Shaikh v. Texas A & M Univ. Coll. of Med., 739 F. App’x 215, 219, 224 (5th Cir. 2018) .......................................................................................................................... 18 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, 5 Swanson v. General Servs. Admin, 110 F.3d 1180, 1189 (5th Cir. 1997); ...................... 5 Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999) ................................................... 21 Tips v. Regents of Texas Tech Univ., 921 F. Supp. 1515, 1518 (N.D. Tex. 1996) ........ 19 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE iv Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 5 of 30 PageID 575 Statutes § 12102(2)(A). ............................................................................................................... 19 20 U.S.C. § 1681(a) ...................................................................................................... 12 28 U.S.C. § 1367(c)(3). ................................................................................................. 24 28 U.S.C. § 2201 ........................................................................................................... 24 29 U.S.C. § 794(a) ........................................................................................................ 18 42 U.S.C. § 12102(1) .................................................................................................... 18 42 U.S.C. § 2000d ......................................................................................................... 12 Rules Rule 12(b)(6) ................................................................................................................... 1 Treatises Texas Pattern Jury Charges: General Negligence, PJC 2.4 (2016) .............................. 22 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE v Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 6 of 30 PageID 576 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. 3’s (“Doe”) claims against TCU in Plaintiffs’ First Amended Complaint [Doc. 19] and brief in support. I. INTRODUCTION AND BACKGROUND Doe 1 enrolled at TCU in the fall of 2016 and received a full-ride Chancellor’s Scholarship. 2 Although she publicly praised TCU as offering a welcoming and caring environment, in her pending lawsuit she alleges TCU engaged in hostile and adverse acts to thwart her academic pursuits because she is a black female [Compl., ¶¶ 2, 177, 191]. 3 Despite her full-ride scholarship and academic success resulting in her graduating 4 from TCU’s Honors College [Compl., ¶¶ 1, 157], Doe now sues, alleging race and disability discrimination and other claims. Doe fails to plead that any alleged improper actions or conduct of TCU was done with an intent to discriminate against her. TCU 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. 2, has joined this lawsuit that was initially filed by Jane Doe No. 1. A Chancellor’s Scholarship is regarded as the most prestigious, valuable academic award offered to a TCU student. The four-year value of the award to each scholarship recipient is more than $170,680. https://chancellorsscholars.tcu.edu/. 3 References to Compl., __ in the Motion are to paragraphs in Jane Doe No. 3’s First Amended Complaint. For example, a reference to [Compl., ¶¶ 85–86] is to paragraphs 85–86 of her Amended Complaint. 4 Doe has graduated from TCU as of May 2020, although TCU’s Spring 2020 graduation commencement ceremony has been postponed until August due to the Coronavirus pandemic. 1 2 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 1 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 7 of 30 PageID 577 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 Doe’s case for failure to state a claim. 1. Doe’s Title VI and Title IX claims should be dismissed Below, 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. DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 2 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 8 of 30 PageID 578 Sch. Dist., 804 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). Moreover, Doe cannot recover damages unless an appropriate person—an official authorized to institute corrective measures—had actual knowledge of the discrimination and responded with deliberate indifference. 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 gladly accepted free tuition for all her years at TCU through its Chancellor’s Scholarship, and now—post graduation—sues contending the scholarship was really “a noose around her neck.” [Compl., ¶¶ 157, 166]. Doe pleads the legal conclusions that she was the victim of intentional discrimination and was unlawfully excluded from participation in and denied the benefits of TCU’s educational programs and activities due to TCU’s supposed deliberate indifference to a hostile educational environment directed at minority females. [See Compl., ¶¶ 57 (pp. 25-26), 157-168, 177, 181, 183-184, 191, 195, 197-198]. Doe bases her intentional discrimination claim of a racially hostile educational environment on the following allegations: Student Interaction. During fall of 2016, 5 an unidentified white male student commented that Doe fulfilled a ‘black girl quota’, and Doe claims that unidentified white students referred to her and other African Americans by the “n-word”; further, she was the recipient of undescribed and non-specific racist, sexist or Doe claims the insults occurred over a three-year period, but the statute of limitations for Title IV and Title IX claims is two years. King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 759-61 (5th Cir. 2015). 5 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 3 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 9 of 30 PageID 579 bigoted remarks in her residence hall. Doe claims her only safe space was the residence hall room she shared with two other female students who are racial minorities. [Compl., ¶ 157]. Controversial Course Work and Class Conversations. Doe states the legal conclusion that she was subjected to the “same conduct” in unidentified classes and she claims unidentified professors’ facilitated class discussions which she now claims were racist and bigoted. 6 [Compl., ¶ 158]. Doe Joins a Christian Ministry Group. Although Doe admits a white female minister associated with an on campus Christian ministry group invited Doe to her home, Doe asserts discrimination on the basis that the minister’s dog is racist. [Compl., ¶ 159]. Faculty Assistant and CRES Ambassador. Doe actively sought an activist/ambassador within the CRES program, in order for CRES students to have a larger voice with faculty in the future development of the CRES program. Doe was selected, and she served as a faculty assistant for three years with an unidentified female CRES professor who was her “mentor”. Doe complains that her mentor overworked her, sent Doe “dozens” of insulting text messages, and took a portion of Doe’s research grant money for the faculty mentor’s own research. [Compl., ¶ 160]. Alumni Attention. Although Doe asserts the legal conclusion that she was excluded from participation and denied educational benefits at TCU, Doe admits she actively participated in university-sponsored functions and school activities. She admits that she was acknowledged at these events and received praise as a result of her success at TCU by TCU faculty, alumni and donors at such functions, but pleads that this praise was discriminatory. Doe admits she was selected to speak at an Honors College event but is unhappy that an unidentified white male who she does not allege was a TCU faculty member or student told Doe that she reminded him of Oprah and kissed her. [Compl., ¶ 161]. Onset of Diabetes. The overt racism Doe experienced at TCU was immediate, so much so, that in her first semester in the fall of 2016, Doe experienced an onset of type-1 diabetes for which she later needed accommodations to succeed at TCU but were never provided. [Compl., ¶¶ 162, 164]. Doe voluntarily enrolled as a student in TCU’s CRES program. CRES is an acronym for Comparative Race and Ethnic Studies, a department within the School of Interdisciplinary Studies that offers programs of study “that encourage students to critically examine racial and ethnic identities as an essential step in becoming ethical citizens and leaders in today’s global community” and examines the “experiences of marginalized communities in the U.S. and beyond….” https://sis.tcu.edu/cres/about/. It is incredulous that Doe, who selected and voluntarily participated for years in CRES as her field of study, now claims that she should have been shielded from controversial classroom discussions and course work inherent in that program. 6 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 4 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 10 of 30 PageID 580 Indifference to Investigating Race Discrimination Complaints. Doe alleges Dr. Darron Turner discouraged her from reporting discrimination [Compl., ¶ 165], and complains Chancellor Boschini did not tell Doe, a TCU Honors College and Chancellor’s Scholar, how to make a report of discrimination with TCU’s Title IX Office. [Compl., ¶ 163]. 7 Doe complains that TCU’s inadequate response to her (and Jane Doe Nos. 1 and 2’s complaints) reveal that TCU is indifferent to a supposed culture of hostility to black females and amounts to an official policy of intentional discrimination. [Compl., ¶¶ 57 (p. 25-26), X, XX, 131-133, 167-168]. Doe fails to sufficiently state a claim of intentional discrimination or deliberate indifference. Her allegations of alleged racial animus and gender bias are conclusory and hence, under Twombly, are legally insufficient. Doe’s mere belief that TCU’s alleged actions were taken for discriminatory or retaliatory 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). TCU may only be liable for student-on-student harassment if (1) the harassment was “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school” (a racially hostile environment), and (2) TCU had actual knowledge, (3) had “control over the harasser and the environment in which the harassment occurs,” and (4) was deliberately indifferent. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644, 650 (1999). 7 The information and the relative ease by which any TCU student can make a complaint with TCU’s Title IX Office or Dr. Darron Turner, its Title IX Coordinator, is explained on-line at https://titleix.tcu.edu/. DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 5 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 11 of 30 PageID 581 With respect to insensitive remarks made by one or more unidentified white students in the fall of 2016, she does not allege with specificity all of the remarks made, by whom, if anyone else was present to corroborate them, or the identity of other African American TCU students who were allegedly targeted. There is no allegation that Doe was the recipient of any racially charged or epithet-laden harassing or offensive writings, mail, flyers, phone calls, texts or physical threats. Doe does not allege facts showing she indicated any alleged remarks were unwelcome, whether she confronted the speakers or how she objected, what she said or did in response to any alleged offending remarks, whether she asked them to stop, or if they did stop; instead, she makes the conclusory, fact-less and non-specific allegation that nothing changed. While Doe goes to great pains in other parts of her Amended Complaint to provide minutiae details of her perceived grievances, she fails to state with respect to the alleged student harassment the content, frequency and descriptive terms of any continuing racial or bigoted remarks directed at Doe occurring at or near her residence hall. In fact, there are no allegations that any of these purported racist or bigoted remarks continued after the fall of 2016. 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’s vague allegations cannot reasonably be considered as stating a claim of severe, pervasive, or continuous remarks. Nor does she allege any facts revealing why it was discriminatory for TCU to assign Doe roommates who were racial minorities. She acknowledges that she sought refuge in her dorm room but fails to state that this DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 6 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 12 of 30 PageID 582 was insufficient to provide her relief from the alleged taunting or that she asked TCU to do anything about it. Significantly, Doe does not allege that she reported any of this conduct and the incidents to any appropriate official of person at TCU with authority to investigate or remedy the alleged conduct. A “Title VI claim cannot be premised merely on constructive notice.” DT v. Somers Central Sch. Dist., 348 Fed. Appx. 697, 699–700, (2d Cir. 2009). 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). TCU cannot be faulted for not intervening to stop the alleged harassing conduct without having been informed by Doe of the conduct. With respect to these allegations, Doe does not allege that TCU refused or failed to do anything for her based on her race or gender. Doe pleads she is unhappy with and class discussions and exchanges between adult faculty and students within the CRES program. [Compl., ¶ 158]. However, she fails to allege facts showing TCU has a legal duty to over-ride adult students’ choices about topics they desire to raise in class. Her allegations about classroom discussions, even if true, do not state a claim for intentional discrimination by TCU. Doe pleads conclusory terms to describe her CRES classroom experience, alleging there was “bigoted conversation” and discussion of “white supremacy”, but pleading these conclusions is not sufficient to assert TCU was deliberately indifferent or that there is a causal connection between CRES classroom discussions and an actionable racially hostile and harassing environment. To be actionable, deliberate indifference must subject a student DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 7 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 13 of 30 PageID 583 to actionable harassment, “that is, the indifference must, at a minimum, cause students to undergo harassment or make them liable to or vulnerable to it.” Davis, 526 U.S. at 645. As a matter of law, Doe’s generalized pleadings about CRES course discussions does not state a claim within the context of a university allowing important and timely controversial discussions within a program like CRES. And from an objective standpoint, can it be reasonably argued that allowing such conversations is disrespectful to or discriminates against a student who voluntarily enrolls in a program like CRES? Federal civil rights laws were not passed to enforce a general civility code or to prevent minor annoyances and insults. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1988)(stating that the standards for judging hostility are rigorous enough to ensure that Title VII does not become a “general civility code”). 8 Her grievances about an outside campus minister and her faculty mentor [Compl., ¶¶ 159-160] do not support an inference of intentional race or gender discrimination. She fails to relate facts that support a theory that the supposed hostility was as a result of race. Interestingly, Doe fails to identify the race of her faculty mentor, which is certainly a relevant inquiry; thus, leaving the court to speculate whether it is more or less plausible to infer discrimination without knowing the race of the faculty mentor. Doe’s suggestion that her work assignments and duties were too difficult, unfulfilling, or that her mentor’s using part of her grant money, without more, fail to state a claim of deliberate indifference on the part of TCU. Further, Doe only offers conclusory allegations that the text messages her faculty mentor sent her were harassing. [Compl., ¶ 160]. Additionally, Doe 8 Doe’s other microaggression complaints such as being a “show piece” at an Honors College event and having to be in the company of an unidentified drunk white male who paid her a sincere compliment in that she ‘speaks well’ and is ‘articulate’ [Compl., ¶ 161] fail for the same reasons. DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 8 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 14 of 30 PageID 584 fails to plead any facts showing any nearly identical white students were treated differently by the minister or the mentor. “[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 v. Coll. Of Mainland, No. G-06-0286, 2009 WL 367500, *29 (S.D. Tex. 2009) (citation omitted); Mawle v. Texas A & M Univ./Kingsville, No. CC-08-64, 2010 WL 1782214, *13, (S.D. Tex. 2010)(Title VI claimant must show that he was treated differently from similarly situated students who are not members of the protected class to raise an inference of intentional discrimination). 9 Even assuming that Doe has plead facts showing unfair treatment by fellow students or unfair decisions by Doe’s faculty mentor, 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 at 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 any unfavorable treatment must automatically be based on her race or gender. Id. 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 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. 9 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 9 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 15 of 30 PageID 585 Her conclusory assertion that TCU subjected to her a “foray of hate” [Compl., ¶ 163] and that these actions are the result of institutional racism is pure conjecture. Doe’s assertions that the complained of actions were motivated by racial or gender bias “are exactly the type of ‘labels and conclusions,’ and ‘the-defendant-unlawfully-harmed-meaccusations’, which are insufficient to state a claim for relief or survive a motion to dismiss.” See Easley, 984 F. Supp. 2d at 636 (quoting Iqbal, 556 U.S. at 678). Doe pleads conclusory allegations of racism and gender bias in TCU’s programs, but fails to support these conclusions with sufficient facts. Nowhere in the Amended Complaint does Doe plead that any TCU faculty member, staff member or official with authority made, uttered, or communicated any derogatory or racial epitaphs, or negative comments about her race or gender that would support intentional discrimination. In order to adequately plead a Title VI claim, a plaintiff must include allegations of acts of intentional discrimination committed by a defendant. Mohamed v. Irving Indep. Sch. Dist., 252 F. Supp. 3d 602, 627 (N.D. Tex. 2017). Even assuming Doe has sufficiently plead that a TCU employee intentionally discriminated against Doe, as, for instance if the unidentified faculty mentor’s treatment of Doe was based on Doe’s race or gender, her pleadings still are insufficient because she not plead facts showing TCU official had actual knowledge of the discrimination and responded with deliberate indifference. Id. at 628. She fails to sufficiently plead facts indicating that her race or gender was a substantial motivating factor in any alleged adverse education action, and she fails to sufficiently plead any TCU official had actual knowledge of any alleged discrimination much less that they responded with deliberate indifference. DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 10 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 16 of 30 PageID 586 Doe alleges that she sent “a detailed nine-page written report” to Dr. Turner on June 6, 2019, supposedly detailing her experiences but she fails to allege she asked Turner to investigate or do anything regarding the report. [Compl., ¶ 165]. Doe did not attach the report. Doe does not plead which specific instances of alleged discrimination in this lawsuit were allegedly chronicled in her report to Turner. Doe pleads that Turner treated her grievances as simply being placed ‘on record’ [Id.] but she does not assert this was unwelcome to her. She does not deny that she told Turner that she only wanted the information in the report to be “on record” and she does not deny that she told Turner she did not want an investigation. Based on her pleadings, it is unclear what Turner had actual knowledge of, and to the extent that her report was considered ‘on record’ only, whether this was her desire at the time. In other words, she fails to plead Turner’s actions were clearly unreasonable under the known circumstances. Klocke v. Univ. of Tex. at Arlington, 938 F.3d 204, 210 (5th Cir. 2019). “Deliberate indifference to constitutional rights is a very high standard of misconduct.” Plummer v. Univ. of Houston, 860 F.3d 767, 778 (5th Cir. 2017). Moreover, to the extent that Doe now asserts complaints of alleged harassment occurring during the fall of 2019, TCU would have had no opportunity to address any such complaints based on the report of June 6, 2019, nor does Doe allege that she raised concerns over any fall 2019 events to the Title IX Office, Dr. Turner, or any other TCU reporting official. Consequently, none of these allegations from the fall of 2019 until the present can serve as a basis for Title VI or Title IX liability. 2. 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 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 11 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 17 of 30 PageID 587 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 has remained a student at TCU and received a full scholarship throughout her time at TCU. [Compl., ¶ 166]. Doe was admitted into TCU’s Honors College and she makes no allegation that she did not graduate as an Honors College student. It is axiomatic that by having graduated from TCU, Doe successfully fulfilled her degree requirements. She makes no allegation that she was barred from any class or course or was otherwise refused or prevented entry as to any course of study or curriculum, or into any classroom, dormitory, lecture, function, event, or activity, directly or indirectly associated with receiving an education. 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. While she suggests she had difficulty turning in assignments or attending class, [Compl., ¶ 166] these allegations are insufficient to establish the denial or exclusion of an education benefit. 3. 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 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 12 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 18 of 30 PageID 588 must show that racial harassment was so severe, pervasive, 10 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. Doe does not allege that she received poor grades, did not receive credit in any course, was forced to withdraw from a course or change her area of study, delay her education, or was otherwise intentionally excluded or refused participation or involvement in any of her scholastic endeavors and activities. 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 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). 10 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 13 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 19 of 30 PageID 589 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”). 11 Doe’s pleadings do not sufficiently allege that she sustained a negative impact that resulted in the denial of educational benefits at TCU. 4. 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. 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- 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 passing conclusory reference to “retaliation” in paragraph 168 which serially follows allegations asserted by Doe that are raised and discussed in this Motion. 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. 11 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 14 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 20 of 30 PageID 590 184, 186]. 12 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 conclusion that TCU’s alleged lack of commitment and indifference to prior reports or complaints of racial discrimination by Doe 1 or Doe 2 13 show a policy of deliberate indifference to race discrimination, which creates a hostile educational environment. 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. 15 Civ. 0517 (NSR), Doe points to allegations of complaints made by Doe 1 and Doe 2 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 the allegations to not support Doe’s contention. In the case of Doe 2, Doe’s Amended Complaint admits that Dr. Turner did investigate Doe 2’s report as did other administrators at TCU, that TCU retained an outside investigator, the investigation was completed, and remedial measures against Dr. Schoolmaster were instituted. [Compl., ¶¶ generally 144-145, 147, 152, 154-156]. Action was taken and the response was effective. Doe does not allege that after Schoolmaster received his sanction that he engaged in further harassment. Doe may disagree with TCU’s response to Doe 2’s complaint, but it was not deliberately indifferent to Doe 2’s report. 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). Similarly, Doe 1’s complaints, which occurred long after the relevant time period of Doe’s alleged instances of mistreatment were also investigated and the decision letter issued. [Compl., ¶ 131]. 13 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 mady by a female African-American professor in August 2018 and May 2019 and another AfricanAmerican 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. 12 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 15 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 21 of 30 PageID 591 2016 WL 8650463, at *8 (S.D.N.Y. 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 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., 2018 WL 6523721 at *1 (S.D.N.Y. 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 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. DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 16 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 22 of 30 PageID 592 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. Nowhere in the complaint does Doe allege how TCU’s Title IX office handling of Doe 2’s complaint against Schoolmaster for an inadvertent touching could set the stage for Doe to experience alleged mistreatment on the basis of race. Further, Doe fails to relate how Doe. 1’s complaints about the 2019 Washington D.C. summer program impacted her alleged experience of discrimination allegedly originating almost 3 years earlier, during the fall of 2016. Doe 1’s complaints which TCU’s Title IX office has investigated involved events and occurrences after Doe had submitted her nine-page complaint to Dr. Turner on June 6, 2019. [Compl., ¶ 165]. Doe alleges TCU created and allowed a racially hostile educational environment 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 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 17 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 23 of 30 PageID 593 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. 5. Doe’s Rehabilitation Act and the ADA claims are not plausible For Doe to maintain a claim under either Section 504 of the Rehabilitation Act or the ADA. Her burden is to show she: (1) has a qualifying disability; (2) is “otherwise qualified” to participate in the educational program; and (3) was excluded on the basis of her disability. Shaikh v. Texas A & M Univ. Coll. of Med., 739 F. App’x 215, 219, 224 (5th Cir. 2018). Under Section 504, she must allege she was discriminated against solely on the basis of her disability. 29 U.S.C. § 794(a). Under the ADA, she must show her alleged disability was a motivating factor in the exclusion. Pinkerton v. Spellings, 529 F.3d 513, 516–10 (5th Cir. 2009). Doe alleges her disability was type 1 diabetes. [Compl., ¶¶ 57, 162, 164, 165, 205]. 14 Assuming for the sake of argument that Doe’s type 1 diabetes is a disability, Doe A disability is an impairment which substantially limits one or more major life activities, 42 U.S.C. § 12102(1), such as learning, thinking, communicating, or working, among other activities. Id., § 12102(2)(A). 14 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 18 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 24 of 30 PageID 594 fails to allege how this condition resulted in her being “excluded,” from any program or activity at TCU. Doe’s pleading conclusively demonstrate she was not excluded. Where a decision-maker has no knowledge of a person’s disability, it is impossible for that decision-maker to be motivated to intentionally discriminate based on disability. Scott v. Shoe Show, Inc., 38 F. Supp. 3d 1343, 1360–61 (N.D. Ga. 2014). Doe fails to plead that any of the decision-makers, about whom she complains, had knowledge of her diabetes. Doe’s failure to accommodate claim should be dismissed. She pleads in a conclusory fashion that she was “denied accommodations.” [Compl. ¶¶ 205, 217]. She must establish: (1) she was a qualified individual with a disability; (2) the disability and limitations were known; and (3) the covered institution failed to make reasonable accommodations for such known limitations. Neely v. Pseg Tex. Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013). In considering an accommodation request, an educational institution is not required to make fundamental modifications in program requirements, provide services of a personal nature, or provide aids or services which will result in undue financial hardship or lowering program standards. Tips v. Regents of Texas Tech Univ., 921 F. Supp. 1515, 1518 (N.D. Tex. 1996). Courts have routinely held that a defendant cannot be responsible for failing to accommodate where no specific accommodations were requested by the plaintiff. Green v. Medco Health Sols. of Tex., LLC, 947 F. Supp. 2d 712, 725–27 (N.D. Tex. 2013), aff'd sub nom. Green v. Medco Health Sols. of Tex., L.L.C., 560 Fed. Appx. 398 (5th Cir. 2014)(holding that to establish a prima facie case for failure to accommodate under the ADA, an individual must show that he or she requested a specific and reasonable DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 19 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 25 of 30 PageID 595 accommodation from her employer and a reasonable accommodation was denied). Similarly, in Mesa v. City of San Antonio, the court granted an employer’s motion to dismiss the plaintiff’s failure to accommodate claim where the plaintiff in his amended complaint merely pled that “Defendant intentionally retaliated against Claimant based on his requests for accommodation.” No. CV-SA-17-CA-654-XR, 2017 WL 5924263, at *4 (W.D. Tex. Nov. 29, 2017). The Mesa court agreed with the employer defendant in that the employee’s complaint failed to allege any facts indicating he requested a specific accommodation or that a reasonable accommodation was denied. Id. Doe’s disability accommodation pleadings are deficient, because she fails to plead the accommodation she sought. The plaintiff has the burden of identifying “the existence of some accommodation” necessary for the plaintiff to meet the essential requirements of the program at issue. Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 190 (2d Cir. 2015) (citation omitted). Doe has failed to do so; consequently, her claims of disability discrimination should be denied. 6. Doe’s ADA Title III claim for monetary damages and Rehabilitation Act claim for money damages for mental anguish should be dismissed Doe appears to plead for the recovery of emotional distress damages (“psychological and physiological harm”) under ADA Title III and the Rehabilitation Act. [Compl., ¶¶ 210, 218]. The Fifth Circuit has held there is no claim for money damages by a private individual under Title III of the ADA. Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App’x 180, 183 (5th Cir. 2015). Mental anguish damages are not available under the Rehabilitation Act. Cummings v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673, 680 (5th Cir. 2020). 7. Doe’s claims for punitive damages should be dismissed DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 20 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 26 of 30 PageID 596 To the extent that Doe seeks to obtain 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 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 or under the other federal discrimination statutes cited by Doe in the Amended Complaint. See Barnes v. Gorman, 536 U.S. 181, 185 (2002); Doe 1 v. Baylor Univ., No. 6:16-CV-173RP, 2020 WL 1557742, *6 (W. D. Tex., April 1, 2020). 8. 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. 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 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 21 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 27 of 30 PageID 597 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 of placing the burden on the defendant. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). None of Doe’s 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. 6:16-CV403-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. [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 DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 22 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 28 of 30 PageID 598 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, 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. B. TCU requests that the Court dismiss Doe’s purported declaratory relief TCU additionally requests that the Court dismiss Doe’s request for declaratory relief. Doe has set forth no “legal interests of sufficient immediacy and reality” for DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 23 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 29 of 30 PageID 599 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 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 in this case for which she seeks to hold TCU vicariously liable are solely based upon state law, and if the Court dismisses Doe’s federal claims against TCU, TCU requests that the Court decline to DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 24 Case 3:20-cv-00106-M Document 25 Filed 05/20/20 Page 30 of 30 PageID 600 exercise supplemental jurisdiction over Doe’s claims against TCU and the individual defendants and dismiss them. II. CONCLUSION TCU requests that Doe No. 3’s case be dismissed. 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 Motion to Dismiss Claims of Jane Doe No. 3 and Brief in Support of Defendant Texas Christian University 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\14K2426.DOCX DEFENDANT TEXAS CHRISTIAN UNIVERSITY’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 3 AND BRIEF IN SUPPORT PAGE 25